Hospital Menonita Guayama, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 30, 2019

12-CA-214830 (N.L.R.B. May. 30, 2019)

JD–47–19
Guayama, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HOSPITAL MENONITA DE GUAYAMA, INC.
and CASES 12–CA–214830
12–CA–214908
UNIDAD LABORAL DE ENFERMERAS (OS) 12–CA–215039
Y EMPLEADOS DE LA SALUD 12–CA–215040
12–CA–215665
12–CA–217862
12–CA–218260
12–CA–221108
Celeste M. Hilerio Echevarria and Isis M. Ramos Melendez, Esqs.,
for the General Counsel.
Angel Munoz Noya and Adrian Sanchez-Pagan, Esqs. (Sanchez
Betances, Sifre & Munoz Noya), for the Respondent.
Harry Hopkins, Esq., for the Charging Party.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter is before me on a consolidated
complaint and notice of hearing (the complaint) issued on July 31, 2018, arising from unfair
labor practice charges that Unidad Laboral de Enfermeras (OS) y Empleados de la Salud (the
Union) filed against Hospital Menonita de Guayama, Inc. (the Respondent or the Hospital).
The charges allege that the Respondent, an admitted successor employer, committed various
violations of the Act relating to five separate bargaining units after it began operating the
Hospital on September 13, 2017.1
Pursuant to notice, I conducted a trial in San Juan, Puerto Rico, on December 4, 6, and
7, 2018, and by telephone on March 14, 2019, at which I afforded the parties a full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

1 All dates hereinafter occurred in 2017 unless otherwise indicated or clear from context.
JD–47–19
2
Issues
(1) Did the Respondent, a successor employer to Hospital San Lucas Guayama (San
Lucas), implement initial terms and conditions of employment that were different
from those of San Lucas without giving the Union notice or an opportunity to 5
bargain?
(2) Did the Respondent unlawfully withdraw recognition of the Union for the five
separate bargaining units between February 5 and April 24, 2018?
10
(3) Did the Respondent, since on about February 7, 2018, fail and refuse to meet and
bargain with the Union for all five units?
(4) Did the Respondent engage in the following conduct without giving the Union
notice or an opportunity to bargain:15
a. On about September 19 and until about October 21, and since on about June
17, 2018, changed the work schedules of RNs by assigning them 12-hour
shifts?
20
b. On November 22, paid a bonus or incentive to employees in the five units who
worked over night on September 19–20 during Hurricane Maria?
c. On February 11, 2018, granted a wage increase to technicians, after
withdrawing recognition from the Union for that unit?25
d. After withdrawing recognition from the Union, eliminated the requirement that
employees in the five units pay a portion of their health insurance premium on
dates from on about April 1 to June 1, 2018?
30
e. On May 18, 2018, granted a $200 uniforms bonus for the first time to RNs and
LPNs?
f. In late June or early July 2018, distributed and put into effect an employee
manual and general rules of conduct, applying to employees in all five units, 35
which made changes in disciplinary rules and benefits?
(5) Since on about March 14, 2018, has the Respondent failed and refused to provide
the Union with necessary and relevant information that it requested concerning a
March 4, 2018 meeting with unit employees regarding changes in medical 40
insurance?
Witnesses and Credibility
The sole witness was the Hospital’s human resources (HR) director, Waleska 45
Rodriguez (Rodriguez), whom the General Counsel called as an adverse witness under
Section 611 (c) and the Respondent called in its case in chief.
JD–47–19
3
The Respondent sought to present evidence in the way of witness testimony and
documents (rejected R. Exhs. 1–11) concerning the Union’s alleged loss of majority status.
However, I disallowed such evidence based on my reading of the Board’s governing
precedent in UGL-UNICCO Service Co., 357 NLRB 801 (2011), which I will discuss in the
analysis and conclusions section. 5
The parties stipulated to most salient facts, and Rodriguez’ credibility is not
determinative of the issues. I note that most of the exhibits were in the Spanish language;
their English translations were later submitted with the designation of “(a)” after the
respective exhibit number. Additionally, many of the pivotal events overlapped, and I 10
generally will follow chronological order.
Facts
I find the following, based on the entire record, including testimony, documents, 15
written and oral stipulations, and the thoughtful posttrial briefs that the General Counsel, the
Respondent, and the Charging Party filed.
Events in 2017
20
San Lucas owned and operated the hospital prior to September 12, when the
Respondent purchased its assets (see Jt. Exhs. 70 and 71). San Lucas had five units of
employees represented by the Union, identified by letter designation for ease of reference:
(1) Medical Technologists (Unit A), since March 22, 2005 (see Jt. Exh. 2). The most 25
recent collective-bargaining agreement was effective from September 1, 2008,
until August 11, 2011 (Jt. Exh. 3).
(2) Registered Nurses (RNs) (Unit B), since August 25, 1998 (see Jt. Exh. 4). The
most recent collective-bargaining agreement was effective from June 15, 2010, 30
until June 16, 2013 (Jt. Exh. 5).
(3) Practical Nurses (LPNs) (Unit C), since August 25, 1998 (Jt. Exh. 6). The most
recent collective-bargaining agreement was effective from June 15, 2010, until
June 16, 2013 (Jt. Exh. 7).35
(4) Technicians (Unit D), since April 12, 2012 (Jt. Exh.8). No collective-bargaining
agreement was ever negotiated for this unit.
