THE PERMANENTE MEDICAL GROUP INC. NORTHERN CALIFORNIA REGION

National Labor Relations Board - Administrative Judge Opinions

Jul 25, 2019

32-CA-226909 (N.L.R.B. Jul. 25, 2019)

JD(SF)-24-19
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
THE PERMANENTE MEDICAL GROUP, INC.
NORTHERN CALIFORNIA REGION
Respondent,
and Case 32–CA–226909
NATIONAL UNION OF HEALTHCARE WORKERS
Charging Party.
Judith J. Chang,
for the General Counsel.
Alicia C. Anderson,
for the Respondent.
Florice Hoffman,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried on March 18,
2019 in Oakland, California. Closing briefs were submitted by the General Counsel and the
Respondent on May 28, 2019.
The National Union of Healthcare Workers (the Union or Charging Party) filed the
charge on September 5, 2018,1 and the General Counsel issued the complaint on December 27.
The complaint alleges that the Permanente Medical Group, Inc., Northern California Region
(Respondent or TPMG) violated Section 8(a)(5) and (1) of the Act by unreasonably delaying
production of certain portions and failing and refusing to provide the remaining portions of the
Union’s June 1, 2018 information request concerning the parties’ negotiations for a successor
collective-bargaining agreement (CBA). The Respondent filed its answer on January 14, 2019,
denying that it unreasonably delayed in furnishing the requested information.
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

1 All dates are in 2018 unless otherwise indicated.
JD(SF)-24-19
2
FINDINGS OF FACT
I. JURISDICTION
5
The Respondent admits, and I find, that the Permanente Medical Group, Inc. is a
corporation engaged in the operation of medical offices and provision of healthcare services for
Kaiser Permanente members in northern California and has its headquarters in Oakland,
California. (GC Exh. 1(e) at 1.)2 During the calendar year ending November 30, Respondent
derived gross revenues in excess of $250,000 and received at its California facilities goods 10
valued in excess of $5,000 that originated from points outside the State of California. (GC Exh.
1(c) at 1–2.) Respondent admits, and I find, that it is an employer engaged in commerce within
the meaning of Sections 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and the Information Request
Since its certification in November 2010, the Union has represented a bargaining unit of 20
approximately 1,700 outpatient mental health employees working in 23 medical centers
throughout northern California. (Tr. 23.) The parties signed a 3-year CBA operative from
December 5, 2015 to September 30, 2018. (GC Exh. 2.) Before the CBA expired, the parties
conducted four prebargaining sessions in June 2018. (Tr. 57.)
25
On June 1, in preparation for successor bargaining agreement, Gregory Tegenkamp
(Tegenkamp), the primary negotiator for the Union and Director of the Kaiser Division of the
Integrated Behavioral Health Services bargaining unit, sent Deborah Glasser (Glasser), chief
negotiator for the Respondent and its Senior Labor Relations Consultant, an information request
(the June 1 info request). (GC Exh. 3.)30
The June 1 info request sought ten categories of information, comprising 40 different
subparts. Categories 1 through 6 pertained to the bargaining unit employees’ terms and
conditions of employment. Ibid. Category 7 requested information on employee turnover, and
Category 8, which the Union later withdrew, requested Respondent’s financial information. Ibid.35
Category 9 sought figures on subcontracting and outside referrals, and Category 10 requested
information on patient access and utilization. Ibid.

2 Abbreviations used in this decision are as follows: “Jt. Exh.” for the joint exhibit; “Tr.” for the
transcript; “GC Exh.” for the General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; “R.
Br.” for the Respondent’s brief; and “Stip. Fact #” for stipulated facts in the joint exhibit. Although I
have included several citations to the record to highlight particular testimony or exhibits, my findings and
conclusions are based not solely on the evidence specifically cited, but rather on my review and
consideration of the entire record.
