American Medical Response

National Labor Relations Board - Administrative Judge Opinions

Aug 23, 2019

20-CA-234200 (N.L.R.B. Aug. 23, 2019)

JD(SF)–26–19
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AMERICAN MEDICAL RESPONSE WEST
and Case 20-CA-234200
UNITED EMS WORKERS,
AFSCME LOCAL 4911
Min-Kuk Song, Esq.
for the General Counsel
Daniel F. Fears, Esq.
Payne & Fears, LLP.
for the Respondent
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This case was tried before me in
San Francisco, California on June 18, 2019, based upon a Complaint and Notice of Hearing
(“Complaint”) dated March 25, 2019. The Complaint alleges that American Medical Response
West (“Respondent”) violated Section 8(a)(1) and (5) of the National Labor Relations Act (“the
Act”) by failing to provide, and delaying in providing, United EMS Workers, AFSCME Local
4911 (“Charging Party” or “Union”) with certain information that was necessary and relevant to
the Union’s performance of its duties as the collective bargaining representative of Respondent’s
employees. Respondent denies the allegations.
Based upon the entire record, including my observation of witness demeanor, and after
considering the briefs filed by the General Counsel and Respondent, I make the following
findings of fact and conclusions of law.1
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a California corporation, maintains a facility in San Francisco, California,
where it provides ambulance and wheelchair van transportation services. It derives annual gross

1 Unless otherwise noted, witness demeanor was the primary consideration used in making all credibility resolutions.
Testimony contrary to my findings has been specifically considered and discredited.
JD(SF)–26–19
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revenues in excess of $500,000, while purchasing and receiving goods and services valued in
excess of $5,000 from points originating outside of the State of California. Respondent admits,
and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent also admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.2 (GC. 1(d), 1(f); JX. 1)5
II. FACTS
A. General Background
10
The Union represents a bargaining unit of Respondent’s Northern California based
employees including paramedics, drivers, dispatchers, and emergency medical technicians
(“EMTs”). There are about 2,200 unit employees throughout Northern California and 300
working out of Respondent’s San Francisco office. Casey Vanier (“Vanier”) serves as the
Union’s representative responsible for overseeing the bargaining unit. Nick Cheatham 15
(“Cheatham”) is a Union shop steward who works in Respondent’s San Francisco office.
Rodney Brouhard (“Brouhard”) works as Respondent’s San Francisco operations manager; he
has held this position for about five years. Brouhard has worked a total of 29 years for
Respondent, most of which was spent working as a member of the bargaining unit; he even
served as a shop steward. (Tr. 24–25, 88–90, 102–03, 125; GC. 1(d), 1(f); JX. 1) 20
Respondent and the Union were parties to a collective-bargaining agreement whose terms
ran from January 1, 2015 through June 30, 2018 (“2015 CBA”). On June 28, 2018, the parties
signed an agreement extending the terms of the 2015 CBA through August 31, 2018; the
agreement was not further extended. From October 2018 through March 2019 the parties were 25
in the process of negotiating a successor agreement. Thereafter, they reached agreement on a
successor contract, and gave retroactive effect to the terms of the new agreement so that it was
effective from September 1, 2018, through August 31, 2022 (“2018 CBA”). (JX. 1–3; R. 1)
Both the 2015 CBA and the 2018 CBA contain just cause provisions regarding employee 30
discipline with the following language:
5.1 Corrective Action and Discharge
The Employer shall have the right to issue corrective action and discharge 35
employees for just cause.
5.2 Procedure
The Employer and the Union recognize the intent of corrective action is to 40
remedy performance problems and modify behavior. While the Employer will
attempt to accomplish those objectives through training and progressive

2 Transcript citations are denoted by “Tr.” with the appropriate page number. Citations to the General Counsel,
Respondent, and Joint Exhibits are denoted by “GC,” “R,” and “JX” respectively. Transcript and exhibit citations
are intended as an aid only. Factual findings are based upon the entire record and may include parts of the record
that are not specifically cited.
JD(SF)–26–19
3
corrective action, the Employer reserves the right to issue corrective action, up to
and including discharge, based on just cause and the circumstances of each case.
Serious or repeated offenses may call for corrective action commensurate with the
offense or totality of the circumstances and not necessarily based upon the
premise of progressive corrective action.5
Article 6 of both CBAs outline the parties’ grievance and arbitration mechanism. Absent minor
changes which are not relevant here, the wording in Article 6 is identical in both agreements.
Article 6 allows for either the employee or the Union to file a grievance within 15 days of the
occurrence giving rise to the grievance. It then provides for a three-step grievance process 10
culminating with binding arbitration.