(5) Clerical Workers (clericals) (Unit E), since May 21, 2012 (Jt. Exh. 9). No 40
collective-bargaining agreement was ever negotiated for this unit.
At the time that San Lucas sold its assets to the Respondent, San Lucas was in the
process of bargaining successor collective-bargaining agreements for units A, B, and C; and
initial contracts for units D and E. Negotiations for all five units were conducted at the same 45
times.
JD–47–19
4
The Respondent is solely owned by Menonite General Hospital, Inc. (Menonite Health
System or MHS), its parent company. MHS, a nonprofit corporation based in Airbonito,
Puerto Rico, operates the Respondent and several other healthcare facilities throughout Puerto
Rico, including four other hospitals (see Jt. Exh. 75, an organizational chart).
5
The Respondent assumed operation of the hospital on September 13. It continued to
operate the hospital in basically unchanged form and to employ a majority of San Lucas’
employees. The parties stipulated that the Respondent became a successor employer to San
Lucas. Rodriguez, who was HR director for San Lucas, continued as HR director for the
Respondent and to perform the same functions. She reports to Rogelio Diaz (Diaz), the 10
Hospital’s administrator, who in turn reports to Pedro Melendez (Melendez), the executive
director of MHS.
From September 8–12, the Respondent distributed identical letters offering
employment to all of San Lucas’ employees, including those in the above five units (Jt. Exh. 15
10 is a sample). The letter set out terms and conditions of employment, including different
medical plan coverage, and gave the employees until September 12 to accept or reject the
offer. All San Lucas employees accepted, no new hires were considered for employment, and
the work force remained unchanged. The terms and conditions of employment described in
the letter went into effect on September 13. Rodriguez testified that the process of verifying 20
that all of the accepted offers were complete lasted into late September or October.
On September 8, Melendez informed the Union for the first time that all of the San
Lucas employees represented by the Union had received an offer of employment to work for
Respondent, subject to new terms and conditions of employment (Jt. Exh. 11). He advised the 25
Union that in the event that a majority of San Lucas employees accepted, the Hospital would
recognize the Union as the collective-bargaining representative of all units. Finally, he
informed the Union, that the Respondent did not accept the terms and conditions established
in the expired collective-bargaining agreements between the Union and San Lucas, or any
agreements reached between the Union and San Lucas during bargaining for successor 30
agreements. Rather, everything would be bargained anew.
On September 13, Union Representative Ariel Echevarria (Echevarria) requested that
the Hospital recognize the Union as the representative of all units, and he further requested
lists of employees by classification and the offer of employment that they had received (Jt. 35
Exh. 12). On October 27, Union Representative Ingrid Vega (Vega) reiterated to Rodriguez
the request for information (Jt. Exh. 16).
On September 18 and 19, Rodriguez, attempted unsuccessfully to respond to the
Union by fax (Jt. Exh. 13). On October 4, the Respondent sent the letter to the Union by 40
certified mail, and on October 13, delivered it to Ruth Perez, the Union’s administrative
assistant. Therein, Rodriguez advised Echeverria that prior to the hospital determining
whether to recognize the Union, it needed to determine whether a majority of the unit
employees had accepted its employment offer. She informed the Union that in the event the
Union was recognized as bargaining representative, it would produce the requested 45
information.
JD–47–19
5
On September 19 and 20, Puerto Rico was struck by Hurricane Maria, a category 5
hurricane which had devastating effects to the island’s power structure and
telecommunications (stipulation at Jt. Exh. 1 at 8). The hospital remained operating through
the emergency.
5
On about September 19, the Respondent temporarily assigned RNs in clinical areas of
the hospital to work 12-hour schedules, instead of their regular schedule of 8-hour shifts, in
reaction to a curfew established by the local government, among other reasons. This
temporary schedule change lasted until on about October 21, after which the RNs reverted to
8-hour shifts. 10
Rodriguez testified that this was consistent with the Hospital’s contingency plan,
which was never bargained with the Union. The Union was never notified of the temporary
12-hour shifts or the return to 8-hour shifts. Rodriguez testified that during Hurricane Irma,
San Luis temporarily instituted 12-hour shifts for RNs, pursuant to its contingency plan, but 15
San Luis did not so notify the Union.
Rodriguez, Vega, and two shop stewards met at the hospital on October 20. During
the meeting, Rodriguez asked what the Union’s position was regarding a proposed change in
the work shifts of RNs from 8-hour to 12-hour shifts. Vega stated that the Union would agree 20
to such change if done on a voluntary basis. The parties reached no agreements.
The Union filed a charge on October 26, alleging that “the employer failed and refused
to bargain in good faith . . . .”(Jt. Exh. 15), which charge was later dismissed (Jt. Exh. 22).
The record does not reveal the specific bases of the charge or the underlying facts that the 25
Regional Director considered.
On October 27, Echevarria and Rodriguez met at the hospital. They discussed the
Respondent's proposed implementation of 12-hour work shifts for RNs but were unable to
reach an agreement. Echevarria requested that the Respondent reinstate the terms and 30
conditions of employment of unit employees as they were under San Lucas. Rodriguez asked
that he put this in writing.