JD(SF)-24-19
3
As of the time of the hearing, Category 9(b), which requested “[t]he total expenditure, for
each calendar year 2016 and 2017 and year-to-date 2018, of subcontracting/referring out of
Health Plan members for mental health services,” and Category 10(a)(7), which sought the
“number of return visits scheduled within fourteen days of the initial visit,” had not yet been
provided to the Union. Id. at 2, 3.5
Glasser previously stated that information relevant to Category 10(e), which requested
information on the number of patients, by service area, who presented to a Kaiser Emergency
department, did not exist. (GC Exh. 15; Tr. 19.) However, Respondent first produced
documents responsive to Category 10(e) at the March 18 hearing and no longer contests its 10
liability as to this category. (Tr. 7-8, 19-21, 138.)3
B. Categories 1 Through 7
Glasser convincingly testified that upon receiving the June 1 info request, she divided it 15
by category and sent portions to the relevant departments for assistance in compiling the
information. (Tr. 96–97.) Glasser was confident in her testimony and I credit her assertion that
she did not delay in sending out these requests for assistance. I further credit Glasser’s statement
that the requested information required vetting by both her department and TPMG, in a process
that she estimated generally lasts at least 1 month. (Tr. 124–125.) 20
Elaine Huang, TPMG Regional Mental Health Administrative Director, also testified
persuasively that the June 1 info request was comprehensive and required “a lot of data.” (Tr.
136.) Huang further recalled that she sought an extension from her supervisor Agnes Amistoso
to compile the information but was told there was “pressure to get it done as soon as [the 25
department] can.” (Tr. 155.)
At a prebargaining session on June 26, Respondent provided Category 7 at the bargaining
table. (Stip. Fact #5, Jt. Exh. 1.)
30
In a July 6 email, Tegenkamp asked Glasser for an update on the status of the information
request. (GC Exh. 4.) On July 11, Glasser supplied Tegenkamp with the information requested
in Categories 1 through 6. (GC Exh. 5.) I credit Glasser’s testimony that she waited until all
Categories 1 through 6 were ready to compile into a single package before sending it to
Tegenkamp on July 11. (Tr. 120.) 35
Bargaining for a successor agreement began on or about July 12. (Tr. 67.)
40

3 Producing documents at a hearing where delayed production is at issue may point to an Act violation if
the Respondent did not make a good faith effort to search its records in a timely manner. However,
because Respondent conceded its liability as to this category, I will not include findings of fact related to
this portion of the information request.
JD(SF)-24-19
4
C. Category 9
In her July 11 email to Tegenkamp, Glasser stated that Respondent objected on relevance
grounds to the Union’s request under Category 9 for subcontracting information and asked the
Union to explain the relevance of its request. (GC Exh. 5.) In a July 24 email to Glasser, 5
Tegenkamp explained that the information requested in Category 9 was relevant to the Union in
formulating its bargaining position in relation to Article XXVIII, Section 4 of the existing CBA
and in response to new subcontracting language proposed by Respondent on July 23 under
Article VII. (GC Exh. 6.) 4 Respondent later stopped seeking and withdrew the proposed Article
VII language. (Tr. 37.) 10
Tegenkamp further stated that as part of an agreement resulting from a previous Unfair
Labor Practice (ULP) charge filed by the Union, Respondent had committed to routinely
providing information on the number of outside referrals. (GC Exh. 6.)5 In an August 9 email,
Glasser asked Tegenkamp for further clarification on the relevance of Category 9, which 15
Tegenkamp provided on the same day. (GC Exh. 9.)
In an August 20 email, Tegenkamp stated that Respondent’s non-responsiveness to the
Union’s information request was “unacceptable” and advised Glasser that the Union was
preparing to file a ULP charge for a failure and refusal to provide information necessary and 20
relevant to the collective-bargaining process. (GC Exh. 11 at 2.) Glasser responded later on
August 20 by providing information responsive to Categories 9(a), 10(a)(1), (2), (3), (4), (9), and
(10), 10(b), 10(c), and 10(d), noting that the categories had “necessitated additional review and
time to compile the data” before stating that the provided material “completes all of the
requested information in this [June 1] RFI.” Id. at 1. 25
On August 23, Tegenkamp reiterated the Union’s request for subcontracting information
pertinent to Category 9(b) (the total expenditure on subcontracting services) and emphasized the
information’s relevance to the Union’s representational duties in collective bargaining. (GC
Exh. 12 at 1.) Tegenkamp further added that the data was relevant to enforcing Article XXVIII, 30

4 Article XXVIII, Section 4 of the agreement provides:
In order to meet the needs of our patients, the Employer may, at its discretion, assign patients to
outside providers when appointments are not available within timeframes consistent with appropriate
psychiatric care and/or as required by law. The use of any such outside assignment of patients will
not result in the elimination of bargaining unit positions. GC Exh. 2 at 46.
