[00:00:01] Speaker 03:
Case number 16-1370L, Prime Healthcare Services, Encino LLC, DBA, Encino Hospital Medical Center, and Prime Healthcare Services, Garden Grove LLC, DBA, Garden Grove Hospital and Medical Center Petitioners, versus National Labor Relations Board.

[00:00:20] Speaker 03:
Mr. Cahn for the petitioners, Mr. Seltzer for the respondent, and Ms.

[00:00:23] Speaker 03:
Dimovic for the intervener.

[00:00:34] Speaker 07:
Good morning.

[00:00:35] Speaker 01:
Good morning, Your Honor.

[00:00:38] Speaker 01:
Your Honors.

[00:00:45] Speaker 01:
May it please the Court, Jamie Cahn with my colleague Jonathan Batten of the law firm DLA Piper, representing Petitioner, Prime Healthcare Services, Dash and Sino LLC, doing businesses in Sino Hospital Medical Center.

[00:01:00] Speaker 01:
In July 2017, while briefing for this case was ongoing,

[00:01:04] Speaker 01:
Prime and UHW, the other union that was previously involved in this case, entered into a settlement agreement.

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And the portion of this appeal regarding UHW, which was the bulk of this case, really, was severed and dismissed.

[00:01:18] Speaker 01:
What remains are two basic collective bargaining agreement-related issues on which the Board erred below.

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an alleged post-contract expiration change by Encino Hospital to the status quo, and an alleged failure by Encino to provide information to 121RN during bargaining.

[00:01:37] Speaker 01:
First, the board made a fundamental error in its application of the status quo doctrine to the contractual wage increases by ignoring national labor policy and by applying the clear and unmistakable waiver standard to a contract coverage issue.

[00:01:54] Speaker 07:
So if something else happened in 2017, we handed down the decision at Wilkes-Barre, right?

[00:01:58] Speaker 01:
That's right, Your Honor.

[00:02:00] Speaker 07:
So at least on the wages side of it, the step-up side, annual anniversary step,

[00:02:05] Speaker 07:
This sure looks a lot like that case.

[00:02:09] Speaker 07:
How do you get out from under that?

[00:02:11] Speaker 01:
I don't disagree, Your Honor.

[00:02:12] Speaker 01:
This does look a lot like Wilkes-Barre.

[00:02:15] Speaker 01:
I think there are two primary ways in which

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Your Honor said how to get out front to meet Wilkes-Barr, but how we distinguish Wilkes-Barr.

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One is that the language of agreements is distinct, and I will return to that.

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But more importantly, Wilkes-Barr, and I understand this decision of this Court and two of the judges sitting on this panel were part of that decision, we submit was a bridge too far.

[00:02:41] Speaker 01:
One went just one step further than we think is appropriate under national labor policy.

[00:02:49] Speaker 07:
Of course, we can't do a whole lot about that, right?

[00:02:53] Speaker 07:
We're not the in-bank court.

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We follow Wilkes-Barre.

[00:02:56] Speaker 01:
Understood, Your Honor.

[00:02:57] Speaker 01:
I think there's still some distinctions between Wilkes-Barre and this court, but the reasoning is... So you acknowledge that even though you don't like the precedent, you're in trouble with respect to it?

[00:03:07] Speaker 01:
Yes, Your Honor.

[00:03:09] Speaker 04:
Okay.

[00:03:09] Speaker 04:
When you say it's a bridge too far, can you say what it is that you're claiming?

[00:03:13] Speaker 01:
Sure, Your Honor.

[00:03:13] Speaker 01:
Yes, Your Honor.

[00:03:14] Speaker 01:
I'll start with the premise underlying Wilkes-Barre and the line of cases on which it relies, whether it's Katz from the 50s or Litton is the status quo.

[00:03:30] Speaker 01:
The full phrase, the status quo, rests et ante bellum, in the status in which things were before the war, the Latin phrase, here under labor policy, in the status things were before bargaining started.

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The status quo that should have been applied and Wilkes-Barre should apply here is the status quo at the day the contract expired.

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When the contract expired, wages were set.

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That is what Katz said.

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That is the way Litton reads.

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It is not to apply a standard in which the status quo changes over time.

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I think what the Labor Board has said is a dynamic status quo.

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Instead it is to apply a standard which things are set at that time so the parties can then bargain.

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If the board or this court instead insert themselves into that agreement and determine what terms should apply going forward and what they should change to be, we are stepping into the collective bargaining relationship.

[00:04:35] Speaker 07:
Is that the inquiry?

[00:04:36] Speaker 07:
I thought the inquiry was a little bit more basic and that is you look at the agreement and see what they've agreed to.

[00:04:40] Speaker 07:
So it's not a matter of rewriting the agreement or inserting new terms in it, it's seeing what is the agreement.

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And the ALJ and the board here thought that the agreement, the language of the CPA, anticipated that the anniversary step-up would continue after the expiration and didn't.

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with the across the board.

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And I will take your honest question.

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I mean, the contract in this case not books for right.

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I think that the words are used is critical.

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It is anticipated.

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They anticipated what would happen.

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not what the agreement said.

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The agreement said there are wage increases.

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Article 13, Section A. There are subparts.

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Section A is wage increases.

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There are three definite wage increases on certain times during the agreement under A3.

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And A5, which is referencing back to A3, says, well, there are also, and as a component of those wage increases, anniversary increases.

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But the agreement looks to the three definitive time periods.

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And for the board or the ALJ to say... What A5 says is that the step increases, which are automatic, can't go beyond a certain level.

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if three is in existence, but that's not going to be a problem.

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You get three is not in existence once the contract expires, but five is.