On November 6, Rodriguez advised Echeverria that all of the employees who worked
for San Lucas had accepted the Respondent's employment offer, and that the Respondent was 35
recognizing the Union as the exclusive representative of employees in all units (Jt. Exh. 17).
She replied to the Union’s September 13 request for information (RFI) and attached a sample
of the September 8 offers of employment (Jt. Exh. 18). Further, she referred to the October
27 meeting and her request that the Union submit a proposal.
40
On November 7, Rodriguez wrote to Echeverria, attaching additional information that
Echeverria had requested on September 13 (Jt. Exhs. 19 and 20).
On November 22, the Hospital held Thanksgiving luncheons for the entire staff, in
three shifts. At the luncheons, Diaz and Rodriguez distributed certificates and $150 checks to 45
union, nonunion, and contracted employees who had worked overnight during Hurricane
Maria, from the evening of September 19 into the morning of September 20 (see Jt. Exh. 21,
payroll records; Jt. Exh. 73, a sample of the certificate). The certificates were signed by
JD–47–19
6
Melendez of MHS and Diaz; the checks were signed by Melendez and Jose Solivan, chief
financial officer of MHS. Nonunion employees at all four other MHS hospitals who had
worked overnight also received such payments. The parties stipulated that MHS paid the
incentives. The Respondent did not notify the Union prior to the issuance of the checks or
afford it an opportunity to bargain.5
Events in 2018
On February 5, Diaz notified Echeverria that the Respondent was immediately
withdrawing recognition of the Union as the bargaining representative of the technicians (Unit 10
D) because the Hospital had “objective demonstrative evidence that a significant majority” of
employees in that unit did not wish representation (Jt. Exh. 25).2 At the time, 17 employees
were in the unit (see Jt. Exh. 26).
On February 6, Echeverria requested from Diaz evidence that the Respondent had to 15
support its allegation of loss support for the Union (Jt. Exh. 27). The same day, Diaz
responded that the Hospital did not have to provide the Union with such information (Jt. Exh.
28).
On February 7, Echeverria requested that Rodriguez provide dates to meet and bargain 20
over the collective-bargaining agreements for the units it represented (Jt. Exh. 29). She
responded the same day (Jt. Exh. 30), asking that the Union submit its proposals for the four
remaining units; once the Hospital received and analyzed the proposals, it would be available
to coordinate the respective bargaining meetings. She did not offer any dates to meet.
25
On February 11, Respondent granted a salary adjustment to technicians, which had the
effect of increasing their hourly rate (see Jt. Exh. 31, a chart prepared by Respondent that
summarizes the salary adjustment per employee). The Respondent did not notify the Union of
this salary increase or bargain with it over the change.
30
Along with a February 12 letter to Diaz, Echeverria submitted separate bargaining
proposals for each of the five units (Jt. Exhs. 32–37).
On February 12, Echevarria advised Rodriguez that the Union had just learned of the
Hurricane Maria bonuses and that the Respondent had not notified or bargained with the 35
Union. (Jt. Exh. 38). He demanded to bargain thereover and requested certain information
pertaining to its conferral. Finally, he referenced the bargaining proposals that he had sent
earlier that day and requested that the Hospital provide dates to commence bargaining.
On March 7, Rodriguez responded (Jt. Exh. 51), explaining that the bonuses were in 40
appreciation for the commitment to patients that the employees had demonstrated. She
pointed out that the Hospital had provided other benefits to employees after the hurricanes.
As to the information requests, she stated that the Respondent would provide work schedules,
attendance records, and payroll records.
45

2 Diaz used identical language in all four subsequent letters notifying the Union that the
Respondent was withdrawing recognition for units A, B, C, and E.
JD–47–19
7
On February 14, Diaz informed Echevarria that the Respondent was withdrawing
recognition from the Union as the collective-bargaining representative of the clerical workers
(Unit E) (Jt. Exh. 40). Along with this letter, Diaz returned the Union’s proposals for the
technicians’ and clerical workers’ units. At the time, 42 employees were in the clerical
workers’ unit (see Jt. Exh. 41). 5
By separate letter of February 14 to Echevarria (Jt. Exh. 42), Diaz confirmed having
received the Union’s bargaining proposals and said that the Hospital would begin the revision
and analysis process of the proposals for the LPN, RN, and medical technologist units. He
stated that the Respondent would submit its counterproposals by the third week of April and 10
that the parties would then begin the bargaining process. Echevarria responded to Rodriguez
on February 19 (Jt. Exh. 48), contending that Diaz was requesting approximately 2 months
before beginning negotiations and that this constituted an intention to stall the negotiations
process. He requested that the Hospital provide as soon as possible available dates to begin
bargaining.15
On March 6, Diaz replied to the Union’s February 19 letter (Jt. Exh. 49), asserting that
any delays in negotiations was solely attributable to the Union. He pointed out that the
Respondent had asked the Union to submit proposals as far back as October 27, 2017, but
none had been submitted until February 12. 20
On February 14, Echevarria sent Rodriguez a summary of what they had discussed at
the October 27, 2017 meeting (Jt. Exh. 44). On substantive matters, he stated that the Union
had expressed no objection if the 12-hour work shifts were voluntary. Rodriguez responded
the following day (Jt. Exh. 45), stating that the Union was told at that meeting that the 12-25
hour shifts for nurses could not be granted in a voluntary manner because it prevented
preparation of the work schedule.