The proposed addition to Article VII reads in relevant part:
The Employer retains, solely and exclusively, all rights and powers and authority that it
exercised or possessed prior to the execution of this Agreement, except as specifically
abridged by any expressed provision(s) of this Agreement. … This includes the right to
determine the methods, processes, means and places of providing services, to include
subcontracting. GC Exh. 10 at 1.
5 The examples the General Counsel provides in Exhibit 7 of information previously disclosed to the
Union in 2017 by Glasser’s predecessor Mark Hollibush relate to the number of outside referrals
(requested under Category 9(a) of the information request at issue here), not the aggregate cost of these
referrals (requested under Category 9(b)). On July 30, Respondent ultimately did provide information
responsive to Category 9(a). GC Exh. 9.
JD(SF)-24-19
5
Section 3 of the existing CBA, which requires Respondent to increase the size of staff based on
the level of outside referrals. Ibid.6
In documents provided during a bargaining session on August 27, Respondent objected to
providing information responsive to Category 9(b) for the first time since receiving the June 1 5
info request on the grounds that such information was confidential and proprietary data. (GC
Exh. 15.) On August 29, Tegenkamp requested that Respondent explain the basis for this
confidentiality claim. (GC Exh. 14.) The Respondent did not.
Furthermore, at the March 18 hearing, Glasser did not recall ever explaining why the 10
information was confidential or proprietary. (Tr. 125–126.) She also admitted that Respondent
did not offer accommodations in the form of a confidentiality agreement but opined that it is
implied in the agreement to provide information that such data will remain confidential. (Tr.
111–112.)
15
D. Category 10
In her July 11 email to Tegenkamp, Glasser stated that Respondent was still in the
process of compiling the pertinent information for Category 10. (GC Exh. 5.) In his July 24
response, Tegenkamp stated that the June 1 info request had been made almost 2 months ago and 20
that the Union expected the requested information to be provided within the next 2 business
days. (GC Exh. 6.) On July 30, Glasser responded to Tegenkamp and stated that Category 10
was still under review and that she hoped to have further information for him soon. (GC Exh. 8.)
In an August 23 email, Tegenkamp wrote Glasser that the documents Respondent25
provided on August 20 “omitted critical information” responsive to Categories 10(a)(5) through
(8) and 10(f). (GC Exh. 12 at 1.) Tegenkamp requested that Glasser provide the information
that day to give the Union time to prepare a proposal addressing access and provider profiles for
bargaining on August 27. Ibid.
30
On August 24, Glasser informed Tegenkamp that Respondent was working on compiling
the relevant data and anticipated providing the information to him on August 27. (GC Exh. 13.)
At a bargaining session on August 27, Respondent produced information responsive to
Categories 10(a)(6), (8), and 10(f) of the June 1 info request. (GC Exh. 15.)
35

6 Article XXVIII, Section 3 of the agreement provides:
To ensure ongoing adequate access, when a ratio of 4:1 cannot be maintained for greater than
one (1) month, the Employer’s intent will be to refer patients to providers outside the
bargaining unit, including, at the Employer’s sole discretion, non-KP providers, in order to
return to a 4:1 ratio, as needed, by facility. If it is necessary to refer out for longer than three
(3) months in a department, the Employer will adjust staffing in the department as needed in
order to return to a 4:1 ratio, except in cases where the need to refer out is temporary, for
example where it is due to employee leaves. While the Employer’s intent is as stated above,
the Union recognizes that circumstances may require modification of new to return ratios in
order to maintain appropriate access for new patients. GC Exh. 2 at 45.
JD(SF)-24-19
6
In the documents, Respondent offered explanations for the information Tegenkamp noted
in his August 23 email had been omitted. Ibid. Regarding Categories 10(a)(5) and (7),
Respondent provided data for (a)(5) but stated that it does not measure the number of follow-up
visits scheduled within 14 days and that “therefore no data is available” for Category 10(a)(7).
Id. at 2. On this point, Huang convincingly testified that Respondent does not track return visits5
within 14 days, making it difficult to obtain the requested data. (Tr. 138.)7
In his reply to Glasser on August 29, Tegenkamp questioned the plausibility of
Respondent’s assertion that data pertinent to Category 10(a)(7) did not exist, stating that the
California Department of Managed Health Care had instructed Respondent to maintain return 10
appointment records. (GC Exh. 14.) However, the instruction Tegenkamp references mandates
only that Respondent track the “availability and timeliness of follow-up appointments.” Id. at 1.