Article 18 of both CBAs is titled “No Discrimination/Harassment.” The language in
Article 18 is identical in both the 2015 CBA and the 2018 CBA and reads as follows:
15
18.1 Gender Intent
Whenever words denoting a specific gender are used in this Agreement they are
intended and shall be construed to mean any gender with which a worker
identifies.20
18.2 Non-Discrimination/Harassment/Retaliation
The Employer and the Union agree that neither party shall discriminate, harass, or
retaliate against any person because of race, color, sex, religion, age, disability, 25
national origin, citizenship, veteran status, sexual orientation, or any other status
protected by federal, state or local law.
The Union acknowledges that the Employer may be obligated to reasonably
accommodate disabled employees in accordance with the American with 30
Disabilities Act. The Union agrees that the Employer may undertake such
reasonable accommodations notwithstanding the terms and conditions of this
Agreement except for seniority rights which shall be recognized and respected
when evaluating the reasonableness of any accommodation.
35
18.3 Grievance/Arbitration Election and Waiver
Grievances alleging unlawful discrimination or harassment in violation of this
Agreement may be pursued and resolved through the grievance and arbitration
procedure contained in this Agreement, provided that all requirements for the 40
filing and maintenance of a grievance through arbitration are satisfied and that the
employee and/or Union have not initiated or filed a complaint or legal action
based on the same event(s) with a federal, state or local agency or court. The
initiation or filing of a complaint or legal action alleging unlawful discrimination
or harassment with a federal, state, or local agency or court shall waive the 45
employee’s and/or Union’s right to pursue the same matter as a grievance
JD(SF)–26–19
4
pursuant to this Agreement. Any grievance alleging unlawful discrimination or
harassment shall be deemed withdrawn at any step of the grievance and
arbitration procedure upon the filing of such a complaint or legal action.
Employees and the Union are not required to exhaust the grievance and arbitration
procedure of this Agreement before initiating or filing a complaint or legal action 5
alleging unlawful discrimination or harassment with any federal, state, or local
agency or court.
B. The discharge of Karis Arce and the Union’s information requests
10
1. Background
Karis Arce (Arce) worked for Respondent as a San Francisco based EMT. She was a
member of the bargaining unit until her discharge on November 6, 2018 for making certain
statements on Facebook. The Union did not believe that Arce’s termination met the just cause15
standard outlined in the CBA, so Vanier worked with Arce and Cheatham to file a grievance
over her termination. On November 18, 2018, Cheatham emailed the grievance to Brouhard, and
sent a copy to Vanier. (Tr. 25–26; R. 2; JX. 1, 4)
The grievance was filled-out on a pre-printed form used by the Union, and states that it 20
was being filed by the Union on Arce’s behalf. In the box on the form asking for a “Description
of Grievance” the Union wrote the following:
The Discipline issued to the Grievant was without Just Cause. Evidence of lack
of Just Case is shown through severity of Discipline without precedent, 25
progressive discipline, or adequate warning of probable consequences of their
conduct. [sic]
In the box on the grievance form that reads “Applicable Contract provisions include, but are not
limited to, section(s),” the Union wrote “Article 5.1 Just Cause, Article 5.2 Procedure.” Finally, 30
at the bottom of the grievance form the Union requested the following information that it deemed
relevant and necessary to process the grievance:
Copy of Discipline given to Grievant, Evidence relied upon during the
investigation, Other Acts of Discipline involving social media with regards to 35
Employer, History of previous Disciplines to Grievant prior to current Grievance.
All interviews or statements/evidence collected during investigation of person
filing complaint and employee. [sic]
In his email to Brouhard, Cheatham also proposed certain dates the parties could meet to discuss 40
the grievance. Once Brouhard received the email, he reached out to Cheatham to discuss dates
for a meeting. (Tr. 26–28, 48, 92; JX. 4–5)
On Wednesday, November 28, 2018, the parties exchanged a series of emails regarding
the grievance and the Union’s information request. In the first email Cheatham wrote Brouhard 45
JD(SF)–26–19
5
asking to reschedule their grievance meeting to December 6, as the Union needed additional time
to prepare. Cheatham also asked Brouhard:
[W]ho would I need to talk to about getting those grievance materials requested?
