[00:00:01] Speaker 00:
case over 15-1436 at Elm.

[00:00:04] Speaker 00:
Prime Healthcare Centinella LLC doing business at Centinella Hospital Medical Center Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 00:
Mr. Kernigan for the petitioner, Ms.

[00:00:13] Speaker 00:
Gaines for the respondent.

[00:01:09] Speaker 03:
Good afternoon.

[00:01:12] Speaker 03:
May it please the court, Jason Kernaghan of Sheppard, Mullen, Richter & Hampton, on behalf of the petitioner and cross-respondent, Prime Healthcare of Centenella, LLC.

[00:01:26] Speaker 03:
As a young prosecutor in the United States Navy, one of the first lessons I learned was not to overreach in a case.

[00:01:33] Speaker 03:
When you're asserting charges against an accused and you overreach, it can lead you down the path of failure from the outset of a case.

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And here what we have is overreaching by the union and its information requests, by the administrative law judge

[00:01:52] Speaker 03:
in the determination that impasse was not reached and that the refusal to respond to the July 23rd request was unjustified, and then overreaching by the board by affirming the administrative law judge's decisions.

[00:02:09] Speaker 02:
So on the theme of overreaching, I guess my concern is that we not overreach and

[00:02:16] Speaker 02:
that leads into the standard of review question, similar to the last case, frankly.

[00:02:22] Speaker 02:
We have a differential standard of review to the board here, and then the key, if I'm analyzing this correctly, and push back on me if I'm not,

[00:02:33] Speaker 02:
The key is that they think the information requests met the low bar of relevance, and from there, everything else follows on impasse, and we're reviewing all of that deferentially.

[00:02:45] Speaker 02:
So how do you get around that?

[00:02:49] Speaker 03:
Well, I would rely on the litin case set in our brief.

[00:02:51] Speaker 03:
This is such a gross departure from the established precedent and the facts of the case that you need to take a look closer than deferential.

[00:03:01] Speaker 03:
I mean, if you look at the July 23 request, it's made under the guise of they needed information regarding care facilities for proper evaluation of the exclusive provider organization plan.

[00:03:16] Speaker 03:
The EPL plan is on call.

[00:03:18] Speaker 03:
But let's look at the facts here.

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Bargaining started in December 2009.

[00:03:24] Speaker 03:
The EPO plan was first introduced in February 2010 at the bargaining table.

[00:03:30] Speaker 03:
This request was not made until July 23, 2010 after five months of bargaining.

[00:03:36] Speaker 02:
But that goes, I guess, to motive.

[00:03:40] Speaker 02:
And there's a reasonable case there that you can make.

[00:03:45] Speaker 02:
But that's not what we're really reviewing there.

[00:03:47] Speaker 02:
True motive, we're reviewing whether it met a low bar of relevance.

[00:03:52] Speaker 02:
and either dissenting member on the board thought that it was outside, you didn't get the presumptively relevant treatment, but still thought it met the bar of relevance, member Miskimara.

[00:04:07] Speaker 02:
And so I take your point on their real motive, I get that, but I don't think we can really get into that too much.

[00:04:15] Speaker 03:
Well, the standard set forth in Kiyohu Beach Hotel is, is it necessary and relevant?

[00:04:23] Speaker 03:
And because they're seeking information that's outside of this bargaining union, we're looking at 18 hospitals here.

[00:04:30] Speaker 03:
Prime Sentinel is located in Inglewood, California, off the 405 right by LAX.

[00:04:37] Speaker 03:
Hospitals in Northern California, San Diego, Texas, Pennsylvania, Nevada have no relevance to the bargain at this facility because from a practical matter, people are not going to drive from Los Angeles to Hershey, Pennsylvania to see their primary care physician.

[00:04:55] Speaker 05:
Was the request relevant as to the hospitals that were in the area?

[00:05:02] Speaker 03:
It was overbroad in scope in that regard.

[00:05:04] Speaker 05:
My question is, to the extent it sought, I get that it sought more than that.

[00:05:08] Speaker 05:
There's the big circle.

[00:05:10] Speaker 05:
I'm asking you a smaller circle inside that sought this information as to the hospitals that were reasonably likely to be used by the employees.

[00:05:20] Speaker 05:
Was it relevant as to that?

[00:05:22] Speaker 05:
Was that subset relevant?

[00:05:24] Speaker 03:
No, because some of the information they requested were pepper reports.

[00:05:27] Speaker 05:
Pepper reports deal with... No, but I think that was turned down by the board or ALJ, one of those two.

[00:05:32] Speaker 05:
So let's put that aside.

[00:05:33] Speaker 03:
Okay, let's put that aside.

[00:05:34] Speaker 05:
The septicemia rates at the hospitals they were likely to use, was that relevant?

[00:05:39] Speaker 03:
That's information that can be obtained to the Joint Commission and also infringes... There's no answer to not turning it over.