The instruction focuses on the number of appointments available to patients, not the
number of return visits scheduled, which was the specific information requested in Category 15
10(a)(7). Furthermore, I credit Huang’s statement that her understanding of the regulatory
standard is that only tracking initial appointments, not return visits, is required. (Tr. 139, 153.)
Tegenkamp also asserted that Respondent had provided similar information in the past in
response to information requests from the Union. (GC Exh. 14.)8 However, the data to which 20
Tegenkamp referred, and which he sought under Category 10(a)(7), was seen-to-seen data.
Ibid.9 The phrasing “seen-to-seen” was not used in the initial June 1 info request and this August
29 reply was the first time Tegenkamp clarified the meaning of Category 10(a)(7).
Huang credibly explained that the metric of “seen-to-seen” data had previously been used 25
to track return visits within 14 days on Respondent’s Legacy Report system, which Respondent
phased out in 2013 following a regulatory change. (Tr. 140–141.) Respondent now uses the
Access Report system, which no longer tracks return visits. (Tr. 143.)
While the Access Report system utilizes Windows, the Legacy Report system runs on a 30
DOS computer system and Huang’s team lacked the capacity to extract information from it. (Tr.
149, 161.) Huang credibly testified that “it didn’t click” to her that Tegenkamp’s initial June 1
info request was seeking “seen-to-seen” data because the metric extends beyond individual
psychiatric therapy visits to include information on all appointment types. (Tr. 140–142.)
Huang further testified that there is no way to filter out data specifically relating to bargaining 35
unit employees. (Tr. 163.)

7 The General Counsel argues that the data on return visits does in fact exist because Huang failed to
definitively rule out this possibility. GC Br. 11. However, I credit Huang’s testimony that even if this
data did exist, her team lacked the capability to access and compile it. Tr. 148.
8 The data Tegenkamp had previously received in 2017 indicated the number of provider appointments
available to patients, not the number of return appointments ultimately booked. As such, the Union’s
June 1 info request sought data different from that provided in 2017. Exh. 17; Tr. 71–73.
9 “Seen-to-seen” refers to the percentage of patients who have an initial visit and a second visit within a
certain timeframe. R. Br. 8.
JD(SF)-24-19
7
In a September 13 email, Tegenkamp again stated that the information requested in
10(a)(7) and 10(e) was relevant to the Union’s bargaining proposals and noted that the
information had the potential to persuade the Union’s committee to provide a scheduled
management proposal more quickly before September 19. (GC Exh. 18.)
5
On September 19, Glasser provided further documentation and corrected certain
information to fulfill Categories 10(a)(4), (6), and (8) of the request. (GC Exh. 20.)
To date, the parties continue to bargain for a successor contract.
10
ANALYSIS
A. Respondent Did Not Unreasonably Delay in Providing Categories 1 Through 7, 9(a), and
10(b), (c), (d), and (f)
15
Section 8(a)(5) requires that an employer provide potentially relevant information
necessary for a union to perform its statutory duties as the employees’ exclusive bargaining
representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 434 (1967); NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 152 (1956). The employer’s obligation applies with equal force to
information relevant to enforcing existing collective-bargaining agreements and to formulating 20
proposals for new CBAs. Leland Stanford Junior Univ., 262 NLRB 136, 138 (1982), enfd. 715
F.2d 473 (9th Cir. 1983). An employer must provide information regarding bargaining unit
employees’ terms and conditions of employment as it is presumptively relevant to a union’s
collective-bargaining duties. Southern California Gas. Co., 344 NLRB 231, 235 (2005). Here,
the information requested in Categories 1 through 6 is presumptively relevant. The Respondent 25
does not dispute, and I find, that Categories 7, 9(a), 10(b), (c), (d), and (f) are also relevant.
To determine whether an employer unlawfully delayed in producing a response to an
information request, the Board considers the totality of the circumstances, including the
complexity and extent of information sought, its availability, and the difficulty of retrieval. West
Penn Power, Co., 339 NLRB 585, 587 (2003) (quoting Samaritan Medical Center, 319 NLRB 30
392, 398 (1995)) enfd. in rel. part 394 F.2d 233 (10th Cir. 1968). The duty to furnish
information requires a “reasonable good faith effort to respond to the request as promptly as
circumstances allow.” Good Life Beverage Co., 312 NLRB 1060, 1062, fn. 9 (1993).