This includes: 1) Copy of Discipline given to Grievant; 2) Evidence relied upon 5
during the investigation; 3) Other Acts of Discipline involving social media with
regards to Employer; 4) History of previous Disciplines to Grievant prior to
current Grievance; 5) All interviews or statements/evidence collected during
investigation of person filing complaint and employees. [sic]
10
Brouhard replied to Cheatham by email saying that he was on leave from December 4–7, and if
Cheatham could not meet during the current week, they could meet at another time. However,
Brouhard noted that he needed Cheatham to “grant an extension for us to do that.” As for the
information request, Brouhard wrote that he was home sick, but when he returned to work “I will
scan everything to your email.” Cheatham replied saying that he would coordinate the matter 15
with the Union, and it seemed like they would have to meet to discuss the matter the week
following Brouhard’s leave. (JX. 5)
2. Arce contacts the State of California over her discharge
20
Arce retained an attorney who sent Brouhard a letter dated November 28, 2018; Brouhard
received it the next day. The letter informed Respondent that Arce had contacted that State of
California Division of Labor Standards Enforcement (DLSE) and the State of California
Department of Fair Employment and Housing (DFEH) over her discharge and asserted that that
the reasons Respondent advanced for Arce’s discharge were pretext.3 The letter further states:25
I am currently enclosing:
1) a retaliation claim which was filed with the State of California Division
of Labor Standards Enforcement (DLSE) for her comments made on the 30
internet which were supporting her rights under the labor code for non-
exempt employees to get rest breaks; plus,
2) a claim for violations of FMLA accommodation and disability
discrimination, retaliation and wrongful termination, since she was 35
specifically warned as a result of taking PTO and/or FMLA leave for her
disability was her Final Warning of being absent any days from work (sick
or not) would result in termination instructing her she ‘could not call in
sick for the next two years’ filed with the State of California Department
of Fair Employment and Housing (DFEH). [sic]40

3 The DLSE is a California “state agency that adjudicates wage claims, investigates discrimination and public-work
complaints, and enforces the Labor Code and Industrial Welfare Commission orders.” Louis v. McCormick &
Schmick Rest. Corp., 460 F. Supp. 2d 1153, 1162 (C.D. Cal. 2006) (citing Cal. Labor Code §§ 82–83). The DFEH
is a “California agency responsible for enforcing various state and federal employment discrimination laws.”
Peterson v. State of Cal. Dep’t of Corr. & Rehab., 319 F. App’x 679, 680 (9th Cir. 2009). See also Cal. Gov’t Code
§ 12930 (West 2019).
JD(SF)–26–19
6
The letter also contains twelve pages of enclosures, including printouts from the DLSE and
DFEH confirming submissions to those agencies.4 (Tr. 29, 122; JX. 6)
3. Respondent pronounces the Union’s grievance as being withdrawn5
Between November 29 and December 4, 2018 Brouhard and Cheatham exchanged a
series of emails about Arce’s grievance, culminating with Brouhard pronouncing that
Respondent had deemed the grievance withdrawn. In the first email, sent on November 29,
Cheatham asked Brouhard whether they could meet on December 12, 13 or 14 for Arce’s 10
grievance meeting. Brouhard replied the next day saying he was open to meet on December 12,
but was waiting for Vanier to get back to him regarding the grievance, and recommended that
Cheatham speak with Vanier before they set a firm meeting date. On December 3, Cheatham
replied to Brouhard asking to get the information the Union had requested in the grievance. On
December 4, Brouhard replied saying that Respondent had received a notice from Arce’s lawyer 15
saying that he had filed complaints with both state and federal agencies regarding Arce’s
discharge. In his email, Brouhard then quotes from Section 18.3 of the CBA, and states that
“[t]his grievance has been withdrawn.” (JX. 7)
Cheatham forwarded Brouhard’s email to Vanier, who then emailed Brouhard on 20
December 6. Vanier sent Brouhard two emails that day. In the first email Vanier asks Brouhard
for a complete copy of Arce’s personnel file, and includes in the email a declaration signed by
Arce authorizing Vanier to obtain the file. In the second email Vanier states that he received
Brouhard’s email to Cheatham and further says that the “Union has made no mention of
withdrawing our grievance.” He then asks whether the Union should interpret Brouhard’s email 25
to mean that Respondent would not meet with the Union regarding the grievance on December
12 as they had scheduled. Regarding the Union’s information requests, Vanier wrote that,
regardless of Respondent’s position on the grievance meeting, the Union was still entitled to the
information. (Tr. 30–31; JX. 7–8)
30
Brouhard responded to Vanier’s email the night of December 6 and copied Cheatham
with his response. In his email Brouhard apologized if he had previously been unclear. He went
on to recount that Respondent was notified that Arce filed a complaint with the DFEH alleging
the company “subjected her to disability discrimination and alleging she was wrongfully
terminated in retaliation for utilizing FMLA/CFRA leave.” Therefore, Brouhard stated “it is 35
very clear that Section 18.3 of the CBA applies and thus ‘the grievance is deemed withdrawn.’”
