Quality Health Services of Puerto Rico, Inc. d/b/a Hospital San Cristobal

National Labor Relations Board - Board Decisions

Jul 25, 2012

358 N.L.R.B. 769 (N.L.R.B. 2012)

HOSPITAL SAN CRISTOBAL 769

358 NLRB No. 89
Quality Health Services of P.R., Inc. d/b/a Hospital
San Cristobal and Unidad Laboral De Enfer-
meras(os) y Empleados De La Salude. Cases 24–
CA–011782 and 24–CA–011884
July 25, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On February 2, 2012, Administrative Law Judge Geof-
frey Carter issued the attached decision. The Respondent
filed exceptions and a supporting brief and the Acting
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exception and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Quality Health Services of P.R., d/b/a Hos-
pital San Cristobal, Ponce, Puerto Rico, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Unidad La-
boral De Enfermeras(os) y Empleados De La Salude (the
Union) as the exclusive collective-bargaining representa-
tive of the employees in the following bargaining unit:

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and substitute a new notice to
conform to the Order as modified.
Unlike his colleagues, Member Hayes would find that the Respond-
ent established that subcontracting unit work to per diem employees
starting in March 2011 was consistent with its past practice of using per
diem employees, and therefore lawful under Westinghouse Electric
Corp., 150 NLRB 1574 (1965).
2 The judge recommended a broad order requiring the Respondent to
cease and desist from violating the Act “in any other manner.” But
because the Respondent’s repeated violations of the Act have been
primarily unilateral changes to the bargaining unit’s terms and condi-
tions of employment, any future unlawful unilateral changes would be
in violation of a narrow order and subject to contempt proceedings.
See, e.g., Metta Electric, 349 NLRB 1088, 1088 (2007). Therefore, we
substitute a narrow order requiring the Respondent to cease and desist
from violating the Act “in any like or related manner.” See Hickmott
Foods, 242 NLRB 1357 (1979).
Unit B—24–RC–7308: All Licensed Practical Nurses
and Respiratory Therapy Technicians, Operating Room
and Radiology Technicians employed by the Respond-
ent, at the Hospital located in Cotto Laurel Ward,
Ponce, Puerto Rico; excluding all other hospital em-
ployees, including Executives, Administrators, Super-
visors, Administrative Employees, Managers and
Guards as defined by the Act.

(b) Making any changes in wages, hours, or other
terms and conditions of employment of the employees
represented by the Union without first bargaining with
the Union as their exclusive collective-bargaining repre-
sentative.
(c) Unilaterally changing the terms and conditions of
employment of its respiratory therapy technicians by
subcontracting their work to per diem employees without
first notifying the Union and giving it an opportunity to
bargain.
(d) Promulgating, maintaining, or enforcing a rule that
unlawfully prohibits employees from having discussions
related to the Respondent’s plan to subcontract the work
performed by its respiratory therapy technicians.
(e) Unilaterally discharging respiratory therapy techni-
cians and subcontracting their work to Respiratory Ther-
apy Management without first notifying the Union about
its decision and affording the Union an opportunity to
bargain over the decision and effects on the respiratory
therapy technicians.
(f) In any like or related manner interfering with, re-
straining, 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.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the bargaining unit employees.
(b) Discontinue subcontracting the work of its respira-
tory therapy technicians and bargain with the Union as
the exclusive bargaining representative of the respiratory
therapy technicians over any decision to subcontract.
(c) Rescind and give no effect to the work rule prohib-
iting employees from having discussions related to the
Respondent’s plan to subcontract the work of its respira-
tory therapy technicians.
(d) Rescind the change of subcontracting the work of
respiratory therapy technicians to per diem employees
unilaterally implemented on March 25, 2011.
(e) Make Rafael Colon, Mirna Leon, Jose Cruz, Nancy
Gonzalez, Norma Rivera, Felicita Leon, Catherine Co-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

770
lon, Enid Ortiz, Ivette Borrero, and German Mercado
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful decision to sub-
contract the work of the respiratory therapy technicians
to per diem employees on or about March 25, 2011, in
the manner as set forth in the remedy section of the deci-
sion.
(f) Rescind the discharges of the respiratory therapy
technicians and the change of subcontracting the work of
the respiratory therapy technicians to Respiratory Thera-
py Management unilaterally implemented on July 8,
2011.
(g) Within 14 days from the date of this Order, offer
Rafael Colon, Mirna Leon, Jose Cruz, Nancy Gonzalez,
Norma Rivera, Felicita Leon, Catherine Colon, and Enid
Ortiz full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(h) Make Rafael Colon, Mirna Leon, Jose Cruz, Nancy
Gonzalez, Norma Rivera, Felicita Leon, Catherine Co-
lon, and Enid Ortiz whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s
unlawful decision to subcontract the work of the respira-
tory therapy technicians to Respiratory Therapy Man-
agement on or about July 8, 2011, in the manner set forth
in the remedy section of the decision.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Within 14 days after service by the Region, post at
its Ponce, Puerto Rico facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice in Eng-
lish and Spanish, on forms provided by the Regional
Director for Region 13, after being signed by the Re-
spondent’s authorized representative, shall be posted by

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 25,
2011.
(l) Within 21 days after service by the Region, filed
with the Regional Director for Region 24 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Unidad Laboral De Enfermeras(os) y Empleados De
La Salude (the Union) as the exclusive collective-
bargaining representative of our employees in the follow-
ing bargaining unit:

Unit B—24–RC–7308: All Licensed Practical Nurses
and Respiratory Therapy Technicians, Operating Room
and Radiology Technicians employed by the Respond-
ent, at the Hospital located in Cotto Laurel Ward, Puer-
to Rico; excluding all other hospital employees, includ-
ing Executives, Administrators, Supervisors, Adminis-
HOSPITAL SAN CRISTOBAL

771
trative Employees, Managers and Guards as defined by
the Act.

WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT subcontract the work of our respiratory
therapy technicians without first notifying the Union
about our decision and affording the Union an opportuni-
ty to bargain over the decision and its effects on our res-
piratory therapy technicians.
WE WILL NOT promulgate, maintain, or enforce rules
that unlawfully prohibit employees from having discus-
sions related to plans to subcontract the work performed
by our respiratory therapy technicians.
WE WILL NOT unilaterally discharge and subcontract
the work of our respiratory therapy technicians without
first bargaining with the Union to a good-faith impasse.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our bargaining unit employees.
WE WILL discontinue subcontracting the work of our
respiratory therapy technicians and bargain with the Un-
ion as the exclusive-bargaining representative of the res-
piratory therapy technicians over any decision to subcon-
tract.
WE WILL immediately rescind and give no effect to the
work rule prohibiting employees from having discussions
related to our plan to subcontract the work performed by
our respiratory therapy technicians.
WE WILL rescind the change of subcontracting the
work of our respiratory therapy technicians to per diem
employees unilaterally implemented on March 25, 2011.
WE WILL make Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, Enid Ortiz, Ivette Borrero, and German Mercado
whole for any loss of earnings and other benefits result-
ing from our March 25, 2011 decision to subcontract unit
work in the respiratory therapy department, less any net
interim earnings, plus interest compounded daily.
WE WILL rescind the discharges of our respiratory
therapy technicians and the change of subcontracting
their work to Respiratory Therapy Management unilater-
ally implemented on July 8, 2011.
WE WILL, within 14 days from the date of this Order,
offer Rafael Colon, Mirna Leon, Jose Cruz, Nancy Gon-
zalez, Norma Rivera, Felicita Leon, Catherine Colon,
and Enid Ortiz full reinstatement to their former jobs, or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz whole for any loss of earnings and
other benefits resulting from their discharge on July 8,
2011, less any net interim earnings, plus interest com-
pounded daily.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz, and WE WILL, within 3 days there
after, notify each of them in writing that this has been
done and that the discharges will not be used against
them in any way.

