Hospital Santa Rosa, Inc. a/k/a Clinica Santa Rosa

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2016

12-CA-143221 (N.L.R.B. Jun. 16, 2016)

JD(NY)-23-16
San Juan, Puerto Rico

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HOSPITAL SANTA ROSA, INC.,
a/k/a CLINICA SANTA ROSA
and Case No. 12–CA–143221
UNIDAD LABORAL DE ENFERMERAS(OS)
Y EMPLEADOS DE LA SALUD
Ana B. Ramos Fernández, Esq., San Juan, Puerto Rico
for the General Counsel.
José Oliveras, Esq., San Juan, Puerto Rico
for the Respondent.
Harold Hopkins, Esq., San Juan, Puerto Rico
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was scheduled for a hearing in
San Juan, Puerto Rico on October 28, 2015. 1 The parties filed a joint motion and stipulation of
fact on said date without opening the record. The parties stipulated and agreed that the facts
recited in the stipulation are not in dispute and represent a full and complete record of the
evidence necessary to issue a decision in the amended complaint. The parties further stipulated
that no oral testimony is necessary or desired and the parties waived their right to a hearing on
this complaint. On October 30, 2015, I accepted the joint motion and stipulation of fact and the
parties’ waiver of a hearing in this matter pursuant to Section 102.35(a)(9) of the Board’s Rules
and Regulations.
The Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud (Union) filed the
charge on December 19. The Regional Director of the National Labor Relations Board (NLRB)
issued a complaint on March 31, 2015 and a subsequent amended complaint on April 6. The
amended complaint alleges that Hospital Santa Rosa, Inc., a/k/a Clinica Santa Rosa (Respondent)
violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) when on or about
December 12, the Respondent refused and failed to furnish the Union information requested
which is necessary and relevant to the Union’s performance of its responsibilities as the

1 All dates are in 2014 unless otherwise indicated.
JD(NY)-23-16
2
exclusive collective-bargaining representative of the employee unit. The complaint further
alleges that since December 15, 2014, the Respondent eliminated the Christmas bonus benefit by
refusing and failing to pay the 2014 bonus to the unit employees without affording a reasonable
opportunity to bargain with the Union and without bargaining in good faith to lawful impasse. It
is further alleged that the refusal of the Respondent to the 2014 bonus is inconsistent with the 5
terms of its final collective-bargaining proposal made to the Union. The Respondent filed a
timely answer denying the material allegations in the amended complaint (GC Exh.1a–e).2
On the entire record, and after considering the briefs filed by the General Counsel, the
Union and Respondent, I make the following10
FINDINGS OF FACT
I. JURISDICTION AND UNION STATUS
15
At all material time, the Respondent, a Puerto Rico corporation with offices and place of
business located in Guayama, Puerto Rico, has been engaged in the operation of an acute care
hospital providing medical services. During the past 12 months, the Respondent had gross
annual revenues in conducting its business in excess of $250,000 and has purchased and received
at its Guayama hospital, goods valued in excess of $50,000 directly from points located outside 20
the Commonwealth of Puerto Rico. As such, I find and it is admitted, that the Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act (GC
Exh. 1m).
I also find that at all times material, the Union is a labor organization within the meaning 25
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following facts have been stipulated by the parties:30
1. Respondent operates an acute care hospital in two buildings located in Guayama,
Puerto Rico, consisting of approximately 89 beds, and provides inpatient, outpatient and
emergency care services, primarily to residents of the municipality of Guayama and its
vicinity. At all material times the following individuals have held the positions set forth 35
opposite their respective names and have been supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of
the Act:
Gloria Diaz — Hospital Administrator40
DoraA.Areizaga—FinanceDepartmentDirector
ElenaSantiago—CollectionandBillingContractor

2 The General Counsel exhibits are identified as “GC Exh.” and the joint exhibits are identified as “Jt.
Exh.” Joint exhibits in Spanish have been marked with the letter “a” and the English translation has been
marked with the letter “b.” The closing briefs for the General Counsel and Respondent are identified as
GC Br. and R. Br., respectively.
JD(NY)-23-16
3
2. Attorneys Jorge Pizarro (Pizarro) and Karla Rivera-Rubio (Rivera) served as legal
counsels for Respondent during the period from August 1, 2014, until at least December 15,
2014, and represented the Respondent during negotiations with the Union concerning the
payment of the 2014 Christmas Bonus to the unit employees.5
3. On November 14, 2013, pursuant to a National Labor Relations Board election
conducted in Case 12–RC–113295 on October 18, 2013 in which a majority of the votes was
cast for the Union, the Union was certified as the exclusive collective-bargaining
representative of the unit:10
All regular full-time and regular part-time registered nurses employed by the
Employer at its facilities located in Guayama, Puerto Rico; excluding all other
employees, office clerical employees, guards, other professional employees and
supervisors as defined under the Act (GC Exh. 2 and 3).15
To date, there has been no collective-bargaining agreement reached between Respondent and
the Union.
4. Ariel Echevarria Martinez (Echevarria) and Ingrid Vega (Vega) are business agents20
employed by the Union. They represented the Union during negotiations with the Respondent
concerning the payment of the 2014 Christmas Bonus to the unit employees.
5. In the Commonwealth of Puerto Rico, the payment of a Christmas Bonus is mandated
by law. The Commonwealth of Puerto Rico Law No. 148 of June 30, 1969, as amended25
(Christmas Bonus Law), 29 L.P.R.A., Section 501 et seq., requires any employer who employs
one or more workers or employees to pay a Christmas bonus. Law No. 148 provides that to
be eligible for the Christmas bonus an employee must have worked a minimum of 700
hours during the period from October 1 of the previous year to September 30 of the year at
issue. The amount to be paid is six percent (6%) of an employee's wages or salary up to a30
maximum bonus of $10,000. The total amounts to be paid by reason of said bonus shall not
exceed 15% of the net annual profit of the employer within the period comprised from
September 30 of the preceding year until September 30 of the year to which the bonus
corresponds. The Law further provides that the bonus be paid within the period from
December 1 to December 15, and establishes penalties for late and/or nonpayment of the35
bonus. Puerto Rico Law No. 148 of June 30, 1969, as amended (Christmas Bonus Law), 29
L.P.R.A., Section 501, et seq. (Jt. Exh. 1).
6. Law No. 148 also provides a procedure for the exemption, or exoneration, of
employers from their obligation to pay the Christmas Bonus in a particular year. An40
employer seeking a n exoneration may make a request to the Secretary of the Puerto Rico
Department of Labor and Human Resources (PDOL Secretary), who is responsible for
determining whether a requesting employer is exempt from paying the Christmas Bonus that
year.
45
JD(NY)-23-16
4
7. In December 2010, December 2011, and December 2012, pursuant to the provisions
of Law No. 148, Respondent paid annual Christmas Bonuses of $600 to all of its registered
nurses. Copies of Respondent's payroll records show those Christmas bonus payments in
2010, 2011 and 2012 (Jt. Exh.s. 2, 3 and 4).
