Prospect Chartercare, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 11, 2019

01-CA-200126 (N.L.R.B. Mar. 11, 2019)

JD–26-19
North Providence, RI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PROSPECT CHARTER CARE, LLC
and Cases 01–CA–200126
01–CA–214788
UNITED NURSES & ALLIED
PROFESSIONALS, LOCAL 5110
Alan L. Merriman, Esq. and Thomas E. Quigley, Esq.,
for the General Counsel.
Paul Rosenberg, Esq. and Andrea R. Milano, Esq.,
Baker Hostetler, for the Respondent.
Chris Callaci, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case was tried in Cranston, Rhode
Island, on July 24, 2018. The Charging Party, United Nurses & Allied Professionals, Local
5510 (Union/UNAP/Local 5510) filed the charges on June 6, 2017, and February 14, 2018.1
The General Counsel issued the complaint on March 27, 2018. The complaint alleged that
Respondent failed and refused to furnish the Union with information requested on May 3, 2017,
May 30, 2017 and January 18, 2018 in violation of Section 8(a)(5) and (1) of the Act.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Prospect Charter Care, LLC, a for-profit corporation, is engaged in the
operation of a hospital, Our Lady of Fatima Hospital, providing inpatient and outpatient care in

1 All dates are in 2017 unless otherwise indicated.
2 I granted the General Counsel’s on the record motion to amend complaint paragraph 7b to add July
24 as one of the dates that the Union requested the information referred to in that paragraph. (Tr. 65-66).
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2
its offices and place of business in North Providence, Rhode Island.3 Annually, Respondent, in
conducting its business operations, derives gross revenues in excess of $250,000, and purchases
and receives at its North Providence, Rhode Island facility, goods valued in excess of $50,000,
directly from points outside the State of Rhode Island. 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 5
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations10
Central to this case is Respondent’s North Providence, Rhode Island Our Lady of Fatima
Hospital. At all times relevant to this case, the following employees have been supervisors and
agents of Respondent within the meaning of Section 2(11) and 2(13) of the Act:
15
David Kobis- President, Our Lady of Fatima Hospital
Marc La Bella- Director, Labor Relations
Lynn Leahey- Chief Nursing Officer
Shannon Silva- Director, Surgical Services
Darlene Cunha- Chief Operating Officer20
John J. Holiver- CEO, Charter Care Health Partners
Catherine Shitara- Vice President, Corporate Regulatory and Accreditation Programs
(Tr. 7; Jt. Exh. 3.) Respondent’s hospital is a part of Charter Care Health Partners, established
in about 2014 under the parent company, Prospect Medical Holdings.4 25
B. The Union
The following employees of Respondent constitute a unit (Nurses’ Unit) appropriate for
the purposes for collective bargaining within the meaning of Section 9(b) of the Act: all full-30
time and regular part-time registered nurses employed by the Employer at its Our Lady of
Fatima Hospital (Fatima facility) and School of Nursing, located at 200 High Service Avenue,
North Providence, Rhode Island, as described in Article 1, "Recognition" in the collective-
bargaining agreement between Respondent and the Union. (Jt. Exh. 1, p. 1.) The following
employees of Respondent constitute a unit (Service and Maintenance Unit) appropriate for the 35
purposes of collective bargaining within the meaning of Section 9(b) of the Act: all full-time,
regular part-time, and per diem Service and Maintenance employees employed by the Employer
at its Our Lady of Fatima Hospital (Fatima facility), located at 200 High Service Avenue, North
Providence, Rhode Island, as described in Article 1, "Recognition" in the collective-bargaining
agreement between Respondent and the Union. (Jt. Exh. 2, p. 1). 40

3 The complaint, paragraph 2a, was amended, without objection, to reflect that Respondent is a “for
profit corporation.” (Tr. 10).
4 Other of Charter Care Health Partners’ and/or Prospect Medical Holdings’ hospitals/medical
facilities in Rhode Island include Roger Williams Medical Center, St. Joseph’s Healthcare Center and
Charter Care Medical Associates (physician owned practice). (Tr. 154).
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3
At all material times, the Union has been the designated collective-bargaining
representative of the Nurses' Unit and Service and Maintenance Unit, and has been recognized
as such by Respondent. This recognition has been embodied in collective-bargaining
agreements CBAs), the most recent of which are effective from September 23, 2016 through
July 31, 2019 for the Nurses' Unit, and October 30, 2016 through October 29, 2018 for the 5
Service and Maintenance Unit (initial agreement).5 At the time of the trial, the Union was
preparing for contract negotiations on the service and maintenance employees’ agreement. (Tr.
19). At all relevant times, the Union has been the exclusive collective-bargaining representative
of both of these Units pursuant to Section 9(a) of the Act. Chris Callaci is the general counsel
for the Union.6 Lynn Blais is the president of the nurses’ unit and Cindy Fenchel is president 10
of the service and maintenance unit.
C. Relationship between the Union and Respondent
The parties admit that the Union and Respondent have had a somewhat contentious 15
relationship. The Union initiated a corporate campaign against the Respondent and its holding
company in about 2016–2017, which continued through all times relevant to this case. As
discussed later in this decision, this campaign sought to expose and seek public support
regarding various alleged deficiencies in health care delivery to patients, as well as adverse
treatment of employees in the terms and conditions of their employment. (R. Exh. 2). 20
D. Requests for Information
1. May 3, 2017 Request for Information- JCAHO mock survey
25
On May 3, 2017, Blais, on behalf of the Union, requested, in writing, information related
to a mock survey conducted by Respondent at its facility on about April 26, 2017, in preparation
for the actual Joint Commission on Accreditation of Hospital Organizations (JCAHO/Joint
Commission) survey, and to assess the hospital’s compliance with JCAHO standards.7 (GC
Exh. 2). The JCAHO is an independent, not-for-profit organization that “accredits and certifies 30
nearly 21,000 health care organizations and programs in the United States. Joint Commission
accreditation and certification is recognized nationwide as a symbol of quality that reflects an
organization’s commitment to meeting certain performance standards.”8 Hospital accreditation
by an organization such as JCAHO is also required by Medicare and Medicaid for services
rendered. Normally, the actual JCAHO survey team makes unannounced visits every few years 35
to inspect hospital policies and procedures, delivery of patient care and equipment. In 2016,

5 Complaint paragraph 6c was amended at trial, without objection, to reflect that the service and
maintenance unit contract was an initial contract. (Tr. 10). I also note that the General Counsel also
amended complaint paragraph 7d to change “unit” to “units.” (Tr. 11).
6 As General Counsel, Callaci handles contract negotiations; represents the Union in arbitrations,
before the Board and in state and federal court; and provides general legal advice on labor issues. (Tr.
18–19).
7 Callaci prepared this written request, at Blais’ direction and with her input regarding the mock
survey results with “problematic” results. (Tr. 20). Respondent referred to this mock survey as its
“Enterprise-Wide Internal Survey Readiness Assessment.” (R. Exh. 2–3).
8 See https://www.jointcommission.org/about_us/about_the_joint_commission_main.aspx.”
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4
the Joint Commission established a new methodology called, “safer matrix” for determining
the degree of risk of patient injury and whether or not findings were rare, moderate or
widespread. (Tr. 158–159).
The Union advised that it had come to their attention that the mock survey had 5
uncovered a number of violations in the operating room (OR), “eerily similar to those found in
at least one of Prospect’s California hospitals that resulted in the shutdown of a surgical suite
as documented by the California Department of Public Health.” (GC Exh. 2). The Union
further stated that this was a mutual concern that, pursuant to Article 16.1 of the CBA, required
a joint labor-management committee meeting to discuss such matters.9 The Union wrote that 10
Article XVII requires the hospital to provide nurses with equipment and supplies necessary to
perform their jobs safely, and that Article XXIII requires the hospital to provide training and
instruction on any substantial revisions to existing procedures.10 The Union did not believe that
the hospital was providing either, in regard to the mock survey results, and thereby requested
that Respondent provide:15
[A]ny/all notes and/or documentation related to the recent mock survey,
including but not limited to the above referenced corrective action plan. It is my
intention to study and investigate the apparent violations in advance of 1) calling
for a joint labor-management committee meeting under Article 16.1, 2) 20
addressing employee health and safety issues under Article XVII, and
addressing issues that will arise under Article XXIII.
Callaci testified that the Union also sought this information, regarding how the hospital planned
to address the deficiencies, due to concerns as to whether or not any of the deficiencies found 25
in the mock survey might result in discipline of any unit employees or insertion of negative
information in their personnel files or potential adverse information being reported to the
nurses’ licensing board. 11 (Tr. 22–23).
On May 9, 2017, Callaci, sent a follow-up email regarding the status of the Union’s 30
May 3 request. (GC Exh. 3). By email dated May 10, Marcelino La Bella refused to provide
the requested information, stating that it was “a confidential and proprietary document subject
to attorney-client privilege that we will not be providing to UNAP. There have not been any
substantial changes to existing procedures warranting training and instruction.” La Bella did,
however, state that they would welcome a joint labor-management committee pursuant to 35
Article 16.1 to discuss any health and safety concerns of the Union, and would work with the
Union to schedule a meeting. (GC Exh. 4). On May 30, Callaci informed La Bella that the

9 The Union references “Article 16.1” regarding the joint labor-management committee meetings
part of the CBA, but the portion of CBA pertaining to the joint labor-management committee meetings
is actually “Section 16.1” (and Sections 16.2-16.3) under Article XVI. Here, I will reference this section
as the Union has. (See GC Exh. 1, table of contents, page iii).
10 Callaci testified that the same issues and concerns raised in this request are relevant to the service
and maintenance unit employees and their bargaining agreement. (Tr. 24).
11 It is undisputed that an employer can report any nurse’s practice that is outside recognized
standards of care to the State of Rhode Island, and that the Union can represent members before their
professional boards in the event a complaint is filed. (Tr. 23–24).
JD–26-19
5
Union had filed a charge against Respondent based on Respondent’s failure to provide the
information relating to the mock survey. (GC Exh. 5). Respondent provided no explanation as
to why the information sought was either confidential or otherwise privileged.
Blais initiated the request for information regarding the mock JCAHO survey after 5
several of her bargaining unit employees in the OR told her that Shannon Silva, director of
surgical services (also Blais’ manager), advised them that had the deficiencies found during the
mock survey shown up during an actual JCAHO survey, the OR would have been “shut down.”
She explained that Silva had confirmed these concerns with her during a subsequent
conversation, and related that she (Silva) had been tasked with bringing in a consultant firm to 10
evaluate the instruments in the OR. (Tr. 103–105).12
Respondent, to date, has refused to furnish the Union with the mock JCAHO mock
survey, corrective action plans, or other documents requested in connection with the survey.
15
2. May 30 and July 24, 2017 Requests for Information- Aesculap Presentation
a. Initial request on May 30
In the same email to La Bella, dated May 30, 2017, Callaci informed that he learned that 20
Respondent had “publicly posted at Fatima hospital – ‘Aesculap Surgical Asset management
Quickscan Final Presentation.”’13 (GC Exh. 5; Tr. 27). Callaci wrote that this document could
not possibly be confidential given its public posting, and therefore, requested that Respondent
provide the Union with a copy of the final/entire copy of the Aesculap presentation “and any/all
documents related thereto.” (GC Exh. 5). Aesculap is a health care device company and 25
consulting firm that provides medical devices, and also, as a service, in-depth qualitative and
quantitative examination and reporting of surgical instruments, focusing on instrument quality
and optimization. After not receiving a response, Callaci emailed La Bella on June 12 inquiring
about the status of the request. (GC Exh. 6).
30
On June 23, La Bella responded that:
[F]or privacy reasons we will not disseminate the Presentation outside of the Our
Lady of Fatima facility. As previously conveyed, we would welcome a joint-
labor-management committee meeting to discuss any health and safety issues 35
the union may have. In that same vein, the Union is free to arrange a time to
review the Presentation on site and raise any questions regarding its contents.