[00:05:46] Speaker 03:
It was overbroad in time and scope.

[00:05:49] Speaker 03:
The Centinella facility was not acquired by the employer until 2007.

[00:05:53] Speaker 05:
Many of the other facilities were only recently acquired and seeking informational... For five years, for the hospitals and medical facilities, these folks were reasonably likely to use septicemia rates.

[00:06:05] Speaker 05:
That's encompassed within those requests.

[00:06:06] Speaker 05:
Was that relevant?

[00:06:08] Speaker 05:
We'll never know because on August 24th, I'm sorry, I'm just asking your opinion as counsel for the company.

[00:06:14] Speaker 05:
Does that meet the legal standard for relevance?

[00:06:16] Speaker 03:
I believe not.

[00:06:17] Speaker 03:
No, because I think it was for an improper motive.

[00:06:20] Speaker 03:
It was for a purpose of game.

[00:06:22] Speaker 05:
It was for an angelic motive.

[00:06:23] Speaker 05:
would it be relevant?

[00:06:24] Speaker 03:
It feels for an angelic motive.

[00:06:27] Speaker 03:
The specific question of septicemia rates with respect to these this plan when it was not requested with respect to any other plans.

[00:06:34] Speaker 03:
No, I did not believe so because because what we're talking about here is a requirement that you have a primary care physician who is the gatekeeper.

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That was the hold up here.

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and set the senior rates with respect to blood infections or the pressure ulcers that might require.

[00:06:51] Speaker 05:
They're going to be required to use these hospitals for medical care, correct?

[00:06:54] Speaker 03:
No.

[00:06:54] Speaker 05:
They needed hospitalization?

[00:06:55] Speaker 03:
No, because you could go to the Anthem PPO plan.

[00:06:58] Speaker 05:
So there was no requirement.

[00:07:01] Speaker 05:
If they were doing the PPO plan, which was part of what you're offering, I really question, if you're in the PPO plan, this is where you'd go, correct?

[00:07:09] Speaker 03:
Potentially, yes.

[00:07:10] Speaker 05:
Potentially.

[00:07:10] Speaker 05:
Or they might go to one of those further away hospitals.

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or an out-of-network facility.

[00:07:18] Speaker 05:
Which costs a lot of money, right?

[00:07:22] Speaker 03:
Yes, Your Honor.

[00:07:22] Speaker 05:
So I guess what I'm trying to get at here is my understanding of the law.

[00:07:27] Speaker 05:
You tell me if I've got it wrong, is that if there were at least material portions of the request that were relevant, the fact that there may be some things that the employer thinks were too broad in time or too broad in coverage,

[00:07:42] Speaker 05:
does not mean you just get to refuse to answer anything, but it's on the employer.

[00:07:46] Speaker 05:
Tell me if I got this wrong.

[00:07:47] Speaker 05:
But it's on the employer to say, look, almost like discovery.

[00:07:50] Speaker 05:
Here's the things that you legitimately asked for, in our view.

[00:07:54] Speaker 05:
Here's what you get.

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Now, we're not going to go back 10 years.

[00:07:59] Speaker 05:
You think that's too long.

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But give a reasoned explanation.

[00:08:02] Speaker 05:
We're not going to all the hospitals, but we'll go to the ones that is foreseeable you all have to use, because that seems reasonable to us.

[00:08:07] Speaker 05:
But the employer here didn't do that.

[00:08:09] Speaker 05:
So do I have the law backwards?

[00:08:11] Speaker 03:
I think it's not the law, it's the factual inquiry, because as set forth in the August 24, 2010 letter from the hospital,

[00:08:23] Speaker 03:
They offered to meet and confer face-to-face with the union, and they also offered to enter into a confidentiality agreement with respect to certain document production.

[00:08:35] Speaker 04:
What is it now?

[00:08:35] Speaker 04:
That's a different issue, confidentiality.

[00:08:37] Speaker 04:
The ALJ found that there was no confidentiality issues.

[00:08:41] Speaker 04:
The union agreed to take out all personal identifying information.

[00:08:45] Speaker 04:
So that's a separate question than the question Judge Malletta's asking.

[00:08:48] Speaker 04:
So assume for the moment that that's not part of the issue.

[00:08:51] Speaker 04:
What's the answer to her question?

[00:08:56] Speaker 03:
The hospital offered a face-to-face meeting conferred to resolve these issues.

[00:09:01] Speaker 03:
It's set forth in writing.

[00:09:03] Speaker 03:
It's at the volume two of the Joint Appendix 1119 through 24, I believe.

[00:09:11] Speaker 03:
And in their expressive states, let's sit down and talk about these issues.

[00:09:16] Speaker 03:
And on September 15, 2010, the union unequivocally rejected that request.