Brouhard offered to have an informal meeting, as a “good faith courtesy” to discuss issues
regarding Arce. However, he said the company would not consider the “meeting a grievance
meeting because . . . the grievance was ‘deemed withdrawn’ when Ms. Arce filed her DFEH
complaint and therefore there is no basis for a grievance meeting under the grievance/arbitration 40
section of the CBA.” Regarding the Union’s information requests, Brouhard stated his
willingness to give the Union a copy of Arce’s termination notice “as a courtesy,” but said that
Respondent was declining to provide any of the other information the Union requested “because

4 The letter’s enclosures show that Arce’s attorney had only filed an “intake form” with the DFEH, and that an initial
intake interview was scheduled for May 21, 2019. (JX. 6, p. 6) Indeed, it was not until May 22, 2019, that a formal
complaint of discrimination was filed with the DFEH over Arce’s discharge. (JX. 16)
JD(SF)–26–19
7
it is no longer relevant to any pending grievance.” Brouhard ends the email by asking whether
the Union wanted to have an “informal meeting” on December 12. (JX. 7)
Cheatham emailed Brouhard on December 10, recommending the parties meet on
December 14 “to go over the details and potentially hammer out any misunderstandings” 5
regarding Arce. In the email, Cheatham again asked for Arce’s termination notice. The parties
ultimately agreed to meet on December 14, at 10:00 a.m. (JX. 9)
4. December 14 meeting between the parties
10
The parties met to discuss Arce’s grievance on December 14, 2018, in a conference room
at Respondent’s San Francisco office. When Vanier and Cheatham arrived for the meeting, they
interrupted another meeting that Brouhard was having with his supervisors. Cheatham told those
present that the Union was there for a step 1 grievance meeting, and the various supervisors left;
Brouhard, Vanier and Cheatham then began their meeting. Vanier and Cheatham presented the15
Union’s case in support of their argument that Arce was not terminated for just cause. Brouhard
said his hands were tied, and that the grievance was withdrawn. He further explained it was the
company’s position that Arce waived her right to file a grievance, pursuant to Section 18.2 and
18.3 of the CBA, when her attorney filed a discrimination complaint against the company with
the DFEH. The Union argued that they were not involved in whatever action Arce and her 20
attorney were undertaking, and that they were just pursuing the allegations contained in the
grievance. Also, Vanier told Brouhard that the Union still needed to get the information it had
requested. Brouhard said that he needed to speak with the company’s legal counsel and would
contact them afterwards. However, Brouhard did provide the Union with a copy of Arce’s
termination letter; this was the first time Respondent had provided this document to the Union. 25
Before the meeting ended, the parties discussed a possible settlement of the grievance, with the
Union asking whether Respondent would accept Arce’s resignation in lieu of her being fired.
Brouhard said the company would be willing to consider the proposal. Ultimately, these
settlement discussions went nowhere, as Arce informed the Union that she was not interested in
the proposed settlement. (Tr. 33–34, 51, 56, 97–99) 30
5. Continued emails after the December 14 meeting
After the parties met on December 14, they continued to exchange emails over Arce’s
grievance and the Union’s remaining information requests. On December 21, 2018, Vanier 35
emailed Brouhard, with a copy to Cheatham, thanking Brouhard for the December 14 meeting,
referring to it as a “the step 1 grievance meeting on Karis Arce’s case.” In the email, Vanier also
asks Brouhard about the status of the Union’s request for Arce’s personnel file, and whether it
would be produced to the Union along with the other information they requested in the
grievance. Vanier ends his email saying that he was looking forward to Brouhard’s “step 1 40
response to our meeting.” Brouhard responded by email on December 21, saying he was “still
working on both questions,” that he would probably not have any answers until after Christmas,
and would let Vanier know “as soon as I get the gears moving.” (JX. 9)
On Friday, January 4, 2019, Vanier emailed Brouhard saying he wanted to “follow up”45
and that the Union wanted the information they requested “as soon as possible.” He also asked
JD(SF)–26–19
8
Brouhard for “the step 1 grievance meeting response as well.” Brouhard replied the same day by
email saying that he had some personal issues come up, was working on Arce’s “grievance today
and I should have an answer Monday.” (JX. 9)
On Monday, January 7, 2019, Brouhard emailed Vanier and Cheatham a letter regarding 5
Arce’s termination and grievance. Consistent with his December 6, 2018 email, in the letter
Brouhard details the background involving Arce’s lawyer providing Respondent notice of the
filing of a complaint with the State of California alleging the company subjected Arce to
disability discrimination and claiming she was wrongfully terminated for using leave protected
by the Family Medical Leave Act and the California Family Rights Act. Brouhard’s letter 10
further states that, “[p]er section 18.3 of the CBA, Ms. Arce’s decision to act civilly withdraws
any grievance.” In the letter, Brouhard also says that Arce was “free to request an in-person
review of her employee file . . . per section 23.8 of the CBA,” and ends the letter saying “[p]lease
consider this communication as the Company response in this matter.” (JX. 10)
15
On January 8, 2019, Vanier emailed Brouhard, with a copy to Cheatham, thanking
Brouhard “for your response to our step 1 grievance meeting,” and saying that he and Cheatham
would be reaching out to schedule “a step 2 grievance meeting in the very near future.” In the
email Vanier also says that the Union was still waiting to receive all the information they
requested and asks Brouhard for an update; it does not appear that Brouhard responded to 20
Vanier’s email. (JX. 11)
On January 17, 2019, Cheatham emailed Brouhard, with a copy to Vanier, saying that the
Union had decided to move forward with a Step 2 grievance meeting and would be contacting
Brouhard “shortly to decide on what time would work best for all of us.” In the email, Cheatham25
asks that Brouhard send the Union the information they requested “as soon as possible.” As for
Arce’s grievance, Cheatham said that “[t]here is no room for negotiation on whether or not this
qualifies as a matter now requiring a Step 2 grievance meeting and [we] are moving forward as
such.” Again, it does not appear from the record that Brouhard replied to this email. (JX. 12)
30
On January 24, 2019, Cheatham sent Brouhard another email, with a copy to Vanier. The
email, whose subject matter was “Karis [A]rce step 2 meeting update,” reads as follows:
I’m tired of pussyfooting around. I will be sending an email every hour from now
until you respond confirming you received our request for employee documents 35
as well as setting up a meeting time, specifically next Wednesday at 10 AM. The
ball is in your court.