12 I credit Blais’ testimony regarding how these conversations with unit members and Silva
prompted her to request information regarding the mock survey. On cross-examination, Respondent’s
counsel attempted to discredit this testimony with evidence that Blais’July 19 meeting notes did not
mention her discussions about and with Silva. However, Callaci’s July 19 notes reflect his written
reminder to ask “Lynn…who said that if [it] were a real JCAHO survey, the OR would’ve been shut
down…confirm this at mtg.” (GC Exh. 11). Further, Silva did not testify, and Respondent did not
otherwise present evidence to rebut that these conversations took place.
13 Aesculap conducted the onsite assessment on April 24–27.
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6
(GC Exh. 7). On June 26, Callaci wrote La Bella that Respondent was violating the Act by
refusing to provide the Union with a copy of the Aesculap presentation, and that he was
renewing the Union’s request and “[reserving] its right to file a Charge Against Employer if the
employer fails to comply.” Callaci also requested, notwithstanding, to schedule a time for the
Union to review the presentation and pose questions if necessary. He advised him of the 5
Union’s intent to “avail itself of a labor/management meeting on the subject matter in issue but
[insisted] that [the Union] be provided with the relevant information it has requested to date
prior to such a meeting.” He insisted that “[m]eeting without having had an opportunity to
review the relevant information in advance, or at all, makes no sense.” (GC Exh. 8).
10
On about June 29, La Bella responded that Respondent “refutes and denies the allegation
that we have violated the law with our response to the union’s request for the Aesculap
Presentation.” He also advised that Respondent “respectfully [disagreed] that the union has
been denied the opportunity to review relevant information.” He pointed out that, as per Section
16.1 of the CBA, the joint labor-management committee was a “forum to discuss matters of 15
mutual interest,” but not “designed to address grievances or negotiable matters.” La Bella
further wrote that:
The Union’s claim that it needs additional information beyond what the
Employer has offered to share to participate in such a meeting suggests it is on 20
a self-serving fishing expedition and there are no pressing matters for discussion.
If, however, this is not the case and the Union has real issues of a mutual concern
which it would like to discuss, please send a proposed agenda to Chief Human
Resources Director Dick Kropp as set forth in Article 16.1.
25
(GC Exh. 9) The parties subsequently agreed to meet with each other in order to allow the
Union to review the Aesculap summary presentation on July 19, between 2:00 and 2:30 p.m. in
a human resources office training room. (GC Exh. 10).
b. July 19 meeting for review of the Aesculap summary30
Present at the meeting on July 19 for the Union were Callaci, Blais and Cindy Fenchel
(president of the service unit). La Bella and Darlene Cunha, Charter Care chief operating
officer, represented Respondent. (Tr. 37, 85). La Bella permitted the Union representatives to
view and take notes from the summary Aesculap presentation. Callaci testified that the 35
summary report he viewed reflected an analysis of surgical instruments found in the OR such
as damaged, eroded and advanced wear equipment. The report set forth the consequences of
using them in those conditions and recommended actions to take. He asked some questions,
but believed that he was at a disadvantage due to the short period of time he had to read the
document. He admitted, however, that La Bella agreed to allow them to return on July 20 to 40
read and take notes “without being rushed.” He also recalled that the Aesculap report
recommended training staff on identifying damaged or old equipment, such as “pitting
corrosion on surgical instruments.” (Tr. 42–43). La Bella told them that Respondent would
not allow them to take copies of the report because they feared the Union would take the
document out of context and use it to intentionally mislead the public about Respondent and 45
the quality of care received at the hospital. Callaci explained that during a “follow-up
JD–26-19
7
conversation with Mr. La Bella on that day in the parking lot,” he agreed with La Bella that
labor relations between the hospital and the Union should improve. However, when La Bella
raised concern about the Union using the requested reports outside the hospital, Callaci admitted
that based on what he had seen in the meeting, the Union would utilize the information as part
of its public campaign. (Tr. 46, 79–80). Callaci returned on July 20 to review the report and 5
take notes. There was only one management representative present, but only to monitor
Callaci’s review of the document.
In his handwritten notes from the meeting on July 19, Callaci made several notations to
remind him that there was a more detailed report and that there were potential issues with 10
discipline that could result from or implicate the contract for both units. (Tr. 48–50; GC Exh.
11).
On about May 27, Blais had personally observed a summary of the Aesculap Surgical
Asset Management QuickScan report posted in the physician’s lounge in the surgical area. She 15
testified that this unlocked lounge was and is assessable to employees. The report was posted
on a tri-fold board on a table with the middle section containing the presentation and the other
sections containing “multiple other pieces of paper that showed pictures of actual instruments
and documentation of what the problems were with each of them and things that needed to be
done to fix them.” There was nothing on the board indicating that its contents were confidential. 20
Blais confirmed that the posted board included some, but not all, of the information, “in
context” that was set forth in the initial Aesculap presentation summary which they viewed in
the July 19 meeting. (See GC Exh. 20; Tr. 108–109). During that July 19 meeting, she asked
Cunha several questions regarding some instrumentation issues that occurred after this report
was posted, such as some cord material left in a gamma nail used to nail or repair a broken hip, 25
and some genitourinary equipment containing contamination. (Tr. 112). She admitted that she
did not ask questions about all issues that she was aware of.
Cunha confirmed that the Aesculap Surgical Asset Management QuickScan Final
Presentation, dated May 19, 2017, represented Aesculap’s initial assessment, and that 30
Respondent had not shared with the Union the more detailed, final report. (Tr. 201; GC Exh.
20).
c. July 24 request14
35
On July 24, Callaci sent a follow-up request in writing for Respondent to provide “a
copy [of] the document you showed us at our meetings, a copy of the full report, and any/all
other supporting documentation.” (GC Exh. 12). La Bella responded in writing, on August 2,
that “[a]s previously conveyed, for privacy reasons, we will not disseminate the Aesculap
Presentation (the ‘Presentation’) or its underlying report outside of the Our Lady of Fatima 40
facility.” He further explained that:

14 The General Counsel amended, without objection, complaint paragraph 7b to add this follow-up
July 24 request for results and documentation associated with the Aesculap presentation/reports. In turn,
Respondent amended paragraph 7b of its answer to include this date. (Tr. 65–66).
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8
[T]he Presentation resuscitates the salient details of the report which Aesculap
prepared in a user friendly format for display to our employees. We provided
UNAP the opportunity to review and raise questions regarding the
Presentation’s contents. Thus, we have given UNAP access to the Presentation
as well as a forum to have its concerns (if any) addressed. 5
If the Union continues to have issues of a mutual concern it would like to discuss,
our invitation to schedule a joint-labor-management committee in accordance
with the CBA remains open.
10
(GC Exh. 13).
The Union alleges that since about June 3, 2017, Respondent has failed and refused to
furnish the Union with the requested information- in other words, the summary and final
detailed reports and any related documentation, training information, etc. resulting therefrom. 15
Regarding the requests surrounding the Aesculap findings, Respondent insists that it provided
the Union with both a response and reasonable accommodation by permitting the Union
representatives the opportunity to review the summary report on July 19 and 20.
3. January 18, 2018 Request for Information- Actual JCAHO Survey20
On January 18, 2018, Blais on behalf of the Union, requested, in writing, the results of
the actual JCAHO survey, conducted on December 5–7, and any documents related to the
deficiencies uncovered by the survey, as well as any JCAHO follow-up review/report.15 (GC
Exh. 14). The Union pointed out that Article 21.1 of the Nurses’ CBA requires that nurses 25
comply with JCAHO standards, and that Article 21.2 “calls for…a joint labor-management
staffing committee to discuss…the development of staffing plans using external benchmarks
reflective of better performing hospitals, and utilization of a mutually agreeable process for
addressing staffing issues.”16 (GC Exh. 14; Jt. Exh. 1). The Union restated the nurses’ CBA
requirements for a joint labor-management committee to meet and discuss matters of mutual 30
concern, such as the JCAHO survey; for the hospital to provide nurses with equipment and
supplies in order to perform their jobs safely; and for training and instruction if there are
substantial revisions to existing procedures. The Union specifically requested, “[g]iven the
magnitude of deficiencies found by JCAHO in its ongoing survey, and the number of
contractual provisions in play…any/all notes and/or documentation, electronic or otherwise, 35
relative to the deficiencies found in the survey.” (Id.) Finally, the Union noted that:
As exclusive bargaining agent on behalf of some 600 employees at the hospital,
this information is relevant to our ability to address a broad range of issues that
have surfaced in the wake of the recent JCAHO survey…It is also relevant to 40
our representational responsibilities under Articles XVII, XXIII and other
related articles in both contracts for both bargaining units.