QUALITY HEALTH SERVICES OF PUERTO RICO
D/B/A HOSPITAL SAN CRISTOBAL

Jose Ortiz-Marciales, Esq., for the Acting General Counsel.
Jose Oliveras Gonzalez, Esq., for the Respondent.
Harold Hopkins Jr., Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case
was tried in San Juan, Puerto Rico on November 17–18 and
December 13–15, 2011. The Unidad Laboral de Enfer-
meras(os) y Empleados de la Salud (the Union) filed the charge
in Case 24–CA–11782 on April 12, 2011, and filed an amended
charge on August 19, 2011.1 The Union filed the charge in
Case 24–CA–11884 on June 29, 2011, and filed an amended
charge on August 19, 2011. The Acting General Counsel is-
sued a consolidated complaint (covering both cases) on August
31, 2011, and amended the complaint on October 20 and No-
vember 17, 2011.
The complaint alleges that Quality Health Services of Puerto
Rico, Inc., d/b/a Hospital San Cristobal (the Respondent or the
Hospital) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by issuing and distributing a memorandum
to employees on or about March 31, 2011, that prohibited any
discussions between employees related to the Respondent’s
subcontracting of work performed by its respiratory therapy
technicians. The complaint also alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act by: on or about
March 28, 2011, unilaterally subcontracting work performed by
respiratory therapy technicians; on or about April 4, 2011, uni-
laterally changing its past practice for scheduling vacation for
respiratory therapy department employees by eliminating
and/or limiting employee discretion when scheduling vacation
leave; and on or about July 9, 2011, unilaterally laying off res-

1 All dates are in 2011, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

772
piratory therapy technicians and subcontracting the work that
they previously performed. The Respondent filed a timely
answer denying each of the alleged violations in the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a hospital that pro-
vides acute health care services in Ponce, Puerto Rico, where it
annually derives gross revenues in excess of $250,000 and
purchases and receives goods valued in excess of $50,000 di-
rectly from points outside of the Commonwealth of Puerto
Rico. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
This case is the third case that the Respondent, the Union
and the Acting General Counsel have litigated in the past 18
months. See Hospital San Cristobal, 356 NLRB 699 (2011)
(Case 24–CA–011438); Hospital San Cristobal, Case 24–CA–
11630, slip op. (July 21, 2011). I have summarized portions of
the decisions in the two preceding cases because they provide
some useful background information for the complaint allega-
tions at issue in this case, and are also relevant to the Acting
General Counsel’s request for a broad remedial order.
1. Overview
Since about March 1, 2002, the Union has served as the ex-
clusive collective-bargaining representative of the following
bargaining unit (among others) at the Hospital:

Unit B—24–RC–7308: All Licensed Practical Nurses and
Respiratory Therapy Technicians, Operating Room and Radi-
ology Technicians employed by the Respondent, at the Hospi-
tal located in Cotto Laurel Ward, Ponce, Puerto Rico; exclud-
ing all other hospital employees, including Executives, Ad-
ministrators, Supervisors, Administrative Employees, Manag-
ers and Guards as defined in the Act.

The Union and Respondent have been parties to a series of
collective-bargaining agreements since March 1, 2002, though
the most recent collective-bargaining agreement expired on
February 28, 2010.
In 2009, a decrease in the number of patients led the Hospital
to consider and implement various cost-cutting measures. Hos-
pital San Cristobal, 356 NLRB at 700. As described below, the

2 The trial transcripts are generally correct, but I note the following
corrections for the record: p. 135, L. 9 (“individual” should be “mind”);
and p. 202, LL. 22–23 (“January 14” should be “February 14”). I also
note that General Counsel (GC) Exhibit 5 was included in the trial
exhibits in error (the exhibit was never offered or admitted into evi-
dence) and is not part of the evidentiary record.
Acting General Counsel alleged (in Cases 24–CA–011438 and
24–CA–011630) that the Hospital ran afoul of Section 8(a)(5)
and (1) of the Act because it did not fulfill its duty to bargain
with the Union before implementing some of the cost-cutting
measures and policy changes that it selected.
2. Decision in Hospital San Cristobal, 356 NLRB 699
(Case 24–CA–11438)
In Case 24–CA–011438, the Board affirmed Administrative
Law Judge William Cates’ finding that the Respondent violated
Section 8(a)(5) and (1) of the Act “by altering its past practice
and ceasing to pay holiday pay to employees whose day off fell
on a holiday, by eliminating its past practice of allowing em-
ployees to use sick leave when receiving workers’ compensa-
tion, by eliminating permanent shifts in its respiratory care
department thereby implementing rotation shifts for those em-
ployees, and by changing and reducing the number of employ-
ees’ holidays, all without notice to and bargaining with the
Union.” Hospital San Cristobal, 356 NLRB at 699, 703 (not-
ing that the violations occurred between late 2009 and early
2010). To remedy those violations, the Board (among other
things) ordered the Respondent to rescind the unlawful unilat-
eral changes and make employees whole for any lost wages or
benefits, with interest. Id.703–704.
3. Decision in Hospital San Cristobal, Case 24–CA–011630
In Case 24–CA–011630, Administrative Law Judge George
Aleman found that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally discontinuing (on March 1, 2010)
its practice of paying certain nursing employees incentives or
bonuses3 on top of their base salary rate without giving the
Union prior notice or an opportunity to bargain over that
change in its employees’ terms and conditions of employment.
Hospital San Cristobal, Case 24–CA–011630, supra at 706.
Judge Aleman ordered the Respondent to reinstate the unlaw-
fully discontinued employee compensation practices, and make
employees whole for any lost wages (plus interest) caused by
the 8(a)(5) violation. Id.at 706–707.
B. Hospital Identifies the Respiratory Therapy Department
as an Area for Savings
In connection with the Hospital’s ongoing efforts to reduce
costs, respiratory therapy department Supervisor Carlos Diaz
suggested in January 2011 that the Hospital consider subcon-
tracting out the respiratory therapy department. (Tr. 40, 185,
193–195.) After reviewing proposals from various subcontrac-
tors, the Hospital identified Respiratory Therapy Management
(RTM) as the subcontractor that was offering the most afforda-
ble package. (Jt. Exh. 21; GC Exh. 4.) Specifically, the Hospi-
tal’s initial studies indicated that it would save approximately
$100,000 per year if it used RTM to provide the Hospital’s
respiratory therapy services (instead of continuing to use the

3 The Respondent paid incentives or bonuses to employees who
worked undesirable shifts, worked in high risk departments of the hos-
pital, or completed special courses to improve their knowledge and
skills. Hospital San Cristobal, Case 24–CA–011630, supra at 700.
HOSPITAL SAN CRISTOBAL

773
respiratory therapy employees that it had on the payroll).4 (Tr.
377–378; Jt. Exh. 5b at 2.)
C. Negotiations Regarding the Respiratory
Therapy Department
1. The Hospital offers to bargain about the impact
of its decision to subcontract
On March 15, Hospital Executive Director Pedro Benetti
sent a letter to the Union to advise that the Hospital planned to
subcontract the respiratory therapy department effective April
15, 2011, and to invite the Union to negotiate about the impact
of that decision. (Jt. Exh. 3b.) The pertinent part of Benetti’s
March 15 letter stated as follows:

As you know, since last year the Hospital has been going
through a declining situation that has directly affected the fi-
nances of our operations. More so, our negotiations have also
been affected, since the hospital does not have the economic
capacity to enter into economic commitments.

Due to this situation, the Hospital has been looking for alter-
natives that would help our finances such as the reorganiza-
tion of services, the restructuring of departments, the consoli-
dation of positions, not substituting resignations or termina-
tions, not incurring overtime, etc.

One of the alternatives we have evaluated is the subcontract-
ing of services. [Subcontracting is an] alternative that at this
moment we see as viable with the Respiratory Care Depart-
ment, because it represents a savings for the Hospital. We
will begin privatizing these services beginning on April 15,
2011. It is because of this, that I invite you to negotiate the
impact of this decision, in a meeting set for Thursday, March
24, 2011 at 10:00 a.m. in Conference Room B.

(Jt. Exh. 3b; see also Tr. 41–42, 255–256.)
2. The Hospital agrees to have a subcontractor provide
respiratory therapy staff on a per diem basis
In the initial days following the Hospital’s announcement of
its plans to subcontract the respiratory therapy department,
much of the communication between the Hospital and the Un-
ion (including the March 24 meeting attended by hospital and
union representatives) focused on the Union’s requests for in-
formation to evaluate the Hospital’s financial status and the
estimated savings that would result from subcontracting. (See,
e.g., Jt. Exhs. 5b, 6b, 7b, 13b, 14b, 17b, 18b.) The Hospital
also continued to assert that it was only willing to negotiate
about the impact of its decision to subcontract. (Jt. Exh. 8b,
par. 1.)
In the same time period, however, significant changes oc-
curred in the respiratory therapy department. First, on March
25, the Hospital agreed to subcontract with RTM to provide
nonunion respiratory therapy technicians on a per diem (i.e., as
needed) basis.5 (Tr. 48, 82, 85–86; see also Tr. 226–227; Jt.