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The step increase is just in continuing.

[00:06:14] Speaker 01:
I disagree.

[00:06:15] Speaker 06:
Well, I know you disagree, and it's interesting you start by acknowledging that Wilkes-Barr pretty much controls, and I think it does control.

[00:06:23] Speaker 01:
I couldn't say otherwise, Your Honor.

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Is this court's decision, you, Judge Edwards, Judge Barr?

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No, no.

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I mean, the problem is if it controls, it's the law of the circuit, and that's that.

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Except for this, this is a distinguishable case.

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One, if you think Wilkes-Barre is wrong, you decide.

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If it's second, it's distinguishable.

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But that's not going to get you anywhere.

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I understand that.

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All right.

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So there's no need for laboring over that.

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It's the law of the circuit.

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And I don't know what you're saying that's distinguishable.

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What's distinguishable?

[00:06:52] Speaker 01:
So here, Your Honor, we have a provision, if you're looking at the, one, you have a complete provision, Section A under Section 13, Article 13, Section A, which deals with wage increases.

[00:07:04] Speaker 01:
We, and as the Supreme Court, and this Court has said previously, you look at the whole contract.

[00:07:10] Speaker 01:
Well, let's look at the whole of Section A. There is no question, and the Board and the Union, 121RN here, have never suggested there should be additional

[00:07:22] Speaker 01:
increases under three and when we submit to this court and submit to the board, that section five is connected to and we cannot parse and should not parse out those provisions.

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They are one and the same.

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They are connected.

[00:07:38] Speaker 06:
They are not one and the same.

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The two distinct provisions and all that five says is subject to the annual caps provided in three.

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That's all.

[00:07:46] Speaker 01:
Okay, Your Honor.

[00:07:47] Speaker 06:
All right.

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And if you're past the expiration date of the contract, you're not going to have to worry about the annual caps in three because they now stop.

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So that's all that five does is incorporate in three.

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Five otherwise continues.

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You're in a step increase program, and when you're at the next step, you can continue.

[00:08:08] Speaker 01:
Again, Your Honor, I think five does not continue.

[00:08:10] Speaker 01:
Status quo means set as of the end of the contract.

[00:08:14] Speaker 01:
There are only two cases of which we're aware.

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As of the end of the contract, you have a step program.

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And there's nothing that says that the step program stops at the end of the contract.

[00:08:23] Speaker 06:
There's nothing in this contract that says that.

[00:08:25] Speaker 01:
And that's the point of the status quo doctrine, is that it should have been set at that time as exactly the wages were in place.

[00:08:34] Speaker 01:
Under your honors theory, if there was a wage decrease.

[00:08:36] Speaker 06:
The wages are in place, meaning I, on my appropriate date, get an automatic step increase.

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That's my wage.

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I'm making X now, and when my step increase time comes, I get Y.

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That's who I am at that moment when the contract expires.

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That's what I have, which you can't change without negotiating.

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And there's nothing in the contract to the contrary.

[00:08:59] Speaker 06:
I mean, I hear what you're saying.

[00:09:00] Speaker 06:
And at least under the law of the circuit, you're absolutely wrong.

[00:09:05] Speaker 06:
And I actually think you're wrong with respect to all of the other cases to which you would like to refer.

[00:09:10] Speaker 06:
But I mean, what I have in five is I have a program of step increases.

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You can change it during collective bargaining.

[00:09:18] Speaker 06:
But it's still there, and until you change it, it stays in place.

[00:09:23] Speaker 01:
Well, that's an interesting point, Your Honor.

[00:09:26] Speaker 01:
It has been changed.

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There is a new agreement in place.

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In fact, the parties are negotiating another agreement.

[00:09:31] Speaker 01:
It was an agreement entered into it in November 2014, which had step increases in place over the duration of that agreement, had retroactivity relating back.

[00:09:39] Speaker 01:
The agreement we're arguing about now – I mean, the point – the issue is moot.

[00:09:43] Speaker 01:
There was an agreement.

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It's been in place from 2014.

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I think the parties are negotiating.

[00:09:48] Speaker 01:
I'm not familiar enough with it to tell you more than that.

[00:09:51] Speaker 01:
I'm sure Council for 121 RN is.

[00:09:54] Speaker 01:
Which brings me to the second reason we're here, the information requests.

[00:10:00] Speaker 01:
That also is a moot point.

[00:10:02] Speaker 01:
The parties have negotiated throughout 2013 or 2013, 12, 13, 14, and entered into an agreement which moots any of the information requests that 120RM was seeking and are still at issue before the court today.

[00:10:19] Speaker 07:
Does the new agreement include the so-called confidential and proprietary information that was sought?

[00:10:27] Speaker 01:
The new agreement doesn't – it doesn't include it.

[00:10:29] Speaker 01:
You say it's mooted.

[00:10:30] Speaker 07:
I mean, as I understand it, the issue before us is whether the union is entitled to what you refer to as proprietary and confidential.

[00:10:39] Speaker 07:
Correct, Your Honor.

[00:10:40] Speaker 07:
Are you telling us that an agreement has replaced that controversy and that they now have an agreement?

[00:10:44] Speaker 01:
We believe so, Your Honor.

[00:10:45] Speaker 01:
I'm not saying that they have received the information.

[00:10:48] Speaker 01:
I'm not saying that.

[00:10:49] Speaker 01:
What I'm saying is that

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The parties negotiated a collective bargaining agreement have entered into it has been ratified as of November 2014.

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And again, if I'm wrong, please correct the dates.

[00:11:00] Speaker 01:
That agreement includes benefits.

