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

National Labor Relations Board - Administrative Judge Opinions

Feb 2, 2012

24-CA-011782 (N.L.R.B. Feb. 2, 2012)

JD−05−12
Coto Laurel, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
QUALITY HEALTH SERVICES OF PUERTO RICO, INC.
d/b/a HOSPITAL SAN CRISTOBAL
and Case 24–CA–11782
24–CA–11884
UNIDAD LABORAL DE ENFERMERAS(OS)
Y EMPLEADOS DE LA SALUD
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
Enfermeras(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 issued a consolidated complaint (covering both cases) on August 31,
2011, and amended the complaint on October 20 and November 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
Relations 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, unilaterally changing its past practice for scheduling vacation for respiratory
therapy department employees by eliminating and/or limiting employee discretion when

1 All dates are in 2011, unless otherwise indicated.
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scheduling vacation leave; and on or about July 9, 2011, unilaterally laying off respiratory
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 demeanor 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 provides 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 directly 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 No. 95 (2011)
(Case 24–CA–11438); 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 allegations 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 exclusive 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 Radiology Technicians employed by the Respondent,
at the Hospital located in Cotto Laurel Ward, Ponce, Puerto Rico; excluding all other
hospital employees, including Executives, Administrators, Supervisors, Administrative
Employees, Managers and Guards as defined in the Act.

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 evidence) and is not part of the evidentiary record.
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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. Hospital San Cristobal, 356 NLRB No. 95, slip op. at 2. As
described below, the Acting General Counsel alleged (in Cases 24–CA–11438 and 24–CA–
11630) 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 No. 95 (Case 24–CA–11438)
In Case 24–CA–11438, 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 employees to use sick leave when receiving workers’
compensation, by eliminating permanent shifts in its respiratory care department thereby
implementing rotation shifts for those employees, and by changing and reducing the number of
employees’ holidays, all without notice to and bargaining with the Union.” Hospital San
Cristobal, 356 NLRB No. 95, slip op. at 1, 5 (noting 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 unilateral changes and make employees whole for any lost
wages or benefits, with interest. Id., slip op. at 5–6.
3. Decision in Hospital San Cristobal, Case 24–CA–11630
In Case 24–CA–11630, 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–11630, slip op. at 8. Judge Aleman ordered the Respondent to reinstate the unlawfully
discontinued employee compensation practices, and make employees whole for any lost wages
(plus interest) caused by the 8(a)(5) violation. Id., slip op. at 8–9.
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
subcontracting out the respiratory therapy department. (Tr. 40, 185, 193–195.) After reviewing
proposals from various subcontractors, the Hospital identified Respiratory Therapy Management
(RTM) as the subcontractor that was offering the most affordable package. (Jt. Exh. 21; GC

3 The Respondent paid incentives or bonuses to employees who worked undesirable shifts, worked in
high risk departments of the hospital, or completed special courses to improve their knowledge and skills.
Hospital San Cristobal, Case 24–CA–11630, slip op. at 2.
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Exh. 4.) Specifically, the Hospital’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 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 finances 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 alternatives that would help our
finances such as the reorganization of services, the restructuring of departments, the
consolidation of positions, not substituting resignations or terminations, not incurring
overtime, etc.
One of the alternatives we have evaluated is the subcontracting of services.
[Subcontracting is an] alternative that at this moment we see as viable with the
Respiratory Care Department, 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 Union
(including the March 24 meeting attended by Hospital and Union representatives) focused on the
Union’s requests for information 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.)

4 Revised studies later showed that the Hospital would save approximately $60,000 per year if it used
RTM to staff the respiratory therapy department. (Tr. 336, 378.)
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In the same time period, however, significant changes occurred 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. Exh. 9b (Union asked Hospital why RTM was providing respiratory
therapy technicians to the Hospital when negotiations about that issue were still in progress); Jt.
Exh. 30b at 2).) Specifically, beginning on March 28, RTM provided respiratory therapy
technicians to cover shifts that, according to the Hospital, could not be staffed by Hospital
employees because of vacation 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
Resources 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 therapy 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 remaining
technicians (Felicita Leon) was not available to work because of ongoing disability leave (under
the State Insurance Fund) that began in December 2010. (Tr. 86–87, 187.)