Brouhard replied by email the same day saying that, while he appreciated Cheatham’s passion,
he did not appreciate his language. Brouhard further said that he had spoken to Vanier the 40
previous day, and the company’s position that the grievance was withdrawn pursuant to Section
18.3 of the CBA had not changed. Brouhard explained that Arce had “chosen to act civilly and
her attorney is in communication with” the company. Therefore, according to Respondent,
because “there will be no grievance in this matter, there is no further information to share with
the union.” (JX. 13)45
JD(SF)–26–19
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It is undisputed that, other than Arce’s termination notice, which the Union received on
December 14, 2018, the Union did not receive any of the other information that it had requested.
As for the status of the grievance itself, Vanier testified that it was on hold pending receipt of the
information; no demand for arbitration had been made. (Tr. 76)
5
III. ANALYSIS
A. Legal Standard.
An employer is obligated under Section 8(a)(5) of the Act to supply a union, upon 10
request, with information that will enable it to negotiate effectively and perform its duties as the
collective-bargaining representative of the employer’s workforce. Teachers College, Columbia
University, 365 NLRB No. 86, slip op. at 4 (2017), enfd. 902 F.3d 296 (D.C. Cir. 2018). This
includes information requested by the union for the purposes of processing and evaluating
grievances, and information needed to properly administer a collective-bargaining agreement. 15
Id. When the information requested concerns employees in the bargaining unit, it is deemed to
be presumptively relevant as such information goes “to the core of the employer-employee
relationship.” Id. When the information sought concerns nonunit employees, “the union has the
burden of establishing relevance.” Id. “In either situation, the standard for relevance is the
same: a liberal discovery-type standard.” Id. (internal quotations omitted). Potential or 20
probable relevance is enough to require the employer to provide the information requested. Id. at
fn. 12 (citing Shoppers Food Warehouse Corp., 315 NLRB 258, 259 (1994)).
B. The relevance of the Union’s information requests
25
The Board has found the type of information that the Union requested here to be relevant,
as it relates specifically to a grievance filed over the termination of a unit employee. Thus, the
Union’s requests for Arce’s personnel file, any disciplinary notices issued to Arce, and
disciplines issued to other employees for similar infractions, are relevant. Grand Rapids Press,
331 NLRB 296, 299 (2000) (collecting cases and noting the Board has required employers to 30
provide unions with personnel files of employees, copies of disciplines, and printouts showing
disciplines issued to other employees); see also St. Francis Regional Medical Center, 363 NLRB
No. 69, slip op. at 22 (2015) (union’s request for comparative discipline and employer’s
investigations of similar allegations is relevant to establishing potential disparate treatment, even
where the request seeks information for nonunit employees). The same is true regarding the 35
Union’s request for the evidence Respondent relied upon during the investigation of Acre’s
conduct, as this request relates directly to the grievance over Arce’s discharge and Respondent’s
decision to issue discipline. See Square D Electric Co., 266 NLRB 795, 797 (1983) (violation
where the employer refused to provide union with videotape evidence allegedly showing
employees stealing company property, which employer relied upon to terminate employees). 40
And, the Union’s request for witness interview/statements taken during the investigation of
Arce’s conduct is also relevant. Piedmont Gardens, 362 NLRB 1135, 1139 (2015), enfd. on
other grounds 858 F.3d 612 (D.C. Cir. 2017) (relevant witness statements must be produced
JD(SF)–26–19
10
absent a showing of legitimate and substantial confidentiality interests outweighing the union’s
need for the information).5
C. The Union was entitled to the information it requested
5
As a defense to the Complaint allegations, Respondent contends that the Union’s right to
file a grievance over Arce’s discharge was waived, pursuant to Section 18.3 of the CBA, when
she filed a civil charge with the DFEH over her discharge. (Resp’t Br., at 4, 8; JX. 10).6
Accordingly, Respondent argues that Arce’s filing of civil charges challenging her discharge
operated as a withdrawal of the grievance. And, since there was no outstanding grievance, the 10