[00:09:21] Speaker 05:
So to hold the hospital to a sufficient response to a document request that includes at least a material percentage of relevant inquiries?

[00:09:32] Speaker 03:
Well, I think it would run afoul of the case law, such as Local 13 of the Detroit

[00:09:38] Speaker 03:
press that the union is under an obligation to bargain in good faith.

[00:09:44] Speaker 03:
And this is not a good faith negotiation with respect to this production if they're refusing to meet face to face.

[00:09:52] Speaker 05:
So it sounds like mainly what you're relying on here is the bad faith argument.

[00:09:56] Speaker 05:
You didn't have, you didn't have, I get that you say you do, if you didn't have that

[00:10:01] Speaker 05:
Maybe this wouldn't work, but it sounds to me like you're saying the reason the approach taken by the employer was sufficient in this case is because you had a sort of bad faith concerns here and you wanted to meet to address it that way.

[00:10:14] Speaker 05:
Am I understanding your argument right?

[00:10:16] Speaker 05:
I don't want to put words in your mouth.

[00:10:18] Speaker 03:
They might be better than my own.

[00:10:22] Speaker 03:
Along those lines, I think

[00:10:24] Speaker 03:
And then you can move on as to what documentation with respect to those facilities would be appropriate.

[00:10:40] Speaker 03:
However.

[00:10:41] Speaker 03:
based on the September 15th rejection of the offer for a face-to-face meeting.

[00:10:45] Speaker 03:
This isn't, let's exchange more letters.

[00:10:47] Speaker 03:
This is outside of the bargaining table.

[00:10:51] Speaker 03:
Let's have the parties get together in a meeting and discuss.

[00:10:53] Speaker 04:
What's the page?

[00:10:54] Speaker 04:
Just tell me again the JA page of the request for the meeting.

[00:11:02] Speaker 03:
It's volume two

[00:11:05] Speaker 03:
This is JA 1128.

[00:11:07] Speaker 03:
It's an August 24, 2010 letter to Daniel Bush, who was the lead negotiator from the union.

[00:11:13] Speaker 03:
Volume two.

[00:11:15] Speaker 03:
I'm sorry, volume three, Your Honor.

[00:11:17] Speaker 03:
I apologize.

[00:11:18] Speaker 03:
Volume three, 1128.

[00:11:21] Speaker 05:
Why would they want to do that outside the bargaining?

[00:11:23] Speaker 05:
I'm just curious, why would they say let's do this instead of just, because I thought for the unions response was, look, we're in negotiations, let's do this through the negotiating process, but is there, you know, you're representing employers, is there a reason?

[00:11:36] Speaker 03:
I misspoke.

[00:11:37] Speaker 03:
not necessarily outside the bargaining context, but a separate bargaining session with respect to this discreet issue, not the proposals in and of themselves.

[00:11:46] Speaker 05:
Okay, so a session just on the documents.

[00:11:48] Speaker 03:
Correct, and so I apologize for being a speaker in that regard.

[00:11:52] Speaker 03:
Your Honor, if you look at 1128, it states in the third full paragraph, second sentence, quote, as such, I would like to schedule a face-to-face meeting with you to discuss the SEIU's positions in and out of Sentinel.

[00:12:08] Speaker 03:
And it's specifically referencing the disagreements over documents in connection with the proposed EPL plan.

[00:12:18] Speaker 04:
They don't say anything other than it's too broad.

[00:12:21] Speaker 04:
They were given a very expensive letter from the union explaining the relevance of every element of the request dated August 17th.

[00:12:32] Speaker 03:
Well, the August 17th request in and of itself narrowed the scope of the request in that it referenced five Los Angeles hospitals, only mentioning one by name.

[00:12:46] Speaker 04:
That's not answering my question.

[00:12:48] Speaker 04:
I'm saying that the union, and this is the letter that the board and the LGA relied on, very specific about why his requests are relevant.

[00:13:01] Speaker 04:
The response doesn't say why they're not relevant.

[00:13:07] Speaker 03:
That was the purpose of the face-to-face meeting, so they wouldn't have back and forth in these letters.

[00:13:12] Speaker 03:
It was, let's sit down and try to hammer out a solution.

[00:13:17] Speaker 05:
The union responded in a perfectly reasonable way, saying, look, we don't want to have this separate meeting.

[00:13:22] Speaker 05:
Let's do it as part of the negotiations.

[00:13:23] Speaker 05:
We'll make it the first order of business, but we believe it's all relevant.

[00:13:27] Speaker 05:
I'll explain to you why it's that.

[00:13:31] Speaker 05:
Was it the first order of business at the next meeting, and why wasn't it provided then?

[00:13:36] Speaker 03:
Well, the next bargaining session, rather than discuss the issue with respect to document production, the union provided an EPL proposal.