On June 26, the Respondent provided information responsive to Category 7 of the June 1 35
info request. It provided information responsive to Categories 1 through 6 on July 11, 5 weeks
after the June 1 info request, and to Categories 9(a), and 10(b), (c), (d), and (f) on August 20 and
August 27, 11 to 12 weeks after the initial request.
I find that the totality of the circumstances weighs in favor of holding that Respondent 40
did not act unlawfully. In West Penn Power, the Board held that the respondent did not
unreasonably delay in responding to the union’s information request seeking data regarding two
service centers. 339 NLRB at 587. Though the respondent delayed up to 7-1/2 months, the
Board held that the employer did not act unreasonably under the circumstances, including that
the employer periodically advised the union it was compiling the requested data; five full-time 45
JD(SF)-24-19
8
staff worked on gathering the information; and the specific request had been made alongside
other information requests, requiring substantial time to address. Ibid.
Similarly, here, Glasser periodically updated Tegenkamp on Respondent’s progress in
compiling Categories 9 and 10. (GC Exh. 5, 8, 11, 13.) The June 1 info request was also 5
voluminous and required coordination among Respondent’s various departments. As noted
above, Huang even sought an extension but was informed that there was pressure to complete it
as soon as possible. Given these circumstances, I find it reasonable that Respondent took the
amount of time it did to comply with the June 1 info request. Furthermore, much of the
information requested (Categories 1 through 7) was provided by July 11, prior to the start of 10
bargaining on July 12.
General Counsel cites International Credit Service, United States Postal Service, and
Monmouth Care Center as examples that 4- to 6-week delays in information request responses
have been found unreasonable. These cases are distinguishable on the facts. In International 15
Credit Service, the union requested only the names and wage rates of employees working at the
respondent’s sole business location. 240 NLRB 715, 718 (1979). In contrast, the Respondent
here is a large medical group employing thousands of employees in various departments, housed
in 23 medical centers with over 100 physical locations across northern California. (Tr. 29.) In
United States Postal Service, the information that was provided after a 4-week delay “ha[d] not 20
been shown to be complex or difficult to retrieve: the information consist[ed] of only a few
documents.” 308 NLRB 547, 551 (1992). Here, the union bargaining unit alone comprises
approximately 1,700 employees, requiring Respondent to produce far more than “a few
documents.” In Monmouth Care Center, the respondent failed to provide any explanation for its
6-week delay in information provision. 354 NLRB 11, 51 (2009). The instant case is not 25
analogous. Glasser expressly testified that Respondent’s delayed response was due to the
comprehensive nature of the request and a vetting process performed by multiple departments
that typically lasts 1 month.
Based on the totality of the circumstances here, I find that, considering its large size and 30
the comprehensive nature of the June 1 info request, Respondent provided Categories 1 through
7, 9(a), and 10(b), (c), (d), and (f) in a timely manner. Accordingly, with respect to those June 1
info requests, Respondent did not unreasonably delay in violation of Section 8(a)(5) and (1) of
the Act.
B. Category 9(b) is Relevant and Respondent Failed to Assert Confidentiality35
Information relating to non-unit employees, including information on subcontracting
agreements, is not presumptively relevant. Disneyland Park, 350 NLRB 1256, 1257–1258
(2007). The burden is on the union to demonstrate relevance. Ibid. The Board applies a liberal,
discovery-type standard to determine relevance, under which the union must show “a reasonable 40
belief, supported by objective evidence, that the requested information is relevant.” Disneyland
Park, 350 NLRB at 1258. The union’s explanation of relevance “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 responsibilities.” Public
JD(SF)-24-19
9
Service Co. of New Mexico, 360 NLRB 573, 574 (2014), quoting Sands Hotel & Casino, 324
NLRB 1101, 1109 (1997), enfd. 172 F.3d 57 (9th Cir. 1999).
The Respondent asserts that the Union failed to meet its burden of demonstrating the
relevance of the information requested in Category 9(b) regarding total subcontracting 5
expenditures. The Respondent relies on Disneyland Park, where the Board held that the
employer did not violate the Act by denying the union’s requests for subcontracting information
because the union failed to meet its burden of demonstrating relevance. 350 NLRB at 1256. The
union in Disneyland Park merely cited a provision of the CBA that prohibited any
subcontracting resulting in a termination, layoff, or a failure to recall unit employees from layoff. 10
Id. at 1258. The union made no claim that any of these violations had occurred. Ibid. The
Respondent here asserts that the Union has merely cited a similar provision in the existing CBA
(Article XXVIII, Section 4) without setting forth support for a contract violation claim.