4 Revised studies later showed that the Hospital would save approx-
imately $60,000 per year if it used RTM to staff the respiratory therapy
department. (Tr. 336, 378.)
5 Although RTM agreed to provide respiratory therapy technicians to
the Hospital on March 25, the Hospital and RTM did not sign a contract
Exh. 9b (Union asked Hospital why RTM was providing res-
piratory therapy technicians to the Hospital when negotiations
about that issue were still in progress); Jt. Exh. 30b at 2).) Spe-
cifically, beginning on March 28, RTM provided respiratory
therapy technicians to cover shifts that, according to the Hospi-
tal, could not be staffed by Hospital employees because of va-
cation time, disability leave under the State Insurance Fund
program (a workers’ compensation program), sick leave, the
reduced number of full-time staff in the department, and shift
assignment restrictions that resulted from prior litigation before
the National Labor Relations Board (the Board). (Tr. 83, 124,
226–227; Jt. Exh. A, par. 4; Jt. Exhs. 9b, 18b, 20b.) Although
the collective-bargaining agreement permits the Hospital to hire
“temporary employees” to work in an emergency or substitute
for a regular employee who is absent due to illness, vacation or
any similar circumstance (see Jt. Exh. 1b, par. A), Human Re-
sources Director Candie Rodriguez testified that the per diem
employees that RTM provided were not temporary employees,
but rather “people who are on standby waiting to cover shifts
that may come up . . . at a last minute.”6 (Tr. 83.)
Second, in late March and early April, three respiratory ther-
apy technicians employed by the Hospital resigned, reducing
the number of full-time technicians in the respiratory therapy
department from 11 to 8.7 (Jt. Exh. A, pars. 3, 5–6; see also Tr.
89 (Hospital did not attempt to fill the positions that became
vacant due to the three resignations).) One of the eight remain-
ing technicians (Felicita Leon) was not available to work be-

until April 7. (Jt. Exh. 15.) Since the contract contemplated RTM
providing staff for the entire respiratory therapy department, the Hospi-
tal and RTM agreed by letter that until further notice, RTM would only
provide staffing on a per diem basis. (Tr. 48, 103; Jt. Exh. 30b at 2).)
6 Rodriguez’ testimony that per diem employees are not temporary
employees covered by the collective-bargaining agreement was unre-
butted. Notably, Rodriguez initially stated that per diem employees
were temporary employees, and then interjected to correct herself and
emphasize that per diem employees are not temporary employees. (Tr.
83.)
The record does not establish why Rodriguez felt compelled to cor-
rect her initial answer, but I note that the collective-bargaining agree-
ment does outline specific conditions that apply when the Hospital uses
temporary employees. (See Jt. Exh. 1b, pars. B, F (among other condi-
tions, the collective-bargaining agreement generally allows the Hospital
to use temporary employees for a continuous period of work of up to 6
months, and requires the Hospital to give regular employees preference
over temporary employees in covering vacant positions for which they
are qualified).)
Historically, the Hospital used temporary employees sparingly in the
respiratory therapy department, with only two such employees covering
shifts in 2010 (up to August 2010), and none in 2011 (up to March 28,
2011). (Jt. Exh. 52.) By contrast, between March 28 and April 23,
2011, the Hospital used eight different per diem employees (provided
by RTM) to cover various shifts in the respiratory therapy department.
(GC Exh. 2b.)
7 One respiratory therapy technician (Wanda Batista) resigned with
an effective date of March 23, while the other two respiratory therapy
technicians (German Mercado and Ivette Borrero) resigned with effec-
tive dates of April 15 and 16. (Jt. Exh. A, pars. 3, 5–6.) There is no
allegation in this case that any of the three resignations were caused by
unfair labor practices.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

774
cause of ongoing disability leave (under the State Insurance
Fund) that began in December 2010. (Tr. 86–87, 187.)
3. The Hospital issues a memorandum prohibiting employees
from making certain comments about subcontracting
On March 31, Rodriguez sent a letter to Union Representa-
tive Ariel Echevarria to follow up on concerns that she raised in
a March 30 meeting with Echevarria and Union Delegate (and
Hospital employee) Evelyn Santa about certain incidents at the
Hospital. (Jt. Exh. 11b; see also Jt. Exh. 10b (Echevarria letter
referencing the meeting).) Rodriguez expressed concern that an
unknown individual had left a “menacing note” on Carlos Diaz’
car because Diaz proposed the idea of subcontracting the res-
piratory therapy department. Rodriguez also asserted that Santa
and Union Delegate Rafael Colon were intimidating other hos-
pital employees by warning that their departments could also be
targeted for subcontracting. Rodriguez informed Echevarria
that she circulated a memo to employees that prohibited the
conduct that she described. (Jt. Exh. 11b.) Rodriguez’ memo
to employees (dated March 31) stated as follows:

Operational Changes—For several days now, we have been
hearing that employees are intimidating other employees with
comments that lack truthfulness and which only have the in-
tention of affecting their emotional health. These employees
have to desist from making these comments immediately. At
this time, the Hospital is in the process of taking a decision
that will only affect one (1) department. No other department
of the Hospital will be affected nor are we thinking of affect-
ing any other department. This is a product of operational de-
cisions that impact the finances of the Hospital. I have in-
structed all Supervisors, and I urge everyone, to report to me
those employees that are incurring in this conduct in order to
take the necessary corrective measures.

(Jt. Exh. 12b.)
4. Rafael Colon’s vacation dates changed
At the start of every year (including 2011), Diaz presented a
form to the respiratory therapy technicians and ask them to fill
it out with their requested vacation time. (Tr. 177, 294–295; Jt.
Exh. 55b.) Employees, however, were not guaranteed their first
choices of vacation times. Instead, Diaz would review the re-
quests to ensure that they did not conflict with the requests of
other employees, and to ensure that employees did not go past
the collective-bargaining agreement’s 16-month limit for accru-
ing (and using) vacation leave. (Tr. 178–179; see also Jt. Exh.
2b, par. F; see also Jt. Exh. 54 (noting that annual vacation
programs take into consideration the date of hire of employees,
and the needs of the department, Hospital and service).) If a
conflict did arise, Diaz would arrange a meeting with the af-
fected employee and attempt to work out an agreement for an
alternative vacation time. (Tr. 179–180, 295–296.) Rafael
Colon testified that he had never experienced an occasion in the
past where he and Diaz could not come to an agreement about
an alternative vacation time.8 (Tr. 307.)

8 I have not credited Rafael Colon’s testimony that all employees in
the respiratory therapy department were given the flexibility to select
alternative vacation dates in the event that their first choice could not be
On April 4, Diaz met with Rafael Colon to discuss Colon’s
request to take vacation in December 2011. At the meeting,
Diaz advised Colon that he would need to take his vacation
from April 11 to May 10, 2011, instead of waiting until De-
cember 2011. (Tr. 184, 297–298.) Diaz explained (at trial) that
under the collective-bargaining agreement, Colon had to take a
vacation (or forfeit his vacation leave) every 16 months and
generally take vacation in one block of consecutive days.9
Since Colon’s last vacation ended on February 14, 2010, he
was approaching the end of the 16-month timeframe to use his
accrued vacation leave.10 (Tr. 202, 205, 213, 216; Jt. Exh. 2b,
pars. F–G.) Colon asked Diaz if perhaps another employee
could take vacation in April, but Diaz responded that Colon
needed to go on vacation at that time.11 (Tr. 298.) Diaz then
produced a completed vacation leave request form for Colon
with the April/May dates, and Colon (believing he had no alter-
native) signed the form. (Tr. 184–185, 298–299; Jt. Exh. 57b.)
Although Colon was familiar with the human resources office
and the grievance process, he did not complain to the human
resources office about the change to his vacation schedule. (Tr.
305.)
5. The Hospital offers to bargain about whether it should
subcontract the respiratory therapy department
On April 7, RTM and the Hospital signed a contract for
RTM to provide respiratory therapy technicians to the Hospital.
(Jt. Exh. 15b.) However, by letter, RTM and the Hospital
agreed that until negotiations with the Union concluded, RTM
would only provide staff on a per diem, or as needed, basis.
(Tr. 48, 103.)
In this same time period, the Hospital consulted with its at-
torney and learned that it needed to negotiate with the Union

granted. (See Tr. 295–296.) No foundation was offered for Colon’s
testimony on that point, thus raising questions about the reliability of
that portion of Colon’s testimony. Furthermore, although the Acting
General Counsel called two other respiratory therapy department em-
ployees as witnesses in its rebuttal case, it did not ask either of those
employees to present testimony that might have rebutted Diaz’ testimo-
ny (and perhaps corroborated Rafael Colon’s testimony) about the
Hospital’s vacation leave scheduling practices. (See Tr. 459–464 (Jose
Cruz); 464–472 (Catherine Colon).)
9 Although the collective-bargaining agreement does not limit the
number of vacation days that an employee may accrue, Diaz testified
that he used the number of accrued vacation days as a benchmark for
determining when an employee was approaching the 16-month forfei-
ture date for vacation leave. (Tr. 198, 212.) Specifically, for an em-
ployee (like Colon) who earned 22 vacation days a year (1.83 days per
month), Diaz regarded 28–30 days of accrued vacation leave as a signal
that such an employee was at risk of forfeiting leave because of the 16-
month limitation on accruing leave. (Tr. 198, 212; Jt. Exh. 2b, pars.
A(3), F.)
10 Under the collective-bargaining agreement, Colon had until June
14, 2011 to use or forfeit his vacation leave. The record shows that two
other respiratory therapy technicians were scheduled to take vacation
leave from May 9 to June 8. (Jt. Exh. 56.)
11 Colon testified that Diaz became upset during this part of the con-
versation and that he (Colon) felt intimidated because Diaz spoke to
him with a tone of voice he had never heard before. Colon admitted,
however, that Diaz did not shout at him, become violent or point his
finger at Colon during the discussion. (Tr. 298, 305–306, 311.)
HOSPITAL SAN CRISTOBAL