[00:13:43] Speaker 03:
So the fact that they were able to provide an EPL proposal at the next scheduled bargaining session after this correspondence exchange

[00:13:52] Speaker 03:
Evidence is that the information really wasn't necessary and relevant to make the proposal.

[00:13:56] Speaker 03:
No, I don't think at all.

[00:13:57] Speaker 05:
I think if evidences of the union was engaged in good faith negotiations, but they've still got to know about this EPL plan.

[00:14:03] Speaker 05:
They've got to know before they can recommend it.

[00:14:06] Speaker 03:
And there was full and fair opportunity to discuss it at the September 30th bargaining session.

[00:14:10] Speaker 03:
There's no evidence in the record that it was.

[00:14:13] Speaker 03:
With that, I have reserved some time for rebuttal, so if there's any more questions.

[00:14:17] Speaker 03:
Sorry.

[00:14:17] Speaker 04:
We'll hear from the NLRB.

[00:14:20] Speaker 04:
Thank you.

[00:14:28] Speaker 01:
Good afternoon, Amy again for the NLRB.

[00:14:32] Speaker 01:
I will just pick up where we left off with this idea that the union was not willing to bargain over the information request.

[00:14:40] Speaker 01:
Indeed, the union responded to the request for a face-to-face meeting between only the lead negotiators with the statement that they would

[00:14:49] Speaker 01:
be willing to bargain about the information request and health insurance at the next session and make it the first order of business.

[00:14:55] Speaker 01:
So there's just no evidence here that the union was not willing to negotiate over this information request.

[00:15:02] Speaker 01:
And the hospital at no time provided or offered to provide any information responsive to the request as to any hospitals or as to any of the requested categories of information.

[00:15:15] Speaker 01:
In terms of the statement that the Union somehow narrowed its information request in its August 17th letter, and this is at JA 1120, also in Volume 3, so just prior to the letters we were just looking at,

[00:15:30] Speaker 01:
In that letter, the union did not narrow its request to only five hospitals.

[00:15:36] Speaker 01:
The union stated, made a statement on page 1120 that five of the six hospitals in the United States with the highest septicemia rates are prime hospitals in the Los Angeles area and then named one particular hospital.

[00:15:50] Speaker 01:
By making that statement as background information as to its concern about the, quote, astonishing septicemia rates at the hospitals,

[00:15:58] Speaker 01:
The union was certainly not narrowing its request for the information to only those hospitals.

[00:16:06] Speaker 05:
Can I ask you a question?

[00:16:09] Speaker 05:
So there's the sort of very generous discovery standard of relevance that's used for whether or not an information request was relevant and properly made.

[00:16:19] Speaker 05:
And then impasse also asks whether an issue was, or whether, I'm sorry, whether the failure to turn over information was relevant, sort of in a causal sense, to the impasse.

[00:16:35] Speaker 05:
Is that, you couldn't have some sort of side thing here, and then say maybe that would have excused, that would have forbidden for close finding an impasse if there was just some side little information to secure that there has to be some,

[00:16:48] Speaker 05:
to some relevance to the outstanding information request before it would lead to an impasse.

[00:16:57] Speaker 05:
Relevance inquiry compares to the relevance inquiry for the information request in the first place.

[00:17:02] Speaker 05:
Am I at all clear on what I'm asking?

[00:17:04] Speaker 01:
Maybe.

[00:17:04] Speaker 01:
Let me try.

[00:17:05] Speaker 01:
Let me try.

[00:17:06] Speaker 01:
So the cases that say that failure to provide relevant information precludes a finding of genuine impasse, those cases talk about the fact that the failure to provide relevant information has to be as to a core issue.

[00:17:21] Speaker 01:
I mean, so in this case, we know that health care

[00:17:24] Speaker 01:
that's a big issue in the bargaining.

[00:17:26] Speaker 01:
We know that's what the information request goes to.

[00:17:29] Speaker 01:
That's similar to other cases that we cite in our brief, like the DuPont case, the U.S.

[00:17:34] Speaker 01:
testing case, where the failure to provide information was as to a key issue that the parties were bargaining over.

[00:17:44] Speaker 01:
Oh, I'm sorry.

[00:17:44] Speaker 01:
There are other situations, and I don't believe this is in our brief, but it is in the board's order.

[00:17:52] Speaker 01:
There is a case called Sierra Bullets.

[00:17:54] Speaker 01:
In that case, there were key issues that the parties were having trouble reaching agreement on.

[00:17:59] Speaker 01:
There were several.

[00:18:00] Speaker 01:
One was management rights.

[00:18:01] Speaker 01:
I think there may have been a subcontracting issue.

[00:18:04] Speaker 01:
There was also separately a bargaining violation for failure to provide information about overtime.

[00:18:11] Speaker 01:
Now the board in that case said, okay, failure to provide information about overtime, it was relevant to bargaining, so it's still a separate independent violation of the Act, but it didn't preclude a finding of impasse in that case because it didn't go to the core issues that the parties were having trouble resolving.