5 Although RTM agreed to provide respiratory therapy technicians to the Hospital on March 25, the
Hospital and RTM did not sign a contract until April 7. (Jt. Exh. 15.) Since the contract contemplated
RTM providing staff for the entire respiratory therapy department, the Hospital 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 unrebutted. 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 correct her initial answer, but I
note that the collective-bargaining agreement does outline specific conditions that apply when the
Hospital uses temporary employees. (See Jt. Exh. 1b, pars. B, F (among other conditions, 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
effective 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.
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3. The Hospital issues a memorandum prohibiting employees
from making certain comments about subcontracting
On March 31, Rodriguez sent a letter to Union Representative 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 respiratory therapy department. Rodriguez also asserted that Santa
and Union Delegate Rafael Colon were intimidating other hospital 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 intention 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 affecting any other department. This is a
product of operational decisions that impact the finances of the Hospital. I have
instructed 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 requests 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 accruing (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 affected 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 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 employees as witnesses in its
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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 December 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 alternative) 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 attorney and learned that it
needed to negotiate with the Union not only about the impact of a decision to subcontract the
respiratory 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 alternatives to subcontracting that the Union

rebuttal case, it did not ask either of those employees to present testimony that might have rebutted Diaz’
testimony (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 forfeiture date for vacation leave. (Tr.
198, 212.) Specifically, for an employee (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 conversation 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.)
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proposed.12 (Jt. Exh. 19b at 3; Tr. 257, 261.) Further, on April 14, Rodriguez notified the Union
that the Hospital was going to postpone the effective date of its plan to subcontract the
respiratory therapy department to April 30, to afford the Union time to review information 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 information about the Hospital’s subcontracting plan and
questions 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 Rodriguez 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 Rodriguez added that if the parties agreed to the meal stipend reduction
alternative, the Hospital could retain the eight regular employees 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 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, because 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

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 Rodriguez 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 department. (Tr. 59–60.)
15 Respiratory therapy technicians work in the following shifts: 7:00 a.m. to 3:00 p.m.; 3:00 p.m. to
11:00 p.m.; and 11:00 p.m. to 7:00 a.m. Employees with permanent shifts were always assigned to the
same shift on the schedule (e.g., always to the morning shift), while employees with rotating shifts could
be assigned to any of the three shifts. (Tr. 82, 112.)
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Hospital needed to do multiple studies of the expected savings from subcontracting).) 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
department. (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 employee 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 future vacancies that arose in the
Respiratory therapy department, such that the department would continue to have eight
regular employees;
(2) The Union and Hospital would agree to meet every trimester to verify that the
Hospital’s savings from the meal stipend reduction were consistent with its calculations;
(3) The Hospital would increase the meal stipend if the Hospital saved more money than
projected;
(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.)

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.
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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 2:00 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 employees in that department). Specifically, Rodriguez stated:
I am notifying [you] that the hospital has made its decision to subcontract the
Respiratory Care Department and conforming to the collective [bargaining] agreement, I
am notifying [you] that the effective date will by July 13th[.] The employees 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 working
the 7:00 a.m. to 3:00 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 termination.
Similarly, the Hospital directed employees who were arriving to work 3:00 p.m. to 11:00 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. Notwithstanding, 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. 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.

17 The eight respiratory therapy technicians that the Hospital discharged 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.)
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(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 Rodriguez) 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
finishing up her last couple of discharge meetings with respiratory therapy technicians, agreed to
meet again with the Union at the Hospital at 5:00 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
discharges.19 (Tr. 466–467; see also Tr. 462.)
In the evening meeting on July 8, Rodriguez began by reviewing 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
reduction); (c) increasing the meal stipend if the Hospital reached or exceeded its savings targets;
(d) limiting the reduction in the meal stipend to only one 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 future vacancies that arose in the
Respiratory therapy department, such that the department would continue to have eight
regular employees;

18 The collective-bargaining agreement requires three days advance notice to employees who are
being terminated. (Tr. 158, 409.) Diaz admitted that although the employees were paid until July 13, the
employees 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.)
Rodriguez 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 contrary, 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 one-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.)
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12
(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 11:00 a.m. to 7:00 a.m. shift (leaving the regular
employees in the department to rotate between the 7:00 a.m. to 3:00 p.m. shift and the 3:00 p.m.
to 11:00 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.)
The Hospital modified its agreement with RTM on July 14 to have RTM provide all staff
for the respiratory therapy department. (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 example
schedules to show that it would be feasible for the Hospital to assign Colon and Leon to

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.) Rodriguez 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).
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13
permanent shifts without compromising 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 Construction 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 version of events, particularly when the
witness is the party’s agent). Credibility findings need not be all-or-nothing propositions —
indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not
all, of a witness’ testimony. 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 parties had their most contentious
(and disputed) bargaining sessions. 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 Rodriguez’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 exhibits).
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 violated 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 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 engage 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 No. 62, slip op. at 7 (2009).
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14
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 No. 173,
slip op. at 4 (2010) (noting that the employer’s subjective motive for its action is irrelevant);
Yoshi’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 specifically 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 construe 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 Heritage Village-Livonia, 343 NLRB
646, 646–647 (2004)), adopted in 355 NLRB No. 169 (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
“intimidating” other hospital employees by warning that their departments 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 because 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 whether the Hospital might (via further subcontracting) alter the working
conditions in other departments. A reasonable employee would interpret the Hospital’s March
31 memorandum as prohibiting employees from discussing their concerns about those
prospects.24