775
not only about the impact of a decision to subcontract the res-
piratory therapy department, but also about whether it should
make such a decision at all. (Tr. 119–120). Acting on that
advice, Candie Rodriguez notified the Union in an April 12
bargaining meeting that the Hospital would evaluate any alter-
natives to subcontracting that the Union proposed.12 (Jt. Exh.
19b at 3; Tr. 257, 261.) Further, on April 14, Rodriguez noti-
fied the Union that the Hospital was going to postpone the ef-
fective date of its plan to subcontract the respiratory therapy
department to April 30, to afford the Union time to review in-
formation that the Hospital provided and to propose alternatives
to subcontracting for the Hospital to consider. (Jt. Exh. 22; Tr.
47.)
6. The parties identify a potential alternative
to subcontracting
From mid-April to late May 2011, negotiations between the
Hospital and the Union primarily focused on exchanging in-
formation about the Hospital’s subcontracting plan and ques-
tions about the accuracy of the Hospital’s calculations of the
savings that would result from subcontracting.13 (See Jt. Exhs.
23b, 25b–32b.) The Hospital also again postponed the effective
date of its subcontracting plan. (See Jt. Exh. 24b (effective date
postponed to May 31).)
On May 27, a breakthrough of sorts occurred when Rodri-
guez and Echevarria met informally and came up with the idea
that as an alternative to the Hospital’s subcontracting plan, the
Hospital could save money by reducing the $55 monthly meal
stipend that it was paying to 185 Union employees under the
collective-bargaining agreement. (Tr. 62–64, 227–229; see also
Jt. Exh. 33b at 2–3 (effective date for subcontracting postponed
to June 20).) In a June 17 letter, Rodriguez estimated that the
Hospital could save $7,400 per month if the meal stipend was
reduced to $15 a month per employee, or save $10,175 per
month if the meal stipend was eliminated altogether.14 Rodri-
guez added that if the parties agreed to the meal stipend reduc-
tion alternative, the Hospital could retain the eight regular em-
ployees in the respiratory therapy department, but would need
to continue using RTM to provide per diem employees and
would not be able to assign any of the regular employees to
permanent shifts.15 (Jt. Exh. 35b (providing analysis of meal

12 I do not credit Rodriguez’ testimony that she told the Union that
the Hospital would consider alternatives to subcontracting in the March
24 bargaining meeting. (Tr. 120.) The bargaining minutes that Rodri-
guez prepared for March 24 do not mention any such offer to consider
alternatives. (Jt. Exh. 5b.) By contrast, Rodriguez did mention the
Hospital’s willingness to consider alternatives in the April 12 meeting.
(Jt. Exh. 19b at 3.)
13 In addition to discussing the Hospital’s proposal to subcontract the
respiratory therapy department, the parties also devoted some time to
negotiating about the terms of a new collective-bargaining agreement.
(Jt. Exhs. 30b–32b.)
14 At the time, the Hospital’s calculations were that it would save
$7,243 per month if it subcontracted the respiratory therapy depart-
ment. (Tr. 59–60.)
15 Respiratory therapy technicians work in the following shifts: 7
a.m. to 3 p.m.; 3 to 11 p.m.; and 11 p.m. to 7 a.m. Employees with
permanent shifts were always assigned to the same shift on the sched-
stipend reduction alternative, and postponing the effective date
for subcontracting to July 1).)
In late June 2011, the Union renewed its request that the
Hospital correct its analysis of the savings that would result
from subcontracting the respiratory therapy department, be-
cause the Hospital’s initial studies failed to account for the
reduction in regular staff in the department to eight employees
in 2011. (Jt. Exhs. 36b, 37b at 3 (noting that the department
had 15 regular employees in 2009, and 11 regular employees in
2010); see also Tr. 123 (explaining why the Hospital needed to
do multiple studies of the expected savings from subcontract-
ing).) The Hospital agreed to postpone the effective date for its
subcontracting plan to the week of July 4 to allow time for
further analysis and discussion. (Jt. Exh. 41b.)
On or about July 5, the Hospital produced an updated study
that concluded that the Hospital would save $4,998 per month
if it subcontracted the entire respiratory therapy department
(when compared to the status quo of retaining eight regular
employees and continuing to use RTM to provide per diem
employees). (GC Exh. 3a; Jt. Exh. 43b; Tr. 73, 128–129, 277–
278.) The Union agreed that the Hospital’s calculations were
accurate, and thus the negotiations turned to whether the parties
could devise an alternative plan that would produce comparable
savings to the Hospital’s subcontracting plan.16 (Tr. 277–278.)
The parties agreed to meet on July 8 with the goal of finally
reaching an agreement about the respiratory therapy depart-
ment. (Jt. Exh. 43b.)
7. The Union offers to reduce the monthly meal stipend
as an alternative to subcontracting
In the morning on July 8, the Union offered (as an alternative
to subcontracting) to reduce the monthly meal stipend per em-
ployee from $55 to $30, which would produce a savings for the
Hospital of $4,625 per month. However, the Union specified
the following conditions for its offer:

(1) The Hospital would hire Union employees to fill any fu-
ture vacancies that arose in the Respiratory therapy depart-
ment, such that the department would continue to have eight
regular employees;

(2) The Union and Hospital would agree to meet every tri-
mester to verify that the Hospital’s savings from the meal sti-
pend reduction were consistent with its calculations;

(3) The Hospital would increase the meal stipend if the Hospi-
tal saved more money than projected;

ule (e.g., always to the morning shift), while employees with rotating
shifts could be assigned to any of the three shifts. (Tr. 82, 112.)
16 At the same time, the Hospital was growing impatient because
while negotiations proceeded, it continued to pay the salaries of the
eight regular employees in the respiratory therapy department plus the
fees that RTM charged for providing staff on a per diem basis. (Jt.
Exh. 43b.) Because of that fact, on July 6 the Hospital notified the
Union that it planned to withhold meal stipend payments that were due
on July 7. (Id.) The Union opposed the Hospital’s decision not to pay
the meal stipend. (Jt. Exh 44b.) I infer that the Hospital conceded on
this issue, because there is no evidence that the Hospital followed
through with withholding the meal stipend as suggested in its July 6
letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

776
(4) The reduction to the meal stipend would last for one year;

(5) The Hospital would grant employees Rafael Colon and
Mirna Leon permanent shifts from 7:00 am to 3:00 pm.

(Jt. Exhs. 45b, 47b, 48b.)
8. The Hospital rejects the Union’s offer and decides to
subcontract the respiratory therapy department
After the morning session, Rodriguez discussed the Union’s
offer with Executive Director Benetti. At approximately 2
p.m., Rodriguez notified the Union that it would not accept any
of the proposed conditions. Continuing, Rodriguez notified the
Union that the Hospital had decided to subcontract the entire
respiratory therapy department (and discharge the regular em-
ployees in that department). Specifically, Rodriguez stated:

I am notifying [you] that the hospital has made its decision to
subcontract the Respiratory Care Department and conform-
ing to the collective [bargaining] agreement, I am notifying
[you] that the effective date will by July 13th[.] The employ-
ees will be notified today, July 8th and will work no more.
However, they will be paid as worked days until the effective
date of end of employment.

(Jt. Exh. 45b at 2; see also Tr. 236–238; Jt. Exh. 49b.)
9. The Hospital discharges the regular employees
in the respiratory therapy department
After sending its letter, the Hospital began notifying the
eight regular employees in the respiratory therapy department
that they were being discharged.17 Employees who were work-
ing the 7 a.m. to 3 p.m. shift that day were instructed to report
to the human resources office at the end of their shift, where
Rodriguez (assisted by Diaz) informed them of their termina-
tion. Similarly, the Hospital directed employees who were
arriving to work 3 to 11 p.m. shift to report immediately to the
human resources office where they were advised that they were
being terminated (the vacated shifts were covered by RTM
staff). Finally, the Hospital called all off-duty employees for
the department and terminated them when they arrived at the
human resources office as instructed. During the termination
meetings, the Hospital collected the employees’ hospital keys
and identification badges, and presented them with a discharge
letter that stated (in pertinent part) as follows:

After a reasonable time period has passed in the negotiation
process, without [the Union] being able to reach feasible
agreements for the Hospital, we regret to have to inform you
today that we have made the final decision to subcontract the
employee services through the company Respiratory Therapy
Management. In conformance with the Collective Bargaining
Agreement, I inform you that the effective date is Wednesday,
July 13, 2011, although you will work until today. Notwith-
standing, you will be paid until July 13, 2011. . . . We will be
communicating to you if new opportunities emerge in your
specific area, or in another area for which you qualify.