[00:18:28] Speaker 01:
I'm not sure if that answers your question.

[00:18:30] Speaker 05:
That was very helpful, but I'm still wondering when you say when it's relevant to a core issue.

[00:18:33] Speaker 05:
I get there has to be a nexus between the information request and a core issue.

[00:18:38] Speaker 05:
But could it be something that under discovery standard of relevance is, for example, the request for, they asked for essentially a 9 or 10 year period of information here, and say they had provided 5 years of information on Medicare,

[00:18:56] Speaker 05:
billings and discharges, and then provided everything else the union asked for.

[00:19:00] Speaker 05:
And so we're missing four years from the Medicare billing and discharges, which would meet relevant standard under, maybe if the board would be presumed relevant, but it could meet relevant standard generically on whether it's a legitimate information request, but would that be enough

[00:19:18] Speaker 05:
Would that make it irrelevant?

[00:19:20] Speaker 01:
No, I understand what you're saying.

[00:19:24] Speaker 01:
I don't specifically know the answer to that.

[00:19:26] Speaker 01:
I can't think of a case that deals with that.

[00:19:28] Speaker 01:
So for example, most of the information is provided.

[00:19:32] Speaker 01:
I mean, the idea is that the union has to be able to carry out its bargaining duties.

[00:19:36] Speaker 01:
So I think there would be an argument there if the union has most of the information or substantially all of the information.

[00:19:42] Speaker 01:
Are they still really precluded from carrying out their bargaining duties to the extent that they couldn't reach an agreement and impasse would be precluded?

[00:19:55] Speaker 01:
Like I said, I don't specifically know the answer.

[00:19:57] Speaker 01:
I mean, I think there could be some argument there that it's not increasing the friction between the parties and the type of thing that creates a problem when you don't provide relevant information.

[00:20:12] Speaker 01:
And that segues a little bit into another point that the hospital made in their briefing, which was that they say that there's no evidence that providing this information would have caused the union to agree to the hospital's terms.

[00:20:27] Speaker 01:
And as we discussed in our brief, that's simply not the standard.

[00:20:30] Speaker 01:
There doesn't have to be evidence that the union would accede to a certain demand because it's now been provided with the information.

[00:20:38] Speaker 01:
The idea is that the information is important for the union to decide

[00:20:41] Speaker 01:
what stance it wants to take in bargaining or to decide.

[00:20:44] Speaker 01:
I mean, in this case, to decide with respect to the EPO plan, they need to know the quality of care because they're being asked to pay substantially more than what they were paying for their prior plan.

[00:20:55] Speaker 01:
And they've agreed at this point that there will be an EPO plan.

[00:20:58] Speaker 01:
They understand the hospital's position on that.

[00:21:01] Speaker 01:
But the terms are still to be worked out in terms of access to the outside network, how much that will cost employees, how much the overall plan will cost employees.

[00:21:10] Speaker 01:
So the union's trying to determine how much are we willing to pay for what we're going to get.

[00:21:14] Speaker 01:
And what they don't know is what are we going to get.

[00:21:17] Speaker 05:
This request went for a long, I think it was either nine or 10 years of time.

[00:21:25] Speaker 05:
Assume that we're asking for information about wage patterns.

[00:21:34] Speaker 05:
So it's something that normally would be presumptively relevant.

[00:21:38] Speaker 05:
Does the scope of the time scope of the inquiry factor into presumptive relevance, or do we just look at the substantive content of what they're asking for?

[00:21:47] Speaker 01:
Again, I can't think of any cases that limit the relevance of information based on the time scope.

[00:22:02] Speaker 01:
I think, again, it would depend

[00:22:04] Speaker 01:
it depends on looking at is there probable or potential relevance to the union's position in bargaining and to carrying out their duties in bargaining.

[00:22:13] Speaker 01:
And so, I mean the board would have to consider an argument that was made to it, which I don't believe this, an argument was certainly made here that the information request was overly broad.

[00:22:25] Speaker 01:
With respect to

[00:22:27] Speaker 01:
The time scope here and the argument that Prime didn't own these hospitals during some of that period, the request itself is written very specifically directed at Prime.

[00:22:38] Speaker 01:
So if Prime didn't own the hospital in 2001, it wouldn't have any of this information from 2001.

[00:22:44] Speaker 01:
And nothing in the information request is asking them to go get it from their predecessor.

[00:22:49] Speaker 01:
It's just saying exchanges between Prime and whether it's a regulator or within the Prime facilities that was exchanged.

[00:22:57] Speaker 01:
So there's no request for information that's outside the time that Prime owned the facilities, if they didn't own them in 2001, which is when the request starts.

[00:23:08] Speaker 05:
Can I ask you a question about this motion for abeyance?