5
8. In December 2013, after the certification of the Union as the representative of
Respondent's registered nurses, referred to herein as the unit employees, Respondent paid
$300 to each of its unit employees. Respondent referred to said $300 payment as a "gift" in
lieu of the 2013 Christmas Bonus. Respondent did not give the Union notice or an
opportunity to bargain with respect to the elimination of the 2013 Christmas Bonus with10
respect to unit employees, or with respect to the payment of the $300 "gift" to unit employees
in December 2013. The Union filed an unfair labor practice charge against Respondent
regarding these matters in Case 12–CA–119177. Following the issuance of a Complaint in
Case 12–CA–119177, Respondent and the Union entered into a Settlement Agreement in Case
12–CA–119177, which was approved by the Regional Director on July 31, 2014. A copy of the15
Settlement Agreement in Case 12–CA–119177 is attached (Jt. Exh.Jt. Exh. 5).
9. Pursuant to the Settlement Agreement in Case 12–CA–11, Respondent paid each of
the unit employees $300 in two equal installment payments made in August 2015, plus
interest, tocompensate themfor theeliminationofthe2013Christmas Bonuspayment.20
Each of the unit employees named in the Appendix to the Complaint, Compliance
Specification and Notice of Hearing issued in Case 12–CA–143221 on March 31, 2014, as
amended on April 6, 2015, worked at least 700 hours and earned at least $10,000 during the
period from October 1, 2013 to September 30, 2014. Therefore, pursuant to the formula
provided in Law No. 148, each of those employees is eligible for a 2014 Christmas bonus in the25
amount of $600.
10. On August 22, 2014, Respondent Attorney Pizarro sent a letter to Union Business
Agent Echevarria, informing the Union of Respondent's intention not to pay the 2014 Christmas
Bonus to employees because of Respondent's "precarious financial situation" and offering to30
negotiate with the Union about "the nonpayment of the Christmas Bonus" (Jt. Exh.Jt. Exh. 6).
11. On August 29, 2014, Echevarria sent a letter to Pizarro, agreeing to negotiate,
and requesting a proposal from Respondent (Jt. Exh.Jt. Exh. 7).
35
12. On September 4, 2014, Pizarro sent a letter to Echevarria, proposing that the Union
accept the decision of Puerto Rico Department of Labor (PDOL) regarding Respondent's
request to be exempted from the payment of the 2014 Christmas Bonus to its employees (Jt.
Exh.Jt. Exh. 8).
40
13. On September 15, 2014, Echevarria sent a letter to Pizarro, again requesting a proposal
from Respondent regarding the 2014 Christmas Bonus (Jt. Exh.Jt. Exh. 9).
14. On September 23, 2014, Pizarro sent a letter and a "Proposed Stipulation for Christmas
Bonus 2014" to Echevarria, proposing that the parties accept the PDOL's determination of45
Respondent's request for exemption from the 2014 Christmas Bonus payment (Jt. Exh.Jt. Exh.
JD(NY)-23-16
5
10 and 11). On November 3, 2014, Echeverria sent a letter to Pizarro, requesting dates to
negotiate (Jt. Exh.Jt. Exh. 12).
15. On November 3, 2014, Respondent attorney Rivera sent a letter to Echevarria, stating
Respondent's availability on six dates in November 2014, including November 18, 2014 (Jt. 5
Exh.Jt. Exh. 13). On November 4, 2014, Echevarria sent a letter to Rivera, confirming a
negotiating session on November 18, 2014 (Jt. Exh.Jt. Exh. 14).
16. On November 18, 2014, the Respondent and the Union met to bargain about
Respondent's intention not to pay the 2014 Christmas Bonus. The meeting took place at the10
facilities of the PDOL in Guayama, Puerto Rico. Hospital Administrator Gloria Diaz, Finance
Department Director Dora Areizaga, and Attorney Rivera attended for Respondent. Union
Agents Echevarria and Vega, and Shop Steward Maria Picart attended for the Union.
Attorney Rivera started the meeting by informing the Union representatives that due to
financial problems, it was the Respondent's intention not to pay its employees the Christmas15
bonus in December 2014.
17. Union Agent Echevarria asked what the economic impact of the payment of the
Christmas Bonus was on Respondent. Respondent's representatives replied that the
economic impact for the 36 employees in the RN bargaining unit would be $21,600 plus 20
the employer's share of 7.65% for Social Security and Medicare taxes, and that the
economic impact for all 150 Hospital employees, including the RNs, would be about
$138,000 plus 7.65% for Social Security and Medicare taxes. Respondent's representatives
further stated that the Respondent was not going to pay the Christmas bonus for 2014 because
they could not afford it. Echevarria asked whether Respondent was willing to pay the25
Registered Nurses an amount for a royalty. Rivera replied that no royalty would be paid.
Respondent' representatives stated that the hospital did not have money to cover payroll on
November 21, 2014, and that Respondent would not pay the bonus, and that she was sure
PDOL would exempt Respondent from paying the bonus. Echevarria explained that the
Union was only negotiating on behalf of the RNs.30
Echevarria stated that the Union was willing to seek alternatives including a payment plan.
Respondent then proposed to reduce the unit employees' benefits such as vacations, sick
leave, holidays and/or reimbursement for license fees. Echevarria replied that the parties
should seek other alternatives because the Union was not willing to relinquish the unit35
employees' benefits, at least, not at that time. Echevarria further informed Respondent's
representatives that the Union rejected Respondent's proposal of September 23, 2014, which
provided that the parties would accept the determination of PDOL regarding Respondent's
request for a complete exemption from payment of the Christmas Bonus in 2014 and that the
Union would make a counteroffer. A meeting was scheduled for December 3, 2014.40
18. On November 24, 2014, Union representative Echeverria sent a letter to Respondent
attorney Rivera by letter, proposing payment of the 2014 Christmas Bonus to unit employees
in the installments of $550 on or before December 15, 2014, and $50 on or before December
31, 2014. By separate letter from Echevarria to Rivera, also on November 24, 2014, the45
Union informed the Respondent that it would not be available to meet on December 3, 2014,
JD(NY)-23-16
6
as previously agreed, and requested that the Respondent provides available dates (Jt. Exhs.15
and 16).
19. On November 25, 2014, Respondent attorney Rivera replied to Union
Representative Echevarria by letter, rejecting the Union's proposal of November 24, 2015,5
and making a counterproposal to pay a $100 bonus to the unit employees on or before
December 15, 2014. In that letter Respondent also offered to meet on any date up to
December 15, 2015 (Jt. Exh.Jt. Exh. 17).
20. On November 25, 2014, by letter from Echevarria to Rivera, the Union rejected10
Respondent's proposal and the Union proposed that Respondent pay the 2014 Christmas Bonus
to unit employees in installments of $500 on or before December 15, 2014, and $100 on or
before December 31, 2014. In the same letter, the Union requested that Respondent provide
the Union with a copy of the Exoneration Request that Respondent filed with PDOL, and
confirmed the Union's availability to meet on December 12, 2014 (Jt. Exh.Jt. Exh.18).15
21. On November 26, 2014, Rivera replied to Echevarria by letter, informing the Union that
its proposal of November 25, 2014, was not accepted and urging the Union to accept
Respondent's proposal to pay a $100 bonus to the unit employees on or before December
15, 2014. In that letter, Respondent further informed the Union that its Exoneration Request20
would be provided to the Union after it had been filed with PDOL, which had not yet
occurred. Respondent ended that letter expressing its availability to meet on any date until
December 15, 2014 (Jt. Exh.Jt. Exh. 19).