[00:11:03] Speaker 01:
It includes an EPO plan which covers which is the the the

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the benefits issue we were dealing with in the information requests, which is free to all employees of Encino.

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There is no cost associated with that EPO plan.

[00:11:17] Speaker 04:
And did the hospital offer accommodations to address its concerns at the time when the information request was pending?

[00:11:25] Speaker 04:
No.

[00:11:26] Speaker 04:
I thought that was clear under our precedent that it was... Oh sorry, did the hospital you're on?

[00:11:30] Speaker 04:
Yeah, that it was a hospital burden to do that.

[00:11:33] Speaker 01:
Well, we hadn't got to the point, Your Honor.

[00:11:35] Speaker 01:
We think of it being at the stage where we needed to offer accommodations.

[00:11:39] Speaker 01:
We still were not comfortable with, and I believe this is demonstrated in the back and forth communications between Ms.

[00:11:45] Speaker 01:
Schottmiller and Ms.

[00:11:46] Speaker 01:
Song, of the relevance of the information.

[00:11:50] Speaker 01:
It depends on which one of the categories you're talking about, Your Honor, but let's talk about the MS.

[00:11:56] Speaker 04:
I'm thinking about the claims information, which I thought was sort of the focus.

[00:11:59] Speaker 01:
So there are three

[00:12:01] Speaker 01:
subcategories of information.

[00:12:03] Speaker 01:
One is the, what was Primes and CNOS cost to providing the benefit?

[00:12:09] Speaker 01:
One was how, what is the utilization of outside providers?

[00:12:13] Speaker 01:
And one was, well, we're also looking for the, it's called MS-DRG information, that's medical severity diagnosis review.

[00:12:25] Speaker 01:
I'm not sure I can remember what the G is.

[00:12:26] Speaker 01:
Essentially, it's your Medicare coding.

[00:12:28] Speaker 01:
And the 121RM wanted that for every visit by any patient at the hospital.

[00:12:35] Speaker 01:
And they wanted to know exactly what every single patient was admitted for and for how long they stayed and essentially what was the coding.

[00:12:44] Speaker 01:
So depending on, again, which one of the categories you're asking about, Your Honor, that information was not provided.

[00:12:50] Speaker 01:
I think we argued then... What was the third thing?

[00:12:52] Speaker 01:
What's that, Your Honor?

[00:12:53] Speaker 01:
What was the third issue?

[00:12:53] Speaker 01:
The third thing is called MS-DRG.

[00:12:57] Speaker 01:
Essentially, it's the Medicare coding information.

[00:13:00] Speaker 01:
That is, so when a patient...

[00:13:02] Speaker 01:
visits the hospital, really visits any, not just the hospital, any medical provider.

[00:13:07] Speaker 01:
There's coding that's done by the medical staff to determine what exactly the, what is being treated for, but that's all it shows, what is being treated for, data omission, et cetera.

[00:13:19] Speaker 04:
So your position, I'm sorry, I'm sorry, I didn't mean to interrupt you.

[00:13:22] Speaker 04:
Your position is that there are sort of two stages to the analysis.

[00:13:25] Speaker 04:
And the first stage, the onus is on the union in requesting the information to establish that it's relevant to their obligations in representing their members and relevant to bargaining.

[00:13:38] Speaker 04:
And then once you're satisfied that the information, that they've made a relevance case, then under our decision in the United States testing company, the onus would be on

[00:13:50] Speaker 04:
your client to establish, to say, you know, we've got some proprietary confidentiality issues here, how about we provide it to you in such and such a manner?

[00:14:00] Speaker 04:
And your position is that that second, you never had that obligation because you weren't satisfied with the relevance case that the union had made.

[00:14:08] Speaker 01:
Yes, Your Honor, and it may actually be three steps depending on what the information request it is.

[00:14:11] Speaker 01:
Maybe it's presumptively relevant and then we, or but.

[00:14:14] Speaker 04:
Why isn't this presumptive really relevant?

[00:14:16] Speaker 04:
They're negotiating about coverage.

[00:14:20] Speaker 04:
And I think one of the things, even if the default or the sensible thing with these employees is that they be covered by their employer's services, at least as the default, they're trying to figure out what that's worth to their membership.

[00:14:37] Speaker 04:
And therefore, you know, I mean, we all know these

[00:14:40] Speaker 04:
Plans look good on paper, but then when you actually go and try to get the services, how does it actually roll out in their members' experience?

[00:14:48] Speaker 04:
Wouldn't that be presumptively relevant information?

[00:14:51] Speaker 01:
So that, I think, is what you characterized, Your Honor, may have been, but that's the SPD or summary plan description.

[00:14:57] Speaker 01:
What does the benefit cover?

[00:14:58] Speaker 01:
No, no, no.

[00:14:58] Speaker 04:
I'm actually saying what the people who were the beneficiaries of the plans, what was the cost of providing

[00:15:08] Speaker 04:
providing the services pursuant to their claims and what was their utilization of outside providers and what was actually the track record was what I understood roughly to be.

[00:15:17] Speaker 01:
No, I think that is the request.

[00:15:20] Speaker 01:
My point, Your Honor, was that what I thought you were saying was a little different.

[00:15:24] Speaker 01:
I would have said, yes, the summary plan description, presumably relevant, provided, but when you look at the cost of providing healthcare benefits, this is not an insurance plan.

[00:15:34] Speaker 01:
We cannot, because we are a healthcare provider, we are a hospital and Prime is a hospital operator, we can't say it costs us X dollars per employee because that's what we're paying the insurance company.

[00:15:45] Speaker 01:
When the claim comes in, it's self-insured, claim is 1,000, insurance covers X,

[00:15:51] Speaker 01:
which is self-insured, and we can tell you it costs us X, and we can just say, here's a math for you, here's a math for you.