17 The eight respiratory therapy technicians that the Hospital dis-
charged were: Rafael Colon; Mirna Leon; Jose Cruz; Nancy Gonzalez;
Norma Rivera; Felicita Leon; Catherine Colon; and Enid Ortiz. (See Jt.
Exhs. 5b at 1–2; 56.)
Should you accept [working] with us again . . . [w]e will then
be making arrangements for the company RTM for them to
call you for an interview. Notwithstanding, the right to offer
you an opportunity for employment lies with the Company.

(Jt. Exhs. A, par. 7, 46b; Tr. 157–158, 300–302, 392–393, 459–
461, 465–467.)18
10. The parties agree to meet for another bargaining session
Later in the afternoon on July 8, Union President Ana
Melendez faxed Rodriguez a letter (and also telephoned Rodri-
guez) to emphasize that the Union was available to continue
negotiations until any hour necessary to reach a satisfactory
agreement with the Hospital concerning the respiratory therapy
department. (Jt. Exh. 48b; Tr. 238.) Rodriguez, who was fin-
ishing up her last couple of discharge meetings with respiratory
therapy technicians, agreed to meet again with the Union at the
Hospital at 5 p.m. (Tr. 81, 239, 242.) Rodriguez mentioned to
two or three respiratory therapy technicians who were still in
the human resources office that she would be attending another
meeting with the Union, but did not rescind or delay their dis-
charges.19 (Tr. 466–467; see also Tr. 462.)
In the evening meeting on July 8, Rodriguez began by re-
viewing the conditions that the Union included with its offer to
agree to a lower monthly meal stipend. Rodriguez explained
that the Hospital was fine with the proposed condition that it fill
any future vacancies in the respiratory therapy department with
union personnel (instead of RTM staff), but opposed:
(a) having meetings every trimester to verify that the Hospital
was meeting its savings targets; (b) reducing the monthly meal
stipend to $30 per employee (the Hospital wanted a larger re-
duction); (c) increasing the meal stipend if the Hospital reached
or exceeded its savings targets; (d) limiting the reduction in the
meal stipend to only 1 year;20 and (e) granting permanent shift
assignments to Rafael Colon and Mirna Leon. (R. Exh. 4 at 2.)
In response, the Union made the following new proposal:

(1) The Hospital would hire Union employees to fill any fu-
ture vacancies that arose in the Respiratory therapy depart-

18 The collective-bargaining agreement requires 3 days advance no-
tice to employees who are being terminated. (Tr. 158, 409.) Diaz
admitted that although the employees were paid until July 13, the em-
ployees no longer worked for the hospital as of July 8. (Tr. 382–383.)
19 I do not credit Rodriguez’ testimony that she advised employees
that they would return to work if the Union and the Hospital reached an
agreement in the evening negotiations. (See Tr. 430, 447–448.) Rodri-
guez was inconsistent when asked about the number of employees that
she told about the evening meeting with the Union, and she did not
document any change in the status of the employees (regarding their
terminations) in the Hospital’s records. (Tr. 447–448.) To the contra-
ry, all eight respiratory technicians received discharge letters and were
required to turn in their keys and identification badges in the afternoon
on July 8, notwithstanding any further negotiations with the Union that
were planned for later in the evening. (Jt. Exh. 46b; Tr. 300–302, 392–
393, 459–461, 465–467.)
20 The Union clarified that it only meant that after a 1-year period,
the parties should assess whether the meal stipend should return to its
original $55 per month amount, or continue on at the lower amount.
Rodriguez indicated that with that clarification, the Hospital found that
condition acceptable. (R. Exh. 4 at 2.)
HOSPITAL SAN CRISTOBAL

777
ment, such that the department would continue to have eight
regular employees;

(2) The Union and the Hospital agree to reduce the monthly
meal stipend from $55 to $27.50 per employee, which would
produce a monthly savings of $5,087.50 for the Hospital (a
higher amount of savings than subcontracting would have
produced);

(3) The Union and the Hospital agree to meet in one year to
evaluate the agreement about the monthly meal stipend and
assess whether any adjustments should be made;

(R. Exh. 4 at 3; see also Jt. Exh. 49b; Tr. 131–132, 245–246.)21
Rodriguez countered that if the Union agreed to reduce the
monthly meal stipend to $25 per employee, the Hospital would
ensure that only RTM staff covered the 11 to 7 a.m. shift (leav-
ing the regular employees in the department to rotate between
the 7 a.m. to 3 p.m. shift and the 3 to 11 p.m. shift). (R. Exh. 4
at 3–4; Tr. 132.) Union President Melendez replied that the
Union would not agree to reduce the monthly meal stipend to
$25 unless the Hospital granted permanent shift assignments to
Colon and Leon. When Rodriguez reiterated that the Hospital’s
final position was that the monthly meal stipend be reduced to
$25 and regular department employees all rotate between the
first two shifts (with no permanent shifts), the meeting ended at
8:11 p.m. without an agreement.22 (R. Exh. 4 at 5; see also Jt.
Exh. 49b; Tr. 132–133, 247, 348, 422.)23
11. The Hospital fully subcontracts the respiratory therapy
department, while the Union asserts that it remains available
to resume negotiations
On July 11, Rodriguez sent the Union a letter containing her
summary of the July 8 evening negotiations. (Jt. Exh. 49b.)
Union President Melendez responded the same day, primarily
to assert that the Union had not closed negotiations and was
available to meet with the Hospital whenever Rodriguez was
available. (Jt. Exh. 50b.)

21 The parties momentarily tabled the question of permanent shifts
for employees to discuss the other conditions that the Union proposed.
(R. Exh. 4 at 3.)
22 Some of the respiratory therapy technicians who were discharged
in the afternoon were present (outside of the meeting room) when the
evening bargaining session ended, presumably because they wished to
learn the results of the meeting. (Tr. 430; Jt. Exh. 51b at p. 2.) Rodri-
guez did not speak to any of the discharged employees at that time.
(Tr. 430.)
23 Because the Union and the Hospital could not agree to a joint set
of bargaining minutes for the July 8 evening negotiations, the Union
and the Hospital prepared separate bargaining minutes. The Union’s
minutes are fully consistent with the facts recited here. (See R. Exh. 3.)
To the extent that there are differences in the two versions, I find that
the differences are not material to my analysis. For these reasons, I
reject the Respondent’s request that I draw an adverse inference from
the Acting General Counsel’s failure to call the Union President and
Executive Director as witnesses. (See R. Posttrial Br. at 22–23.) No
such adverse inference is warranted where the material facts are largely
undisputed and are established by other reliable evidence (including
admissions from both parties in their respective bargaining minutes
from July 8, and joint exhibits that both parties agreed to admit into
evidence).
The Hospital modified its agreement with RTM on July 14 to
have RTM provide all staff for the respiratory therapy depart-
ment. (Jt. Exh. A, par. 8; R. Exh. 1.) On July 18, the Union
responded in more detail to Rodriguez’ summary of the July 8
evening negotiation session by providing its own summary of
the parties’ negotiations. The Union also provided some exam-
ple schedules to show that it would be feasible for the Hospital
to assign Colon and Leon to permanent shifts without compro-
mising the overall schedule. The Union concluded by asking
Rodriguez to engage in further dialogue about these issues. (Jt.
Exh. 51b; Tr. 289, 428, 442; see also Union (U.) Exhs. 2–3.)
Discussion and Analysis
A. Credibility Findings
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003); see also Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006) (noting that an ALJ may draw an
adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions—indeed, nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testi-
mony. Daikichi Sushi, 335 NLRB at 622.
In this case, the parties stipulated to several joint exhibits
that are not disputed and establish many of the relevant facts.
Witness credibility, however, was pivotal in certain areas, and
in particular was relevant to the events of July 8, when the par-
ties had their most contentious (and disputed) bargaining ses-
sions. I have outlined my credibility findings in the findings of
fact above and in the analysis below. However, as a general
matter, I found that portions of Candie Rodriguez’ testimony
lacked credibility because she provided testimony that stretched
the facts to bolster the Respondent’s theory of the case. (See,
e.g., Findings of Fact (FOF) Section II(C)(9) (discussing Ro-
driguez’s testimony about what she told employees when they
were discharged).) Unless otherwise noted, I generally credited
the testimony of the other witnesses that the parties presented
because the testimony was presented in a forthright manner and
was corroborated by other evidence (including the joint exhib-
its).
B. The March 31 Work Rule Regarding Comments
about Subcontracting
1. Complaint allegations and applicable legal standards
The Acting General Counsel alleges that the Hospital violat-
ed Section 8(a)(1) of the Act when, on or about March 31,
2011, it issued and distributed a memorandum to employees
that prohibited any discussions among employees related to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

778
Hospital’s subcontracting of work performed by its respiratory
therapy technicians. (GC Exh. 1(j), par. 8.)
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) of the Act makes it unlawful for an employer
(via statements, conduct, or adverse employment action such as
discipline or discharge) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
See Brighton Retail, Inc., 354 NLRB 441, 447 (2009).
The test for evaluating whether an employer’s conduct or
statements violate Section 8(a)(1) of the Act is whether the
statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. KenMor
Electric Co., 355 NLRB 1024, 1027 (2010) (noting that the
employer’s subjective motive for its action is irrelevant); Yo-
shi’s Japanese Restaurant & Jazz House, 330 NLRB 1339,
1339 fn. 3 (2000) (same); see also Park N’ Fly, Inc., 349 NLRB
132, 140 (2007).
The Board has articulated the following standard that specif-
ically applies when it is alleged that an employer’s work rule
violates Section 8(a)(1):

If the rule explicitly restricts Section 7 activity, it is unlawful.
If the rule does not explicitly restrict Section 7 activity, it is
nonetheless unlawful if (1) employees would reasonably con-
strue the language of the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights. In applying these principles, the Board refrains from
reading particular phrases in isolation, and it does not presume
improper interference with employee rights.