22. On December 1, 2014, Union Agent Echevarria sent a letter to Respondent attorney25
Rivera, rejecting the Respondent's proposal for the payment of a bonus of $100 to the unit
employees on or before December 15, 2014, and counter-offering that Respondent pay the
unit employees the 2014 Christmas bonus in installments of $450 on or before December 15,
2014, and $150 on or before December 31, 2014.
30
23. By separate letter also dated December 1, 2014, from Echevarria to Rivera, the Union
requested that Respondent provide the Union with a list of active and inactive unit
employees entitled to the Christmas Bonus for year 2014 (based on employment from October
1, 2013 to September 30, 2014) (Jt. Exh.s 20 and 21).
35
24. By letter dated December 1, 2014, from Rivera to Echevarria, Respondent rejected the
Union's proposal of that same date, and again reiterated its $100 bonus offer that it had
initially made on November 25, 2014 (Jt. Exh.Jt. Exh. 22).
25. By letter dated December 3, 2014, from Respondent Attorney Rivera to Union 40
Agent Echevarria, Respondent informed the Union that the Request for Exoneration of
the Payment of the Christmas Bonus for year 2014 had been filed with PDOL, and
Respondent enclosed to the Union copies of its letter dated November 21, 2014, from
Respondent Executive Director and Chief Executive Officer Fernando Alarcon to the
Secretary of the PDOL, Mr. Vance E. Thomas Rider, informing PDOL that Respondent would45
JD(NY)-23-16
7
not pay its employees the 2014 Christmas Bonus, and a document entitled Financial Statement,
September 30, 2014 (Jt. Exh.s. 23, 24 and 25).
26. On December 4, 2014, by letter from Echevarria to Rivera, the Union again rejected
the Respondent's proposal of November 25, 2014, and proposed that Respondent pay the5
unit employees the 2014 Christmas Bonus in installments of $400 on or before December 15
2014, and $200 on or before December 31, 2014 (Jt. Exh. 26).
27. By letter dated December 4, 2014, from Rivera to Echeverria, Respondent rejected the
Union's proposal of that same date, and reiterated its offer of November 25, 2014, for a $10010
bonus to the unit employees on or before December 15, 2014. Attached to that letter
Respondent enclosed a list of 30 active unit employees and 10 inactive unit employees who
were eligible for a Christmas Bonus, if one was to be paid (Jt. Exh.s. 27 and 28).
28. On December 5, 2014, by letter from Echevarria to Rivera, the Union again rejected15
Respondent's proposal made on November 25, 2014, and proposing that Respondent pay unit
employees the 2014 Christmas Bonus in installments of $350 on or before December 15,
2014, and $250 on or before December 31, 2014 (Jt. Exh.Jt. Exh. 29).
29. By letter dated December 9, 2014, from Rivera to Echevarria, Respondent rejected the20
Union's proposal of December 5, 2014, and asked the Union to reconsider its position in
anticipation of the meeting scheduled for December 12, 2014 (Jt. Exh.Jt. Exh. 30).
30. On December 10, 2014, by letter from Echevarria to Rivera, the Union again rejected
Respondent's $100 bonus proposal, and proposed that Respondent pay the 2014 Christmas25
Bonus to unit employees in installments of $300 on or before December 15, 2014, and $300 on
or before December 31, 2014 (Jt. Exh.Jt. Exh. 31).
31. By letter dated December 11, 2014, from Rivera to Echevarria, Respondent rejected the
Union's proposal of December 9, 2014. Respondent further stated that it had been30
exonerated from the 2014 Christmas Bonus requirement by PDOL, and therefore, was not
obligated to pay the Christmas Bonus on December 15, 2014, or in subsequent installments.
Respondent proposed that the Union accept the PDOL determination. Attached to that letter
is a document entitled "Report of Request for Exoneration Law No. 148 of June 30, 1969, as
amended, Bonus year 2014" (Jt. Exh.Jt. Exh. 32).35
32. A copy of the document entitled "Report of Request for Exoneration Law No. 148 of
June 30, 1969, as amended, Bonus year 2014," which acknowledged PDOL's receipt of
documents from Respondent in support of its request for exoneration from paying the 2014
Christmas Bonus, but did not contain a decision regarding that request (Jt Exh. 33) (Jt. 40
Exh.Jt. Exh. 33(b) consists of the translation for page 7 only).
33. On December 12, 2014, representatives of Respondent and the Union met for t h e
second time to bargain about the 2014 Christmas Bonus with respect to the unit employees.
The meeting took place at the facilities of PDOL in Guayama, Puerto Rico. At this meeting,45
Gloria Diaz, Dora Areizaga, and attorneys Karla Rivera and Lloyd Isgut represented
JD(NY)-23-16
8
Respondent, and Union Representative Echevarria, Union Administrative Assistant Ruth
Perez, and Shop Steward Maria Picart represented the Union. At the meeting, Echevarria
asked Respondent for a copy of the letter whereby PDOL exempted Respondent from paying
the 2014 Christmas Bonus, to which Attorney Rivera replied that PDOL had not yet made
a decision on Respondent's request and that its final determination would eventually be found5
on PDOL's webpage.
Echevarria stated that all he received was a document from PDOL acknowledging receipt
of the required documents in order to complete Respondent's exemption request. Attorney
Rivera replied that the document provided was the only document that had been issued by 10
PDOL and advised Echevarria that Respondent had fully complied with the local law; made
reference to the letter dated November 26, 2014 whereby the Department of Labor made a
preliminary determination, which in her view, constituted an exoneration from the payment of
the bonus; and that in view of the latter there was no obligation to pay the bonus to all the
employees (Jt. Exh.Jt. Exh. 34).15
34. During that meeting of December 12, 2014, the parties exchanged several proposals as
follows: Respondent, by Attorney Rivera, again rejected the Union's proposals for a $600
bonus to be paid in two installments, and proposed a $110 bonus of which $55 was payable
on January 15, 2015, and the other $55 on March 15, 2015. Echevarria rejected this20
proposal under the ground that local law mandated a $600 bonus to be paid on or before
December 15, 2014. Attorney Rivera stated that PDOL exonerated about 670 companies from
paying the 2014 Christmas Bonus and the Respondent was among them.
Union Representative Echevarria made the following three counteroffers regarding the25
2014 Christmas Bonus:
(a) A first installment of $300 payable on or before December 15, 2014 and a second
installment of $300 payable on or before January 15, 2015.
30
(b) A first installment of $300 payable on or before December 15, 2014 and a second
installment of $300 payable on or before August, 2015.
(c) Payment of a $500 bonus.
35
Respondent rejected all three proposals, in succession. Respondent counter-offered a
bonus of $120 per unit employee to be paid in a first installment of $60 on or before
December 31, 2014, and a second installment of $60 on or before March 31, 2015. This
proposal was rejected by the Union. The meeting ended without any agreement and without
any further proposals being made by the parties.40
36. By letter dated December 12, 2014, from Rivera to Echevarria, Respondent set forth its
version of certain events at the bargaining session of December 12, 2014, and informed the
Union about its availability to negotiate during the weekend of December 13 and 14, 2014 (Jt. 45
Exh.Jt. Exh. 35).