[00:15:54] Speaker 07:
And why isn't that relevant to the union?

[00:15:57] Speaker 07:
What's that?

[00:15:57] Speaker 07:
Why isn't that relevant?

[00:15:59] Speaker 07:
Why is that or is that not relevant?

[00:16:00] Speaker 07:
Why is that not relevant?

[00:16:02] Speaker 01:
That's your position, right?

[00:16:03] Speaker 01:
So that information, if it had been that, if we had been a normal employer, not a health care provider, not a hospital that is just doing business as providing health care, I think the courts have said, I think somewhat clearly, the cost providing benefits is relevant,

[00:16:20] Speaker 01:
But every one of those cases is our insurance cases.

[00:16:24] Speaker 04:
I see.

[00:16:25] Speaker 04:
So you're saying because you're actually providing the services

[00:16:29] Speaker 04:
Those costs aren't relevant.

[00:16:30] Speaker 04:
See, I would think they would almost be more relevant because it's not just one sticker price.

[00:16:35] Speaker 04:
It's, you know, hey, we're providing you actual services.

[00:16:38] Speaker 04:
And it may seem like a little thing when you come in and get your infection checked out.

[00:16:44] Speaker 04:
But actually, in terms of, like, sticker price on that service, it was thousands of dollars.

[00:16:49] Speaker 04:
And for them to know, hey, that's a benefit our members are getting,

[00:16:53] Speaker 04:
and we can value it accordingly, it would seem to me that it's actually more relevant than just the cost of an insurance benefit, which is a relatively standard thing.

[00:17:06] Speaker 04:
You're saying, what do we actually, services.

[00:17:08] Speaker 01:
And that gets the issue we were dealing with, which is the only way for Prime, or Encino in this case, to get that number is essentially to do a full financial analysis of its

[00:17:20] Speaker 01:
starting, let's say, with the hospital cost of operating, drilling down to what it costs a doctor to put a bandaid on you, those numbers don't exist like they do in the insurance context, because we're not just writing a check.

[00:17:32] Speaker 01:
It's a full breakdown of the profit-loss system to get to the profit number.

[00:17:36] Speaker 01:
Right.

[00:17:36] Speaker 04:
So that's a little bit, I mean, I understand that to be wrapped up in the objection you did make, which is that this is proprietary information, but I didn't take you to be saying, and we don't have it,

[00:17:49] Speaker 04:
in that form, it would require us to actually generate.

[00:17:53] Speaker 01:
If I'm remembering the record correctly, Your Honor, I don't believe, and I'd have to look at the record to say for sure, but I do not believe the hospital ever said it did not have the information.

[00:18:03] Speaker 07:
That's not the issue, is it?

[00:18:04] Speaker 07:
Your issue is that you'd be giving away proprietary information in how the hospital makes its money, is that right?

[00:18:10] Speaker 01:
It's that, Your Honor, and it's also the relevancy testament.

[00:18:13] Speaker 01:
The context of these requests

[00:18:15] Speaker 01:
was one that the union had never asked for this information before.

[00:18:20] Speaker 01:
Our chief bargainer at the time, chief negotiator, who had been doing this for many, many years, had never received requests like this before, and we were in the middle of a very nasty corporate campaign from an affiliate of 121RN, who had made similar requests.

[00:18:34] Speaker 01:
This is, you had to be reading that request together.

[00:18:37] Speaker 01:
And they had used the information they were seeking from Prime's other hospitals to attack Prime publicly to stop it from growing.

[00:18:46] Speaker 01:
This is the part of the case that's now been displaced and settled out, so I don't want to belabor those points, but that's the context.

[00:18:51] Speaker 01:
So when we were looking at these requests coming in, and when our chief negotiator went to the chief nursing officer and said, is there any relevance to these requests?

[00:19:00] Speaker 01:
The expert in the hospital said absolutely not.

[00:19:03] Speaker 01:
There was nothing this information will tell you about.

[00:19:06] Speaker 07:
If we disagreed with you on the relevance and we're just focusing on whether it's proprietary information, when did you first raise that objection?

[00:19:17] Speaker 07:
I couldn't find any reference to it in the correspondence that you had objecting to.

[00:19:22] Speaker 01:
I believe, Your Honor, I'd have to look and certainly can submit to you.

[00:19:25] Speaker 01:
I believe it's in the second letter from Ms.

[00:19:27] Speaker 01:
Schottmiller.

[00:19:27] Speaker 01:
She mentions that this would essentially, this is just now the first request, would essentially require us to disclose profit-loss data.

[00:19:34] Speaker 01:
I think that's as far as it went.

[00:19:35] Speaker 01:
And then there was an additional back and forth because, again, we're looking at all the requests together.

[00:19:40] Speaker 01:
So I don't know if anyone ever said this is proprietary information.

[00:19:43] Speaker 01:
I think it was done more.

[00:19:44] Speaker 06:
The interesting thing is if you had raised, you switched the argument, if you had raised this is unduly burdensome to no good end, that's a viable claim below, as I recall, the information cases.

[00:19:58] Speaker 06:
That's why I was listening carefully and surprised to hear it because I didn't remember that being raised.

[00:20:03] Speaker 01:
I can't change the facts because they are.

[00:20:04] Speaker 06:
Right, no, but I mean, no, I'm not suggesting anything bad about what you've done, but I mean,

[00:20:09] Speaker 06:
That's the problem is that's not the claim you raise and it's not one that we're really looking at.

[00:20:14] Speaker 06:
And it's presumptively relevant.