NLS Group, 352 NLRB 744, 745 (2008) (citing Lutheran Her-
itage Village-Livonia, 343 NLRB 646, 646–647 (2004)), adopt-
ed in 355 NLRB 1154 (2010), enfd. 645 F.3d 475 (1st Cir.
2011).
2. Analysis
The facts concerning the work rule at issue in this case are
not in dispute. Briefly, after learning that Union representatives
(and employees) Evelyn Santa and Rafael Colon were “intimi-
dating” other hospital employees by warning that their depart-
ments could also be targeted for subcontracting, the Hospital
issued a memorandum on March 31 that directed employees to
“desist from making these comments immediately.” (See FOF
Section II(C)(3).)
The Hospital’s March 31 memorandum was unlawful be-
cause employees would reasonably construe the memorandum
as a work rule that prohibited Section 7 activity. Simply put,
Santa and Colon were engaging in protected union activity
when they spoke to coworkers about the Hospital’s plan to
subcontract the respiratory therapy department. The Hospital’s
plan directly affected employee working conditions in that
department, and also raised a reasonable question about wheth-
er the Hospital might (via further subcontracting) alter the
working conditions in other departments. A reasonable em-
ployee would interpret the Hospital’s March 31 memorandum
as prohibiting employees from discussing their concerns about
those prospects.24
In addition, the March 31 memorandum is unlawful because
the Hospital issued it in response to union activity. In her
March 31 letter to the Union, Human Resources Director Ro-
driguez expressly stated that the Hospital would be issuing the
March 31 memorandum to employees to prohibit the types of
comments that Evelyn Santa and Rafael Colon were making to
employees about the subcontracting dispute. Since the Hospital
issued its work rule in response to (and to prohibit) protected
union activity, the work rule is unlawful.
Finally, I emphasize that the work rule at issue here cannot
be construed as a rule aimed solely at prohibiting misconduct
that is not protected by the Act. It is well settled that the Act
allows employees to engage in persistent union solicitation
even when it annoys or disturbs the employees who are being
solicited. Ryder Transportation Services, 341 NLRB 761, 761
(2004), enfd. 401 F.3d 815 (7th Cir. 2005). The Hospital’s
efforts to prohibit employees from “intimidating” or “affecting
the emotional health of” coworkers by discussing the prospect
of subcontracting run afoul of those well established princi-
ples.25
Because the Hospital (via its March 31 memorandum) an-
nounced an unlawful work rule that employees would reasona-
bly construe as prohibiting Section 7 activity, and that was
issued in response to union activity, I find that the Hospital
violated Section 8(a)(1) of the Act.
C. Unilateral Change Allegations
1. Complaint allegations and applicable legal standards
The Acting General Counsel alleges that the Hospital violat-
ed Section 8(a)(5) and (1) in the following ways:

(a) by, on or about March 28, 2011, unilaterally subcontract-
ing unit work performed by respiratory therapy technicians
(see GC Exh. 1(j), par. 9(a));

24 Although not alleged in the complaint as a separate violation, I
note that a reasonable employee would also interpret the Hospital’s
memorandum as encouraging employees to submit reports to the Hos-
pital about the protected union activities of their coworkers. (See FOF
Section II(C)(3) (memorandum asked employees to report anyone who
engaged in the prohibited conduct so Rodriguez could take corrective
measures); Tawas Industries, 336 NLRB 318, 322 (2001) (noting that
an employer that combines a request for reports of harassment during
union solicitation with a promise to discipline the individual accused of
harassment (or otherwise take care of the problem) violates Section
8(a)(1) because the employer’s statement has the potential effects of
encouraging employees to identify union supporters based on the em-
ployees’ subjective view of harassment, discouraging employees from
engaging in protected activities, and indicating that the employer in-
tends to take unspecified action against subjectively offensive activity
without regard for whether that activity was protected by the Act).)
25 The Board has held that knowingly false statements are malicious
and are therefore not protected by the Act. Central Security Services,
315 NLRB 239, 243 (1994). The work rule at issue here, however,
went well beyond targeting knowingly false statements and also target-
ed protected union activities such as employee discussions about the
Hospital’s subcontracting plans.
HOSPITAL SAN CRISTOBAL

779
(b) by, on or about April 4, 2011, unilaterally changing its
past practice regarding vacation policy for respiratory therapy
department employees by eliminating and/or limiting em-
ployee discretion for scheduling vacation leave (see GC Exh.
1(j), par. 9(b)); and

(c) by, on or about July 9, 2011, unilaterally laying off its res-
piratory therapy technicians and subcontracting the work that
they previously performed (see GC Exh. 1(j), par. 9(c)).

“Under the unilateral change doctrine, an employer’s duty to
bargain under the Act includes the obligation to refrain from
changing its employees’ terms and conditions of employment
without first bargaining to impasse with the employees’ collec-
tive-bargaining representative concerning the contemplated
changes.” Lawrence Livermore National Security, LLC, 357
NLRB 203, 205 (2011). The Act prohibits employers from
taking unilateral action regarding mandatory subjects of bar-
gaining such as rates of pay, wages, hours of employment and
other conditions of employment. Garden Grove Hospital &
Medical Center, 357 NLRB 653, 653 fn. 4, 657 (2011). Nota-
bly, an employer’s regular and longstanding practices that are
neither random nor intermittent become terms and conditions of
employment even if those practices are not required by a col-
lective-bargaining agreement. Id; see also Palm Beach Metro
Transportation, LLC, 357 NLRB 108, 183–184 (2011) (noting
that the party asserting the existence of a past practice bears the
burden of proof on the issue, and that the evidence must show
that the practice occurred with such regularity and frequency
that employees could reasonably expect the practice to continue
or reoccur on a regular and consistent basis).
On the issue of whether the parties bargained to an impasse,
the Board defines a bargaining impasse as the point in time of
negotiations when the parties are warranted in assuming that
further bargaining would be futile because both parties believe
they are at the end of their rope. See Whitesell Corp., 357
NLRB 1119, 1182 (2011); Daycon Products Co., 357 NLRB
1071, 1081 (2011). The question of whether an impasse exists
is a matter of judgment based on the following factors: the bar-
gaining history; the good faith of the parties in negotiations; the
length of the negotiations; the importance of the issue or issues
as to which there is disagreement; and the contemporaneous
understanding of the parties as to the state of negotiations. Id.
The party asserting impasse bears the burden of proof on the
issue. Daycon Products Co., 357 NLRB aat 1081; Erie Brush
& Mfg. Corp., 357 NLRB 363, 364 (2011).
2. Analysis—did the Hospital violate the Act by unilaterally
subcontracting unit work performed by respiratory
therapy technicians?
As noted above, the Acting General Counsel alleges that the
Hospital violated Section 8(a)(5) and (1) of the Act by unilater-
ally subcontracting unit work performed by respiratory therapy
technicians on or about March 28, 2011. (GC Exh. 1(j), par.
9(a).)
Initially, I note that the facts relating to this allegation are
largely undisputed. The record establishes that on March 15,
the Hospital notified the Union that it planned to subcontract
the respiratory therapy department. After one bargaining ses-
sion (on March 24) that was limited to discussing the impact of
the Hospital’s decision and the Union’s request for information
about the Hospital’s plans, the Hospital unilaterally subcon-
tracted work performed by respiratory therapy technicians by
subcontracting with RTM to provide per diem employees to
work in the respiratory therapy department. (FOF Section
II(C)(1–2).)
The law is clear that subcontracting is a mandatory subject of
bargaining if it involves nothing more than the substitution of
one group of workers for another to perform the same work and
does not constitute a change in the scope, nature, and direction
of the enterprise.26 Daycon Products Co., 357 NLRB at 1081.
The Hospital was in precisely that situation when it subcon-
tracted with RTM to provide per diem respiratory therapy tech-
nicians to work in the respiratory therapy department.
As its defense, the Respondent asserts that it had a past prac-
tice of using temporary workers to cover employee absences.
(See R. Posttrial Brief at 4) That argument fails. While it is
true that the collective-bargaining agreement permits the Hospi-
tal to hire temporary employees if certain criteria are met, the
Hospital admitted (through Rodriguez) that the per diem em-
ployees that RTM provided were not hired temporary employ-
ees covered by the collective-bargaining agreement. (FOF,
Section II(C)(2) (also indicating that the Hospital has not used a
temporary employee under the collective-bargaining agreement
since August 2010).) Since there was no preexisting procedure
or practice for hiring the per diem employees that RTM provid-
ed (under the collective-bargaining agreement or otherwise),
the Hospital’s decision to subcontract with RTM was a new
development (borne out of the Hospital’s January 2011 plan to
subcontract the entire respiratory therapy department), rather
than the product of a past practice.27 (FOF, Section II(B); see
also Sociedad Espanola de Auxilio Mutuo y Beneficiencia de