[00:23:11] Speaker 05:
Sure.

[00:23:12] Speaker 05:
It looks like this 2014 agreement, if it were to be enforced by the board, and I'm not asking you to speculate on that, requires a dismissal of all unfair labor practice charges.

[00:23:24] Speaker 05:
Would that include this one, the ones that issue in this case?

[00:23:28] Speaker 01:
Your Honor, I believe the parties have stated

[00:23:32] Speaker 01:
that their understanding was it would.

[00:23:34] Speaker 01:
However, at this point, the charging party union in this case cannot simply dismiss a charge now that we have a final order of the board.

[00:23:41] Speaker 01:
So at the time that the parties were negotiating that in November 2014, there was no final order of the board in this case.

[00:23:47] Speaker 01:
The board order came in November 2015.

[00:23:51] Speaker 01:
Now that there's a final order of the board, the board, and there are some policies and procedure memos that I could point you to on this subject, but the board will not allow a charging party to simply dismiss a case once there's a board order finding violation of the act.

[00:24:06] Speaker 01:
Any settlement, for example, has to be approved by the board once there's a final board order.

[00:24:12] Speaker 05:
Is that part of this proceeding then that would go on before the board right now?

[00:24:16] Speaker 05:
As part of it, if they were to approve it, they would have to, in the process of approving it, approve the dismissal?

[00:24:26] Speaker 05:
I'm sorry.

[00:24:27] Speaker 05:
So whether they should enforce the 2014 agreement is an issue before the board right now.

[00:24:33] Speaker 05:
And that 2014 agreement, as written, says dismiss unfair labor practice charges, which the party's intent was to include this case.

[00:24:42] Speaker 05:
So does that mean that part of the board's proceeding there, if it were to decide that it should enforce?

[00:24:50] Speaker 05:
And I think, agree with the ALJ, if I'm correct in that case.

[00:24:53] Speaker 05:
So it should be enforced.

[00:24:55] Speaker 05:
would necessarily in that process determine that.

[00:25:00] Speaker 05:
these charges should be dismissed.

[00:25:02] Speaker 05:
It's the board's decision to make, and presumably would make it as far as enforcing the agreement.

[00:25:06] Speaker 01:
So the ALG's decision that's currently pending before the board states that the hospital is required to execute the agreement that was reached in November 2014.

[00:25:16] Speaker 01:
The board in that case will not be looking at the substantive terms of that agreement.

[00:25:23] Speaker 01:
So the board won't be looking at the substantive terms to say,

[00:25:27] Speaker 05:
anything about dismissing those charges I mean why why wouldn't the general counsel point this out you got an agreement here and say look there's just there's a wrinkle now because it seems like you can't enforce something that doesn't let them get their side they're part of the benefit of the bargain that would seem quite unusual to me

[00:25:48] Speaker 01:
I mean, again, I'm stating my understanding that the parties are including the charges in this case in that document.

[00:25:55] Speaker 01:
It doesn't give the case numbers.

[00:25:56] Speaker 01:
It doesn't state that.

[00:25:57] Speaker 01:
That's my understanding.

[00:25:59] Speaker 01:
I don't even know if that's for certain the contemplation.

[00:26:03] Speaker 01:
I mean, not being a party to that document or anything to that effect.

[00:26:06] Speaker 01:
I don't know that it's been discussed in any of the papers in that other case either.

[00:26:10] Speaker 05:
And it's not incumbent on the general counsel weir to flag this issue and address it?

[00:26:15] Speaker 01:
Well, again, the general counsel isn't looking at the substance of requiring the parties to enter into any kind of substantive agreement.

[00:26:24] Speaker 01:
I mean, the issue in that case was whether, my understanding is because, again, I'm not involved with that case, was whether the parties indeed had reached an agreement that then the hospital failed to execute.

[00:26:38] Speaker 05:
So I guess it would be incumbent on the company to raise this issue before the board and let them know it needs to get resolved too.

[00:26:44] Speaker 01:
It would certainly be incumbent upon the company to raise that or the hospital to raise that issue to the board.

[00:26:52] Speaker 01:
Just more broadly, in this case that's before the court right now, there is no need for abeyance in this case.

[00:27:01] Speaker 01:
There is a continuing obligation in the board's order to cease and desist from the activities that were found to be in violation of the Act.

[00:27:10] Speaker 01:
There is a rescission of the unilateral changes that were made.

[00:27:15] Speaker 01:
And to the extent that the hospital is arguing that in November 2014, they reached a collectively bargained agreement with the union on a healthcare plan

[00:27:27] Speaker 01:
And they want to argue that that is in compliance with the order.

[00:27:32] Speaker 01:
In this case, that's something they will have the opportunity to do in the future.

[00:27:35] Speaker 01:
If they feel that the board gets it wrong in the future in assessing that, they can bring it back again at that point.