JD(NY)-23-16
9
37. On December 15, 2014, Respondent distributed a memorandum to its employees,
including the unit employees, concerning the non-payment of the 2014 Christmas Bonus (Jt.
Exh.Jt. Exh. 36).
5
38. By letter dated December 15, 2014, from Echevarria to Rivera, the Union set forth its
version of bargaining concerning Respondent's demand for nonpayment of the 2014
Christmas Bonus with respect to unit employees (Jt. Exh.Jt. Exh. 37).
39. By letter dated December 15, 2014, from Rivera to Echevarria, Respondent set forth its10
version of the negotiation process concerning the 2014 Christmas Bonus and confirmed that
Respondent was not going to pay the 2014 Christmas Bonus (Jt. Exh.Jt. Exh. 38).
40. A letter dated December 12, 2014, from PDOL to the Union's Executive Director
concerning Respondent's Exoneration Request for the 2014 Christmas Bonus (Jt. Exh.Jt. Exh.15
39).
41. A letter dated September 12, 2014, from the Respondent to CPA Hiram Irizarry
concerning the audit for the Request for Exoneration of the Christmas bonus (Jt. Exh.Jt. Exh.
40).20
42. Respondent's Declaration for Christmas Bonus Exoneration Request and Statement of
Gain and Losses to the PDOL dated December 16, 2014, reflects a loss of $98,685 during the
year ending on September 30, 2014 (Jt. Exh.Jt. Exh. 41).
25
43. Respondent has not paid its employees in the unit represented by the Union anything
for a 2014 Christmas Bonus. Respondent did not implement its final offer to the Union of a
$120 bonus to be paid to unit employees in two installments, and Respondent has not made
payment or provided any benefit to its unit employees in lieu of the payment of the 2014
Christmas bonus.30
44. A letter issued by the PDOL on October 26, 2015, concerning the status of Respondent’s
Request for the Exoneration of the 2014 Christmas Bonus (Jt. Exh.Jt. Exh. 42).
a. The Respondent Violated Section 8(a)(5) and (1) of the Act by35
Refusing and Failing to Provide the Union with Information Requested
The complaint alleges that since on or about December 12, 2014, the Union orally
requested that the Respondent furnish the Union with information regarding the financial
statements previously provided to the Union. 40
The payment of a Christmas bonus is mandated by law in the Commonwealth of Puerto
Rico (the Commonwealth of Puerto Rico Law No. 148 of June 30, 1969, as amended
(Christmas Bonus Law)). 29 L.P.R.A., Section 501 et seq., requires any employer who
employs one or more workers or employees to pay a Christmas bonus. Law No. 14845
provides that to be eligible for the Christmas bonus an employee must have worked a
JD(NY)-23-16
10
minimum of 700 hours during the period from October 1 of the previous year to September 30
of the year at issue. The amount to be paid is six percent (6%) of an employee's wages or
salary up to a maximum bonus of $10,000. The total amounts to be paid by reason of said
bonus shall not exceed 15% of the net annual profit of the employer within the period
comprised from September 30 of the preceding year until September 30 of the year to which5
the bonus corresponds. The Law further provides that the bonus be paid within the period
from December 1 to December 15, and establishes penalties for late and/or nonpayment of the
bonus. (Jt. Exh. 1). Law No. 148 also provides a procedure for the exemption, or exoneration,
of employers from their obligation to pay the Christmas Bonus in a particular year. An
employer seeking a n exoneration may make a request to the Secretary of the Puerto Rico10
Department of Labor and Human Resources (PDOL Secretary), who is responsible for
determining whether a requesting employer is exempt from paying the Christmas Bonus that
year.
The Respondent informed the Union on August 22, 2014 of its intention not to pay the 15
2014 Christmas bonus because of the Respondent’s “precarious financial situation” and offered
to negotiate with the Union over the “non-payment of the Christmas bonus.” In September, the
Respondent informed its accountant to prepare the audit and financial documents for filing the
“Application for Waiver Declaration of Christmas Bonus (Jt. Exh.Jt. Exh. 40).”
20
The parties met for the first time on November 18, 2014 to bargain over the non-payment
of the Christmas bonus. The Union agent Echevarria inquired as to the economic impact of
the payment of the Christmas Bonus on Respondent. Respondent's representatives replied
that the economic impact for the 36 employees in the RN bargaining unit would be
$21,600 plus the employer's share of 7.65% for Social Security and Medicare taxes, and25
that the economic impact for all 150 Hospital employees, including the RNs, would be
about $138,000 plus 7.65% for Social Security and Medicare taxes. Respondent then
asserted that it was not going to pay the Christmas bonus for 2014 because they could not
afford it.
30
On November 26, the Respondent was informed by PDOL that financial statements and
waiver application has been received and the documents and an audit would be conducted of the
accounting documents to verify the losses submitted in the financial statements (Jt Exh. 34b).
On December 3, the Respondent informed the Union that the request for exoneration of 35
the payment of the Christmas bonus was received by PDOL and provided a copy of the letter
sent to PDOL and the financial statements filed with PDOL (Jt. Exh.Jt. Exh. 25b).
On December 12, the parties met for a second time to bargain over the non-payment of
the Christmas bonus. During this bargaining session, the Union requested the following 40
information relating to the financial statements filed by the Respondent with PDOL:
(a) Page 2- "Accounts receivable $58,673"
What are they?
Amounts 45
Period of time
JD(NY)-23-16
11
(b) Page 2 "Prepaid Expenses $242,037"
What are those expenses?
What accounts it's referring to?
Period of time5
(c) Page 6 "Other accounts receivable $225,925"
Disclosure of accounts
Period of time
10
(d) Page 6 "Other Assets $16,000"
Disclosure
Period of Time
Total
15
Discussion and Analysis
The counsel for the General Counsel maintains that the information is necessary and
relevant for the Union to perform its duties as the exclusive collective-bargaining representative
of the unit employees. The counsel for the General Counsel argues that the financial information 20
requested by the Union was necessary and relevant to the bargaining negotiations because the
Respondent was alleging an inability to pay the bonus due to its adverse financial situation. The
General Counsel maintains that the information requested is critical for the Union to evaluate and
verify the validity of the Respondent’s exoneration request and would clarify the amounts and
identity of the accounts receivable and expenses referenced in the Respondent’s financial 25
statements to PDOL (GC Br. at 18–22).
The counsel for the Respondent maintains that it was willing to provide the information
requested, but in turn requested that the Union sign a confidentiality agreement because of the
confidential financial nature of the information. The Respondent argues that the confidential 30
agreement is necessary when the information deals with financial facts such as accounts payable,
accounts receivable, assets, amounts of expense, and to avoid releasing the identity of potential
creditors to the public (R. Br. at 6–8).