15 Callaci also prepared this request for Blais, on behalf of the Union.
16 Articles 21.1 and 21.2 referenced by the Union are actually set forth in Jt. Exh. 1, Article XXI,
Sections 21.1 and 21.2. (Jt. Exh. 1, p. 33).
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9
(Id.)
On February 15, 2018, La Bella responded that Respondent would agree to meet with
and discuss the Union’s questions regarding the JCAHO’s survey pursuant to the labor-
management committee structure. He did not mention at that time why Respondent would not 5
provide the information. (GC Exh. 15).
On March 1, 2018, the Union met with hospital representatives. Callaci, Blais and
Cindy Fenchel represented the Union, and La Bella, David Kobis (hospital president), Lynn
Leahey (chief nursing officer) and Sandy Nastory (human resource generalist) represented 10
management. During this meeting, which lasted approximately half an hour, Respondent did
not provide the documents requested by the Union on January 18, 2018, maintaining that the
documents were confidential. (Tr. 58–59). Callaci recalled that instead, management expressed
willingness to “speak and verbally address generally…the deficiencies shown” in the survey.
He testified that La Bella said that he would get back to him (Callaci) with a definition or 15
explanation of what he meant by “confidential.” (Id.) Callaci also recalled management stating
that they submitted 30 corrective action plans pursuant to 30 JCAHO deficiency findings, but
that management only discussed two or three of the deficiencies. Callaci remembered Leahey
informing that there had been some “reeducation of employees in both bargaining units, the
R.N. unit, the service and maintenance unit.” (Id.) Callaci testified that he requested all 30 20
corrective action plans, along with a list of the names of all bargaining unit employees who
were subject to re-education or training. La Bella, in turn, asked him to put this request in
writing, and promised to provide him with the names of those bargaining unit employees by the
end of the next week. (Tr. 60).
25
Callaci’s handwritten notes, taken during the meeting, confirm Kobis only giving verbal
information, “30 findings” and “plan of correction.” He wrote that, “Lynn L. submitted action
plans millions of dollars,” and “reeducation of front line staff nursing, ancillary,” including both
bargaining units.” He also noted La Bella stating that he would have to get back to them in a
week “about what we mean by confidentiality,” and management only providing general and 30
amending the request to ask for “findings beyond deficiencies.” (GC Exh. 16).
Blais’ handwritten notes, also taken during the meeting, reflect that there were 4
surveyors who visited the hospital on December 5–7, 2600 categories, 30 findings and a return
and clearance. They also stated that the hospital submitted “about 30” action plans, which were 35
accepted. She noted action plans included items needing repair such as a “ 2.8 million for
HVAC in OR,” and issues with “logs on room temps in OR and humidity.” Blais further noted
“[d]ocumentation on front line staff,” change work flow,” “staff re-educated- policy and form
changed.” She indicated that education included “ER mandatory code on malignant
hyperthermia,” “ EMR changes” and other policy issues. Blais’ notes also stated that 40
management would get back to them with the basis of their confidentiality claim. (GC Exh.
17)
Lynn Leahey’s type-written notes reflect her opening remarks and her summary of what
occurred during the meeting.17 (Tr. 67; R. Exh. 5). They include items relating to the age of the 45

17 According to Respondent’s counsel, chief nursing officer Lynn Leahey did not testify due to a
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10
building, inaccuracies found, policies not followed and a notation that “[s]taff have been
involved with some of the changes.” Leahey noted under “[a]sked for specifics,” that
documentation was missing and checklists and policy were not followed by a PACU RN. She
stated that in relation to TEE equipment, a surveyor witnessed that “staff left the scope at patient
bedside longer than policy and recommendation by manufacturer,” [s]taff did not perform point 5
of disinfection or ask anyone else to get the scope down to the decontam room for processing”
and “[s]taff following MD instruction to immediately download the image/film.” She appeared
to have noted a couple of other survey findings as well, in addition to indicating that all staff
members were educated in an area, while “[r]e-education of frontline staff provided,” including
“members of the bargaining unit.” Finally, under “NOTES,” she wrote “[d]id very well in 10
Patient Care,” “30 days for a corrective action plan” and “[a]ll education to staff: documented
attendance sheets/competencies.” (R. Exh. 5).
Following the March 1 meeting, on the same day, Callaci provided Respondent with a
follow-up request of the additional documents that he requested during the meeting. (GC Exh. 15
18). In this email, Callaci requested and stated in part the following:
[T]he names of all bargaining unit members (both units) who attended the re-
training Lynn Leahey referred to during the meeting, and copies of all 30
corrective action plans referred to by David Kobis during our meeting (which is 20
a request that is already captured by our information request of January 18,
2018).
Also, when we requested information relative to ‘deficiencies’ in our January
18, 2018 letter, we also want such information relative to all ‘findings’ to the 25
extent that you believe those terms to be different.
Lastly, we find your conduct during; today's meeting dilatory in nature.
Our information request was sent to you electronically six (6) weeks ago 30
Therein, we explained in more than sufficient detail why we believed the
information we are seeking is relevant and [sufficiently] specific as to what
information we were requesting.

death in her family. Therefore, the parties agreed to the admission of Leahey’s notes from the March 1,
2018 meeting. The parties stipulated that Leahey’s notes reflect her opening remarks, while the
remaining ones summarize her version of the rest of the meeting. They also agreed to the meaning of
several abbreviations, as well as “that during the meeting, Ms. Leahey provided examples of deficiencies
that JCAHO found during its survey and she did not cover all the deficiencies during the meeting.” (Tr.
66–68; R. Exh. 5). Respondent’s counsel made an offer of proof that Leahey would have testified that
“the number 30 was referenced into the amount of days in which the hospital had submitted what is
called corrective action plans to JCAHO not the actual number of deficiencies, that would be a factual
issue…” While the General Counsel stipulated to and acknowledged this offer of proof, he disagreed
as to its factual accuracy; i.e., he only agreed that it was the testimony Leahy would provide. (Id.) I
also note there is a typographical error on Tr. 68, line 4: “March 1, 2008” should read “March 1, 2018.”
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Today, for the first time since the initial request was made you notified us that
you will not provide a single document on the basis of a claim of confidentiality.
When I asked you to explain the basis of the confidentiality claim, you failed to
do so.
5
While Mr. Kobis offered to respond verbally to our January 18, 2018
information request, you said your responses would only be general in nature.
While Ms. Leahey and Mr. Kobis identified thirty (30 ) findings by JCAHO,
which capture all deficiencies, she spoke generally to only, three (3) of those
thirty (30). When I requested a more robust verbal response; you failed to give 10
one.
You also asked me today to explain what it was we were seeking, even though
that was set forth quite clearly in the initial request six (6) weeks ago. Of note,
not once in the last six (6) weeks did you notify Ms. Blais, the author of the 15
January 18, 2018 letter, or any other Union official that you needed clarification.
To date, notwithstanding your newly raised defense of confidentiality, you have
also failed to offer any accommodation with respect to disclosure of any of the
information you claim is confidential. 20
Please be advised that this conduct is unlawful and unacceptable. We reiterate
our request for information, consistent with the initial request of January 18,
2018, and ask for the additional information set forth above.
25
We expect a prompt response rather than more delay and empty discussion.
(GC Exh. 18).
The Union alleges that since January 18, 2018, Respondent has failed and refused to 30
furnish the Union with information that it requested regarding the JCAHO’s survey, or related
findings, corrective action plans, training or employees trained. Respondent claims that it
reasonably accommodated the Union’s request by facilitating a rare meeting with its top
executives and discussing some, but admittedly not all, of the JCAHO deficiencies set forth in
and subsequently corrected. 35
E. Summary of Reasons for Requests for and Refusals to Provide Information
a. Union’s reasons for the requested information
40
The Union contends that all of the information sought is necessary for and relevant to
the performance of its duties as the exclusive collective-bargaining representative of the Units.
Callaci and Blais acknowledged that this was the first time the Union had requested JCAHO
surveys, despite the fact that they had occurred about every 3 years. Callaci also admitted that
the Union had not filed grievances on behalf of the nurses as a direct result of mock or actual 45
JCAHO survey or the Aesculap report findings. Further, to his knowledge, employees had not,
JD–26-19
12
to date, complained about their performance evaluations or any licensure issues in connection
with the mock or actual JCAHO survey and Aesculap report findings. (Tr. 71–75). However,
both representatives explained the information was necessary in order to be prepared to
represent the interests of nurses and other unit employees in connection with potential safety
issues, grievances arising from any findings, training, staffing, nurses’ licensure and 5
disciplinary issues, as well as contract administration and negotiations. There were potentially
ongoing concerns.
Regarding Callaci’s admission that he would use (and did use) information sought on
the Union website in connection with the corporate campaign against Respondent and Prospect 10
Medical Holdings, Callaci testified that the purpose of the corporate campaign “is obviously to
create leverage whether you are dealing with an employer or issues that have to do with contract
administration or bargaining or upcoming bargaining,” as well as preparing for any labor-
management meetings. (Tr. 80, 88–90, 97–98, 100–101).
15
Blais explained that the information sought was “critical” for the member RNs, and the
work they do, and would help protect patients and protect the nurses from any issues that might
arise with the licensing board or performance ratings. (Tr. 107, 145–146). When asked why
she had never requested information in connection with JCAHO survey results in the past, Blais
testified that, “[w]e have seen a market change in the hospital since Prospect Charter Care has 20
taken over. We have seen issues with infection control problems. We have seen issues with
equipment and supply issues.” Respondent took over the hospital after the JCAHO conducted
the last survey. In connection with the reports relevant to this case, Blais testified that in her
area, Silva (her manager) had informed the nurses, in regular staff meetings, that survey
findings required the need for recovery room improvements relating to documentation of 25
history and physical as well as discharging instructions, and regarding control of temperature
and humidity. (Tr. 116–118). Therefore, she explained that, “[i]t is even more important for
us to have the information of where the deficiencies were, what the actual plans were, to make
sure that we are as nurses complying with the standards set forth by JCAHO.” (Tr. 115–116).
She also testified that prior reviews dealt more with physical plant and cosmetic issues rather 30
than procedural issues. (Tr. 144–147). As to the mock survey, Blais explained this was the
first conducted at the hospital, and that in lieu of mock surveys in the past, management had
conducted a type of “walk through/sweep” primarily related to physical rather than operational
issues, such as doors left open or boxes on the floor. 18 When asked why she had never filed
grievances regarding equipment and supply issues, nor mentioned these concerns in the March 35
1 meeting, Blais claimed that the March 1 meeting “was not the appropriate time,” and she had
raised these issues during joint labor- management and staffing meetings in the past.19 (Tr.
145).
Blais testified that after the Aesculap report, there were other equipment issues that 40
occurred in the OR. She explained that she raised a couple of these issues during the July 19
meeting. One concerned a piece of OR equipment not working because of “residual bone
fragments left in the piece of equipment…[t]he equipment had to be moved,” and “[t]he patient