[00:20:17] Speaker 06:
I mean, cost of medical care, I mean, the case is presumptively relevant.

[00:20:23] Speaker 06:
That's the way we first look at it.

[00:20:24] Speaker 06:
So you kind of stuck with the proprietary.

[00:20:27] Speaker 01:
I would say, again, the point I was making earlier, because of the type of employer we are, it is not presumptively relevant in this case.

[00:20:37] Speaker 01:
This is not an insurance case.

[00:20:38] Speaker 01:
All the other cases that talk about presumptive relevance and the benefit cost context are in health insurance cases.

[00:20:44] Speaker 01:
This is not an insurance plan at all.

[00:20:47] Speaker 01:
And to underlie the lack of relevance of this type of information,

[00:20:53] Speaker 01:
parties bargain over and entered into a collective bargaining agreement that under which I apologize is not in the record, but under which

[00:21:04] Speaker 01:
is offering, and the employees agreed to, take the EPO plan at zero cost.

[00:21:12] Speaker 01:
There is no relevance to that decision.

[00:21:14] Speaker 01:
Prime had told them we were only offering the EPO.

[00:21:17] Speaker 01:
We're not going to let you go out of network or take a different provider.

[00:21:20] Speaker 01:
We are a healthcare provider.

[00:21:21] Speaker 01:
If I'm Ford, I'm not going to give you money to go buy a GM.

[00:21:25] Speaker 01:
Are they related now?

[00:21:25] Speaker 01:
I don't think they are.

[00:21:28] Speaker 01:
So that was the context.

[00:21:29] Speaker 01:
So I think in this distinct context of a healthcare provider

[00:21:34] Speaker 01:
not even a self-insured plan, but a healthcare provider under which they're providing the benefits directly themselves, just during the course of doing business, it's not presumptively relevant.

[00:21:44] Speaker 04:
Mr. Khan, in terms of the potential misuse of the information, as you said, one of the things that was

[00:21:50] Speaker 04:
animating Encino's response was the past experience.

[00:21:55] Speaker 04:
Is there anything that one can lawfully do in a situation like that when handing over information to guard against different uses of it, or does it all just turn on relevance?

[00:22:09] Speaker 01:
In the context of the potential misuse, I think that the board's case law, Hondo, would say you don't have to turn that over if there is a purpose for which

[00:22:20] Speaker 01:
In here, in this case, it would be significantly detrimental to the hospital.

[00:22:24] Speaker 04:
What if it's dual purpose?

[00:22:25] Speaker 04:
I mean, what if they say, as they did here, this is relevant and we need it?

[00:22:30] Speaker 04:
And that's assuming for purposes of hypothetical that that is just true.

[00:22:35] Speaker 04:
It is relevant and they do need it.

[00:22:36] Speaker 04:
And it also is susceptible of being used in a way that you find.

[00:22:41] Speaker 04:
Then what is the law on that?

[00:22:44] Speaker 01:
I think the law is what Hondo says, there are dual purpose cases, I'm sure that's what your honor is referring to, where a union may have a different purpose, but the distinction here is it's not just it's a different purpose.

[00:22:57] Speaker 01:
Here the concern crime had and insino had was it was a purpose that was going to immediately, or we believe to be the case at the time, and do not believe that to be the case anymore, we've resolved the issues with UHW.

[00:23:11] Speaker 01:
but it would be used to the significant detriment of the private healthcare operations, including in CINO, to the detriment of the actual employees.

[00:23:21] Speaker 04:
Right, I understand that's your position, but I'm saying what's the law on if both things are present?

[00:23:28] Speaker 04:
potential detrimental use, their judgment is otherwise, they don't think it's detrimental, but potential detrimental use in your view, but also clearly relevant to bargaining.

[00:23:41] Speaker 04:
What's the law on how you, what happens in that situation?

[00:23:44] Speaker 01:
I believe the board addressed this in Hondo and said you don't have to provide it.

[00:23:48] Speaker 01:
I believe Hondo says you don't need, in that instance,

[00:23:56] Speaker 01:
I'm not sure that Hondo made the relevance decision, but there is not an obligation to provide it in that very unique context.

[00:24:04] Speaker 01:
It's a limited context.

[00:24:05] Speaker 01:
I agree with Your Honor.

[00:24:07] Speaker 01:
And also, we don't believe the NSDRG data is relevant here, given it has nothing to do with quality of care.

[00:24:13] Speaker 01:
It's just really admission information for the hospital in its entirety, not just for the 121RN members.

[00:24:19] Speaker 07:
Can I read you?

[00:24:21] Speaker 07:
In the ALJ opinion, the ALJ said,

[00:24:24] Speaker 07:
If Encino was concerned about the potential disclosure of proprietary cost information to competitors, it was obligated to timely raise those concerns and seek an accommodation with the union.

[00:24:38] Speaker 07:
There is no evidence that it ever did so.

[00:24:40] Speaker 07:
Is that wrong?

[00:24:41] Speaker 07:
Was the LGA wrong?

[00:24:42] Speaker 07:
That's correct.

[00:24:43] Speaker 07:
You believe that is correct?

[00:24:44] Speaker 07:
Yeah.

[00:24:46] Speaker 07:
Okay.

[00:24:46] Speaker 01:
Thank you, Your Honor.

[00:24:47] Speaker 07:
We'll give you back a couple minutes.

[00:25:01] Speaker 02:
Good morning.

[00:25:01] Speaker 02:
Good morning, Your Honors.

[00:25:02] Speaker 02:
May it please this honorable court, Greg Soterre for the National Liberations Board.

[00:25:07] Speaker 02:
Your Honors, we represent that the board's finding the prime unilateral and unlawfully rescinded step increases is supported by substantial evidence regardless of which analytical framework applies here.