On March 7, Rodriguez responded to Echeverria’s February 14 letter (Jt. Exh. 50),
She disputed his account of the October 27 meeting, stating that that she had asked for 30
proposals at that meeting, but the Union had not provided any until February. She also
repeated what she and Echeverria had said about 12-hour shifts for RNs.
On February 16, Diaz notified Echevarria that the Respondent was withdrawing
recognition of the Union as the representative of the medical technologists (Unit A) (Jt. Exh. 35
46). At the time, nine employees were in that unit (see Jt. Exh. 47).
On March 7, Echevarria wrote to Rodriguez, saying that the Union had just learned
that unit employees would be receiving an orientation about the Menonita Health Plan on
March 14 (Jt. Exh. 53). He stated that the Respondent had not notified or bargained with the 40
Union, and he requested that they meet and bargain. Rodriguez responded that day (Jt. Exh.
53), contending that the Hospital had not made any changes to the medical insurance benefits
provided to employees in the two units that the Union represented (RNs and LPNs).
On March 12, Echevarria sent Rodriguez a letter that covered a variety of topics (Jt. 45
Exh. 54). Inter alia:
JD–47–19
8
(1) He disputed the Respondent’s contention (in its March 6 and 7 letters) that the
Union was responsible for the delay in negotiations. He further pointed out that
the Hospital had been aware at all times that the Union’s proposals mirrored the
expired San Lucas collective-bargaining agreements. Finally, he further disagreed
with the Respondent’s stance that it wanted the Union’s proposals and an 5
opportunity to make counter-proposals prior to beginning negotiations.
(2) He again contended that implementation of the new health plan and conferral of
the bonuses were unlawful unilateral changes.
On March 14, the Echeverria wrote to Rodriguez regarding employees’ medical
insurance (Jt. Exh. 55). He stated that the Union had learned that Respondent had met with 10
unit employees that same day to renew their health insurance coverage, and he requested: (a)
copies of all documents signed by the employees at the meeting concerning employees’
medical plan “renovation,” including the document they signed to renew their medical
insurance; and (b) copies of the attendance sheet for that meeting.
15
On March 19, Rodriguez responded (Jt. Exh. 56), reiterating the Respondent’s earlier-
stated position about the change. She attached: (a) copy of a sheet distributed to employees
in the RN and LPN units, which summarized their health insurance benefits; and (b) a copy of
the attendance sheet to the March 14, signed by employees in those units.
20
On March 19, by separate letter, Rodriguez replied to Echeverria’s March 12 letter
regarding the Hurricane Maria bonuses (Jt. Exh. 57). She stated that the Respondent had not
recognized the collective-bargaining agreements between the Union and San Lucas and that
the incentive payments were an expression of gratitude and not illegal.
25
On April 1, the Respondent reduced the cost of health care insurance for employees in
the three units (technicians, clerical workers, and medical technologist) for which it had
previously withdrawn recognition. Thus, before April 1, employees in those units had to
cover 50 percent of their health care premiums; after April 1, the Respondent absorbed the
totality of their health care premiums, effectively eliminating the 50 percent employee 30
contribution. The Respondent did not notify or bargain with the Union over this change.
On April 4, Echeverria wrote to Rodriguez and renewed his request for copies of the
document that workers signed concerning the change in medical plan (Jt. Exh. 58). The
Respondent never replied.35
On April 6, Diaz notified Echeverria that the Respondent was withdrawing recognition
from the Union as the collective-bargaining representative of RNs (Unit C) (Jt. Exh. 59).
Along with this letter, Diaz returned the Union’s proposal for the RN unit. At the time, 109
employees were in the unit (see Jt. Exh. 60).40
On April 18, Rodriguez sent Echeverria the Hospital’s collective-bargaining proposal
for employees in the LPN unit (Jt. Exh. 61).
On April 24, Diaz notified Echeverria that the Respondent was withdrawing 45
recognition from the Union as the collective-bargaining representative of LPNs (Unit B) (Jt.
Exh. 62). Diaz stated that the collective-bargaining counter proposal the Hospital had
JD–47–19
9
submitted on April 18 was therefore withdrawn. At the time, 16 employees were in the unit
(see Jt. Exh. 63).
On May 1 and June 1, respectively, the Respondent reduced the cost of health care
insurance for employees in the RN and LPN units, by eliminating their previous 50 percent 5
health insurance premium contribution. The Respondent did not notify or bargain this change
with the Union.
On May 18, the Respondent granted a bonus of $200 for uniforms to employees in the
RN and LPN units (see Jt. Exh. 64). This was the first time that the Respondent granted such 10
a bonus. The Respondent did not notify or bargain with the Union over the its payment.
Towards the beginning of June, the Hospital reexamined the subject of assigning
employees in the RN unit to work 12-hour shifts, as opposed to the 8-hour work shifts they
had been working since at least October 1, 2017. On about June 17, after soliciting input 15
from RNs, the Respondent implemented 12-hour work schedules for RNs in a number of
departments (see Jt. Exhs. 66 and 67). The Respondent did not notify or bargain this change
with the Union.
Towards the end of June or the beginning of July, the Respondent distributed and20
implemented an employee handbook, employee manual, and general rules of conduct,
applicable to all its employees (Jt. Exhs. 68 and 69). Before this, the Hospital had no
employee manual or rules of conduct in effect. These promulgations made changes to
disciplinary procedures and employee benefits.