18 No one disputed this testimony in regard to past mock and JCAHO survey findings.
19 Respondent did not refute that Blais had not raised such issues in past labor-management or
staffing meetings.
JD–26-19
13
had to be tested for communicable diseases and had to be notified that there was a malfunction.”
The other involved foreign matter found on another piece of cystoscopy equipment. (Tr. 136–
137). Blais testified that she received only “generalized responses,” and that in the July 19
meeting, she and management disagreed about whether or not the deficiencies she brought up
had occurred. (Tr. 136–137). 5
Blais further testified that after the JCAHO survey was conducted, there were in fact
two employees in the service and maintenance unit (central sterilizing technicians (CST)) who
were disciplined for violating standards similar or related to those required by the JCAHO.
Respondent disciplined those employees, Kathleen Bergeron and Judy Donnelly, in connection 10
with failing to properly sterilize, clean and/or process equipment.20 Blais stated that these
employees performed the same CST duties as those referenced in Leahey’s March 1 meeting
notes about deficiencies found in the JCAHO survey. (Tr. 123–125).
Blais also acknowledged that she did not mention in the meetings with management, as 15
she had in her Board affidavit, that the survey and/or report findings resulted in an “overhaul”
of the OR. However, her March 1 meeting notes reflect Respondent’s action plans involving a
$2.8 million repair of the OR’s HVAC system, as well as other changes in the OR. Similarly,
Leahey’s March 1 meeting notes show that “millions of dollars” had been allocated to correct
deficiencies in the facility. (R. Exh. 5). This may not have been an “overhaul,” but it certainly 20
appears to have represented substantial changes made by Respondent. (GC Exh. 17).
b. Respondent’s reasons for not providing the documents requested
Cunha, Respondent’s COO, testified that she recommended to and agreed with upper 25
management that the information requested by the Union should not be provided because it was
confidential, and had not been provided in the past. La Bella informed her that UNAP had
requested the reports, and she (Cunha) recommended that they not be shared because the
“relationship has been contentious,” and she did not want information to go public, be taken
out of context and create a sense of fear. They believed that taken out of context, publication 30
of the surveys and Aesculap results would paint a false picture with the public that Respondent
was providing poor quality of care, and undermine hospital operations. More specifically,
Cunha testified that the mock survey was as important as the “real deal,” and not shared with
anyone other than those in upper level management for those reasons. In light of the discord
between Respondent and the Union, and because of “information that has been posted on [the 35
Union’s] website,” she simply did not want the mock survey or the other reports to fall “in the
wrong hands.” (Tr. 166, 218–219). 21 She further testified that sharing these documents would

20 Bergeron received two written warnings, in February and March 2018, for two incidents of failing
to properly clean contaminated instruments. (R. Exhs. 8–9). Donnelly received a termination notice on
March 19, 2018, for repeated incidents of improperly processing and sterilizing instrumentation. (R.
Exh. 10). Blais testified that she was aware that both filed grievances, but the matters had been otherwise
resolved. She did not have knowledge as to whether the warnings remained in the employees’ files. I
credit Blais’ testimony in this regard, as Respondent did not present evidence that grievances had not
been filed, or if filed, had not been resolved. (Tr. 134–135).
21 Cunha referred to upper level managers included on memoranda and emails sent by Catherine
Shitara, corporate vice president regulatory and accreditation programs, announcing the mock survey
JD–26-19
14
impact the hospital’s ability to be “self-critical” or to self-assess, as the staff would be fearful
of reporting anything they felt might be a part of a public record. (Tr. 168). Cunha believed
that Respondent’s various reasons for not disclosing information to the Union were “equally
important.” (Tr. 224).22 Respondent did not, however, provide evidence that staff had in fact
been afraid to self-criticize or self-assess after the Union publicly posted portions of the 5
Aesculap summary. Nor was there any evidence that employees’ names or other personally
identifiable information were divulged in any of the reports.
In support of its justification for not providing the Union’s information requests,
Respondent introduced webpages from the Union’s website, “prospectsecrets.com” in order to 10
show that the information requests were aimed at obtaining negative information to share with
the public in connection with the Union’s campaign against the company and hospital. (See R.
Exh. 1). The Union’s statements on its site included: “Prospect’s poor care was exposed in
California, citing “some of what federal government health inspectors [allegedly] found in
Prospect California’s hospitals.” The site noted that “Prospect Medical Holdings, the new 15
operator of Fatima Hospital and Roger Williams Medical Center, says they provide ‘quality
health care.’ Federal health regulations tell a different story.” The site declares that the Union
“won’t stand for” the “poor care [that was] exposed in California,” in Rhode Island. Other of
the information states that in taking over Fatima Hospital, Roger Williams Medical Center, St.
Joseph’s Health Center and Elmhurst Extended Care health care facilities, Prospect unfairly 20
treated employees and broke promises to create more jobs. Callaci admitted that the Union
posted information from the Aesculap summary on the last page, set forth in R. Exh. 1, which
states that, “[r]ecently, [Prospect’s] consultants examined the equipment used in the operating
room at Fatima Hospital and found,” for example, “‘surgical instruments contaminated with
foreign material…corroded…broken…bent, and posing risks to patient safety.’” The Union 25
also announced that “Prospect refuses to make the consultant’s report public, but this is far too
important to keep under wraps, Patients and their families have a right to know.” (Id.)
Therefore, there is no doubt, that the Union did, and would, at least in part, without some sort
of confidentiality agreement, use requested information in pursuit of its corporate campaign
against what it perceived as Respondent’s poor treatment of employees and poor quality of care. 30
However, I find credible, and reasonable, the explanations by Callaci and Blais that the Union
also requested the documents at issue in order to be better prepared to represent its constituent
nurses and service and maintenance employees regarding potential grievances, safety, patient
care and liability issues.
35
Regarding the Union’s request for information in connection with revisions to existing
procedures, Cunha testified that revisions to existing procedures were “not substantial,” and
insisted there was never a threat of a complete overhaul or shutdown of the OR due to findings
from the mock survey or the final survey. She explained that the mock survey identified areas
where the hospital could improve their processes. When asked again if there were any 40

(also referred to as the “Enterprise-Wide Internal Survey Readiness Assessment”). Shitara sent these
communications to John Holiver, CEO, Charter Care, as well as to Cunha and other Charter Care officers
and managers. (R. Exhs. 2-3).
22 She testified that “[t]he impact on self critical analysis is extremely important,” and then stated
that both reasons, including not wanting the information disclosed to the wrong people, were “equally
important.” (Tr. 224).
JD–26-19
15
substantial changes to hospital procedures, she responded that she “would not characterize them
as substantial.” She reluctantly admitted , however, that the Union would be in a better position
to assess whether or not changes in practice and procedures had been substantial or not. (Tr.
209–210). The evidence also reveals, as stated above, that nurses and other unit employees
were in fact re-educated on various policies and procedures concerning survey and report 5
findings, safety issues and the work they performed.23
Regarding the Aesculap presentation, Cunha explained how they came to hire the
company to assess OR instrumentation according to the standard of care to examine OR
equipment due to wear and tear, repairs, and they do a “magnification of equipment that the 10
naked eye can’t see.” She testified that this assessment was not done in preparation for the
mock or actual JCAHO surveys. She said the standards were related and they would “heed”
their findings, but that the Aesculap surveyors did not discuss anything about JCAHO. (Tr.
205–206). She explained that Respondent did not post the full assessment or final report
because it was an internal review, but confirmed the public trifold posting of parts of the 15
summary, detailing deficiencies in OR equipment/instruments. She explained that the OR
educator at the time wanted to share it with staff as a type of teaching tool on how to improve
the process. (Tr. 190). This further bolsters Blais’ testimony as to when Silva told her she had
been tasked with getting a company to evaluate the equipment after the mock survey findings.
20
Cunha, Respondent’s only witness, did not recall whether or not she and other
managers, discussed whether or not a confidentiality agreement would be offered in an effort
to accommodate Respondent’s requests for information. (Tr. 214–215). Nevertheless, there is
no evidence that Respondent discussed, considered or made such a proposition regarding either
of the requested reports and related documents. 25
Regarding Respondent’s contention that documents were attorney-client privileged,
emails between Catherine Shitara, corporate vice president, regulatory and accreditation
programs, concerning the mock survey and attaching the final mock survey report, contained a
subject matter line of “Attorney Client Communication – Privileged and Confidential.”24 The 30
evidence shows that the only attorney included in the email chain was Ellen Shin, corporate
counsel for Prospect Medical. However, Cunha admitted that Shin did not communicate any
information or advice in these emails, but was only copied on them. The only other indication
that an attorney was involved, was Cunha’s testimony that once mock survey corrective action
plans are developed, they are “reported up through our attorney.” When on re-direct 35
examination by Respondent’s counsel, Cunha was asked if Shin was on the conference calls
where management officials discussed the Union’s information requests, Cunha equivocally
responded, “I believe she was.” (Tr. 163, 211–212, 220–223).
40

23 I find that the safety and other procedures on which unit employees were re-educated or trained
appear to be significant enough such that they might reasonably be considered substantial.
24 The emails contain what appears to be a standard company warning that the messages contained
therein and attachments thereto “may be confidential or privileged,” and may not be shared or disclosed
to others not named above. (Tr. 222–223; R. Exh. 3).
JD–26-19
16
F. Additional Credibility Findings
Respondent challenges the Union’s motivations for requesting the information at issue;
however, as discussed above, I credit the Union’s reasons proffered for requesting and needing
the information. Testimony from Callaci and Blais was straightforward and credible, and 5
Callaci admitted his intent to incorporate information into the corporate campaign as well as
needing it in connection with other representational duties. This was not something that he
tried to hide. Regarding other disparities such as the number of deficiencies found in the
JCAHO report, and whether or not there was an overhaul of the OR, I credit both Callaci and
Blais as to what they heard during the March 1 meeting. Leahey’s notes are not materially 10
inconsistent with their testimony, and there was no testimony from other management officials
who were present at this meeting. The notes do not state the number of deficiencies, but overall,
the evidence reflects that the reports cited more than a few, and that Respondent made several
corrective action plans. 25
15
III. DISCUSSION AND ANALYSIS
A. Legal Standards
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to 20
refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. § 158(a)(5).
An employer’s duty to bargain includes a general duty to provide information requested by the
union that “is potentially relevant and would be of use to the union in fulfilling its
responsibilities as the employees’ bargaining representative.” E.I. DuPont de Nemours and
Co., 366 NLRB No. 178, slip op. at 4 (2018), citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 25
152–153 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Postal Service,
332 NLRB 635, 635 (2000). See also, A-1 Door & Building Solutions, 356 NLRB 499, 500
(2011). Thus, the Board has determined that information concerning wages, hours, and other
terms and conditions of employment for unit employees is presumptively relevant and
necessary to the union’s role as exclusive collective-bargaining representative, and must be 30
produced unless the employer can establish lack of relevance. See Southern California Gas
Co., 344 NLRB 231, 235 (2005); Duquesne Light Co., 306 NLRB 1042, 1043 (1992). Where
the requested information is not presumptively relevant, it is the union’s burden to demonstrate
relevance. United States Testing, 324 NLRB 854, 859 (1997), enfd. 160 F.3d 14 (D.C. Cir.
1998); Reiss Viking, 312 NLRB 622, 625 (1993) Shoppers Food Warehouse, 315 NLRB 258, 35
259 (1994).
However, the Union’s burden to establish relevancy is “not exceptionally heavy.” A-1
Door & Building Solutions, above; Shoppers Food Warehouse, 315 NLRB at 259; Leland
Stanford Junior University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983). 40
Rather, “[t]he standard for relevancy is a ‘liberal discovery-type standard,’ and the sought-after
evidence need not be necessarily dispositive of the issue between the parties but, rather, only
of some bearing upon it and of probable use to the labor organization in carrying out its statutory