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 Hospital 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
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15
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
Rodriguez 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 principles.25
Because the Hospital (via its March 31 memorandum) announced an unlawful work rule
that employees would reasonably 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 violated Section 8(a)(5) and (1) in
the following ways:
(a) by, on or about March 28, 2011, unilaterally subcontracting unit work performed by
respiratory therapy technicians (see GC Exh. 1(j), par. 9(a));
(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 employee 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 respiratory therapy technicians
and subcontracting the work that they previously performed (see GC Exh. 1(j), par. 9(c)).

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 employees’
subjective view of harassment, discouraging employees from engaging in protected activities,
and indicating that the employer intends 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 targeted protected union activities such
as employee discussions about the Hospital’s subcontracting plans.
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16
“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’ collective-bargaining
representative concerning the contemplated changes.” Lawrence Livermore National Security,
LLC, 357 NLRB No. 23, slip op. at 3 (2011). The Act prohibits employers from taking unilateral
action regarding mandatory subjects of bargaining such as rates of pay, wages, hours of
employment and other conditions of employment. Garden Grove Hospital & Medical Center,
357 NLRB No. 63, slip op. at 1 fn. 4, 5 (2011). Notably, 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 collective-bargaining agreement. Id; see also Palm
Beach Metro Transportation, LLC, 357 NLRB No. 26, slip op. at 4–5 (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 No. 97, slip op. at 64 (2011); Daycon Products
Co., 357 NLRB No. 92, slip op. at 11 (2011). The question of whether an impasse exists is a
matter of judgment based on the following factors: the bargaining 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 No. 92, slip op. at 11; Erie Brush & Mfg. Corp., 357 NLRB No. 46,
slip op. at 2 (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 unilaterally 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 session (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 subcontracted 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
JD–05−12
17
and does not constitute a change in the scope, nature, and direction of the enterprise.26 Daycon
Products Co., 357 NLRB No. 92, slip op. at 11. The Hospital was in precisely that situation
when it subcontracted with RTM to provide per diem respiratory therapy technicians to work in
the respiratory therapy department.
As its defense, the Respondent asserts that it had a past practice 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 Hospital to hire temporary employees
if certain criteria are met, the Hospital admitted (through Rodriguez) that the per diem employees
that RTM provided were not hired temporary employees 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
pre-existing procedure or practice for hiring the per diem employees that RTM provided (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 Puerto Rico, 342 NLRB
458, 458, 468–469 (2004), enfd. 414 F.3d 158, 167 (1st Cir. 2005) (finding that the respondent
violated 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 respondent’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
therapy technicians to the Hospital on a per diem basis. The Hospital’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) before the Hospital made its
decision.

26 A union’s interest in subcontracting decisions is not limited to circumstances 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 that 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
Section 8(a)(5) and (1) when it unilaterally subcontracted some bargaining unit work. As the Board
explained, however, the respondent demonstrated that subcontracting was an established practice that the
respondent 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 decision to subcontract with
RTM to provide per diem employees was supported by an established past practice. The decision in
Westinghouse is therefore inapposite.
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18
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 informed him that he would need to take
vacation leave for a month, starting on April 11. (FOF Section 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 experience, when scheduling conflicts
arose for vacation leave, Diaz would meet with him and attempt to work out an agreed
alternative vacation plan. It does not follow from that past history, however, that the Hospital
had a past practice of giving employees 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, because
Colon was running out of time to use his accrued vacation 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
presented 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 Acting 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 response, the Hospital maintains
that it was lawful to take unilateral action because the parties bargained to impasse about the
subcontracting issue.
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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 Hospital’s efforts to reduce its operating
costs, and July 8 was also the day that the Hospital decided to discharge the regular (Union)
employees in the respiratory therapy department. (See FOF, Sections 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 subcontracting plan and comply with some conditions regarding
future hiring in the department, shift assignments for two employees, 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 discharge its respiratory therapy
technicians at that point (in the afternoon on July 8) was that the parties were not yet at impasse.
Indeed, when the parties agreed to return to the bargaining 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 subcontracting. 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 subcontracting alternative. The Union also offered to drop its condition
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 respiratory therapy department, and also offered to
only assign the 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 employee. 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 accepted 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

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 unilateral decision to discharge its
respiratory therapy technicians and subcontract with RTM was justified due to economic exigency. The
Board has explained that when a union and an employer are engaged in negotiations for a collective-
JD–05−12
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With that background, I turn to the Hospital’s final argument – 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 evidentiary 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 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 discharge
letter stating that it had made a “final decision” to subcontract 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 unilaterally 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 respiratory therapy technicians, the Respondent violated Section 8(a)(1) of the Act.