It is a violation of 8(a)(5) and (1) of the Act when an employer fails or refuses to provide 35
information requested for bargaining responsibilities. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). It is well settled that an employer is obligated to furnish information requested by its
employees’ collective-bargaining agent that is relevant and necessary to the Union’s bargaining
responsibilities and contract negotiations. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979). As to information regarding the unit employees, there is a presumption that the 40
information is relevant to the Union’s bargaining obligation. When the information requested of
an employer is about the employees or operations other than those represented by the Union, it is
necessary for the Acting General Counsel to prove relevancy. Relevancy should be broadly
construed and absent any countervailing interest, any requested information that has a bearing on
the bargaining process must be disclosed. The burden to show relevancy is not exceptionally 45
heavy, “requiring only that a showing be made of a probability that the desired information is
JD(NY)-23-16
12
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.” NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). The standard for
relevancy is the same, whether relevancy is presumed or proved by specific evidence. The
standard to apply is a liberal discovery-type standard. Acme Industrial Co., supra at 437.
5
The issue is whether the information sought has any bearing to the bargaining
negotiations. Here, the Union was seeking information on four key financial items to the
negotiations regarding the Christmas bonus. The Union needed information on the identity of
the accounts receivables and payable and the pre-paid expenses and assets already referenced in
the financial statements submitted to the PDOL and to the Union. 10
The Board has held that a demand to “open the books” to the union to provide general
financial information is relevant if the employer alleges an inability to pay. Truitt, 355 U.S. at
153. Here, the Respondent stated it was unable to pay the bonuses. Further, the Union never
demanded full financial disclosure. My review shows that the Union’s request for the financial 15
data was narrowly tailored and in response to the Respondent’s own financial statements that had
already been disclosed to the Union. See Caldwell Manufacturing Co., 346 NLRB 1159 (2006).
In this regard, I find that the information requested was very specific and was in direct response
to the Respondent’s financial statements. The Respondent maintains that it could not afford to
pay the bonuses. The Union’s request for information to identify the pre-paid expenses of 20
$242,037 would have verified for the Union that the expenses were legitimate in the
Respondent’s assertion that its expenses exceeded its inability to pay. Similarly, the information
on identifying the Respondent’s assets and its accounts receivable of $225,925 and $58,373 and
when payable would assist the Union in verifying if the Respondent was indeed able to pay.
25
I find that Respondent violated 8(a)(5) and (1) of the Act when it refused to provide the
information requested. In my opinion, such information is relevant for the Union to negotiate
from a knowledgeable position about the identity of its assets, the accounts receivables and when
payable after the Respondent asserted inability to pay the bonuses. I find that the information
was necessary and relevant in order to verify the accuracy of the Respondent’s claim that it was 30
unable to pay.
The Confidential Nature of the Information
Having found the information to be relevant to the Union’s responsibilities in bargaining, 35
I turn next to the issue of confidentiality. It is well settled that substantial claims of
confidentiality may justify refusals to furnish otherwise relevant information. I have considered
the Respondent’s contentions that even if the information was relevant (as I found it was), its
interest in protecting the confidential information outweighs the need of the Union for the
relevant information. I find that it does not.40
As the Board explained in National Steel Corp., 335 NLRB 747, 748 (2001):
With respect to the confidentiality claim, it is well established that an employer may not
avoid its obligation to provide a union with requested information that is relevant to 45
bargaining simply by asserting a confidential interest in the information. Rather, the
JD(NY)-23-16
13
employer has the burden to seek an accommodation that will meet the needs of both
parties.
I agree with the General Counsel that the Respondent failed to establish that the
information was confidential. The Respondent failed to provide any specificity as to the 5
confidential nature of the information sought. The record shows that the Respondent provided
the financial statements to PDOL and to the Union. The financial statements were therefore
records available for review by the public through PDOL. In addition, the Respondent did not
restrict or limit disclosure when the financial statements were provided to Union. Since the
amounts of the pre-paid expenses, assets and accounts payable and receivable were already 10
identified by the Respondent, the Union merely sought information on the identity of the
accounts and assets and when such accounts would be received or paid by the Respondent.
Instead, the Respondent asserted a blanket claim that such information was confidential and
private.
15
Further, even assuming that the Respondent has a legitimate privacy or confidential
concern over releasing the information, it was obligated to notify the Union of its concern and to
bargain for an accommodation that would satisfy the Union’s need for the information and the
employer’s need to keep the information confidential. West Penn Power Co., 339 NLRB 585
(2003); Salem Hospital Corp., 358 NLRB 837 (2012). Here, the Respondent maintains that it 20
was willing to release the information provided that the Union signed a confidential agreement. I
do not disagree with the Respondent that a confidential agreement would have been appropriate
assuming that the information was indeed confidential. In the past, the Union had agreed to sign
a confidential agreement. However, on this occasion, the Respondent insisted on the inclusion of
a severe penalty of $200,000 in damages if the Union breached the agreement. The Respondent 25
never sought a penalty in its previous confidential agreements with the Union. The Respondent
never asserted that the penalty was necessary this time because the Union had breached an
agreement in the past or that the Union was untrustworthy. There was simply no basis to extract
such a severe penalty on the Union on this occasion.
30
The Respondent argues that under E.W. Buschman Co. v. NLRB, 820 F.2d 206 (6th Cir.
1987), the 6th Circuit vacated the Board’s decision finding that it was not an unfair labor practice
where the employer refused to provide the financial information when the union refused to
maintain the confidentiality of the information.3 However, that case is easily distinguishable. In
Bushman, the union requested complete financial statements, including disbursements and 35
revenues. Here, such information had already been provided by the Respondent to PDOL and to
the Union. As noted, the Union merely wanted the Respondent to identify these accounts and
when they were to be received or disbursed by the Respondent. Further, unlike Bushman, the
penalty here of $200,000 has no legitimate basis and is unreasonable on its face.
40
Accordingly, I find that Respondent violated Section 8(a)(5) and (1) of the Act when it
failed to meet its burden that the information sought by the Union was confidential and even
assuming the confidential nature of the information, the Respondent failed to establish that the
Union had been untrustworthy in confidential matters to justify the unreasonable and severe

3 I am bound only to apply established Board precedent which the Supreme Court has not reversed,
notwithstanding contrary decisions by the lower courts. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).
JD(NY)-23-16
14
penalty of $200,000 for breaching the agreement.
b. The Respondent violated Section 8(a)(5) and (1) of the Act by
Failing and Refusing to Bargain Collectively in Good Faith or to Lawful Impasse
With the Union Regarding the Payment of the 2014 Christmas Bonus5
The counsel for the General Counsel argues that the parties were not at impasse on
December 12. The General Counsel further argues that the Respondent did not bargain in good-
faith because the Respondent made clear at the outset of negotiations that it had no intentions to
pay the 2014 bonus (GC Br. 24–29). In turn, the Respondent maintains that the parties were at 10
impasse on December 12 and no further proposals had been made by the parties since that time
(R. Br. 14–16).
On August 22, Respondent Attorney Pizarro sent a letter to Union Business Agent
Echevarria, informing the Union of Respondent's intention not to pay the 2014 Christmas15
Bonus to employees because of Respondent's "precarious financial situation" and offering to
negotiate with the Union about "the nonpayment of the Christmas Bonus" (Jt. Exh.Jt. Exh. 6).