[00:25:21] Speaker 07:
Can I ask you a threshold question?

[00:25:23] Speaker 02:
Yes.

[00:25:23] Speaker 07:
As I recall, you don't cite Wilkes-Barr.

[00:25:25] Speaker 02:
No.

[00:25:26] Speaker 02:
Why not?

[00:25:28] Speaker 02:
So we don't cycle this bar.

[00:25:30] Speaker 02:
I apologize for that.

[00:25:31] Speaker 02:
The reason is that it's because it was a result of the very last minute settlement between Prime and UHW.

[00:25:40] Speaker 02:
Our brief was due, I believe, a month before Wilkes-Barre issued, and we had it ready to go.

[00:25:45] Speaker 02:
Then the settlement happened.

[00:25:49] Speaker 02:
Four months later, I came back to the brief.

[00:25:51] Speaker 02:
I stripped everything out that had to do with UHW.

[00:25:54] Speaker 02:
I checked my sites to make sure they hadn't been overruled, but I did not do any additional research on this.

[00:25:58] Speaker 02:
I just didn't know if that was some signal that... No, that is not a signal of any sort.

[00:26:04] Speaker 02:
In fact, we certainly agree with the union in this case that Wilkes-Barre is the determinative and governing case and that the

[00:26:15] Speaker 02:
you know any sort of factual differences that Prime may point to are negligible and really what we have here as in Wilkes-Barre are two contractual provisions that create distinct rights that operate independently of each other and that therefore

[00:26:38] Speaker 02:
you have one, the annual increase provisions, which ends with the contract, which is limited to a time certain, and then the others, the step increase provision, which is open-ended and tied to the employment of each individual employee, and therefore it continues that way after the contract expires.

[00:26:57] Speaker 02:
On one point that Mr. Khan was making, the status quo point, I believe,

[00:27:04] Speaker 02:
the court actually specifically rejected that argument in Wilkes-Barre when it said at page 374, it said that what the hospital was arguing was essentially that to define the status quo, you have to take a snapshot of each individual employee's pay on the end date of the contract.

[00:27:28] Speaker 02:
And that's not what you do.

[00:27:30] Speaker 02:
What you do is

[00:27:32] Speaker 02:
you take the contract as it exists on that last day and you import those terms forward.

[00:27:40] Speaker 02:
And as the contract existed on that last day, you had a set of wages corresponding to each nurse category and their levels of experience.

[00:27:52] Speaker 02:
And that

[00:27:54] Speaker 02:
that grid continues to exist going forward once the contract expires.

[00:28:00] Speaker 02:
And that's why you have – even though you are stuck in terms of the basic wages for each level, those will not continue to change year by year.

[00:28:10] Speaker 02:
You can still progress within each of these wage levels based on your experience.

[00:28:17] Speaker 06:
Why is the cost of insurance relevant when the employer is

[00:28:22] Speaker 06:
for providing the medical care.

[00:28:26] Speaker 02:
Well, I'd like to make one point.

[00:28:29] Speaker 02:
The way you consider whether information is relevant is not based on the employer's field of work.

[00:28:39] Speaker 02:
It's based on the union's needs in order to correctly and adequately represent its members.

[00:28:47] Speaker 06:
Take it either way you want.

[00:28:49] Speaker 06:
I still want to know why it's wrong.

[00:28:50] Speaker 02:
No, I understand.

[00:28:51] Speaker 06:
And that you're dealing with an employer who is going to provide the medical care.

[00:28:55] Speaker 02:
Right.

[00:28:56] Speaker 06:
And you understand that.

[00:28:58] Speaker 06:
And so the question is, how can the union satisfy or fit within what the board of the case law text that is their right to information?

[00:29:11] Speaker 06:
A union is not entitled to anything it wants merely because it's the bargaining representative.

[00:29:17] Speaker 06:
It's got to be relevant.

[00:29:18] Speaker 06:
So relevant is a matter of context.

[00:29:22] Speaker 06:
If you're in a context where the employer is going to provide the medical care, the insurance is not the issue.

[00:29:30] Speaker 06:
Why does an employer have to break down the books?

[00:29:32] Speaker 02:
Because in this case, the employer wasn't just going to provide the medical care, the employer made clear that it was going to hike the costs that it was going to ask each employee to pay for receiving that medical care.

[00:29:45] Speaker 02:
It wasn't providing that medical care for free.

[00:29:48] Speaker 02:
It said going in – and I'll let Ms.

[00:29:50] Speaker 02:
Medvedevich correct me if I'm wrong – but it said going – it

[00:29:54] Speaker 02:
At some point, the union knew that the employer had done that with another hospital, and then at some point, indeed, during these negotiations, Prime came along and said, now, going forward, no, we don't want to change our EPO, our PPO system, but we do want employees to pay more.

[00:30:09] Speaker 02:
And so in that instance, the union is entitled to know what the costs are so that it can

[00:30:16] Speaker 02:
first see if the employer's rates are justified or negotiate concessions elsewhere, or also the union is entitled to propose suggestions, accommodations, changes within the existing insurance framework in order to reduce the cost for its members.

[00:30:37] Speaker 04:
And why is the issue not moot as Prime has argued, given that you now have successfully negotiated an agreement without the information that you requested?

[00:30:47] Speaker 02:
Because that issue wasn't raised in the brief, I cannot rattle off the dozens of board cases that I'm sure exist that say that you can't just simply say that because, you know, you've reached an agreement despite not providing the information.

[00:31:02] Speaker 04:
I mean, I assume you have a more practical answer, too.