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 economic 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 economic exigencies that are not sufficiently compelling to justify excusing
bargaining altogether may warrant unilateral action if the employer first provides adequate notice to the
union and an opportunity to bargain, 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 action. 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 economic exigencies
that would warrant excusing all bargaining, the Hospital 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 discharged its respiratory therapy technicians in the
afternoon on July 8 despite the fact that the parties were not at impasse.
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2. By, on or about March 25, 2011, unilaterally subcontracting 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 Gonzalez, 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 Conclusions of Law 1–3 above, the
Hospital has engaged in unfair labor practices affecting commerce within the meaning of Section
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 unfair 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 employees whole for any loss of earnings and other benefits that
resulted from that subcontracting decision: Rafael Colon, Mirna Leon, Jose Cruz, Nancy
Gonzalez, Norma Rivera, Felicita Leon, Catherine Colon, Enid Ortiz, Ivette Borrero and German
Mercado. Backpay for this violation shall be computed in accordance 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 for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (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 violating the Section 7 rights of employees ‘in any other manner,’

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.)
JD–05−12
22
is warranted ‘when a respondent is shown to have a proclivity to violate the Act or has engaged
in such egregious or widespread 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 circumstances 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:
(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 No. 95 (2011) (Case 24–CA–11438, finding violations
1–2 and 4–5 above); Quality Health Services, Case 24–CA–11630 (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 effects of such a decision (see FOF Section II(C)(5)),
the Respondent 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 conditions, I find that the Respondent has a proclivity for violating
the Act (see, e.g., Hospital San Cristobal, 356 NLRB No. 95 (2011) (Case 24–CA–11438);
Quality Health Services, Case 24–CA–11630 (2011)), and because of the serious nature of the
violations, 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.
JD–05−12
23
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
ORDER
The Respondent, Quality Health Services of Puerto Rico, Inc., d/b/a Hospital San
Cristobal, Ponce, Puerto Rico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Subcontracting bargaining unit work without first notifying the Union about its
decision and affording the Union an opportunity to bargain over the decision and its effects on
bargaining unit employees.
(b) Issuing work rules that unlawfully prohibit employees from having discussions
related to the Respondent’s plan to subcontract the work performed by its respiratory therapy
technicians.
(c) Unilaterally discharging bargaining unit employees and subcontracting their work
without first bargaining with the Union to a good-faith impasse.
(d) In any other 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.
(a) Discontinue subcontracting its respiratory therapy technician unit work to Respiratory
Therapy Management, and on request, bargain with the Union over any decision to subcontract
out bargaining unit work and its effects on unit employees.
(b) 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 suffered as a result of the Respondent’s unlawful decision to
subcontract unit work on or about March 25, 2011, in the manner set forth in the remedy section
of this decision.
(c) Within 14 days from the date of the Board’s 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.

30 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–05−12
24
(d) 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 suffered
as a result of their unlawful discharges, in the manner set forth in the remedy section of this
decision.
(e) Within 14 days from the date of the Board’s 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.
(f) 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in Ponce, Puerto Rico,
copies of the attached notice marked “Appendix”31 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 24, after being signed by the
Respondent’s authorized representative, shall be posted by 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, 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 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 facility 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
March 25, 2011.
(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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. February 2, 2012
____________________
GEOFFREY CARTER
Administrative Law Judge

31 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT subcontract bargaining unit work without first notifying the Union about our
decision and affording the Union an opportunity to bargain over the decision and its effects on
bargaining unit employees.
WE WILL NOT issue work rules that unlawfully prohibit employees from having discussions
related to plans to subcontract the work performed by the Hospital’s respiratory therapy
technicians.
WE WILL NOT unilaterally discharge bargaining unit employees and subcontract their work
without first bargaining with the Union to a good-faith impasse.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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 resulting 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, 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.
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 discharges on July 8, 2011, less any net interim earnings, plus interest compounded
daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful 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 thereafter,
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, INC., d/b/a HOSPITAL SAN
CRISTOBAL
(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.
La Torre de Plaza, Suite 1002, 525 F. D. Roosevelt Avenue, San Juan, PR 00918-1002
(787) 766-5347, Hours: 8:30 a.m. to 5 p.m.
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, (787) 766-5377.