25 Regardless of whether or not Callaci and Blais misunderstood or confused the number of
deficiencies with the number of days Respondent had to make corrections or file action plans, there is
no evidence that they intentionally misstated (or intended to misstate) what management officials said.
JD–26-19
17
responsibilities.” Public Service Co. of New Mexico, 360 NLRB 573, 574 (2014), quoting
Sands Hotel & Casino, 324 NLRB 1101, 1109 (1997) (citations omitted), enf. 172 F.3d 57 (9th
Cir. 1999). See also McKenzie-Williamette Medical Center Associates, 362 NLRB 135, 135
(2015), quoting NLRB v. Acme Industrial Co., 385 U.S. 432, 437. It merely requires “a
reasonable belief supported by objective evidence that the requested information is relevant, 5
unless the relevance of the information should have been apparent to the Respondent under the
circumstances.” Public Service Co. of New Mexico, above at 574. See also Disneyland Park,
350 NLRB 1256, 1258 (2007); Shoppers Food Warehouse, 315 NLRB at 259.
The Board has decided not to pass on the merits of a union’s claim that the employer 10
has breached the collective-bargaining agreement or committed an unfair labor practice, and
the information that triggered the union’s request may be based on hearsay and need not be
accurate or ultimately reliable. E.I. DuPont de Nemours and Co., above, 366 NLRB No. 178,
slip op. at 4; Shoppers Food Warehouse, above, 315 NLRB at 259–260; Reiss Viking, 312
NLRB 622, 625 (1993). Thus, a pending grievance is not a prerequisite for requested 15
information to be considered relevant to a union’s statutory responsibilities. Indeed, the union
is entitled to information to assess whether it should exercise its representative function and
whether the information will warrant further action, such as filing a grievance or bargaining
about a disputed matter. See Public Service Co. of New Mexico, 360 NLRB at 574, citing
Disneyland Park, 350 NLRB 1256, 1258 (2007) (information presumptively relevant to union’s 20
statutory duty to represent unit employee “in any possible future dispute with the Respondent
over the retained information”); Consolidated Diesel Co., 332 NLRB 1019, 1020 fn. 7 (2000),
enfd. on other grounds 263 F.3d 345 (4th Cir. 2001) (the union may retain information relevant
for potential future use for its performance of its representational duties); Ohio Power Co., 216
NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). 25
In addition, the Union, and not the employer, should decide what information can be of
use to it. See FirstEnergy Generation, LLC., 362 NLRB 630, 636 (2015). In the same vein, a
union is entitled to verify an employer’s assertions or representations regarding relevance. See
Finch, Pruyn & Co., 349 NLRB 270, 275–277 (2007), enfd. 296 Fed. Appx. 83 (D.C. Cir. 30
2008).
Where, as here, an employer raises confidentiality concerns, the employer has the
burden of establishing a legitimate claim of confidentiality that would justify refusal to provide
the requested information. Medstar Washington Hospital Center, 360 NLRB 846, 846, fn. 1 35
and 4 (2014), citing, NLRB v. Detroit Edison, 440 U.S. 301 (1979). The Board has determined
that, “[w]hen balancing a claim of confidentiality against a union’s need for information under
Detroit Edison Co. v. NLRB, 440 U.S. 301, 318–319 (1979),” it may consider state law on the
matter. Olean General Hospital, 363 NLRB No. 62, slip op. at 2–3 (2015); see also, Borgess
Medical Center, 342 NLRB 1105 (2004). Even if a confidentiality concern is established, 40
however, the employer must offer to accommodate both its concern and its bargaining
obligation, “as is often done by making an offer to release the information conditionally or by
placing restrictions on [its] use . . . . [T]he onus is on the employer because it is in the better
position to propose how best it can respond to a union request for information. The union need
not propose the precise alternative to providing the information unedited.” U.S. Testing Co. v. 45
NLRB, 160 F.3d 14, 21 (D.C. Cir. 1998). Similarly, offers of summaries or alternative
JD–26-19
18
documents do not reflect the type of accommodation required. Id. at 22. Failure to bargain in
good faith about such accommodation amounts to a violation of Section 8(a)(5). Id. See also
Borgess Medical Center, above, 342 NLRB at 1106, citing authorities.
B. Information Requested by the Union Is Relevant to Representational Duties5
Respondent has not directly challenged the relevancy of the Union’s requested
information in its responses to those requests. Instead, it grounded its refusal in an assertion of
confidentiality and fear that the Union would expose contents of the documents to the public.
In its brief, however, Respondent argues that its legitimate interest in maintaining 10
confidentiality of the documents requested outweighs the Union’s illegitimate, incredible need
for the information. Respondent further contends that the Union failed to accept and/or fully
participate in Respondent’s offers to accommodate.
Nevertheless, in applying the above principles here, I find that the information sought 15
by the Union regarding the mock survey, Aesculap and JCAHO survey results was relevant and
potentially relevant to the Union’s representative responsibilities to its membership, as it clearly
involved unit employees’ (of both units) terms and conditions of employment. Findings from
these reports directly involved the quality of patient care administered by hospital personnel,
including the Union’s nurse and technician members. They specifically involved deficiencies 20
in unit members’ administration of patient care, as well as in their maintenance and care of
equipment, particularly in the OR and recovery units. The Union sought this information,
regarding how the hospital planned to address the problems, due to concerns as to whether or
not any of them found in the mock survey, the Aesculap report and/or the JCAHO survey might
result in discipline of any unit employees or insertion of negative information in any of their 25
personnel files or potential adverse information being reported to the nurses’ licensing board.
26 (Tr. 22–23). As such, the evidence also shows, beyond a mere suspicion, that the findings
implicated parts of the CBAs such as Article XVII and XVIII of the nurses unit CBA requiring
the hospital to provide nurses with equipment and supplies necessary to perform their jobs
safely and training and instruction on any substantial revisions to existing procedures. Although 30
Respondent’s one witness, Cunha, denied that the hospital provided any “substantial” training
or re-training of nurses or other personnel on policies and procedures, she admitted that there
was some training or re-training of employees. She also acknowledged that without information
regarding the nature and types of training, the Union would not be able to determine whether
or not it was “substantial.” 35
The Union pointed out that the nurses’ CBA requirements (Articles 16.1 and 16.2) for
a joint labor-management committee to meet and discuss matters of mutual concern, such as
findings in the JCAHO survey. Callaci explained that the Union needed to see the reports at
issue in this case, deficiencies contained therein and corrective actions taken in order to properly 40
prepare for such a meeting. Respondent, on the other hand, argues that it offered the Union an
opportunity to participate in a labor-management meeting to discuss these issues, and that the
Union had enough information at all times to go forward with such a meeting. I disagree. These

26 It is undisputed that an employer can report any nurse’s practice that is outside recognized
standards of care to the State of Rhode Island, and that the Union can represent members before their
professional boards in the event a complaint is filed. (Tr. 23–24).
JD–26-19
19
meetings, as described in the CBA, are clearly part of the Union’s bargaining responsibilities
on behalf of its members. It is more than reasonable that the Union would need the information
requested in order to prepare for them.
Additionally, relevancy is not challenged because the Union acknowledged wanting to 5
use the information in connection with its corporate campaign, as there is no evidence that the
Union engaged in such a campaign aside and apart from its statutory representational duties.
See Richboro Community Mental Health Clinic, Inc., 242 NLRB 1267 (1979). In Richboro
Community Health Clinic, above, the Board disagreed with the judge, finding that the employer
violated the Act by denying an employee a promotion because of statements in a public letter 10
made in protest of respondent’s discharge of another employee due to his alleged union
activities. The letter was sent to the head of the federal funding source for the respondent, with
copies to a congressman, local newspaper and respondent, referencing the deterioration in the
quality of respondent’s operations and how the discharge of a valuable employee due to his
union activities had “irresponsibly undermined Respondent’s program.” Id. at 1268. The Board 15
concluded that the employee’s criticism of his employer “was not a personal attack unrelated
to his protest of Respondent’s labor practices.” See also, Community Hospital of Roanoke
Valley, Inc., 220 NLRB 217, 223 (1975), enfd. 538 F.2d 607 (4th Cir. 1976) (employees did
not lose the protection of the Act, nor were they “misleading and disloyal,” with their public
remarks via letters to a newspaper linking underpayment and shortages of nursing staff to 20
potential poor quality of care).
Although there is no specific contention here that the Union lost the protection of the
Act, Respondent produced no evidence that the Union’s concerns expressed in its public
campaign were unrelated to any ongoing labor dispute concerning apparent ongoing issues with 25
quality of care and treatment of employees represented by the Union. Therefore, I find that the
information requested was relevant to the duties of the Union as sole representative of both the
nurses and service and maintenance units. Next, I determine whether Respondent provided the
information, or had a legitimate reason for not doing so.
30
C. Respondent Failed to Provide the Union with Requested Information
Regarding all of the requested information in connection with the mock survey, the
Aesculap presentation and the JCAHO survey, there is no dispute that Respondent declined to
provide any of the actual full, detailed reports and related documentation requested by the 35
Union. Arguably, the only exception was when Respondent allowed the Union representatives
to view and take notes from the summary Aesculap report on July 19 and 20.27 However, during
the March 1 meeting to discuss the JCAHO survey, Respondent did not permit the Union to
view the report and take notes as it did with the Aesculap summary. Further, Respondent never
contradicted testimony that it promised but failed to deliver an explanation of the basis of its 40
confidentiality claim. Nor did Respondent provide the Union with information regarding the
training that unit employees had received as a result of the report findings.28