On August 29, Echevarria sent a letter to Pizarro, agreeing to negotiate, and requesting a
proposal from Respondent.
20
No proposal was received by the Union but instead, on September 4, Pizarro sent a
letter to Echevarria, proposing that the Union accept the decision of PDOL regarding
Respondent's request to be exempted from the payment of the 2014 Christmas Bonus to its
employees (Jt. Exh.Jt. Exh. 8).
25
On September 15, Echevarria sent a letter to Pizarro, again requesting a proposal from
Respondent regarding the 2014 Christmas Bonus. On September 23, Pizarro sent a letter and a
"Proposed Stipulation for Christmas Bonus 2014" to Echevarria, again proposing that the
parties accept the PDOL's determination of Respondent's request for exemption from the
2014 Christmas Bonus payment. 30
On November 3, Echeverria sent a letter to Pizarro, requesting dates to negotiate. The
Respondent informed the Union on November 3 that it was available on six dates in November.
The parties confirmed a negotiating session for November 18 (Jt. Exh.Jt. Exh. 14).
35
On November 18, the Respondent and the Union met to bargain about Respondent's
intention not to pay the 2014 Christmas Bonus. Rivera started the meeting by informing the
Union representatives that due to financial problems, it was the Respondent's intention not to
pay its employees the Christmas bonus in December 2014. Echevarria inquired as to the
economic impact of the payment of the Christmas Bonus on the Respondent. The 40
Respondent provided a response and again reiterated that it was not going to pay the
Christmas bonus for 2014 because it could not afford it. Echevarria asked whether Respondent
was willing to pay the Registered Nurses an amount for a royalty. Rivera replied that no royalty
would be paid. The Respondent also asserted that that it did not have money to cover payroll on
November 21, and that Respondent was sure PDOL would exempt it from paying the bonus.45
JD(NY)-23-16
15
The Union was willing to seek alternatives including a payment plan. The
Respondent proposed to reduce the unit employees' benefits such as vacations, sick leave,
holidays and/or reimbursement for license fees. Echevarria replied that the parties should seek
other alternatives because the Union was not willing to relinquish the unit employees' benefits,
at least, not at that time. Echevarria further informed Respondent's representatives that the5
Union rejected Respondent's proposal of September 23, which provided that the parties would
accept the determination of PDOL regarding Respondent's request for a complete exemption
from payment of the Christmas Bonus in 2014 and that the Union would make a counteroffer.
A meeting was scheduled for December 3, 2014.
10
On November 24, the Union proposed payment of the 2014 Christmas Bonus to unit
employees in the installments of $550 on or before December 15, and $50 on or before
December 31. By separate letter from Echevarria to Rivera, also on November 24, 2014, the
Union informed the Respondent that it would not be available to meet on December 3, 2014,
as previously agreed, and requested that the Respondent provides available dates (Jt. Exhs. 1515
and 16).
On November 25, the Respondent rejected the Union’s proposal of November 24, and
made a counterproposal to pay a $100 bonus to the unit employees on or before December 1.
The Respondent also offered to meet on any date up to December 15, 2015 (Jt. Exh.Jt. Exh. 17).20
On November 25, the Union rejected Respondent's proposal and proposed that
Respondent pay the 2014 Christmas Bonus to unit employees in installments of $500 on or
before December 15, and $100 on or before December 31. In the same letter, the Union
requested that Respondent provide the Union with a copy of the Exoneration Request that25
Respondent filed with PDOL, and confirmed the Union's availability to meet on December
12 (Jt. Exh.Jt. Exh. 18).
On November 26, the Respondent informed the Union that its proposal of November
25 was not accepted and urged the Union to accept Respondent's proposal to pay a $10030
bonus to the unit employees on or before December 15. In that letter, Respondent further
informed the Union that its Exoneration Request would be provided to the Union after it had
been filed with PDOL, which had not yet occurred. Respondent ended that letter expressing
its availability to meet on any date up to December 15, 2014 (Jt. Exh.Jt. Exh. 19).
35
On December 1, the Union rejected the Respondent's proposal for the payment of a
bonus of $100 to the unit employees and counter-offered that Respondent pay the unit
employees the 2014 Christmas bonus in installments of $450 on or before December 15, and
$150 on or before December 31. On December 1, the Respondent rejected the Union's
proposal and again reiterated its $100 bonus offer that it had initially made on November 2540
(Jt. Exh. 22).
By letter dated December 3, Respondent informed the Union that its request for
exoneration of the payment of the Christmas Bonus for year 2014 had been filed with PDOL
and a copy of that let ter to PDOL and a document entitled “Financial Statement, 45
September 30, 2014” were provided to the Union (Jt. Exhs. 23, 24 and 25).
JD(NY)-23-16
16
On December 4, the Union again rejected the Respondent's proposal of November
25, and proposed that Respondent pay the unit employees the 2014 Christmas Bonus in
installments of $400 on or before December 15 and $200 on or before December 31 (Jt. Exh.
26). The Respondent rejected the Union’s offer on the same date and reiterated its offer of5
November 25, for a $100 bonus on or before December 15.
On December 5, 2014, the Union again rejected Respondent's proposal made on
November 25, and proposed that the Respondent pay unit employees the 2014 Christmas
Bonus in installments of $350 on or before December 15 and $250 on or before December10
31(Jt. Exh.Jt. Exh. 29).
On December 9, 2014, the Respondent rejected the Union's proposal of December 5,
and asked the Union to reconsider its position in anticipation of the meeting scheduled for
December 12 (Jt. Exh.Jt. Exh. 30).15
On December 10, the Union again rejected Respondent's $100 bonus proposal, and
proposed that Respondent pay the 2014 Christmas Bonus to unit employees in installments of
$300 on or before December 15 and $300 on or before December 31 (Jt. Exh.Jt. Exh. 31).
20
On December 11, the Respondent rejected the Union's proposal of December 10.
Respondent further stated that it had been exonerated from the 2014 Christmas Bonus
requirement by PDOL, and therefore, was not obligated to pay the Christmas Bonus on
December 15 or in subsequent installments. Respondent proposed that the Union accept the
PDOL determination.25
On December 12, representatives of Respondent and the Union met for t h e second
time to bargain about the 2014 Christmas Bonus. At the meeting, Echevarria asked the
Respondent for a copy of the letter whereby PDOL exempted Respondent from paying the 2014
Christmas Bonus, to which Rivera replied that PDOL had not yet made a decision on30
Respondent's request and that its final determination would eventually be found on PDOL's
webpage. During the meeting, the parties exchanged several proposals as follows:
Respondent again rejected the Union's proposals for a $600 bonus to be paid in two
installments, and proposed a $110 bonus of which $55 was payable on January 15, 2015,35
and the other $55 on March 15, 2015. The Union rejected this proposal under the ground
that local law mandated a $600 bonus to be paid on or before December 15 and made the
following three counteroffers regarding the 2014 Christmas Bonus:
(a) A first installment of $300 payable on or before December 15, 2014 and a second40
installment of $300 payable on or before January 15, 2015.
(b) A first installment of $300 payable on or before December 15, 2014 and a second
installment of $300 payable on or before August, 2015.