[00:31:05] Speaker 02:
Well, I mean... I can think of an answer, but... Quite clearly, because regardless of whether they ultimately reached an agreement,

[00:31:14] Speaker 02:
The fact that the employer did not provide the information in question places the union at a disadvantage during the negotiation where it can't – where it's kind of working in the dark.

[00:31:26] Speaker 02:
And also, it can't be the true bargaining partner that it should be in proposing solutions that are relevant to the circumstances at hand if it doesn't know what the – Well, we're talking really – we're talking really about the remedy when we're thinking about mootness that the contract has already been negotiated.

[00:31:44] Speaker 06:
You're not suggesting that the requests for information, for example, that related to the prior contract are still currently relevant.

[00:31:53] Speaker 06:
You're talking about getting an order from the board or holding the board order from the board that says the employer violated the act previously.

[00:32:02] Speaker 06:
Is that it?

[00:32:03] Speaker 06:
Are you proposing that the remedy would give them the information that they requested with respect to a contract that's already been negotiated?

[00:32:11] Speaker 02:
The board's order came out at the time before any contract had been issued and the board's order is as it stands.

[00:32:19] Speaker 02:
If during compliance the employer wants to argue that it's no longer necessary to provide that information, they can.

[00:32:28] Speaker 02:
But the board order as it stands say that the employer must provide that information.

[00:32:31] Speaker 07:
Is there some sense that the contracts that were subsequently negotiated might have had different terms?

[00:32:38] Speaker 07:
if this information had been provided before.

[00:32:43] Speaker 02:
Again, the record is completely devoid of information on that, but what is clear is that certainly the negotiations would have progressed differently if prime had been more forthcoming in providing that information when the union requested it.

[00:32:58] Speaker 04:
May I assume your answer has to be yes?

[00:33:00] Speaker 04:
You don't know in what particular.

[00:33:02] Speaker 04:
It sounds like in the new agreement they have agreed not to require copays and premiums.

[00:33:09] Speaker 02:
That's what I just learned that today.

[00:33:11] Speaker 04:
Okay, so that's something that presumably to get that benefit of value to the employees, which is unknown, that some tacit concessions were made.

[00:33:25] Speaker 02:
Right, sure, yes.

[00:33:27] Speaker 06:
So I think the bottom line, I want to make sure I understand what you're saying here.

[00:33:31] Speaker 06:
Your bottom line answer to me seemed to be that this is a matter for compliance.

[00:33:36] Speaker 02:
In terms of, as far as the remedy goes, whether Prime should provide the information as ordered by the board, the board's order right now requires Prime to provide that information.

[00:33:50] Speaker 02:
No, I know what the board's order says.

[00:33:51] Speaker 02:
If Prime wants to dispute that and get into it.

[00:33:54] Speaker 06:
So your answer is that they can raise this, they can contest it during compliance if we agree with your position.

[00:34:03] Speaker 06:
They can say that that portion of the remedy is inappropriate.

[00:34:06] Speaker 06:
Just like reimbursement orders, et cetera, it changes over time.

[00:34:11] Speaker 06:
And by the time you get compliance, what someone thought they would get two years ago is not the same now.

[00:34:17] Speaker 02:
Your Honor, this is my speculation based on my understanding of the compliance process.

[00:34:24] Speaker 02:
But in my limited experience, there is

[00:34:30] Speaker 02:
flexibility during the compliance process for employers and unions to work together and resolve issues like that.

[00:34:37] Speaker 02:
If the union, however, explains that it still needs the information from one reason or another, then that will have to be sorted out then.

[00:34:46] Speaker 02:
I realize my time is up.

[00:34:47] Speaker 02:
Did you want an answer to your dual use, your dual information use?

[00:34:52] Speaker 02:
I just wanted to say that the board law, and I apologize,

[00:34:55] Speaker 02:
The board law on that issue is that unless the employer can show that there is no legitimate use to which the information can be put, the employer has to provide that information.

[00:35:09] Speaker 02:
In this case, the kind of

[00:35:13] Speaker 02:
guilt by association, frankly, evidence that prime has put forward really doesn't pass muster.

[00:35:18] Speaker 02:
Thank you very much.

[00:35:19] Speaker 04:
Well, is it guilt?

[00:35:19] Speaker 04:
I guess that was part of my question is, is it an illegitimate use, the way the SEIU was using the information?

[00:35:26] Speaker 02:
Well, we certainly would have argued, if UHW is still in this case, that it was not, that it was part of a corporate campaign that the board found was perfectly legitimate.

[00:35:39] Speaker 02:
Also, we would point out that Medicare DRG information data becomes public after a certain time.

[00:35:48] Speaker 02:
So this is not information that would not have been available to the union at some point.

[00:35:54] Speaker 02:
And then finally, we'd like to point out

[00:35:56] Speaker 02:
That whole bad faith argument really is just a smoke screen because it only addresses, it only deals with the Medicare DRG coding information.

[00:36:07] Speaker 02:
There's a host of other information that is unrelated to that that Prime did not provide.

[00:36:14] Speaker 07:
Thank you very much.

[00:36:27] Speaker 05:
May it please the Court, Lisa Domenovich of Bush got leave on behalf of Intervenor Service Employees International Union Local 121RM.

[00:36:35] Speaker 05:
Good morning.

[00:36:37] Speaker 05:
To address the case law on the issue of mootness, the Supreme Court long ago held that just because it takes long for these cases to progress through the process, that it's still, and a successor contract is reached that doesn't moot the case, and in fact a remedial bargaining order is important.

[00:36:58] Speaker 05:
And the cases NLRB versus American National Insurance Co.