Union’s information request was not relevant. (Resp’t Br., at 2, 4, 8; JX. 10, 13) The General
Counsel asserts that Section 18.3 of the CBA, by its explicit terms, only applies to grievances
alleging discrimination and harassment, and therefore there was no waiver. (GC. Br., at 22)
Here, I believe that the plain and unambiguous language of the CBA shows that the 15
Section 18.3 applies only to those grievances alleging unlawful discrimination or harassment
which are specifically prohibited in Section 18.2. The purpose of Article 18 is to prohibit
discrimination, harassment, or retaliation “against any person because of race, color, sex,
religion, age, disability, national origin, citizenship, veteran status, sexual orientation, or any
other status protected by federal, state or local law.” (JX. 2, R. 1) Nowhere in the CBA do the 20
parties expand the scope of Section 18.3 beyond the non-discrimination provisions set forth in
Article 18. Had the parties wanted to expand the reach of Section 18.3 to other grievances,
including those filed pursuant to the just cause provisions in Article 5, they would have
specifically done so. They did not, and Respondent’s attempt to enlarge the scope of Section
18.3 does not comport with the plain reading of the parties’ agreement. Accordingly, because 25
the Union’s grievance asserts that Arce’s termination lacked just cause, and violated the just
cause provisions set forth in Article 5 of the CBA, I find that there was no waiver, or withdrawal
of the grievance, and the Union was entitled to the information it had requested.
Moreover, even if Respondent is correct, and Section 18.3 removes the grievance over 30
Arce’s discharge from the grievance and arbitration provisions of the CBA, “before a union is
put to the effort of arbitrating even the question of arbitrability, it has a statutory right to
potentially relevant information necessary to allow it to decide if the underlying grievances have
merit and whether they should be pursued at all.” Safeway Stores, Inc., 236 NLRB 1126 fn. 1
(1978), enfd. 622 F.2d 425 (9th Cir. 1980). “Grievability is not a threshold issue in the unfair 35

5 Respondent has not asserted any confidentiality claims regarding any of the requested information. See Exxon Co.
USA, 321 NLRB 896, 898 (1996) (in order to trigger a balancing test, an employer must first timely raise and prove
its confidentiality claim); Piedmont Gardens, 362 NLRB 1135, 1135 (2015) (where employer has a confidentiality
interest in protecting witness statements from disclosure, the Board will apply the balancing test in Detroit Edison v.
NLRB, 440 U.S. 301 (1979), to balance the union’s need for requested information against any legitimate and
substantial confidentiality interests established by the employer).
6 At no time did Respondent claim that the expiration of the 2015 CBA absolved it of the obligation to provide the
Union with the information. Instead, Respondent asserts that the parties have expressly applied the terms of the
2018 CBA retroactively to September 1, 2018. (Resp’t Br., at 11) And, as Respondent correctly notes (Resp’t Br.,
at 12), the grievance procedures of a collective-bargaining agreement survive the expiration of the contract, even if
the arbitration provision does not. See Genstar Stone Production Co., 317 NLRB 1293, 1300 (1995); McGraw-Hill
Broadcasting Co., Inc., 355 NLRB 1283, 1295–96 (2010).
JD(SF)–26–19
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labor practice inquiry.” NLRB v. Safeway Stores, Inc., 622 F.2d 425, 428 (9th Cir. 1980), cert.
denied, 450 US 913 (1981). While the ultimate merits of the Union’s grievance over Arce’s
discharge, including whether Section 18.3 of the CBA applies to the grievance, may ultimately
be resolved by an arbitrator, “[a] union cannot be put to the expense of arbitration only to learn
later that it’s complaint had no merit.” Id. at 430 (citing NLRB v. Acme Industrial Co., 385 US 5
432, 438–39). “The Board may order production of information relevant to a dispute if there is
some probability that it would be of use to the union in carrying out its statutory duties,” one of
which “is to evaluate and sift out unmeritorious claims.” Id. It makes no difference whether the
question before an arbitrator is the merits of the grievance, or the “arbitration of grievability.”
Id. at 430. An employer does not have the “right to withhold from the [u]nion the information 10
the [u]nion needs to evaluate the grievance,” as it is possible that the union, with proper
information, might withdraw the grievance “without incurring the expense of arbitrating
grievability.” Id.