45
(c) Payment of a $500 bonus.
JD(NY)-23-16
17
Respondent rejected all three proposals and counter-offered a bonus of $120 per unit
employee to be paid in a first installment of $60 on or before December 31 and a second
installment of $60 on or before March 31. This proposal was rejected by the Union. The
meeting ended without any agreement and without any further proposals being made by the 5
parties.
The Respondent has not paid its employees anything for a 2014 Christmas Bonus.
Respondent did not implement its final offer to the Union of a $120 bonus to be paid to unit
employees in two installments, and Respondent has not made payment or provided any benefit10
to its unit employees in lieu of the payment of the 2014 Christmas bonus.
Discussion and Analysis
An economic bonus, such as a year-end Christmas bonus, is clearly a mandatory subject 15
of bargaining where the employer has followed a practice of paying it to applicable employees.
Santa Cruz Skilled Nursing Center, Inc., 354 NLRB No. 25, slip op. at 4 (2009);
Bonnell/Tredegar Industries, 313 NLRB 789 (1994). This principle applies even in the absence
of a contractual provision recognizing such a practice, as the practice becomes an implied
condition of employment premised on the presumed mutual agreement of the parties. 20
Accordingly, any unilateral change in an implied term or condition of employment violates
Section 8(a)(5) and (1) of the Act. Finch, Pruyn & Co., 349 NLRB 270 fn. 31 (2007); Lafayette
Grinding Corp., 337 NLRB 832 (2002).
After bargaining for two sessions, the parties stopped and no further proposals were 25
offered. The counsel for the General Counsel argues that the parties were not at impasse and the
Respondent did not bargain in good faith in that it was a fatal accompli when the Respondent
announced before the first bargaining session that it had no intentions to pay the Christmas
bonus.
30
An impasse occurs whenever negotiations reach that point at which the parties have
exhausted the prospects of concluding an agreement and further discussions would be fruitless.
Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539,
543 (1988). The burden of proving that an impasse exists falls upon the party asserting such a
defense. North Star Steel Co., 305 NLRB 45 (1991), enfd. 974 F.2d 68 (8th Cir. 1992). 35
Moreover, there is a duty to refrain from implementation unless an impasse has been reached on
bargaining for the agreement as a whole. Bottom Line Enterprises,. 302 NLRB 373 (1991), enfd.
15 F.3d 1087 (9th Cir. 1994).
In considering whether an impasse has been reached, the Board will consider the totality 40
of the circumstances. Such analysis includes the following factors: (1) fluidity of position; (2)
continuation of bargaining; (3) nature and importance of issues and the extent of difference in
position; (4) bargaining history and progress in negotiations; (5) demonstrated willingness to
consider the issues further; (6) duration of hiatus between bargaining sessions; (7) number and
duration of bargaining sessions; and (8) contemporaneous understanding of the parties as to the 45
state of negotiations. Taft Broadcasting, 163 NLRB 475 (1967).
JD(NY)-23-16
18
I find that the parties had not reached impasse after their last bargaining session on
December 12. The Taft factors are evident in this situation. There was fluidity in the parties’
positions; bargaining was continuing; the bonus was important to the Union; the parties offered
proposals that demonstrated their willingness to continue negotiating; the number and duration of 5
the bargaining sessions were few and more sessions could have proved fruitful; and the parties
have a history and progress in negotiations.
The record shows that the parties met twice to negotiate over the bonus. The bonus was
very important to the Union and the sole reason the parties initiated and engaged in bargaining. 10
Although the parties only met twice, there was fluidity in the give-and-take proposals based upon
the proposals communicated through correspondence between the parties. The Union initially
proposed two bonus installments to the unit employees of $550 and $50 on November 24. The
Respondent countered with $100. The Union rejected the proposal and offered that the
Respondent pay in two installments of $500 and $100 on or before December 31. The Union’s 15
proposal was rejected by the Respondent and it urged the Union to accept the $100 bonus offer
that was previously rejected. On December 1, the Union rejected the Respondent’s $100
proposal in lieu of the bonus and countered with a proposal for the Respondent to pay the bonus
in two installments of $450 and $150 before the end of the year. The Respondent rejected the
proposal and again reiterated its $100 offer. On December 4, the Union proposed that the20
Respondent pay in two installments of $400 and $200 on or before December 31. This offer was
rejected by the Respondent. On December 5, the Union proposed two installments of $350 and
$250 before the end of the year. This was rejected by the Respondent. The Union, on December
10, proposed two installments of $300 and $300 payable by December 31. The Respondent
rejected this offer and proposed that the Union accept the determination to be made by PDOL on 25
its exemption application, which had not yet been approved. On December 12, the Respondent
offered $110, of which $55 would be paid by January 15, 2015 and the second $55 on March 15,
2015. This was rejected by the Union and it made three counter offers of (1) $300 on or before
December 15 and $300 on or before January 15, 2015; (2) $300 on December 15 and second
installment of $200 on or before August 2015; or (3) a payment of a $500 bonus. All three 30
proposals were rejected by the Respondent, but Respondent proposed $120 payable in two
installments of $60 before December 31 and $60 on or about March 31, 2015.
The parties did not meet after December 12, but all indications point to the fact that the
parties were willing to continue to negotiate over the bonus. There is no evidence that the 35
Respondent announced impasse or discussed impasse at the December 12 meeting. The Union
was frustrated but never expressed that the parties were at impasse. Indeed, the Respondent by
letter dated December 12 informed the Union of its availability to negotiate during the
weekend of December 13 and 14 (Jt Exh. 35). Unfortunately, this letter was sent late on
December 12 and just before the commencement of the weekend. The letter was not received 40
until the following Monday, December 15.
The Respondent’s late movement to meet over the weekend after the parties’ December
12 meeting regarding the major impediment on this issue presented a “ray of hope” warranting
further bargaining. Atrium at Princeton, LLC, 353 NLRB 540, 561 (2008). Accordingly, there 45
was no impasse between the parties at that point. Grinnell Fire Protection Systems Co., 328
JD(NY)-23-16
19
NLRB 585 (1999). Under the circumstances, the Respondent’s unilateral implementation
concerning the non-payment of the bonus without affording the Union a meaningful opportunity
to bargain violated Section 8(a)(5) and (1) of the Act.
Moreover, I find that the actions of the Respondent by announcing to the Union on 5
August 22 that Respondent had no intention to pay 2014 Christmas bonuses to employees was a
clear indication that Respondent was not engaging in meaningful bargaining with the Union and
tantamount to a fait accompli. The announcement made directly to the Union that a change in a
mandatory subject is being implemented—instead of proposing it to the employee’s bargaining
representative—suggests a fait accompli and is inconsistent with the duty to bargain. Brannan 10
Sand & Gravel Co., 314 NLRB 282 (1994). See also Burrows Paper Corp., 332 NLRB 82, 83
(2000) (“after . . . announcement of the wage increase to employees, we find that the Union
could reasonably conclude that the matter at this point was a fait accompli, i.e., that the
Respondent had made up its mind and that it would be futile to object to the pay raises”); Ciba-
Geigy Pharmaceuticals, 264 NLRB 1013, 1017 (1982) (“most important factor” dictating 15
finding that employer’s announcement of change was “fait accompli” was that it was made
without “special notice” in advance to the union, the union’s officers “having become aware of
this merely because they themselves were employees”), enfd. 722 F.2d 1120 (3d Cir. 1983).