27 I do not find that the March 1 meeting to give the Union an opportunity to ask questions and
discuss the JCAHO survey constituted an accommodation, given the limited nature of the meeting and
the responses.
28 Respondent did not controvert testimony that managers said they would provide training
JD–26-19
20
D. Respondent’s Confidentiality Interest in the Mock Survey, Aesculap Presentation
and JCAHO Survey
Respondent asserted for the first time at trial that its confidentiality claims in response 5
to the three reports at issue were based on Rhode Island State statutes prohibiting disclosure of
records and reports, including the types of reports at issue here, generated by peer review boards
such as the JCAHO. See Rhode Island’s peer review statute (R.I. Gen. Laws. § 23-17-25(a),
R.I. Gen. Laws § 5-37-1(12) (definition of “Peer Review Board”) and The Rhode Island Patient
Safety Act of 2008 (R.I. Gen. Laws § 23-17.21.1) (R. Exhs. R6-R7) (R. Exhs. 6–7). Respondent 10
argues that medical professionals prepared all three reports based on their evaluations of the
hospital’s systems and procedures, and that the hospital relies on self-reporting of its
employees, which the Rhode Island statutes recognize, in order to “deliver superior patient
care.” R. Br. at 13. However, there is no evidence that Respondent considered these statutes
when it decided to deny access to the Union. In fact, Cunha admitted that she had never 15
reviewed, seen nor discussed these statutes until Respondent’s counsel introduced them to her
during trial preparation.
R.I. Gen. Laws. § 23-17-25(a) reads in part:
20
(a) Neither the proceedings nor the records of peer review boards as defined in
§5-37-1 shall be subject to discovery or be admissible in evidence in any case
save litigation arising out of the imposition of sanctions upon a physician.
Under case notes, the statute describes “1. DISCOVERY OF RECORDS” in part:25
Only the records and proceedings which originate with the peer- review
board are immune from discovery, thus, a hospital's records along with
documents originating from sources other than a peer- review board are not
protected simply because they were utilized by the peer- review board during 30
proceedings. [Cofone v. Westerly Hosp., 504 A.2d 998 (R.I. 1986).]
(R. Exh. 6). Next, under R.I. Gen. Laws § 5-37-1(12), the definition of “Peer review board” in
part reads as follows:
35
(12)(i) "Peer review board" means any committee of a state or local professional
association or society including a hospital association, or a committee of any
licensed health care facility, or the medical staff thereof, or any committee of a
medical care foundation or health maintenance organization, or any committee
of a professional service corporation or nonprofit corporation employing twenty 40
(20) or more practicing professionals, organized for the purpose of furnishing
medical service, or any staff committee or consultant of a hospital service or
medical service corporation, the function of which, or one of the functions of
which is to evaluate and improve the quality of health care rendered by providers
of health care service or to determine that health care services rendered were 45

information for unit employees.
JD–26-19
21
professionally indicated or were performed in compliance with the applicable
standard of care or that the cost of health care rendered was considered
reasonable by the providers of professional health care services in the area and
shall include a committee functioning as a utilization review committee under
the provisions of 42 U.S.C. § 1395 et seq. (Medicare law) or as a professional 5
standards review organization or statewide professional standards review
council under the provisions of 42 U.S.C. § 1301 et seq. (professional standards
review organizations) or a similar committee or a committee of similar purpose,
to evaluate or review the diagnosis or treatment of the performance or rendition
of medical or hospital services which are performed under public medical 10
programs of either state or federal design.
(Id.) Finally, what Respondent refers to as The Rhode Island Patient Safety Act of 2008 (§ 23-
17.21-8- “Privilege and confidentiality protections”), states, in part:
15
(a) Privilege. Notwithstanding any other provision of federal, state, or local law
to the contrary, and subject to subsection (c) herein, patient safety work product
and a document log shall be privileged and shall not be: (1) subject to a federal,
state, or local civil, criminal, or administrative subpoena or order, including in a
federal, state, or local civil or administrative disciplinary proceeding against a 20
provider; (2) subject to discovery in connection with a federal, state, or local
civil, criminal, or administrative proceeding, including in a federal, state,
or local civil or administrative disciplinary proceeding against a provider; (3)
subject to disclosure pursuant to §552 of title 5, United States Code (commonly
known as the Freedom of Information Act), Title 38, chapter 2 of the general 25
laws (commonly known as the Access to Public Records Law), or any other
similar federal, state, or local law; (4) admitted as evidence in any federal, state,
or local governmental civil proceeding, criminal proceeding, administrative
rulemaking proceeding, or administrative adjudicatory proceeding, including
any such proceeding against a provider; or (5) admitted in a professional 30
disciplinary proceeding of a professional disciplinary body established or
specifically authorized under state law.
(b) Confidentiality of patient safety -- work product and document log --
notwithstanding any other provision of federal, state or local law to the contrary, 35
and subject to subsection (c) herein, the patient safety work product and
document log shall be confidential and shall not be disclosed.
(R. Exh. 7).
40
In Olean General Hospital, the employer established a legitimate and substantial
confidentiality interest in a JCAHO survey of its patient care. In that case, the report listed 40+
patient care deficiencies. The union representative, who at the time was engaged in bargaining
for a new collective-bargaining agreement with the respondent, requested a copy of the survey
and a list of deficiencies. The Union wanted to know if staffing of nurses, a bargaining issue, 45
had been “implicated in the report,” and the hospital president advised several departments and
JD–26-19
22
the surgical nursing staff, via a memo, that there would be “zero tolerance” for failure to correct
the deficiencies that were basic to patient safety. Although the respondent informed the Union
that its request had been referred to its legal counsel, respondent provided no response or further
explanation despite a second request by the union. Id. at 7. Nevertheless, the Board initially
found that the hospital had a “legitimate and substantial confidentiality interest in the [JCAHO] 5
survey and its contents.”29 Id. at 8.
While the actual JCAHO survey and, arguably, the mock survey, fall under the type of
peer review board product that the Rhode Island State laws above speak to, I do not find that
the Aesculap presentation/summary does. Respondent publicly published parts of that report, 10
including findings of the corporate entity in areas of the hospital for purposes of sharing with
employees. Therefore, I find the Respondent has demonstrated a legitimate confidentiality
interest in the mock and actual JCAHO surveys, but not the Aesculap summary, final report
and related documents as requested by the Union.
15
E. Respondent Failed to Timely Notify the Union and Seek to Accommodate
As the Board noted in Olean General Hospital, above, “that does not end the matter.”
The Board subsequently determined that the hospital’s legitimate and substantial confidentiality
interest did not absolve it from its obligation to notify the union in a timely manner and seek to 20
accommodate the union’s request and the confidentiality concern.” Olean General Hospital,
above, slip op. at 9; see also, American Baptist Homes of the W., 362 NLRB 1135 (2015);
Borgess Medical Center, above, 342 NLRB 1106. Thus, it found that the respondent unlawfully
failed to either notify the union of its confidentiality claim or offer to accommodate for its
concern. In doing so, the Board recognized that the respondent had not “even raised any 25
confidentiality concerns until it filed its answer to the unfair labor practice complaint.” Id.
Although Respondent here voiced its confidentiality concern in its responses to the
Union’s information requests, or as in the case with the JCAHO survey, during the March 1
meeting, it never mentioned or introduced the Rhode Island State confidentiality laws as a basis 30
for its refusal to provide the Union with the surveys and report until trial. In fact, as stated,
Cunha admitted that she had not reviewed, discussed or even seen these statutes until trial
preparation. Thus, there is no evidence that these laws formed a basis for Respondent not
supplying the requested information to the Union. Instead, on May 10, 2017, Respondent
generally notified the Union that it would not supply the mock survey because it was “a 35
confidential and proprietary document subject to attorney-client privilege.” (GC Exh. 4).
In response to the mock survey request, Respondent flat out refused to provide the
requested information, stating that it was “a confidential and proprietary document subject to
attorney-client privilege,” and that there were no “substantial changes to existing procedures 40

29 Olean General Hospital, 363 NLRB No. 62, slip op. at 8, citing: Kaleida Health, Inc., 356 NLRB
1373, 1373, 1378–1379 (2011) (affirmed judge’s finding that a New York State’s policy against
disclosure of certain information raised a legitimate confidentiality interest regarding incident reports,
despite being relevant to the union’s need of them in assessing a grievance); Borgess Medical Center,
342 NLRB 1105, 1105 (2004) (“state law deeming certain information confidential may be considered
in assessing whether there is a legitimate confidentiality interest in that information”).
JD–26-19
23
warranting training and instruction.” Respondent did not give a basis for its confidentiality
concern or offer any accommodation to address the concern. Similarly, Respondent never
explained its attorney-client privilege assertion. Instead, La Bella informed that Respondent
would welcome a joint labor-management committee meeting pursuant to Article 16.1 of the
CBA. I find this offer for a labor- management meeting insufficient, without any additional 5
specification about the basis for the confidentiality concern or an accommodation that met,
related to or addressed Respondent’s confidentiality claim. There is no dispute that Respondent
never provided nor intended to provide the presentation and the surveys to the Union.
Next, Respondent argues that it accommodated the Union’s request for all of the 10
Aesculap reports (summary and detailed) and associated documentation by permitting the
Union representatives to meet with its high ranking management officials and review and take
notes on July 19 and 20 from the 10-page summary report. Initially, La Bella responded on
June 23–24 days after the Union’s May 30 request- that Respondent would not “disseminate
the Presentation outside of the Our Lady of Fatima facility.” (GC Exh. 7). He also repeated 15
the offer to engage in a joint labor-management meeting to discuss health and safety issues.
Although La Bella provided the summary report for review only, Respondent did not offer or
allow the Union to review and take notes from the full, detailed Aesculap report, or submit or
even address any related documentation. I find this attempt an insufficient accommodation as
the summary report was essentially a summary of the information that Respondent permitted to 20
be posted in an area open to its employees. In addition, La Bella indicated to Callaci that
Respondent would not allow them to take copies of the Aesculap summary report because they
feared the Union would take the document out of context and use it to intentionally mislead the
public. However, Respondent failed to offer accommodation, for example, in the form of some
type of confidentiality agreement. Again, Respondent had already made parts of this report 25
public, and had no substantial confidentiality interest in it.
Regarding the actual JCAHO survey, Respondent argues that it accommodated the
Union with the March 1 meeting, permitting the Union to meet with and ask questions of
Prospect’s high ranking officials. Respondent offered to meet in its February 15, 2018 response 30
to the Union’s information request sent about 23 days earlier on January 18. During this
meeting, Respondent basically told the Union representatives that the JCAHO report was
without explanation, confidential, and only shared general information about the survey and
some of the findings and corrective action taken. Finally, Blais and Callaci offered
uncontroverted testimony that La Bella promised on March 1 that he would get back to them 35
with the basis for Respondent’s confidentiality claim. La Bella did not do so, nor did he supply
the Union with any information about unit employees who underwent any training or retraining,
or with any of the corrective plans.30 (Tr. 58–60, 127–128).
Cunha did not recall any communications with management officials in which they 40
discussed whether or not to provide the Union with a confidentiality agreements in connection
with its information requests, and there is no evidence that they did so.

