Quality Health Services of P.R., Inc. v. National Labor Relations Board

United States Court of Appeals
For the First Circuit

Nos. 16-1556
16-1845

QUALITY HEALTH SERVICES OF P.R., INC.
d/b/a HOSPITAL SAN CRISTÓBAL,

Petitioner, Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent, Cross-Petitioner.

PETITIONS FOR REVIEW OF A DECISION AND ORDER
OF THE NATIONAL LABOR RELATIONS BOARD

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

José L. Nieto-Mingo, with whom Nieto Law Offices, José R.
González-Nogueras, Lloyd Isgut-Rivera, and Jiménez, Graffam &
Lausell were on brief, for petitioner/cross-respondent.
Barbara A. Sheehy, Attorney, National Labor Relations Board,
with whom Elizabeth Heaney, Supervisory Attorney, Richard F.
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General
Counsel, John H. Ferguson, Associate General Counsel, and Linda
Dreeben, Deputy Associate General Counsel, were on brief, for
respondent/cross-petitioner.

October 16, 2017
 TORRUELLA, Circuit Judge. Quality Health Services of

Puerto Rico, Inc., d/b/a Hospital San Cristóbal (the "Hospital"),

petitions for review of an order of the National Labor Relations

Board ("NLRB" or the "Board") declaring that the Hospital had

committed several unfair labor practices, in violation of section

8 of the National Labor Relations Act ("NLRA" or the "Act"),

29 U.S.C. § 158. The Board cross-applies for enforcement of that

order. After careful consideration, we deny the Hospital's

petition for review and grant the Board's cross-petition for

enforcement.

I. Background

A. The Hospital Considers Cost-Cutting Measures

During the relevant time period, Unidad Laboral de

Enfermeras(os) y Empleados de la Salud (the "Union") was the

exclusive collective-bargaining representative for most of the

Hospital's approximately three-hundred employees, including the

Hospital's respiratory therapy technicians. By 2009, the Hospital

was experiencing a decrease in its number of patients, which led

it to consider and implement cost-cutting measures. Between 2009

and 2010, the Hospital, without notifying or bargaining with the

Union, implemented a number of changes to cut operating costs.

These changes ultimately led to two Board decisions finding that

the Hospital had engaged in unfair labor practices. See Hosp. San

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Cristóbal, 358 N.L.R.B. 547 (2012); Hosp. San Cristóbal, 356

N.L.R.B. 699 (2011). The collective bargaining agreement ("CBA")

between the Hospital and the Union (together, the "Parties")

expired on February 28, 2010, during which time the Parties were

amid negotiating a successor CBA. In January 2011, continuing its

cost-cutting plan, the Hospital considered subcontracting the

services of its employees in the Respiratory Therapy Department

("Department"). On March 15, 2011, Hospital Executive Director

Pedro Benetti notified the Union by letter that the Hospital

intended to subcontract the Department, and offered the Union an

opportunity to "negotiate the impact of [the] decision." Between

March 24, 2011, and April 12, 2011, the Hospital and the Union met

on several occasions to engage in bargaining around that issue.1

B. The Parties Bargain

On March 28, 2011, while negotiations were ongoing, the

Hospital subcontracted with the private company Respiratory

Therapy Management ("RTM") to provide non-unit respiratory therapy

technicians on an as-needed basis to cover absences by the

hospital's unit employees. Under the expired CBA, the Hospital

was permitted to hire "temporary employees" for emergencies,

1 The Parties dispute whether the subject of these discussions
was just the effects of the Hospital's decision to subcontract the
Department, or both the effects and the decision itself.

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"absence due to illness, vacation or any other similar motive."

Nonetheless, according to the Hospital's Human Resources Director,

Candie Rodríguez ("Rodríguez"), RTM's as-needed employees did not

count as temporary employees. On March 30, 2011, Union

representatives Ariel Echevarría ("Echevarría") and Evelyn Santa

met with Rodríguez to discuss a grievance. After the meeting,

Rodríguez circulated a memorandum directing employees to stop

discussing the possible subcontracting of other departments. By

early April 2011, the number of full-time union respiratory therapy

technicians had dropped from eleven to eight, after three

technicians resigned.

On April 12, 2011, the Parties engaged in a bargaining

session during which the Hospital acknowledged, on advice of

counsel, that it should negotiate with the Union both the decision

to subcontract the Department and the decision's effects. The

Hospital then offered the Union an opportunity to present

alternatives to subcontracting, and postponed the proposed

subcontracting on approximately six different occasions.2

2 The Hospital asserts that the Union "engaged in dilatory tactics
to avoid bargaining and unduly delay any decision the Hospital had
to take." The Union disputes this and asserts, instead, that the
Hospital did not provide it with the necessary financial
information and projected savings from subcontracting that would
have allowed the Union to present alternatives until July 5, 2011.