[00:37:01] Speaker 05:
343 US 395 and I'm in that case was clear.

[00:37:06] Speaker 06:
We just had one that's all clear, but there are particulars right and as you said to attend to and as you said that that's at the compliance stage that that's not with.

[00:37:20] Speaker 07:
What is your strongest argument that you're still entitled to all the information that you sought and that they withheld?

[00:37:28] Speaker 07:
The strongest argument?

[00:37:29] Speaker 05:
The strongest argument is that the contract that was reached in 2014 expires this year.

[00:37:34] Speaker 05:
And so we're going to be back at the table.

[00:37:36] Speaker 05:
And the health care issue hasn't gone away.

[00:37:38] Speaker 07:
Isn't it a forfeiture argument that they didn't timely raise this objection?

[00:37:42] Speaker 05:
Absolutely.

[00:37:43] Speaker 05:
As to the proprietary, you can't, bargaining wouldn't, the whole point of the federal labor law structure is that the union can come and be an equal partner and understand where the employer's coming from on its positions and meaningfully respond.

[00:37:58] Speaker 05:
And if you can just raise defenses later on by your lawyers months, years later, that undermines the process that occurs at the table.

[00:38:07] Speaker 07:
And maybe we'll let Mr. Kahn respond to this on his rebuttal.

[00:38:11] Speaker 07:
I thought I heard him say that

[00:38:12] Speaker 07:
No, they did not raise this objection.

[00:38:15] Speaker 05:
That's correct.

[00:38:16] Speaker 05:
If you look through the three letters that Ms.

[00:38:18] Speaker 05:
Schottmiller raised, nowhere in any of those does she raise proprietary or confidential information.

[00:38:24] Speaker 05:
And in fact, in two locations, she does raise a confidential type of objection.

[00:38:28] Speaker 07:
Doesn't that help us that we don't need to get into the particulars as much as we would otherwise?

[00:38:34] Speaker 05:
That's correct, absolutely.

[00:38:35] Speaker 05:
It was waived at the time.

[00:38:37] Speaker 05:
If you want to raise proprietary, you can, but you need to do it at the table and at that same time raise an accommodation that the union can respond to.

[00:38:47] Speaker 05:
It very much needs to be immediate and at the table for this entire process to be successful and be as Congress intended.

[00:38:56] Speaker 05:
raising things years later, it doesn't make this process work, and so that's why the burden is on the parties to, you know, say their objections at the time and not lawyer it later.

[00:39:07] Speaker 04:
I guess there's a separate, I mean there's sort of two questions that we're talking about at the same time, and one of them is just given the time that passes for everything to be

[00:39:18] Speaker 04:
litigated that it seems like are you seeking information with respect to, you know, a very past time when really now if you went back facing another bargaining session what you would want is the analogous information but for a more current period.

[00:39:33] Speaker 04:
Is that something that can be dealt with in compliance proceedings?

[00:39:35] Speaker 05:
Yes, and I think that would be the appropriate place to do it.

[00:39:39] Speaker 05:
And certainly it's also important under the US testing case that's cited in the briefs, the union is not limited to the employer's thinking about, you know, any topic.

[00:39:51] Speaker 05:
We're not limited to the EPO plan that the employer provides.

[00:39:55] Speaker 05:
There's very legitimate reasons why an employee wouldn't want to have their colleagues

[00:40:00] Speaker 05:
treating them for very embarrassing medical conditions.

[00:40:03] Speaker 05:
And so they may not want to be under this EPO plan.

[00:40:06] Speaker 05:
And what the analysis is is healthcare benefits are a term and condition of employment or a benefit of employment.

[00:40:14] Speaker 05:
And so how you, what you do about it

[00:40:18] Speaker 05:
The union has a right to point out other things.

[00:40:24] Speaker 05:
And the GM, Ford not wanting people to buy GM, well, absolutely.

[00:40:29] Speaker 05:
You don't pay in Ford, you pay in cash.

[00:40:32] Speaker 05:
And people are free to choose what they buy.

[00:40:35] Speaker 05:
That goes to the whole company town cases that the board has.

[00:40:40] Speaker 05:
So people are free to choose how they spend their paycheck.

[00:40:45] Speaker 05:
And the important point here is that the challenges raised weren't raised at the time.

[00:40:52] Speaker 05:
And even the issue about not being in good faith.

[00:40:57] Speaker 05:
That was only to one aspect of the information request.

[00:40:59] Speaker 05:
That was only as to the Medicare coding.

[00:41:04] Speaker 05:
And frankly, it was based on a misunderstanding of what the Medicare coding would represent.

[00:41:08] Speaker 05:
In the record, it's very clear that the objection was based on one conversation between Mary Schottmiller and the CNO

[00:41:16] Speaker 05:
where the CNO was concerned about the septicemia campaign aspect of SCIU-UHW's campaign, and she just said offhand, this isn't relevant.

[00:41:30] Speaker 05:
But it wasn't any kind of thorough analysis or breaking down of that data.

[00:41:35] Speaker 05:
Thank you.

[00:41:35] Speaker 07:
I think we have your argument.

[00:41:37] Speaker 07:
Thank you.

[00:41:38] Speaker 07:
Thank you very much.

[00:41:40] Speaker 07:
Mr. Connell, we'll give you about two minutes for rebuttal.

[00:41:47] Speaker 01:
Thank you, Your Honors.

[00:41:48] Speaker 01:
If there are no questions, we'll rest on our briefs.

[00:41:50] Speaker 01:
Okay.

[00:41:52] Speaker 01:
Thank you.

[00:41:52] Speaker 07:
Thank you very much.

[00:41:53] Speaker 07:
The case is submitted.