30 As a follow-up to the March 1 meeting, the Union requested names of all bargaining unit members
in both units who attended the retraining that Leahey referred to in the meeting, copies of all 30
corrective action plans referred to by Kobis, in addition to all deficiencies and findings referenced in its
January 18 request. (GC Exh. 18).
JD–26-19
24
Cunha’s concerns regarding protecting identities of participants/interviewees involved
with the reports are unwarranted as they were not identified in the survey.31 Further, there is no
reason for Respondent to believe that the hospital will be inhibited from conducting the surveys
or instrumentation reviews in the future. Respondent’s own publication of deficiencies found 5
in the Aesculap presentation apparently did not so inhibit employees from participating in the
JCAHO survey. Cunha insisted that participants could be identified by the descriptions of their
work areas and deficiencies reported, but there was no evidence that this was the case. Further,
Respondent is required to perform the JCAHO surveys in order to maintain its accreditation.
10
Similarly, I find that Respondent’s issue with negative publicity is unfounded. In
Medstar Washington Hospital Center, above, 360 NLRB at 849–850, the Board determined
that an employer hospital’s similar concerns with negative publicity were illegitimate, finding
that “[f]ear of embarrassment or adverse publicity does not satisfy the principles enunciated in
the Detroit Newspaper case.” Contrary to Respondent’s contention, Respondent and the Union 15
were engaged in ongoing labor disputes regarding patient health and safety (for which they
were responsible) as well as staffing and unit employees’ treatment in the terms and conditions
of employment. Section 7 protects employees’ attempts to improve terms and conditions of
their employment through communications to the public that are part of or related to ongoing
labor disputes. Id. , citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) and Allied Aviation 20
Service Co. of New Jersey, Inc., 248 NLRB 229, 230–231 (1980) (Board found the “touchstone
was not whether the communication constituted a virtual carbon copy of the specific arguments
raised with the respondent, but was, rather, whether the communication was a part of and related
to the ongoing labor dispute.”)
25
The Board has determined that a respondent refusing to provide requesting information,
must seek an accommodation that would allow the union an opportunity to have the information
it needs while at the same time protect the respondent’s interest in confidentiality. United States
Postal Service, 364 NLRB No. 27, slip op. at 2 (2016). Therefore, I find that in this case,
Respondent failed to timely reply and adequately accommodate. 30
I discount Respondent’s argument that the Union waived any lack of accommodation
claim when it refused to consider or discuss the accommodations that the hospital offered.
Respondent relies on a Board decision in BP Exploration, 337 NLRB 887, 887 (2002)
(employer did not violate the Act by only offering 1-page summaries of various reports 35
requested by the union) and Silver Bros. Co., Inc., 312 NLRB 1060 (1993) (employer did not
violate the Act by refusing to provide information when the union refused to meet and discuss
confidentiality concerns in a neutral location). Respondent insists that the Union here similarly
rejected its repeated invitations to initiate a joint labor-management committee meeting, and
that Blais asked only “two measly” questions, and Callaci asked none, when Respondent gave 40
them “unprecedented access to Cunha to inquire about” the contents of the Aesculap summary.
Respondent argues that Blais failed to raise a variety of her alleged concerns regarding health

31 Although Cunha testified that employees who participated in these reviews might be identified
based on their positions, department or area and the type of deficiency, I find that there is no evidence
that this would be the case. And, her concern is belied by the hospital’s posting of deficiencies in the
Aesculap reports. See Medstar Washington Hospital Center, above, 360 NLRB at 849–850.
JD–26-19
25
and safety matters and “fantastical changes” the hospital made to OR protocols. I find that the
cases cited by Respondent are inapplicable here. First, BP Exploration, Inc., above, involved
a finding that the employer did not violate the Act by refusing to provide parts of confidential
documents because they were found to clearly be subject to the attorney-client privilege. There
is no such showing here that documents requested by the Union were protected by this privilege, 5
as is discussed below. Further, Respondent only offered parts of the Aesculap presentation
summary, which it had already released in part to staff. In Silver Bros. Co., Inc., the union
refused to agree to a neutral meeting place in which the union and employer could bargain over
the disputed issues, including the requested information. The Board accepted the judge’s
finding that the employer insistence on the neutral meeting site for bargaining was a “‘red 10
herring to avoid resuming negotiations’” within the entire bargaining context. In doing so, the
Board concluded that the employer was entitled to discuss with the union confidentiality
concerns “so as to try to develop mutually agreeable protective conditions for its disclosure to
the Union.” Contrary to Respondent’s claim, there is no evidence here that the Union stalled
or refused to meet with Respondent. In fact, the Union did so on two occasions, and as I have 15
found, Respondent did not offer sufficient accommodation or any protective confidentiality
conditions for disclosure to the Union. Further, the Union reasonably explained that it needed
the reports in order to fully engage in a joint labor-management meeting. Nevertheless, the
evidence shows that contrary to Respondent’s contentions, Union officials did ask questions
about the reports and raised concerns about safety and health issues in the meetings. The 20
evidence also reveals that Respondent did in fact provide training on new or revised procedures,
as well as institute costly and substantial changes, as a result of the reviews in question.
Finally, I reject Respondent’s indication that because two internal emails referencing
the Aesculap Presentation, contained the subject line: “Attorney Client Communication –25
Privileged and Confidential” the documents discussed were protected by the attorney-client
privilege. Respondent raised this defense in its response to the Union’s request regarding the
mock survey. However, there is no evidence that this information was generated from an
attorney or directed to an attorney. (Tr. 211, 220–223; R. Exhs. 2–3). In fact, Cunha admitted
that corporate counsel Ellen Shin was only copied on one of the emails regarding dissemination 30
of the Aesculap Presentation. (R. Exh. 3). The burden is on the party asserting the attorney-
client privilege to prove that it applies, and Respondent has not met that burden. Lansing
Automakers Federal Credit Union, 355 NLRB 1345, 1353 (2010). Moreover, copying
documents to a counsel, along with others, as in this case, does not make them privileged.
Rather, “[i]t is communication between attorney and client related to the giving of legal advice 35
that is privileged.” Patrick Cudahy, 288 NLRB 968, 971 (1988). In its brief, Respondent also
argues that the mock survey was privileged because its regulatory department oversaw it. (R.
Br. at 14–15). However, as stated, there is no evidence that this oversight included attorney-
client privileged communications. For example, there was no evidence of Respondent’s
counsel directing that reviews be conducted, reports created or investigations initiated. Nor 40
was there evidence that an attorney directed that the reports or their contents be attorney-client
privileged. See BP Exploration, above, 337 NLRB 887–888. Therefore, Respondent has not
established that any of the documents requested by the Union in this case were so privileged.
45
JD–26-19
26
F. The Union’s Need for Information Outweighs Respondent’s Confidentiality Interest
I find that Respondent’s confidentiality interest does not outweigh the Union’s need for
information requested by the Union. Respondent did not offer any accommodation relating to
its confidentiality concerns in connection with the mock survey. Regarding the Aesculap 5
summary report, Respondent’s privacy concerns are undermined by its publication of the
substance of the deficiencies in the report, along with pictures, in an open area to be viewed by
hospital staff. Moreover, Respondent overall failed to reasonably accommodate, as stated
above, or offer any confidentiality agreement to address its privacy concerns in connection with
all three reports. Although Respondent did not issue a memo warning discipline and a zero 10
tolerance policy concerning the reports and lists of deficiencies as was the case in Olean
General Hospital, above, Respondent’s did post the Aesculap report trifold, with deficiencies,
for view by its employees, and a nurse manager discussed with unit members her concern that
mock survey results would have resulted in an OR shut down had it been the real survey.
Indeed, these very real concerns immediately preceded and prompted the Union’s initial 15
requests for information.
Further, in this case, Respondent did not respond to Respondent’s requests for the
Aesculap Presentation and related documents until 24 days after the Union’s initial request, and
11 days after a second request. Similarly, Respondent waited until approximately 23 days to 20
provide any response to the Union ‘s request for the actual JCAHO survey. Therefore, in
addition to failing to offer accommodation, or sufficient accommodation in connection with the
Aesculap reports, Respondent failed to timely respond to both the Aesculap related requests
and the JCAHO survey.
25
Respondent further claims that its confidentiality interests far outweigh the needs of the
Union because the Union failed to show that it had other purposes for the information requested
other than “demonizing” Prospect. I have decided below that the Union’s requests for the three
reports were made in good faith, and for the various reasons stated, notwithstanding this
contention. See Six Star Cleaning & Carpet Services, 359 NLRB 1323, 1334 (2013) (“the 30
existence of even one legitimate purpose would nonetheless render the request valid”); see also,
See Beverly Health and Rehabilitation Services, Inc., 328 NLRB 885, 889 (1999).
For similar reasons, The Board in Olean General Hospital, above, concluded that the
Union’s need outweighed the confidentiality interests, including the state’s policy against 35
disclosure, with the needs of the Union. Therefore, I find such is the case here.
G. Respondent’s Remaining Defenses
1. Union’s requests were not made in bad faith40
In its “Amended Answer and Defenses,” Respondent raised a number of other defenses,
including that the Union bargained in bad faith in response to the offer to accommodate the
request for information.32 However, there is no evidence whatsoever that the Union bargained

32 I find that other defenses raised by Respondent have either been addressed above or unsupported
by the evidence.
JD–26-19
27
in bad faith. In order to establish that a union requested information in bad faith, a respondent
must show that the only purpose for the request was one of bad faith. Thus, “the existence of
even one legitimate purpose would nonetheless render the request valid.” Six Star Cleaning &
Carpet Services, above, 359 NLRB 1323, 1334. The Board has held that a request for
information was made in good faith, “notwithstanding the employer’s contention that it was 5
made in bad faith due to the union’s publication of ‘Bad Care at Beverly’ a document, which,
according to the employer, the union disparaged and vilified Beverly.” Beverly Health and
Rehabilitation Services, Inc., above, 328 NLRB at 889. As discussed above, I have found that
the Union in this case posited several credible representational reasons, including its corporate
campaign, for needing the information requested of Respondent. There is no doubt that the 10
reports here could be expected and did in fact impact terms and conditions of unit employees.
2. Any purported need asserted by the Union for the information is not moot
The Board in Olean General Hospital, 363 NLRB No. 62, slip op. at 7, fn. 16, rejected 15
the employer’s argument that the request for information was moot since the parties had
completed negotiations. Instead, the Board found that “the duty to bargain does not cease when
negotiations have been completed, and staffing issues and disciplinary concerns may arise
during the term of a collective-bargaining agreement.” Id. Therefore, it matters not that the
Union here did not file grievances around report findings on behalf of the nurses. In fact, the 20
potential for grievances and potential reporting to licensure boards continues, for example if
nurses or other technicians violate any procedures or standards that may be set forth in the
reports at issue. Further, issues may arise in any pending or future bargaining. Therefore,
Respondent’s contention that the matter is moot because the Union did not file a grievance
within the designated time period proscribed by the CBA is without merit.3325
3. The undersigned ALJ has authority to act in this matter
a. There is no Appointments Clause violation
30
Respondent argues that my appointment does not comply with the requirements of the
Appointments Clause, and therefore, I am constitutionally ineligible to preside over this matter.
Nevertheless, Respondent acknowledges that the Board rejected this contention in WestRock
Services, Inc., 366 NLRB No. 157, slip op. at 1 (2018). Indeed, the Board in WestRock Services
flatly rejected the argument that the Board’s Members do not collectively constitute a “Head of 35
Department,” finding that “contrary to the Respondent’s contention, the Board is a Department
within the meaning of the Appointments Clause.” Id, citing Free Enterprise Fund v. Public Co.
Accounting Oversight Board, 561 U.S. 477, 512–513 (2010). In summary, the WestRock
Services Board concluded that it collectively, as the Head of Department, validly appoints its
administrative law judges in accordance with the Appointments Clause and has validly 40
appointed each of its existing administrative law judges.” Therefore, the Board has validly
appointed me, and I reject arguments that there are any Appointments Clause violation.