25
Analysis and Conclusions
Setting Initial Terms and Conditions of Employment
A new employer is a successor to the old employer—and thus required to recognize 30
and bargain with the incumbent labor union—when there is “substantial continuity between
the two business operations and when a majority of the new company’s employees had been
employed by the predecessor. UGL-UNICCO Service Co., 357 NLRB 801, 803 (2011), citing
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42–44, 46–47 (1987); see also
NLRB v. Burns International Security Services, 406 U.S. 272, 281 (1972). The successor is 35
not required to adopt the existing collective-bargaining agreement but may set initial terms
and conditions of employment unilaterally, unless it is “perfectly clear that the new employer
plans to retain all of the employees in the bargaining unit,” UGL-UNICCO at 803, citing
NLRB v. Burns at 294–295, in which event the successor employer should consult with the
union before fixing such terms and conditions of employment. This depends on whether the 40
successor employer has hired its full complement of employees and can determine that the
union represents a majority of employees in the recognized unit. 406 U.S. at 295.
In Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curiam 529 F.2d 516 (4th
Cir. 1975), the Board held that this “perfectly clear” exception to the general rule “should be 45
restricted to circumstances in which the new employer has either actively or, by tacit
inference, misled employees into believing that they would be retained without change in
their wages, hours, or conditions of employment, or at least to circumstances where the new
JD–47–19
10
employer . . . has failed to clearly announce its intent to establish a new set of conditions prior
to inviting former employees to accept employment.” This is because of the possibility that
many employees will reject employment under the new terms, potentially causing the Union
to lose majority status in the new work force.
5
In subsequent cases, the Board clarified that the perfectly-clear exception applies
when a new employer “displays an intent to employ the predecessor’s employees without
making it clear that their employment will be on different terms from those in place with the
predecessor.” Creative Vision Resources, LLC, 364 NLRB No. 91, slip op. at 3 (2016), citing
Canteen Co., 317 NLRB 1052, 1053–1054 (1995), enfd. 103 F.3d 1355 (7th Cir. 1997) (new 10
terms and conditions not announced until after the employer displayed an intent to employ the
predecessor’s employees). Put another way, to preserve its authority to unilaterally set initial
terms and conditions of employment, a new employer must clearly announce its intent to
establish a new set of conditions prior to, or simultaneously with, its expression of intent to
retain its predecessor’s employees. Nexeco Solutions, LLC, 364 NLRB No. 44, slip op. at 6 15
(2016). See also Walden Security, Inc., 366 NLRB No. 44 (2018).
Here, when the Respondent offered employment to San Lucas employees represented
by the Union, it simultaneously set out the new benefits that it would be offering them.
Therefore, employees were aware of those changes when they accepted the Respondent’s 20
offer of employment. Accordingly, I conclude that the Respondent did not violate the Act by
setting initial and terms and conditions of employment for unit employees.
Withdrawal of Recognition
25
Most of the alleged violations hinge on the lawfulness of the Respondent’s withdrawal
of recognition from the Union for the five bargaining units.
In UGL-UNICCO, above at 808–809, the Board held that where the successor has not
adopted the predecessor’s collective-bargaining agreement, a union is entitled to a reasonable 30
period of bargaining, during which an employer may not unilaterally withdraw recognition
from the union based on a claimed loss of majority support, whether arising before or during
the period (the “successor bar” doctrine).
In situations such as here, where the successor employer recognizes the union but 35
unilaterally announces and establishes initial terms and condition of employment before
proceeding to bargain, the “reasonable period of bargaining” is a minimum of 6 months and a
maximum of 1 year, measured from the date of the first bargaining meeting between the union
and the employer. Id. at 809.
40
Not until November 6, 2017, did the Respondent notify the Union that the Respondent
was recognizing it as the exclusive representative of employees in all five units. Thus, both
Melendez’ September 8 letter and Rodriguez’ October 4 letter stated that the Hospital had to
determine if the Union represented a majority of employees before it recognized the Union.
Accordingly, the October 20 and 27 meetings, which primarily concerned the 12-hour shifts 45
for RNs, cannot be considered negotiations for collective-bargaining agreements at a time
when the Union was not yet recognized.
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11
The Respondent withdrew its recognition of the Union as the exclusive collective-
bargaining representative of the technicians (Unit D) on February 5, 2018, the clerical
workers (Unit E) on February 14, and the medical technologists (Unit A) on February 16—
prior to the time that the Respondent submitted any counterproposals to the Union’s proposals
of February 12. On April 6, the Respondent withdrew recognition of the Union for the RNs 5
(Unit B) and returned the Union’s proposal without making any counterproposal. Finally, the
Respondent withdrew recognition for the LPNs (Unit C) on April 24, only 6 days after
making its one and only counterproposal. The Respondent and the Union never had face-to-
face negotiations.
10
Accordingly, I conclude that the Respondent’s withdrawal of recognition of the Union
for all five units ran afoul of the successor bar rule and that the Respondent unlawfully failed
and refused to bargain with the Union thereafter. In light of this conclusion, I need not
address the General Counsel’s alternative argument that the withdrawals of recognition were
unlawful because they occurred at times when significant unremedied unfair labor practices 15
existed.