26 A union’s interest in subcontracting decisions is not limited to cir-
cumstances where unit employees are laid off or replaced because of
subcontracting. See Acme Die Casting, 315 NLRB 202, 202 fn. 2
(1994). Instead, in addition to the prospect of layoffs, union members
have an interest in subcontracting decisions because work identified for
subcontracting provides bargaining unit members with the opportunity
to obtain extra shifts (possibly at higher wage rates than the employer
might pay for overtime or for working undesirable hours), or expand or
maintain the size of the bargaining unit with newly hired employees.
See Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto
Rico v. NLRB, 414 F.3d 158, 167 (1st Cir. 2005).
27 The principal case that the Hospital cited in support of its defense
is readily distinguishable. In Westinghouse Electric Corp., 150 NLRB
1574 (1964), the Board found that the respondent did not violate Sec-
tion 8(a)(5) and (1) when it unilaterally subcontracted some bargaining
unit work. As the Board explained, however, the respondent demon-
strated that subcontracting was an established practice that the respond-
ent had relied on for over 20 years in conducting its manufacturing
operations. Id. at 1574, 1576. Since the respondent made the disputed
subcontracting decisions in a manner consistent with its past practices,
the Board found that the respondent did not violate Section 8(a)(5) or
(1) of the Act. Id. at 1577.
Here, the Hospital did not present any credible evidence that its de-
cision to subcontract with RTM to provide per diem employees was
supported by an established past practice. The decision in Westing-
house is therefore inapposite.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

780
Puerto Rico, 342 NLRB 458, 458, 468–469 (2004), enfd. 414
F.3d 158, 167 (1st Cir. 2005) (finding that the respondent vio-
lated Section 8(a)(5) and (1) by unilaterally subcontracting out
the work of X-ray technicians and respiratory therapists where
the evidentiary record did not demonstrate a past practice of
subcontracting or a compelling economic reason for the re-
spondent’s unilateral decision).)
Based on the foregoing analysis, I find that the Hospital ran
afoul of Section 8(a)(5) and (1) when it unilaterally decided to
subcontract with RTM on March 25 to provide respiratory ther-
apy technicians to the Hospital on a per diem basis. The Hospi-
tal’s past practice defense falls well short for the reasons stated
above, and it is undisputed that the parties did not bargain to
impasse (to the extent that any bargaining occurred at all) be-
fore the Hospital made its decision.
3. Analysis—did the Hospital violate the Act by unilaterally
changing its past practice regarding vacation policy?
Next, the Acting General Counsel contends that the Hospital
unilaterally changed its past practice regarding vacation policy
for respiratory therapy department employees by eliminating
and/or limiting employee discretion for scheduling vacation
leave. (GC Exh. 1(j), par. 9(b).) The Acting General Counsel’s
theory is based on Rafael Colon’s testimony that on April 4,
respiratory therapy department Supervisor Carlos Diaz in-
formed him that he would need to take vacation leave for a
month, starting on April 11. (FOF sec. II,(C),(4); see also
Rosdev Hospitality, Secaucus, LP, 349 NLRB 202, 203 (2007)
(finding that an employer’s unilateral change to established past
practices for leave accrual violated Section 8(a)(5) and (1) of
the Act).)
The Acting General Counsel did not meet its burden of proof
with this allegation because it did not show that the Hospital
(through Diaz) departed from its past practices for vacation
leave. At most, Colon’s testimony established that in his expe-
rience, when scheduling conflicts arose for vacation leave, Diaz
would meet with him and attempt to work out an agreed alter-
native vacation plan. It does not follow from that past history,
however, that the Hospital had a past practice of giving em-
ployees discretion in scheduling vacation leave regardless of
the circumstances. To the contrary, as Diaz explained (without
rebuttal), employees have always been limited in their selection
of vacation leave by factors such as the collective-bargaining
agreement’s 16-month time limit for accruing vacation leave,
and the vacation schedules of other employees. Both of those
factors were in play when Colon and Diaz met on April 4, be-
cause Colon was running out of time to use his accrued vaca-
tion leave (due to the 16-month limitation, which would cause
Colon to forfeit leave if not used before June 14), and because
two other employees were already scheduled to be on vacation
from May 9 to June 8. (FOF Section II(C)(4)) Given those
circumstances, both Colon’s and Diaz’ hands were tied, as the
only window of opportunity for Colon to use his vacation leave
before the 16-month deadline was the April 11 to May 10
timeframe that Diaz offered.
In short, Diaz followed the Hospital’s practice of meeting
with employees to reschedule vacation time when conflicts
arise with vacation leave requests. To the extent that Diaz pre-
sented Colon with only one timeframe (April to May 2011) for
using his vacation leave, he did so based on factors that the
Hospital always considers when scheduling vacation leave for
employees. Accordingly, I recommend that the allegation in
paragraph 9(b) of the complaint be dismissed because the Act-
ing General Counsel did not meet its burden of proof.
4. Analysis—did the Hospital violate the Act by
unilaterally laying off its respiratory therapy
technicians and subcontracting their work?
Last, the Acting General Counsel alleges that the Hospital
violated Section 8(a)(5) and (1) when it unilaterally laid off its
respiratory therapy technicians and subcontracted the work that
they previously performed. (GC Exh. 1(j), par. 9(c).) In re-
sponse, the Hospital maintains that it was lawful to take unilat-
eral action because the parties bargained to impasse about the
subcontracting issue.
As outlined in the findings of fact, the Hospital first notified
the Union on March 15 of its plan to subcontract the respiratory
therapy department. After giving that initial notice, the Union
and the Hospital participated in 10 bargaining sessions between
March 24 and July 8. July 8, however, is the pivotal day in the
analysis, because July 8 was the day that the parties finally
began discussing formal offers aimed at addressing the Hospi-
tal’s efforts to reduce its operating costs, and July 8 was also
the day that the Hospital decided to discharge the regular (Un-
ion) employees in the respiratory therapy department. (See
FOF, secs. II,(C) (1–2, 5–10).)
Viewing the record as a whole, I find that the parties were
not at impasse when the Hospital unilaterally discharged its
respiratory therapy technicians. In the morning on July 8, the
Union offered to agree to reduce the monthly meal stipend from
$55 per employee to $30, if the Hospital agreed to drop its sub-
contracting plan and comply with some conditions regarding
future hiring in the department, shift assignments for two em-
ployees, and future review of the monthly meal stipend amount.
After taking a break from negotiations to consider the Union’s
offer, the Hospital rejected the Union’s offer in the afternoon
on July 8, and then proceeded to discharge the eight respiratory
therapy technicians that it still employed. (See FOF, Sections
II(C) (7–9).)
The problem with the Hospital’s unilateral decision to dis-
charge its respiratory therapy technicians at that point (in the
afternoon on July 8) was that the parties were not yet at im-
passe. Indeed, when the parties agreed to return to the bargain-
ing table in the evening on July 8 (after the discharges had been
completed), both the Hospital and the Union offered additional
proposals and concessions in an effort to make the monthly
meal stipend reduction more attractive as an alternative to sub-
contracting. The Union, for example, offered to decrease the
monthly meal stipend to $27.50 per employee, which would
have produced a higher savings to the Hospital than the subcon-
tracting alternative. The Union also offered to drop its condi-
tion that the parties meet every trimester to review the savings
that the reduced stipend was producing for the Hospital.
Meanwhile, the Hospital indicated that it would be willing to
accept the Union’s proposed hiring restrictions for the respira-
tory therapy department, and also offered to only assign the
HOSPITAL SAN CRISTOBAL