Respondent’s argument here, that the information requested by the Union was not 15
relevant because the underlying dispute was not grievable, was rejected by the both Board and
the Ninth Circuit. As the Ninth Circuit noted, “[w]e have already rejected Safeway’s argument
that the information was not relevant because the underlying dispute was not, or had not been
deemed to be, grievable.” Safeway Stores, Inc., 622 F.2d at 430. Therefore, because the
information requested by the Union was relevant to its collective-bargaining duties, including the 20
duty to intelligently evaluate the merits of the Arce grievance, Respondent violated Section
8(a)(1) and (5) of the Act by refusing to the provide the information.7
D. Delay in providing Arce’s termination letter
25
The Union requested a copy of Arce’s discipline on November 18, 2018, but did not
receive her termination letter until 26 days later, on December 14. The General Counsel asserts
that the nearly four-week delay constitutes an unfair labor practice.
Absent evidence of justification, an unreasonable delay in furnishing relevant information 30
is as much a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all.
PAE Aviation and Technical Services, LLC., 366 NLRB No. 95, slip op. at 3 (2018). It is an
employer’s duty to furnish relevant information as promptly as possible, given the
circumstances, as a union is entitled to the information at the time the information request is
made. Id. In determining whether a party has failed to produce information in a timely manner, 35
“the Board considers a variety of factors, including the nature of the information sought
(including whether the requested information is time sensitive); the difficulty in obtaining it
(including the complexity and extent of the requested information); the amount of time the party
takes to provide it; the reasons for the delay in providing it; and whether the party
contemporaneously communicates these reasons to the requesting party.” General Drivers, 40
Warehousemen & Helpers Local Union No. 89, 365 NLRB No. 115, slip op. at 2 (2017). “The

7 Any claim by Respondent that no violation should be found because the Union had alternate sources for the
documents is without merit. (Resp’t Br., at 11, fn. 4) The Board has specifically rejected these arguments where, as
here, there are no special circumstances presented. King Soopers, Inc., 344 NLRB 842, 844 (2005) (“[A]bsent
special circumstances, a union’s right to information is not defeated merely because the union may acquire the
needed information through an independent course of action.”); Bel-Air Bowl, Inc., 247 NLRB 6, 11 (1980).
JD(SF)–26–19
12
analysis is an objective one; it focuses not on whether the employer delayed in bad faith or in an
attempt to avoid production, but on whether it supplied the requested information in a reasonable
time.” Management & Training Corp., 366 NLRB No. 134, slip op. at 3 (2018).
Here, while the nature of the information sought, Arce’s termination letter, was not 5
necessarily time sensitive, it was easy to obtain; Brouhard was the one who had drafted the letter.
It took Respondent 26 days, after three requests from the Union, to eventually provide the letter
and the company gave no explanation for the delay. Under these circumstances, I find that
Respondent’s delay constituted a violation of Section 8(a)(1) and (5) of the Act.8 See, e.g. Postal
Service, 308 NLRB 547, 551 (1992) (Four-week unexplained delay unlawful where information 10
was not shown to be difficult to retrieve).
CONCLUSIONS OF LAW
1. Respondent American Medical Response West is an employer engaged in commerce 15
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, United EMS Workers, AFSCME Local 4911 is a labor organization
within the meaning of Section 2(5) of the Act.
20
3. The following employees constitute an appropriate unit for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act:
All full-time and regularly scheduled part-time employees in Northern California,
including: EMT-1 s, EMT-2s, EMT-Ps, Drivers, Wheelchair Van Drivers, 25
Paramedic CCTs, EMT CCTs, Gurney Van Drivers (Sacramento only), and RNs
in Alameda, Contra Costa, Marin, Placer, Sacramento, San Benito, San Francisco,
San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Solano, Sonoma,
Stanislaus, Tulare and Yolo Counties and any distinct CCT and IFT divisions;
Dispatchers, Call-takers/Customer Service Representatives, System Status 30
Controllers in Santa Clara, Sacramento, San Mateo (BayCom), Sonoma
(REDCOM) and Stanislaus (LifeCom) Counties; Pre-billers, Billers, Clerk 1s,
Clerk 2s, Stockers, Washers, Vehicle Service Technicians, Mailroom Clerk
(Alameda only), Couriers, Deployment Coordinators and Schedulers in Alameda,
Contra Costa, San Mateo, Santa Clara, Stanislaus (Vehicle Service Technician 35
only) and Tulare (Clerk 1s and Clerk 2s only), and any distinct CCT and IFT
divisions; Facilities Coordinators (Santa Clara, Stanislaus only and CCT and IFT
divisions only).
Excluding EMT-ls and EMT-Ps in Tracy and Turlock, EMT-Ps in San Mateo 40
County, and all other personnel, including guards, and supervisors as defined by
the National Labor Relations Act, as amended.