The Respondent, both at trial and in its brief, has argued that the successor bar rule
articulated in UGL-UNICCO should be overruled, but such a decision is outside of the scope
of my authority and vests with the Board.20
Failure to Meet and Bargain in Good Faith
The Union submitted its contract proposals on February 12, 2018. On February 14,
the same day that the Respondent announced that it was withdrawing recognition of the Union 25
for clerical unit, Diaz responded that the Respondent would submit counterproposals for the
remaining four units by the last week in April. The Respondent never offered reasons why
review of the Union’s proposals would have taken over 2 months. By April 18, the
Respondent had withdrawn recognition for the three other units, so that it recognized the
Union only for the LPNs. On April 18, the Respondent made a counterproposal for the LPNs 30
but only 6 days later withdrew recognition for that unit as well. As mentioned, the parties
never had face-to-face negotiations.
The above circumstances, in conjunction with the Respondent’s unlawful withdrawals
of recognition, give rise to a strong suspicion that the Respondent had no intention of 35
engaging in meaningful bargaining with the Union. I further note that two of the alleged
unilateral changes occurred when the Respondent still recognized the Union for the units
involved.
Unilateral Changes before Withdrawal of Recognition40
A. 12-hour Shifts for RNs
The Respondent admittedly changed the work schedules of RNs from about
September 19 until about October 21, 2017, from 8-hour to 12-hour shifts without affording 45
the Union notice or an opportunity to bargain. At the time, the Respondent recognized the
Union as the collective-bargaining representative of the RNs. Although Rodriguez testified
that this was in accordance with the Respondent’s contingency plan, she conceded that the
JD–47–19
12
Union was never notified of such plan or afforded an opportunity to bargain.
Prior to the trial, the complaint limited this allegation to the period since on about June
17, 2018; at trial, the General Counsel moved to amend the paragraph to add the 2017 dates.
The Respondent opposed the amendment. Section 102.17 of the Board’s Rules authorizes the 5
judge to grant complaint amendments “upon such terms as may be deemed just” during or
after the hearing until the case has been transferred to the Board. See Folsom Ready Mix,
Inc., 338 NLRB 1172, 1172 fn. 1 (2003).
Section 10(b) of the Act requires that unfair labor practice charges be filed and served 10
within 6 months of or after the allegedly unlawful conduct. However, a complaint may be
amended to allege conduct occurring outside the 10(b) period if the conduct occurred within 6
months of a timely filed charge and is “closely related” to the allegations of the charge. Fry’s
Food Stores, 361 NLRB 1216, 1216 (2014), citing Redd-I, Inc., 290 NLRB 1115 (1988).
Under Redd-I, the Board considers whether (1) the otherwise untimely allegations involve the 15
same legal theory as the allegations in the timely charge; (2) the otherwise untimely
allegations arise from the same factual situation or sequence of events as the allegations in the
timely charge (i.e., the allegations involve similar conduct, usually during the same time
period, and with a similar object); and (3) a respondent would raise the same or similar
defenses to both the otherwise untimely and timely allegations. Alternative Energy 20
Applications, Inc., 361 NLRB 1203, 1203 (2014).
Two of the charges were filed within 6 months of October 21, 2017, and alleged
unilateral changes: (1) the charge in Case 12–CA–215039 was filed on February 28, 2018, and
included the allegation that the Respondent unilaterally issued the Hurricane Maria bonuses; 25
and (2) the charge in Case 12–CA–217862, filed on April 4, 2018, included the allegation that
the Respondent unilaterally changed employees’ health care coverage and premiums.
However, the shift change at the time of Hurricane Maria was unrelated to either of
those actions, and the Respondent at trial offered a defense that was different and distinct 30
from its justifications for the bonuses and the changes in health care coverage and premiums.
This was made clear in Rodriguez’ testimony, as described in the facts section. Accordingly,
I conclude that the shift change in September—October 2017 cannot form the basis for
finding an unfair labor practice. Nevertheless, it may be used to as evidence shedding light
“on the true character of matters occurring within the limitations period. . . .” Machinists 35
Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416 (1960); Grimmway Farms, 314
NLRB 73, 74 (1994), enf. granted in part and denied in part 85 F.3d 637 (9th Cir. 1996).
I need not address the General Counsel’s argument that the Respondent’s delay in
recognizing the Union—also not alleged in the complaint—should similarly be considered as 40
reflecting on the Respondent’s pattern of conduct.
B. Hurricane Maria Bonuses
Initially, I reject out of hand the Respondent’s contention that conferral of the bonuses 45
was not imputable to the Respondent because MHS, the Respondent’s parent company, was
the responsible party. Both the normal nature of a parent’s corporation to its subsidiary, and
the underlying facts, render such a bifurcation of responsibility untenable.
JD–47–19
13
On November 22, when the Respondent issued $150 bonus or incentive checks to
employees in the five units who had worked over night on September 19–20 during Hurricane
Maria, the Respondent still recognized the Union as the collective-bargaining representative
for all of the units. The Hospital did not notify the Union in advance or give it an opportunity 5
to bargain.
Gifts or bonuses tied to the remuneration that employees receive for their work
constitute compensation for services and are in reality wages falling within the Statute. NLRB
v. Niles-Bement-Pond Co., 199 F.3d 713, 714 (2d Cir. 1952). Thus, unilateral implementation 10
of a $100 bonus based on productivity was found unlawful in SMI/Division of DCX-CHOL
Enterprises, Inc., 365 NLRB No. 152 (2017). See also Cypress Lawn Cemetery Assn., 300
NLRB (1990) (unilaterally establishing individual performance bonus a violation).