33 Blais provided uncontroverted testimony that two of the service and maintenance unit technicians
had been disciplined for improperly maintaining equipment and violating hospital procedures related to
JCAHO standards and requirements.
JD–26-19
28
b. Removal limitation is not in violation of constitutional separation of powers
Finally, the Respondent insists that “[t]o avoid constitutional concerns, the Board should
narrowly construe ‘good cause’ restrictions on removing administrative law judges.” In other
words, Respondent challenges the constitutional validity of my appointment because of the 5
statutory removal constraints for administrative law judges. There is no support for this
argument, and the Court in Lucia, 585 U.S. ___, 138 S.Ct. 2004, 2050 n. 1 (2018) declined to
decide this issue. (See R. Br. at 24–25). Therefore, it is also without merit.
CONCLUSIONS OF LAW10
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.15
3. The Union is, and, at all material times, was the exclusive bargaining
representative of the following appropriate Unit (Nurses’ Unit): “[A]ll full-time and regular
part-time registered nurses employed by the Employer at its Our Lady of Fatima Hospital
("Fatima facility ") and School of Nursing, located at 200 High Service Avenue, North 20
Providence, Rhode Island, including all registered nurses – general staff, in-service instructors,
case managers,” described in Article 1, "Recognition" in the collective-bargaining agreement
between Respondent and the Union. The Union is, and, at all material times, was also the
exclusive bargaining representative of the following appropriate Unit (Service and Maintenance
Unit): “[A]ll full-time, regular part-time, and per diem staff employed by the Employer 25
including Admission Registration, Breast Health Patient Navigators,…Central Services Tech,
Central Sterile CSD Aid, Certified Nursing Assistant…” at its Our Lady of Fatima Hospital
("Fatima facility "), located at 200 High Service Avenue, North Providence, Rhode Island, as
described in Article 1, "Recognition" in the collective-bargaining agreement between
Respondent and the Union.30
4. By the following conduct, Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act:
(a) Failing and refusing to bargain in good faith with the Union over 35
accommodations between confidentiality concerns in the mock and actual Joint Commission
(JCAHO) reports, and related documents, requested by the Union and the Union’s need for the
information.
(b) Failing to provide documents related, but not a part of the mock and 40
JCAHO survey reports, including any and all training documentation and names of Unit
members who received training on any procedures resulting from these surveys, along with
documentation requested of any changes in hospital procedures or policies resulting from the
mock and JCAHO surveys, regardless of what Respondent deems substantial.
45
(c) Failing to provide the Union with the Aesculap Presentation summary
JD–26-19
29
and final reports and related documents requested by the Union, including any and all training
documentation and names of Unit members who received training on any procedures resulting
from these reports, along with documentation requested of any changes in hospital procedures
or policies, regardless of what Respondent deems substantial.
5
5. The unfair labor practices described above affect commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
10
Having found that the Respondent has engaged in certain unfair labor practices set forth
above, I shall order it to cease and desist from such conduct and to take certain affirmative
action designed to effectuate the policies of the Act. Respondent argues that if found liable
under the Act, the appropriate remedy would be to order it to bargain over a reasonable
accommodation. The General Counsel, on the other hand, contends that the appropriate remedy 15
here should be ordering Respondent to provide all of the documents. Respondent relies on
Borgess Medical Center, 342 NLRB 1105, 1107 (2004) citing Metropolitan Edison Co., 330
NLRB 107, 109 (1999) wherein the Board emphasized an opportunity to bargain as an
appropriate remedy “regarding the conditions under which the Union’s need for relevant
information could be satisfied with appropriate safeguards protective of the Respondent’s 20
confidentiality concerns.” Metropolitan Edison Co., 330 NLRB 107, 109 citing Exxon Co. USA,
321 NLRB 896, 899 (1996).
In Olean General Hospital, above, the Board found that it would order the employer to
turn over the JCAHO survey and list of deficiencies with all patient identifiers redacted rather 25
than requiring the employer to bargain about an accommodation. 363 NLRB No. 62, slip op.
at 11. It determined this remedy was consistent with that in Kaleida Health, Inc., 356 NLRB
1373 (2011), in which the Board found the union’s need for the reports in order to process a
pending grievance outweighed the employer’s confidentiality interests. However, the Board in
Kaleida ordered the employer to provide the requested information with names redacted since 30
the employer had failed to offer a reasonable accommodation of its interests along with the
union’s need for the requested information. Kaleida, above at 1379–1382. In determining its
remedy, the Board in Oleans, similarly found that the employer failed to meet its burden of
timely raising its confidentiality claim and never sought an accommodation. It also limited, as
did the Board in Kaleida, access to the JCAHO information to those persons who are involved 35
in or necessary to the Union’s representational functions. Oleans, above at 11–12, citing
Kaleida, 356 NLRB 1373 1373, 1373.
Respondent here argues that Oleans is distinguishable because unlike the respondent in
that case, it raised its confidentiality claim in responses to the union’s information requests, and 40
sought accommodations. Although Respondent here raised its confidentiality claim with the
Union, except for the mock survey, it did so almost a month after the Union made the requests
for the JCAHO survey and Aesculap documents, without explaining the genesis of its claim
and without providing adequate accommodations. Nevertheless, I find that the appropriate
remedy in this case, only with regards to the mock and actual JCAHO survey results, is to order 45
Respondent to bargain in good faith with the Union accommodations between confidentiality
JD–26-19
30
concerns in the surveys requested by the Union and the Union’s need for such information. I
come to this result due to some distinction in Oleans and Kaleida,34 that the state laws involved
“expressly” allowed disclosure of such surveys as they might be permitted by any other
provision of law. Such general language does not appear in the Rhode Island State laws in this
case. However, I also find that Respondent should provide any and all training documentation 5
and names for unit members who received training on any procedures resulting from these
surveys, along with documentation requested of any changes in hospital procedures or policies
resulting from the mock and JCAHO surveys, regardless what Respondent deems substantial.
Respondent should redact any identifying patient information, if contained therein.
10
Regarding the Aesculap summary and final reports, I find that the appropriate remedy
is for Respondent to provide to the Union these reports and related documents requested by the
Union, including any and all training documentation and names of Unit members who received
training on any procedures resulting from these reports, along with documentation requested of
any changes in hospital procedures or policies, regardless of what Respondent deems 15
substantial. Respondent should redact any identifying patient information, if contained therein.
This remedy is consistent with the Board’s remedy in Kaleida, supra. In Kaleida, the Board
found that the union’s need for the requested information outweighed the employer’s asserted
confidentiality concerns, and that the employer had failed to offer a reasonable accommodation
to balance its interests with the union’s needs. The Board decided that the appropriate remedy 20
was for the employer to submit the information to the union. Kaleida, above. Moreover, I have
found that Respondent has not shown a substantial confidentiality interest with regard to the
Aesculap documents.
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended35
ORDER
The Respondent, Prospect Charter Care, LLC, North Providence, Rhode Island, its 30
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union over accommodations 35
between confidentiality concerns regarding the mock and actual Joint Commission (JCAHO)
reports and related documents requested by the Union and the Union’s need for such
information.
(b) Failing to provide documents related but not a part of the JCAHO survey, 40
including any and all training documentation and names of Unit members who received training
on any procedures resulting from these surveys, along with documentation requested of any

34 See Olean, above at slip op. at 9 and Kaleida, above 1378–1379.
35 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–26-19
31
changes in hospital procedures or policies, regardless what Respondent deems substantial,
resulting from the mock and JCAHO surveys.
(c) Failing to provide the Union with the Aesculap Presentation summary and
final reports and related documents requested by the Union, including any and all training 5
documentation and names of Unit members who received training on any procedures resulting
from these reports, along with documentation requested of any changes in hospital procedures
or policies, regardless of what Respondent deems substantial.
(d) In any like or related manner, interfering with, restraining, or coercing 10
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
15
(a) Bargain in good faith with the Union over accommodations between
confidentiality concerns regarding the mock and actual JCAHO survey reports by the Union
and the Union’s need for such information.
(b) Provide the Union with any and all training documentation and names 20
for unit members who received re-training on any procedures resulting from the mock and actual
JCAHO survey reports, including documentation of any changes in hospital procedures or
policies, regardless of what Respondent deems substantial. Respondent should redact any
identifying patient information, if contained therein.
25
(c) Provide the Union with the Aesculap Presentation summary and final
report and related documents requested by the Union, and failing to provide the Union with the
Aesculap Presentation summary and final report and related documents requested by the Union,
redacting any patient information if applicable.
30
(d) Within 14 days after service by the Region, post at its Our Lady of Fatima
Hospital facility in North Providence, Rhode Island copies of the attached notice marked
“Appendix.”36 Copies of the notice, on forms provided by the Regional Director for Region 1,
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 35
where notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic 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, 40
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

36 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–26-19
32
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since May 3, 2017.
(e) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region 5
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. March 11, 2019
10
Donna N. Dawson
Administrative Law Judge
15
4.4 ,-,„ ,(4,..,„,/
APPENDIX
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 representatives 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 in good faith with United Nursed and Allied Professionals,
Local 5110 (the Union) by failing and refusing to bargain over reasonable accommodations
between confidentiality concerns regarding mock and actual Joint Commission (JCAHO)
reports requested by the Union and the Union’s need for such information.
WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to provide it
with requested documents, relating to training of Unit employees and policy and procedure
changes resulting from mock and JCAHO reports.
WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to provide it
with all requested documents relating to the Aesculap summary and final reports, including
those related to training provided to Unit employees and policy and procedure changes resulting
from the reports.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union over accommodations between confidentiality
concerns regarding the mock and actual JCAHO survey reports by the Union and the Union’s
need for such information.
WE WILL provide the Union with requested documents, relating to training and policy and
procedure changes resulting from mock and JCAHO reports, except any identifying patient
information if contained therein.
WE WILL provide the Union with requested documents relating to Aesculap summary and final
reports, including, training and policy and procedure changes resulting from them, except any
identifying patient information if contained therein.
PROSPECT CHARTER CARE, LLC
(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.
Region 1
10 Causeway Street, 6th Floor, Boston, MA 02222-1072
(617) 565-6700, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-200126 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, (857) 317-7816.