8 While Brouhard testified that he did not initially respond to the Union’s November 18, 2018 information request
until the end of the month because of a death in his family, there is no evidence that he communicated this reason to
the Union. (Tr. 122–24)
JD(SF)–26–19
13
4. By refusing to provide the Union with the information it requested in the grievance filed
on November 18, 2018, and as further set forth in the emails between the Union and Respondent
sent on November 28, 2018 and December 6, 2018, Respondent has been engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the Act.
5
5. By unreasonably delaying in providing the Union with Arce’s termination letter,
Respondent has been engaged in unfair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
REMEDY10
Having found that Respondent has engaged in certain unfair labor practices, I find that
they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the polices of the Act.
15
Specifically, having found Respondent violated Sections 8(a)(1) and (5) of the Act by
refusing to provide the Union with information that is relevant and necessary to its duties as the
collective-bargaining representative of Respondent’s employees, I shall order Respondent to
provide the Union with the information requested as set forth herein. With respect to the
Union’s request for information that encompasses witness statements, there is nothing in this 20
record to indicate that any of the information requested involves significant confidentiality
interests, nor did Respondent assert any such interests. Notwithstanding, given the posture in
which this case was presented, in the event Respondent has a legitimate confidentiality interest in
protecting any such witness statements from disclosure, including statements or other documents
disclosing the identity of the complainant, Respondent shall be allowed at the compliance stage 25
to make a particularized showing of such legitimate confidentiality concerns.9 See Jacksonville
Area Association for Retarded Citizens, 316 NLRB 338, 341 fn. 14 (1995) (Board allows
employer at the compliance stage to make a particularized showing that specific records sought
by the Union involve legitimate and significant confidentiality concerns requiring a balancing of
the Union’s need for the information against those confidentiality interests); Fairmont Hotel Co., 30
304 NLRB 746, 746 fn. 3 (1991) (Union is entitled to the identity of and contact information for
a complaining guest, unless the employer has promised the guest anonymity or the guest had a
reasonable expectation of privacy, and the employer has offered to accommodate its
confidentiality concerns with the union’s needs for the information).
35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order:10

9 In the event of any substantial and legitimate claims of confidentiality, Respondent still has an obligation to seek
an accommodation with the Union that will meet the needs of both parties. Columbia Memorial Hospital, 362
NLRB 1256, 1267 (2015) (citing National Steel Corp., 335 NLRB 747, 748 (2001)).
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(SF)–26–19
14
ORDER
The Respondent American Medical Response West, its officers, agents, successors, and
assigns, shall:
5
1. Cease and desist from:
(a) Refusing to provide the Union with requested information that is relevant and
necessary to the Union’s performance of its duties as the collective-bargaining representative of
the Respondent’s employees.10
(b) Unreasonably delaying in responding to the Union’s information request.
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.15
2. Take the following affirmative actions necessary to effectuate the policies of the Act:
(a) Promptly provide the Union with the information it requested, as set forth in the
grievance filed over Arce’s termination, and in the Union’s November 28, 2018 and December 6, 20
2018 emails to Respondent, including: a copy of Arce’s personnel file; evidence relied upon
during the investigation of Arce; other acts of discipline involving social media; Arce’s history
of previous disciplines; and all interviews or statements and evidence collected during the
investigation of Arce and the person filing the complaint against her. Respondent shall have the
right during the compliance phase to raise any legitimate and significant confidentiality interests 25
regarding witness statements or the identity of the complainant, as set forth in the Remedy
section above.
(b) Within 14 days after service by the Region, post at its San Francisco, California
facility copies of the attached notice marked “Appendix A.”11 Copies of the notice, on forms 30
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 35
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to 40
all current employees and former employees employed by the Respondent at any time since
November 18, 2018.

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted
by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–26–19
15
(c) Within 21 days after service by the Region, file with the Regional Director for
Region 20 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply with this order.
5
Dated, Washington, D.C., August 23, 2019
10
John T. Giannopoulos
Administrative Law Judge
614N/ok57---
JD(SF)–26–19
APPENDIX “A”
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain collectively with United EMS Workers, AFSCME Local 4911 (Union) by
refusing to provide, or delaying in providing, the Union with information it requested that is relevant
and necessary to the Union’s performance of its duties as the collective-bargaining representative of our
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights listed above.
WE WILL promptly provide the Union with all relevant information requested in its grievance over the
discharge of Karis Arce (“Arce”), and as further requested in the Union’s November 28, 2018 and
December 6, 2018 emails, including: a copy of Arce’s personnel file; evidence relied upon during the
investigation of Arce; other acts of discipline involving social media; Arce’s history of previous
disciplines; and all interviews or statements and evidence collected during the investigation of Arce and
the person filing the complaint against her.
American Medical Response West
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You
may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5:00 p.m.
JD(SF)–26–19
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-234200 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (628) 221-8875.