Therefore, the Respondent violated Section 8(a)(5) and (1) by unilaterally giving unit 15
employees the $150 bonuses.
Unilateral Changes after Withdrawal of Recognition
Because I have found that the Respondent unlawfully withdrew recognition, it 20
thereafter committed further violations of Section 8(a)(5) and (1) by unilaterally:
A. Reinstituting 12-hour shifts for RNs since on about June 17, 2018.
B. Granting a wage increase to technicians on February 11, 2018.
C. Eliminating the requirement that unit employees pay a portion of their health 25
insurance premium on dates from April 1 to June 1, 2018.
D. Granting a $200 uniforms bonus for the first time to RNs and LPNs on May 18,
2018.
The Respondent has contended that the uniforms bonus was granted pursuant to the 30
past practice between the Union and San Lucas (Jt. Exh. 1 at 18) but offered no evidence to
substantiate this assertion. The Respondent has further contended that the payment of the
$200 uniforms bonus was a requirement of Article 7 of Puerto Rico Law 180 of 1998 (Jt. Exh.
65). However, in the absence of evidence that the uniform bonus was ever offered prior to
May 18, 2018, the Respondent offered no explanation for the timing of the benefit when the 35
law was enacted over 2 decades earlier.
E. Instituting 12-hour shifts for RNs since on about June 12, 2018.
F. Distributing and putting into effect, in late June or early July 2018, an employee
manual and general rules of conduct, which made changes in disciplinary rules 40
and benefits for employees in all five units.
Failure to Furnish Information
The complaint alleges that since on about March 14, 2018, the Respondent failed and 45
refused to provide the Union with necessary and relevant information that it requested
concerning the March 4, 2018 meeting with unit employees over changes in their medical
insurance, specifically (1) copies of all documents signed by the employees during the
JD–47–19
14
meeting and (2) copies of the attendance sheet for that meeting. Although the Respondent did
provide the latter, it never provided copies of documents signed by employees.
An employer is obliged to supply information requested by a collective-bargaining
representative that is relevant and necessary to the latter’s performance of its responsibilities 5
to the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956). To trigger this obligation, the requested information
need only be potentially relevant to the issues for which it is sought. Pennsylvania Power &
Light Co., 301 NLRB 1104, 1104–1105 (1991); Conrock Co., 263 NLRB 1293, 1294 (1982).
10
Requests for information concerning the terms and conditions of bargaining unit
employees are presumptively relevant. Postal Service, 359 NLRB 56, 56 (2012); LBT, Inc.,
339 NLRB 504, 505 (2003); Uniontown County Market, 326 NLRB 1069, 1071 (1998). An
employer must furnish presumptively relevant information on request unless it establishes
legitimate affirmative defenses to production. Detroit Newspaper Agency, 317 NLRB 1071, 15
1071 (1995). Here, the Respondent never offered any reasons why the documents signed by
employees could not have been or should not have been furnished.
I therefore conclude that the Respondent violated Section 8(a)(5) and (1) by not
providing the Union with such documents.
20
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
25
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(5) and (1) of the Act:30
(a) Unlawfully withdrew recognition of the Union as the collective-bargaining
representative of five separate units of employees.
(b) Failed and refused to meet and bargain in good faith with the Union on the terms
of initial collective-bargaining agreements.35
(c) Without affording the Union notice or an opportunity to bargain:
1. Changed the shifts of RNs.
2. Granted technicians a wage increase.
3. Awarded unit employees a Hurricane Maria bonus.
4. Eliminated the requirement that unit employees pay a portion of their health 40
insurance premiums.
5. Granted RNs and LPNs a uniforms bonus.
6. Distributed and put into effect an employee manual and general rules of
conduct, which made changes in unit employees’ terms and conditions of
employment.45
(d) Failed and refused to provide the Union with documents it requested on March 14,
2018, that unit employees signed at a March 4, 2018, meeting on health insurance
JD–47–19
15
benefits, which information was relevant and necessary to the Union’s
performance of its duties as collective-bargaining representative.
REMEDY
5
Because I have found that the Respondent has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
The General Counsel requests as part of the remedy that I order the Respondent to 10
recognize and bargain with the Union for a reasonable period of bargaining of a minimum of
6 months and a maximum of 1 year, measured from the date of the first bargaining meeting
between the parties, as per UGL-UNICCO, above. The General Counsel further requests
special remedies: that I order the Respondent to (1) bargain for a minimum of 15 hours a
week until an agreement or lawful impasse is reached or until the parties agree to a respite in 15
bargaining; and (2) prepare a written bargaining progress reports every 15 days and submit
them to the Regional Director and also serve copies of the reports on the Union to provide the
Union with an opportunity to reply.
The Board has long held that, in appropriate circumstances, unusual or special 20
remedies are required to rectify an employer’s unfair labor practices. See, e.g., Leavenworth
Times, 234 NLRB 649, 649 fn. 2 (1978); Crystal Springs Shirt Corp., 229 NLRB 4, 4 fn. 1
(1977).