However, Respondent fails to mention that the Union also stated that it needed the 15
information to formulate its own subcontracting proposals and that it pointed to another
provision of the CBA to demonstrate the request’s relevance. In his August 23 email,
Tegenkamp stated that subcontracting information was relevant to enforcing Article XXVIII,
Section 3 of the CBA, which mandates an increase in bargaining unit staffing if the need to
subcontract lasts for longer than 3 months. (GC Exh. 12.) Tegenkamp put forth some facts to 20
support the Union’s concern. The number of outside referrals had “increased significantly” in
the past 2 years, and though Respondent had represented to the Union that it preferred not to
subcontract and intended to increase staffing, subcontracting had occurred “in place of” hiring
new staff. Ibid. These concerns constitute objective evidence supporting the Union’s reasonable
belief that the requested information is relevant to enforcing a provision of the current CBA. 25
The Respondent further asserts that the Union did not provide an adequate explanation
for why costs (requested under Category 9(b)), as opposed to the level of outside referrals
(requested and provided under Category 9(a)), is relevant. The Respondent draws a distinction
between the two types of information that the Board, when considering information requests also 30
related to subcontracting, has not. The Board has held that information relating to expenditures
on subcontracting, including wages, overhead costs, and bills submitted by subcontractors, are
relevant to a union’s collective-bargaining responsibilities. See Marathon Petroleum Co., 366
NLRB No. 125, slip op. at 2 (2018) (overhead costs of subcontractors are relevant information);
Teachers Coll., Columbia Univ., 365 NLRB No. 86, slip op. at 1 (2017) (subcontractor wages are 35
relevant); Murray Am. Energy, Inc., 366 NLRB No. 80, slip op. at 6 (2018) (bills submitted by
subcontractors are relevant).
The specific circumstances here further indicate that total expenditure on subcontracting
is relevant information. The Respondent previously represented to the Union that it preferred not 40
to subcontract because of higher costs; however, this is at odds with the figures indicating an
increase in subcontracting. Subcontracting costs information could be useful to the Union in
evaluating this discrepancy. The information would also be useful to the Union in formulating
its own subcontracting proposals, particularly since subcontracting remains an open issue in the
ongoing bargaining. (Tr. 37.) Accordingly, I find that the Union satisfied its burden to 45
demonstrate the relevance of its request in Category 9(b).
JD(SF)-24-19
10
I further find that Respondent failed to demonstrate, other than through its bare
assertions, that the requested subcontracting information is confidential and proprietary. See
Lasher Service Corporation, 332 NLRB 834, 834 (2000). It was not until August 27 that
Respondent even raised its claim of confidentiality. If Respondent had a legitimate 5
confidentiality interest, it should have stated its concern earlier. Furthermore, even if
Respondent was able to establish a confidentiality interest, it offered no accommodations to
alleviate its confidentiality concerns, such as by producing the information in a redacted form or
under a confidentiality agreement. See National Steel Corporation, 335 NLRB 747, 752 (2001).
The Respondent also failed to consider Tegenkamp’s clarification that the Union was not seeking 10
specific details of the Respondent’s contractual relationships with outside providers, which
would strengthen a confidentiality claim, but, instead, the Union was merely seeking the
aggregate annual costs of subcontracting. I find that the Respondent made no showing of
confidentiality and failed and refused to furnish the information requested in Category 9(b) in
violation of Section 8(a)(5) and (1) of the Act. The information requested in Category 9(b) shall15
be provided.
C. Respondent Does Not Possess Information Pertinent to Category 10(a)(7)
An employer cannot violate Section 8(a)(5) and (1) by failing to provide information that 20
it does not have. See Vanguard Fire & Supply Co., 345 NLRB 1016, 1041 (2005), enfd., 468
F.3d 952 (6th Cir. 2006). I find that Respondent no longer maintains records on follow-up visits
scheduled within 14 days and that it is not required by regulatory standards to do so. The data,
even if it exists, is stored on a phased-out Legacy Report System that is not accessible and that
operates on a computer system Respondent no longer uses or maintains—DOS versus Windows. 25
The General Counsel asserts that Respondent’s representation to the Union on August 29
that the information requested in Category 10(a)(7) does not exist constitutes an unpled delay
violation. However, I find that Respondent did not delay in informing the Union because
Respondent was not aware that the Union sought “seen-to-seen” data until Tegenkamp clarified 30
the language of Category 10(a)(7) on August 29. The Board has held that an employer’s lack of
certainty about what precisely the union sought in its information request can provide a
reasonable basis for a failure to provide the requested information. E.I. Du Pont & Co., 291
NLRB 759, 761 (1988). Accordingly, I find that Respondent does not possess the information
requested in Category 10(a)(7) and that it did not violate Section 8(a)(5) and (1) of the Act as to 35
this part of the June 1 info request.