[00:27:41] Speaker 01:
But they do have obligations also in this order that go beyond simply what's stated in the November 2014.

[00:27:49] Speaker 05:
Right, but that would in theory maybe go away if the November 2014 settlement were to go forward.

[00:27:56] Speaker 01:
portions of the board's order, they may have may have complied with already if they have done what is stated in the November 2014 term sheet.

[00:28:06] Speaker 01:
I don't know if that's happened, but for example, if they already

[00:28:10] Speaker 01:
partially made whole the unit employees for these additional premiums that they had to pay, which is something that's contemplated in that term sheet.

[00:28:18] Speaker 01:
If they've already done so, that's partial compliance with the board's order, and they can show that at the time that they go into compliance proceedings.

[00:28:24] Speaker 05:
How long do these compliance proceedings take to be initiated?

[00:28:28] Speaker 05:
How long could they be hanging out there under two different orders?

[00:28:33] Speaker 05:
Do they get started right away?

[00:28:35] Speaker 01:
Compliance proceedings can certainly start right away.

[00:28:38] Speaker 01:
I mean, there are times compliance proceedings begin even before court enforcement of an order, but that's up to the respondent to agree to do so.

[00:28:49] Speaker 01:
I mean, regents will at any time consider arguments about compliance or evidence in particular.

[00:28:58] Speaker 05:
Does a company have an ability to say,

[00:29:01] Speaker 05:
shoot, suddenly we're here, between we need to have a compliance proceeding now or is it entirely in the control of the regional director for timing?

[00:29:11] Speaker 01:
The regional director is responsible for, you know,

[00:29:18] Speaker 01:
showing the back pay that's owed, those types of things, or in this case, I guess it would be back healthcare reimbursement that's owed.

[00:29:25] Speaker 01:
I mean, so that is incumbent upon the region to produce those documents, and the hospital would have to wait for that to happen.

[00:29:33] Speaker 04:
Your red light's on.

[00:29:34] Speaker 04:
Thank you very much.

[00:29:35] Speaker 04:
We'll hear from them.

[00:29:36] Speaker 04:
Do we have any time for the upset?

[00:29:39] Speaker 04:
All right, we'll give you two minutes to

[00:29:47] Speaker 03:
in your honors to touch on your statements with respect to the abeyance.

[00:29:54] Speaker 04:
Did you raise the issue of the abeyance before the board?

[00:29:57] Speaker 04:
Did you raise the issue of inconsistency before the board at any time?

[00:30:05] Speaker 03:
I'm not the one to answer that question, because Shepard Mullen is not the firm handling that other matter.

[00:30:10] Speaker 04:
I know the issue.

[00:30:11] Speaker 04:
The board says you didn't, so in their response, I assume you looked into that and you found that you did not raise the issue before the board.

[00:30:19] Speaker 03:
My understanding is that it has not, as I standardize, it has not yet been raised before the board.

[00:30:26] Speaker 04:
That means we don't have jurisdiction.

[00:30:27] Speaker 04:
Any issue not raised before the board were statutorily barred from considering.

[00:30:33] Speaker 03:
But the consideration with respect to holding an advance is not yet right because they have not been before the board.

[00:30:42] Speaker 04:
But you had an opportunity to settle the case if you wanted to.

[00:30:44] Speaker 04:
You could have complied with the agreement and not challenged it.

[00:30:47] Speaker 04:
You challenged it.

[00:30:49] Speaker 04:
So cases go on.

[00:30:51] Speaker 04:
That's what happens when people don't ultimately resolve the matter.

[00:30:55] Speaker 04:
If you settle the case today, you go back, you go outside there, you agree to do everything that they ask, maybe you reach a settlement before we issue an opinion.

[00:31:02] Speaker 04:
But otherwise, once we've issued an opinion, that's the end of it.

[00:31:05] Speaker 04:
an opinion doesn't become moot after it's issued.

[00:31:09] Speaker 04:
So that's your chance.

[00:31:12] Speaker 04:
You've had a chance since you discovered this problem, and maybe you have a few more hours after today, or maybe it takes us a little bit longer.

[00:31:19] Speaker 04:
But there's no reason for us to stop the case now when you haven't even raised the issue for the board.

[00:31:28] Speaker 03:
What I'd say in that regard is that since that issue will still proceed before the board, there is a real risk for inconsistent rulings.

[00:31:37] Speaker 03:
And my concern is that getting a compliance hearing will not be as expeditious as represented, especially in light of the general counsel memo that came out on Tuesday, citing the numerous budgetary shortfalls, staffing issues, and otherwise hindrances on the processing of cases.

[00:31:55] Speaker 03:
I think that

[00:31:57] Speaker 03:
should inconsistent rulings be issued that a compliance proceeding is not going to be something that is months or years in the making.

[00:32:04] Speaker 03:
It could be multiple years in the making.