These may include the special remedies that the General Counsel has requested. See25
Professional Transportation, Inc., 362 NLRB 534, 536 (2019) (Board imposed such remedies
when the respondent had “engaged in a series of dilatory tactics in contravention of its duty to
bargain in good faith”); see also All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2
(2011), enfd. 540 Fed.Appx. 484 (2013) (unpublished decision); Gimrock Construction, Inc.,
356 NLRB 529, 529 (2011), enf. denied in part 694 F.3d 1188 (11th Cir. 2012).30
I conclude that such special remedies are appropriate here. The Respondent’s
unlawful withdrawal of recognition of the Union from all five units, its pattern of conduct that
showed no serious interest in engaging in collective bargaining, and its imposition of
unilateral changes when it still recognized the Union demonstrated a desire to shirk its 35
obligations as a successor employer.
As to the submitting of progress reports to the Regional Director, I find that they
should be submitted every 30 days rather than every 15 days. See All Seasons Climate
Control, ibid; see also Professional Transportation, Inc., ibid. 40
The General Counsel has not contended that any of the Respondent’s unilateral
changes had a negative financial impact on any unit employees and has not requested a make-
whole remedy.
45
JD–47–19
16
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
5
The Respondent, Hospital Menonita de Guayama, Inc., Guayama, Puerto Rico, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
10
(a) Withdrawing recognition of Unidad Laboral de Enfermeras (OS) y
Empleados de la Salud (the Union) as the exclusive collective-bargaining representative of
employees in five separate units, in contravention of its obligations as a successor employer.
(b) Failing and refusing to meet and negotiate in good faith initial collective-
bargaining agreements with the Union for those five units.15
(c) Making changes in unit employees’ terms and conditions of employment
without affording the Union notice or an opportunity to bargain.
(d) Failing and refusing to provide the Union with information that it requests
that is relevant and necessary for the Union’s performance of its duties as collective-
bargaining representative.20
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.25
(a) Recognize and bargain with the Union for a reasonable period of bargaining
of a minimum of 6 months and a maximum of 1 year, measured from the date of the first
bargaining meeting between the Respondent and the Union, without challenge to the Union’s
representative status.30
(b) Within 15 days of the Union’s request, bargain with the Union at reasonable
times in good faith until full agreement or a bona fide impasse is reached, and if an
understanding is reached, incorporate such understanding in a written agreement. Unless the
Union agrees otherwise, such bargaining sessions shall be held for a minimum of 15 hours a
week, and Respondent shall submit written bargaining progress reports every 30 days to the 35
compliance officer of Region 12, serving copies thereof on the Union.
(c) At the Union’s request, rescind any changes in unit employees’ terms and
conditions of employment that were made without affording the Union notice or an
opportunity to bargain.
(d) Provide the Union with information that it requested concerning the March 4, 40
2018 meeting on health insurance benefits.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–47–19
17
(e) Within 14 days after service by the Region, post at its facility in Guayama,
Puerto Rico, copies of the attached notice marked “Appendix,”4 in English and Spanish.
Copies of the notice, on forms provided by the Regional Director for Region 12, after being
signed by Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices 5
to employees are customarily posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by 10
Respondent at any time since November 22, 2017.
The complaint is dismissed insofar as it alleges violations of the Act that I have not
specifically found.
15
Dated, Washington, D.C. May 30, 2019
IRA SANDRON20
Administrative Law Judge

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to
a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
Q9J
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We recognize Unidad Laboral de Enfermeras (OS) y Empleados de la Salud (the
Union) as the bargaining representative of our full-time clerical workers, medical
technologists, practical nurses, registered nurses, and technicians.
WE WILL NOT withdraw recognition of the Union as the collective-bargaining
representative of the above employees and refuse to bargain with it, on the basis of loss of
majority status during a period when we cannot lawfully withdraw recognition.
WE WILL NOT fail and refuse to meet and negotiate in good faith initial collective-
bargaining agreements with the Union for the above employees.
WE WILL NOT make changes to your benefits and working conditions without
affording the Union notice and an opportunity to bargain over those changes.
WE WILL NOT fail and refuse to provide the Union with all of information it requests
that is necessary and relevant for the performance of its duties as the bargaining
representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in
the exercise of your rights under Section 7 of the National Labor Relations Act, as set forth at
the top of this notice.
WE WILL, within 15 days of the Union’s request, bargain with the Union at reasonable
times in good faith at least 15 hours a week, unless the Union agrees otherwise, until full
agreement or a bona fide impasse is reached, and if an understanding is reached, incorporate
such understanding in a written agreement.
WE WILL provide the Union with the information it has requested since on about
March 14, 2018, for documents that employees signed at a March 4, 2018 meeting concerning
health insurance benefits.
WE WILL, at the Union’s request, rescind the following changes that we made without
affording the Union notice and an opportunity to bargain: in the shifts of registered nurses; in
the wages of technicians; granting employees a Hurricane Maria bonus or incentive;
eliminating the requirement that employees pay a portion of their health insurance premiums;
granting a uniforms bonus to registered nurses and practical nurses; and distributing and
implementing an employee manual and general rules of conduct that made changes in
employees’ terms and conditions of employment.
HOSPITAL MENONITA DE GUAYAMA, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov
South Trust Plaza, 201 East Kennedy Boulevard, Suite 300, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CA-
214830 or by using the QR code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E.,
Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (813) 228-2641.