This conclusion is buttressed by the fact that the Respondent informed the unit employees 20
on December 12 that it was not paying the bonus before there was any impasse. In
circumstances where it is clear that the employer has no intention of bargaining, the Board has
found the implementation of the changes to be nothing more than fait accompli. Ciba-Geigy
Pharm. Div. 264 NLRB 1013, 1017 (1982); FirstEnergy Generation Corp. and International
Brotherhood of Electrical Workers, Local Union (2012), 358 NLRB 842, 848 (2012), vacated 25
under Noel Canning and reaffirmed by the Board at 362 NLRB No. 66 (2015)4
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Hospital Santa Rosa, Inc., a/k/a Clinica Santa 30
Rosa is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, Unidad Laboral De Enfermeras (OS) Y Empleados De la Salud is a labor
organization within the meaning of Section 2(5) of the Act.35
3. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
fully provide the relevant information to the Union in its December 12, 2014 request.
4. The Respondent violated Section 8(a)(5) and (1) of the Act on or about December 12,40
2014 by changing the terms and conditions of unit employees by failing to pay them the

4 In finding that the parties did not reach impasse and that the Respondent failed to bargain in good-
faith because it had no intentions to pay the bonus, I find it unnecessary to address the remaining
argument of counsel for the General Counsel that assuming the parties were at impasse, the Respondent
was obligated to make sure that changes to the terms of employment that were implemented must be
consistent with its last offer to the Union.
JD(NY)-23-16
20
customary $600 bonus, without affording the Union adequate opportunity to bargain with
Respondent regarding this conduct.
5. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.5
REMEDY
Having found that the Respondent Hospital Santa Rosa, Inc. has engaged in certain unfair
labor practices, I shall order the Respondent to cease and desist and to take certain affirmative 10
action designed to effectuate the policies of the Act.
The Respondent will be ordered to, on request, bargain with the Union as the exclusive
bargaining representative of the unit employees with respect to wages, hours, and other terms
and conditions of employment and, if an agreement is reached, embody it in a signed document. 15
The Respondent shall also be required to rescind its decision, on the Union’s request, the
non-payment of the 2014 Christmas bonus and to restore the full Christmas 2014 bonus benefit.
The Respondent is to make the unit employees whole for any loss of earnings and other 20
benefits attributable to its unlawful conduct. The make whole remedy shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
25
The Respondent additionally shall be ordered to (1) compensate the unit employees for
any adverse income tax consequences of receiving their backpay in one lump sum and (2) file a
report with the Social Security Administration allocating the backpay to the appropriate calendar
quarters, as set forth in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Consistent with the Board holding in AdvoServ of New Jersey, 363 NLRB No. 143 (2016), the 30
Respondent shall be required within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, to file its report allocating backpay with the Regional Director and not
with the Social Security Administration. The Respondent will be required to allocate backpay to
the appropriate calendar years only.
35
The Respondent shall also be ordered to provide to the Union the information requested
on December 12, 2014 that is necessary and relevant for the Union in its role as the exclusive
collective-bargaining representative of the unit employees.
On these findings of fact and conclusions of law and on the entire record, I issue the40
following recommended5

5
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(NY)-23-16
21
ORDER
The Respondent, Hospital Santa Rosa, Inc., a/k/a Clinica Santa Rosa, its officers, agents,
successors, and assigns, shall
5
1. Cease and desist from
(a) Failing, refusing to provide to the Union, Unidad Laboral De Enfermeras (OS) Y
Empleados De La Salud, information requested without a monetary penalty that is necessary and
relevant to its role as the exclusive representative of a unit of employees consisting of all regular 10
full-time and regular part-time registered nurses employed by the Respondent at its facilities
located in Guayama, Puerto Rico; excluding all other employees, office clerical employees,
guards, other professional employees and supervisors as defined under the Act.
(b) Failing and refusing to pay the 2014 Christmas bonus to the unit employees.15
(c) 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.20
(a) Provide to the Union the information requested without requiring the Union to agree
to a monetary penalty.
(b) Rescind the decision for the non-payment of the 2014 Christmas bonus and restore 25
the full Christmas bonus benefit of $600 to the unit employees.
(c) Make the unit employees whole, with interest, for any losses sustained due to the
unlawfully imposed changes in wages, hours, benefits, and other terms and conditions
of employment in the manner set forth in the remedy section of this decision.30
(d) Compensate the unit employees for any adverse income tax consequences of
receiving their backpay in one lump sum, and file with the Regional Director for
Region 2, within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay award to the appropriate 35
calendar year(s).
(e) On request, bargain with Unidad Laboral De Enfermeras (OS) Y Empleados De La
Salud as the exclusive collective bargaining representative of the unit employees
concerning wages, hours, and other terms and conditions of employment. 40
(f) 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.
45
JD(NY)-23-16
22
(g) Within 14 days after service by the Region, post at its existing facilities in the Puerto
Rico area copies of the attached notice marked “Appendix”6 in the English and
Spanish languages. Copies of the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous 5
places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed
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 10
notices are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or
closed the jobsites involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 12, 2014.15
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
20
Dated, Washington, D.C. June 16, 2016
25
_______________________________
Kenneth W. Chu
Administrative Law Judge

6
If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations” shall read “Posted Pursuant to a Judgement of the United States
Court of Appeals Enforcing an Order of the National Labor Relations.”
JD(NY)-23-16
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 the National Labor Relations Act
and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities
The Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud (the Union) is the exclusive
collective-bargaining representative of the employees in the following appropriate unit:
All regular full-time and regular part-time registered nurses employed by the Respondent
at its facilities located in Guayama, Puerto Rico; excluding all other employees, office
clerical employees, guards, other professional employees and supervisors as defined
under the Act.
WE WILL NOT change the unit employees’ wages, hours, or other terms and conditions of
employment without first notifying the Union and giving it a meaningful opportunity to bargain
about such changes to agreement or impasse regarding such changes in the wages, hours, and
working conditions of the unit employees.
WE WILL NOT refuse or delay in promptly furnishing the information requested by the Union
that is relevant and necessary to the Union’s performance of its duties as the collective-
bargaining representative of the employees in the above unit.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclusive collective-bargaining
representative of our employees in the unit described above concerning wages, hours, and other
terms and conditions of employment.
WE WILL, on the Union’s request, rescind the decision on the non-payment of the 2014
Christmas bonus to the unit employees and restore the full 2014 Christmas bonus benefit.
WE WILL make the unit employees whole, with interest, for any losses sustained due to our
unlawfully imposed changes in wages, benefits, and other terms and conditions of employment.
JD(NY)-23-16
WE WILL provide the Union with the information it requested on December 12, 2014 without
requiring the Union to agree to a monetary penalty.
HOSPITAL SANTA ROSA, INC., A/K/A/
CLINICA SANTA ROSA
(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, Ste 530,
Tampa, FL 33602–5824
(813) 228–2641, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-143221 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) 228–2455