D. Respondent Concedes Liability as to Category 10(e)
The Respondent does not contest its liability as to Category 10(e) regarding information 40
on the number of patients presenting at Kaiser Emergency departments. It previously asserted
that the information did not exist before admitting at the March 18 hearing that it does in fact
possess the relevant data. Accordingly, I find that Respondent unreasonably delayed in
providing information pertinent to Category 10(e), in violation of Section 8(a)(5) and (1) of the
Act. 45
JD(SF)-24-19
11
CONCLUSIONS OF LAW
1. Respondent, the Permanente Medical Group, Inc., is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
5
2. The National Union of Healthcare Workers is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to furnish the Union in a timely manner with information
regarding: (a) the total expenditure, for each calendar year 2016 and 2017 and 2018, of10
subcontracting/referring out of Health Plan members for mental health services; and (b)
the number of patients presenting at Kaiser Emergency departments, Respondent engaged
in, and is engaging in, unfair labor practices in violation of Section 8(a)(5) and (1) of the
Act.
15
4. The Respondent’s above-described unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated the Act in any other manner alleged in the complaint.
20
REMEDY
Having found that the Respondent, the Permanente Medical Group, Inc., has engaged in
certain unfair labor practices, I find that they must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act. 25
Having found that the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act, it shall be ordered to produce
the information and post and mail a notice to employees attached as the Appendix.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:10
ORDER
35
The Respondent, the Permanente Medical Group, Inc, Northern California Region,
Oakland, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to provide the Union, the National Union of Healthcare Workers, with 40
requested information that is relevant and necessary to the Union’s performance of its
duties as collective-bargaining representative of the Respondent the Permanente

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)-24-19
12
Medical Group’s bargaining unit employees.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effectuate the policies of the Act.5
(a) Promptly provide the Union with: (i) the total expenditure, for each calendar year
2016 and 2017 and 2018, of subcontracting/referring out of Health Plan members for
mental health services requested by the Union; and (ii) the number of patients
presenting at Kaiser Emergency departments.
(b) Within 14 days after service by the Region, post at its Oakland, California facility 10
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition to physical posting of paper 15
notices, 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, during the pendency of these20
proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent at any time since June 1, 2018.
(c) Within 21 days after service by the Region, file with the Regional Director for Region 25
32, a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated at Washington D.C. July 25, 2019
30
Gerald Michael Etchingham
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)-24-19
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain, or coerce you in the exercise of the above rights.
WE WILL NOT fail and refuse to bargain with the National Union of Healthcare Workers (Union),
the employees’ representative in dealing with us regarding wages, hours and other working
conditions of the employees in the following unit:
All employees in the classifications set forth in the Collective Bargaining Agreement
between the Union and the Employer effective December 5, 2015 through September 30,
2018 for the Integrated Behavior Health Services bargaining unit.
WE WILL NOT refuse and fail to provide the Union with the information it requested that is
relevant and necessary to its role as your bargaining representative, including bargaining a
successor collective-bargaining agreement.
WE WILL NOT unreasonably delay in responding to the Union’s information requests or otherwise
unreasonably delay in providing the Union with information it requests that is relevant and
necessary to its role as your bargaining representative.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL, to the extent we have not already done so, provide the Union with the information
it requested as described in Categories 9(b) and 10(e) of the Union’s June 1, 2018
information request.
(Employer)
Dated ___________________ By ______________________________________
(Representative) (Title)
THE PERMANENTE MEDICAL GROUP, INC.
NORTHERN CALIFORNIA REGION
JD(SF)-24-19
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. We conduct secret-ballot elections to determine
whether employees want union representation and we investigate and remedy 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 or you may call the Board's toll-free number 1-866-667-NLRB
(1-866-667-6572). Hearing impaired persons may contact the Agency's TTY service at 1-866-
315-NLRB. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay St Ste 300N
Oakland, CA 94612-5224
Telephone: (510)637-3300
Hours of Operation: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-226909 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, (510) 671-3034.