QUALITY HEALTH SERVICES OF P.R., INC. d/b/a HOSPITAL SAN CRISTÓBAL, Petitioner, Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
FOR REVIEW OF A DECISION AND ORDER OF THE NATIONAL LABOR
José L. Nieto-Mingo, with whom Nieto Law Offices,
José R. González-Nogueras, Lloyd Isgut-Rivera,
and Jiménez, Graffam & Lausell were on brief, for
Barbara A. Sheehy, Attorney, National Labor Relations Board,
with whom Elizabeth Heaney, Supervisory Attorney, Richard F.
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
and Linda Dreeben, Deputy Associate General Counsel, were on
brief, for respondent/cross-petitioner.
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Health Services of Puerto Rico, Inc., d/b/a Hospital San
Cristóbal (the "Hospital"), petitions for
review of an order of the National Labor Relations Board
("NLRB" or the "Board") declaring that
the Hospital had committed several unfair labor practices, in
violation of section 8 of the National Labor Relations Act
("NLRA" or the "Act"), 29 U.S.C. §
158. The Board cross-applies for enforcement of that order.
After careful consideration, we deny the Hospital's
petition for review and grant the Board's cross-petition
Hospital Considers Cost-Cutting Measures
the relevant time period, Unidad Laboral de Enfermeras(os) y
Empleados de la Salud (the "Union") was the
exclusive collective-bargaining representative for most of
the Hospital's approximately three-hundred employees,
including the Hospital's respiratory therapy technicians.
By 2009, the Hospital was experiencing a decrease in its
number of patients, which led it to consider and implement
cost-cutting measures. Between 2009 and 2010, the Hospital,
without notifying or bargaining with the Union, implemented a
number of changes to cut operating costs. These changes
ultimately led to two Board decisions finding that the
Hospital had engaged in unfair labor practices. See Hosp.
San Cristóbal, 358 N.L.R.B. 547 (2012);
Hosp. San Cristóbal, 356 N.L.R.B. 699 (2011).
The collective bargaining agreement ("CBA") between
the Hospital and the Union (together, the
"Parties") expired on February 28, 2010, during
which time the Parties were amid negotiating a successor CBA.
In January 2011, continuing its cost-cutting plan, the
Hospital considered subcontracting the services of its
employees in the Respiratory Therapy Department
("Department"). On March 15, 2011, Hospital
Executive Director Pedro Benetti notified the Union by letter
that the Hospital intended to subcontract the Department, and
offered the Union an opportunity to "negotiate the
impact of [the] decision." Between March 24, 2011, and
April 12, 2011, the Hospital and the Union met on several
occasions to engage in bargaining around that
The Parties Bargain
March 28, 2011, while negotiations were ongoing, the Hospital
subcontracted with the private company Respiratory Therapy
Management ("RTM") to provide non-unit respiratory
therapy technicians on an as-needed basis to cover absences
by the hospital's unit employees. Under the expired CBA,
the Hospital was permitted to hire "temporary
employees" for emergencies, "absence due to
illness, vacation or any other similar motive."
Nonetheless, according to the Hospital's Human Resources
Director, Candie Rodríguez
("Rodríguez"), RTM's as-needed employees
did not count as temporary employees. On March 30, 2011,
Union representatives Ariel Echevarría
("Echevarría") and Evelyn Santa met with
Rodríguez to discuss a grievance. After the meeting,
Rodríguez circulated a memorandum directing employees
to stop discussing the possible subcontracting of other
departments. By early April 2011, the number of full-time
union respiratory therapy technicians had dropped from eleven
to eight, after three technicians resigned.
April 12, 2011, the Parties engaged in a bargaining session
during which the Hospital acknowledged, on advice of counsel,
that it should negotiate with the Union both the decision to
subcontract the Department and the decision's effects.
The Hospital then offered the Union an opportunity to present
alternatives to subcontracting, and postponed the proposed
subcontracting on approximately six different
The Parties Discuss a Food Stipend-Cutting
27, 2011, Echevarría and Rodríguez met
informally to discuss possible alternatives to
subcontracting, including reducing the Hospital's payment
in monthly food stipends to unit employees. On June 17, the
Hospital proposed reducing that monthly stipend from $55 to
$15 per employee, which would have resulted in monthly
savings of $7, 400 per month, or eliminating the food stipend
completely, which would have saved $10, 175 per month. In
comparison, if the Hospital completely subcontracted the work
then performed by the Department's unit employees, the
projected monthly savings would have been $7, 243.
Rodríguez noted that if the Union agreed to any one of
the proposals, the eight regular employees would retain their
positions, but the Hospital would still continue to use RTM
employees as needed, and would not assign unit employees to
Parties held bargaining sessions on June 28 and July 5 to
discuss adjusted savings projections in light of the
Department's reduction to eight employees. These new
projections showed monthly savings of $4, 998 ($59, 976
annually) if the work was subcontracted.
The Parties Do Not Agree and The Hospital Implements the
next bargaining meeting on July 8, 2011, the Union presented
a proposal addressing the proposed alternative involving
reducing food stipends. The Union proposed reducing the
stipend to $30, which brought the Parties within $373 of each
other in terms of monthly cost savings for the Hospital.
Union's proposal also included other
conditions. Later that day, the Hospital rejected the
proposal because the Union's conditions -- including
filling vacancies with regular employees, granting the
permanent shift of 7:00 AM to 3:00 PM to the two most senior
unit employees, and limiting the food stipend reduction to
one year -- would not result in the savings the Hospital
desired. After this meeting, the Hospital determined that the
Parties had reached an impasse, and thus implemented its
decision to subcontract the Department. Later that same day,
at approximately 2:30 PM, Rodríguez began notifying
the Department's eight unit employees of their
termination. Additionally, the Hospital called in the
Department's off-duty employees, and terminated them upon
arrival. The Hospital provided each terminated employee with
a termination letter, stating that the employee was
immediately relieved from occupational duties, but would
receive payment through July 13, 2011. RTM staff covered the
terminated employees' shifts.
The Parties Continue Negotiations But Fail to Reach an
later on July 8, 2011, Union President Ana Meléndez
told Rodríguez that the Union was available to
continue negotiations until a "satisfactory
agreement" could be reached. The Parties met later that
night, but could not agree on a stipend amount or whether the
two most senior unit employees could be granted permanent
shift assignments. The Hospital required that the monthly
food stipend be reduced to $25 per employee, which would have
resulted in savings exceeding those of subcontracting. The
Union stated it would agree to reduce the food stipend to $25
if, in exchange, the Hospital granted the Union's ...