781
regular employees to the morning or afternoon shifts (with only
per diem employees handling the graveyard shift) if the Union
agreed to reduce the monthly meal stipend to $25 per employ-
ee. Meaningful negotiations did not end that evening until the
Hospital rejected the Union’s offer to agree to reduce the
monthly meal stipend to $25 per employee if the Hospital ac-
cepted its condition that two employees (Colon and Leon) be
assigned to permanent shifts. (See FOF Section II(C)(10))
Since neither party was at the end of its negotiating rope when
the parties began the evening negotiations on July 8 (as shown
by the multiple offers and counteroffers that the parties made
during the evening session), it follows that the parties were not
at impasse when the Hospital discharged its respiratory therapy
technicians in the afternoon on July 8.28
With that background, I turn to the Hospital’s final argu-
ment—that although it informed employees of their discharges
on July 8, the discharges did not take effect until July 13, and
thus after negotiations fell apart in the evening on July 8. I do
not find the Hospital’s argument to be persuasive. The eviden-
tiary record shows that the Hospital went through great lengths
to discharge its employees on July 8, including meeting with all
eight respiratory technicians (including technicians who were

28 In its answer to the complaint, the Respondent suggested that its
decision to subcontract the respiratory therapy department was justified
because economic exigency. (GC Exh. 1(l) at p. 3.) It appears that the
Respondent abandoned that theory, however, because it did not raise
the economic exigency exception in its posttrial brief.
In any event, the record does not show that the Respondent’s unilat-
eral decision to discharge its respiratory therapy technicians and sub-
contract with RTM was justified due to economic exigency. The Board
has explained that when a union and an employer are engaged in nego-
tiations for a collective-bargaining agreement, unilateral changes are
generally prohibited unless an impasse develops on bargaining for the
agreement as a whole. RBE Electronics of S.D., 320 NLRB 80, 81
(1995). There are, however, two limited exceptions to that general rule:
when a union engages in tactics designed to delay bargaining, and when
economic exigencies compel prompt action. Id. (noting that the eco-
nomic exigency exception requires a heavy burden of proof). The
Board recognized that bargaining can be excused altogether if there are
extraordinary events which are an unforeseen occurrence and have a
major economic effect that requires the company to take immediate
action. Id. In addition, however, the Board recognized that other eco-
nomic exigencies that are not sufficiently compelling to justify excus-
ing bargaining altogether may warrant unilateral action if the employer
first provides adequate notice to the union and an opportunity to bar-
gain, and the subsequent bargaining reaches impasse regarding the
matter proposed for change. Id. at 81–82 (noting that employer may
also take unilateral action if the union waives its right to bargain).
In this case, the Hospital cannot meet either version of the economic
exigency exception. There is no evidence that the Hospital faced an
extraordinary and unforeseen occurrence that required immediate ac-
tion. Indeed, the Hospital began its efforts to cut costs in 2009, and
thus the ongoing need for cutting costs was foreseeable by the time the
Hospital began considering subcontracting the respiratory therapy
department in January 2011. Because the Hospital did not face eco-
nomic exigencies that would warrant excusing all bargaining, the Hos-
pital was required to bargain with the Union to impasse before taking
unilateral action regarding subcontracting. As discussed above, the
Hospital failed to fulfill that requirement when it unilaterally dis-
charged its respiratory therapy technicians in the afternoon on July 8
despite the fact that the parties were not at impasse.
not on duty and had to be called in), collecting their keys and
identification badges, and using RTM employees to cover all
work shifts from the afternoon of July 8 onward. The Hospital
also gave each of the respiratory therapy technicians a dis-
charge letter stating that it had made a “final decision” to sub-
contract the respiratory therapy department. To the extent that
the Hospital paid employees through July 13, I find that the
Hospital did so merely to comply with the notice requirements
of the collective-bargaining agreement—the Hospital made it
imminently clear that apart from receiving their final
paychecks, the respiratory therapy technicians were finished as
Hospital employees as of the afternoon of July 8.
Since the parties were not at impasse when the Hospital uni-
laterally discharged its respiratory therapy technicians in the
afternoon on July 8, I find that the Hospital violated Section
8(a)(5) and (1) as alleged in the complaint.
CONCLUSIONS OF LAW
1. By issuing and distributing a memorandum on March 31,
2011, that prohibited discussions among employees related to
the Respondent’s subcontracting of work performed by its res-
piratory therapy technicians, the Respondent violated Section
8(a)(1) of the Act.
2. By, on or about March 25, 2011, unilaterally subcontract-
ing bargaining unit work performed by respiratory therapy
technicians without first giving notice to and bargaining with
the Union, the Respondent violated Section 8(a)(5) and (1) of
the Act.
3. By unilaterally discharging eight respiratory therapy
technicians (Rafael Colon, Mirna Leon, Jose Cruz, Nancy Gon-
zalez, Norma Rivera, Felicita Leon, Catherine Colon and Enid
Ortiz) on July 8, 2011, and subcontracting the work that they
previously performed without first bargaining with the Union to
impasse, the Respondent violated Section 8(a)(5) and (1) of the
Act.
4. By committing the unfair labor practices stated in Con-
clusions of Law 1–3 above, the Hospital has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
5. I recommend dismissing the allegation in paragraph 9(b)
of the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having unlawfully subcontracted unit work
on or about March 25, 2011, must make the following employ-
ees whole for any loss of earnings and other benefits that re-
sulted from that subcontracting decision: Rafael Colon, Mirna
Leon, Jose Cruz, Nancy Gonzalez, Norma Rivera, Felicita Le-
on, Catherine Colon, Enid Ortiz, Ivette Borrero and German
Mercado. Backpay for this violation shall be computed in ac-
cordance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

782
356 NLRB 6 (2010), enf. denied on other grounds sub nom.
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011).
In addition, the Respondent, having unlawfully discharged
Rafael Colon, Mirna Leon, Jose Cruz, Nancy Gonzalez, Norma
Rivera, Felicita Leon, Catherine Colon and Enid Ortiz,29 must
offer them reinstatement and make them whole for any loss of
earnings and other benefits. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons for the
Retarded, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
The Acting General Counsel has requested that I issue a
broad remedial order in this case because the Respondent “is a
recidivist [that] has previously committed unlawful unilateral
changes.” (GC Exh. 1(j) at p. 6.) The Board has stated that “a
broad cease-and-desist order enjoining a respondent from vio-
lating the Section 7 rights of employees ‘in any other manner,’
is warranted ‘when a respondent is shown to have a proclivity
to violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the
employees’ fundamental statutory rights.’” Five Star Mfg., 348
NLRB 1301, 1302 (2007) (citing Hickmott Foods, 242 NLRB
1357, 1357 (1979)), enfd. 278 Fed. Appx. 697 (8th Cir. 2008).
In either situation, the Board reviews the totality of circum-
stances to ascertain whether the respondent’s specific unlawful
conduct manifests an attitude of opposition to the purposes of
the Act to protect the rights of employees generally, which
would provide an objective basis for enjoining a reasonably
anticipated future threat to any of those Section 7 rights. Id.
I find that the Acting General Counsel’s request for a broad
remedial order has merit because the Respondent has indeed
shown a proclivity to violate the Act. Briefly, the Respondent
has been found to have committed the following violations of
Section 8(a)(5) and (1) of the Act since November 2009:

29 Ivette Borrero and German Mercado resigned in April 2011, and
thus were not affected by the subsequent discharges that occurred on
July 8. (Jt. Exh. A, pars. 5–6.)
(1) November 2009—unilaterally ending its past practice of
paying holiday pay to employees whose day off occurred on a
holiday;

(2) January 7, 2010—unilaterally eliminating its past practice
of allowing employees to use sick leave while receiving
workers compensation;

(3) March 1, 2010—unilaterally ending its practice of paying
nursing employees incentives and differentials above their
base salaries;

(4) May 24, 2010—unilaterally ending all permanent shifts in
the Respiratory therapy department; and

(5) May 27, 2010—unilaterally changing and reducing the
number of employee holidays.

See Hospital San Cristobal, 356 NLRB 699 (2011) (Case 24–
CA–011438, finding violations 1–2 and 4–5 above); Quality
Health Services, Case 24–CA–011630 (2011) (finding violation
3, above). Notably, the Board issued its ruling in Case 24–CA–
11438 on February 17, 2011, only a few months before the
Respondent took the unlawful unilateral actions that I have
addressed in this case. Given this background and the fact that
the Respondent’s attorney advised the Respondent that it
should bargain with the Union about its contemplated decision
to subcontract the respiratory therapy department and the ef-
fects of such a decision (see FOF Section II(C)(5)), the Re-
spondent should have been well aware of the requirements of
the Act regarding making unilateral changes to the terms and
conditions of employment of its employees.
In light of the Respondent’s repeated failure to correct its
pattern of making unlawful unilateral changes to working con-
ditions, I find that the Respondent has a proclivity for violating
the Act (see, e.g., Hospital San Cristobal, 356 NLRB 699 (Case
24–CA–011438); Quality Health Services, Case 24–CA–
011630 (2011)), and because of the serious nature of the viola-
tions, I find it necessary to issue a broad Order requiring the
Respondent to cease and desist from infringing in any other
manner on rights guaranteed employees by Section 7 of the
Act. Hickmott Foods, supra.
[Recommended Order omitted from publication.]