[00:32:06] Speaker 04:
What is your objection to the agreement, to the settlement agreement?

[00:32:11] Speaker 04:
Why is it, why was it appealed?

[00:32:13] Speaker 04:
I'm sorry?

[00:32:14] Speaker 04:
Why was there an appeal?

[00:32:15] Speaker 03:
I do not, you don't know.

[00:32:18] Speaker 03:
Okay, I want to disclose on Saturday client communications in that regard.

[00:32:21] Speaker 04:
Okay, I'm certainly not asking for that.

[00:32:23] Speaker 04:
Thank you, Your Honor.

[00:32:24] Speaker 04:
You want to respond at all?

[00:32:27] Speaker 04:
You have 43 seconds.

[00:32:28] Speaker 04:
You want to respond at all to the arguments made by the opposing counsel?

[00:32:31] Speaker 03:
The only argument I'd raise is that here, again, we're not relying on a presumption of relevance.

[00:32:36] Speaker 03:
We're relying because it's seeking operations outside of the bargaining unit.

[00:32:39] Speaker 03:
So it's a heightened standard.

[00:32:41] Speaker 03:
And it's the union using it under the burden to establish that relevance.

[00:32:45] Speaker 04:
And it's also- What about me, Judge Mallent's point, which was you didn't just refuse to provide information about outside hospitals.

[00:32:52] Speaker 04:
You refused to provide any information at all.

[00:32:55] Speaker 04:
And I say you, by the way, not Shepard Mullin, not you personally, your client.

[00:33:00] Speaker 03:
Understood, Your Honor.

[00:33:01] Speaker 03:
Well, I guess I would direct, invite, rather, the Court's attention to Columbus Products Company, which states that it's on the union to show that the Fed, which would provide this information, impeded it from discharging its statutory obligations.

[00:33:15] Speaker 04:
Well, they've made that argument there, and that ALJ upheld it.

[00:33:18] Speaker 04:
That is, for precisely the point that the opposing counsel made, which the question here of whether

[00:33:25] Speaker 04:
there was sufficient quality for the union to be willing to have its members pay, depending on how good the hospitals were.

[00:33:34] Speaker 04:
And if they couldn't find out whether the hospitals were good or not, they couldn't find out whether they wanted to force their employees and their members into those hospitals, but more importantly, whether the amount that would be paid would be appropriate.

[00:33:47] Speaker 04:
That seems like it.

[00:33:48] Speaker 04:
And you yourself in your brief say that health care is the critical issue in the bargaining.

[00:33:55] Speaker 03:
correct health care and what we're referring to as a health plan, an EPO plan, that was already in place at Gardening Grove Hospital, at Encino Hospital, for which the union was already representing members.

[00:34:05] Speaker 03:
It had been in place for seven months at the time that the request for information had been made.

[00:34:10] Speaker 04:
But as they point out, it's not the same members, different members.

[00:34:12] Speaker 04:
It's the members here, and they have an obligation to represent these members.

[00:34:16] Speaker 03:
But it's the same plan, Your Honor.

[00:34:18] Speaker 04:
It's the same plan, but they have an obligation to the members for these other hospitals to decide what they should do.

[00:34:25] Speaker 03:
And I don't disagree that the argument's been made.

[00:34:27] Speaker 03:
My position and crime's position is that there hasn't been any nexus established between the argument and the actual evidence of how it was impeded.

[00:34:35] Speaker 03:
And if you look at the September 30th bargaining notes from the union, it clearly establishes that they're not gonna be able to go forward based upon the diametrical opposite positions of the hospital and the union.

[00:34:49] Speaker 03:
And there is no reference

[00:34:50] Speaker 03:
to this information that's missing.

[00:34:52] Speaker 03:
It's just philosophical differences regarding the PCP, primary care position, gatekeeper position, and the fact that employees will be required to contribute if they want family healthcare.

[00:35:06] Speaker 05:
Can I ask one fact question?

[00:35:09] Speaker 05:
When the company announced to the employees in September 2010, it was going to be instituting this new plan, and there was a process for, I think, waiving in or applying to have a physician waived in?

[00:35:21] Speaker 03:
Correct.

[00:35:22] Speaker 03:
It was a physician-nominating process.

[00:35:24] Speaker 03:
It's something we made the union aware of on August 23rd and then sent a memo on September 1st.

[00:35:28] Speaker 05:
I actually have a fact question.

[00:35:30] Speaker 05:
Does the record show whether any employees

[00:35:33] Speaker 05:
Filled out those forms?

[00:35:34] Speaker 04:
I don't believe so.

[00:35:35] Speaker 05:
No, I didn't.

[00:35:38] Speaker 04:
It's not part of the way.

[00:35:39] Speaker 04:
Okay, we'll take the matter on submission and thank both sides.

[00:35:42] Speaker 04:
Thank you very much.