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C. The Parties Discuss a Food Stipend-Cutting Alternative

On May 27, 2011, Echevarría and Rodríguez met informally

to discuss possible alternatives to subcontracting, including

reducing the Hospital's payment in monthly food stipends to unit

employees. On June 17, the Hospital proposed reducing that

monthly stipend from $55 to $15 per employee, which would have

resulted in monthly savings of $7,400 per month, or eliminating

the food stipend completely, which would have saved $10,175 per

month. In comparison, if the Hospital completely subcontracted

the work then performed by the Department's unit employees, the

projected monthly savings would have been $7,243. Rodríguez noted

that if the Union agreed to any one of the proposals, the eight

regular employees would retain their positions, but the Hospital

would still continue to use RTM employees as needed, and would not

assign unit employees to permanent shifts.

The Parties held bargaining sessions on June 28 and

July 5 to discuss adjusted savings projections in light of the

Department's reduction to eight employees. These new projections

showed monthly savings of $4,998 ($59,976 annually) if the work

was subcontracted.

D. The Parties Do Not Agree and The Hospital Implements the
Subcontracting Plan

At the next bargaining meeting on July 8, 2011, the Union

presented a proposal addressing the proposed alternative involving

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reducing food stipends. The Union proposed reducing the stipend

to $30, which brought the Parties within $373 of each other in

terms of monthly cost savings for the Hospital. Union's proposal

also included other conditions.3 Later that day, the Hospital

rejected the proposal because the Union's conditions -- including

filling vacancies with regular employees, granting the permanent

shift of 7:00 AM to 3:00 PM to the two most senior unit employees,

and limiting the food stipend reduction to one year -- would not

result in the savings the Hospital desired. After this meeting,

the Hospital determined that the Parties had reached an impasse,

and thus implemented its decision to subcontract the Department.

Later that same day, at approximately 2:30 PM, Rodríguez

began notifying the Department's eight unit employees of their

termination. Additionally, the Hospital called in the

Department's off-duty employees, and terminated them upon arrival.

The Hospital provided each terminated employee with a termination

letter, stating that the employee was immediately relieved from

3 The Union proposed the following conditions: (1) future
vacancies in the Department should be filled with regular
employees; (2) the food stipend reduction should be limited to a
duration of one year; (3) the Parties should meet every trimester
to evaluate whether the Hospital was reaching its projected
savings; (4) the two senior unit employees in the Department should
be granted permanent shifts from 7:00 AM to 3:00 PM; and (5) if
the Hospital reached its projected savings, the food stipends would
return to the original fifty-five dollar amount.

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occupational duties, but would receive payment through July 13,

2011. RTM staff covered the terminated employees' shifts.

E. The Parties Continue Negotiations But Fail to Reach an
Agreement

Still later on July 8, 2011, Union President Ana Meléndez

told Rodríguez that the Union was available to continue

negotiations until a "satisfactory agreement" could be reached.

The Parties met later that night, but could not agree on a stipend

amount or whether the two most senior unit employees could be

granted permanent shift assignments. The Hospital required that

the monthly food stipend be reduced to $25 per employee, which

would have resulted in savings exceeding those of subcontracting.

The Union stated it would agree to reduce the food stipend to $25

if, in exchange, the Hospital granted the Union's two most senior

employees a permanent shift. The Hospital refused to grant those

permanent shifts, and around 8:00 PM, the meeting ended without an

agreement.

On July 11, 2011, the Hospital sent a letter to the Union

describing the Parties' positions and stating "nothing else is

pending to address regarding the [subcontracting] issue." The

Union responded the same day, stating that the Union did not close

negotiations and wanted to continue negotiating. On July 18, the

Union again wrote to the Hospital asking that it engage in further

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dialogue. The Board claims the Hospital did not respond to the

Union's letters.

F. NLRB Adjudication

The Union filed charges against the Hospital with the

NLRB on April 12, 2011, and June 29, 2011, alleging that the

Hospital had engaged in unfair labor practices as part of its cost-

saving efforts.4 On August 31, 2011, the Acting General Counsel

of the NLRB, Lafe Solomon, issued a consolidated complaint

involving both cases, which was later amended on October 20 and

November 17, 2011. The complaint alleged that the Hospital

violated sections 8(a)(1) and 8(a)(5) of the NLRA by unilaterally

subcontracting work performed by respiratory therapy technicians,

prohibiting employees from discussing the Hospital's

subcontracting of the Department, limiting its past practice for

scheduling vacation of Department employees, and terminating

respiratory therapy technicians.

The Administrative Law Judge ("ALJ") Geoffrey Carter

heard the case in November and December of 2011. After a five-

day hearing, the ALJ concluded that the Hospital refused to bargain

with the Union, unilaterally terminated unit employees, and

subcontracted respiratory therapy technician work without

4 On August 19, 2011, the Union amended these charges.

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affording the Union an opportunity to bargain the decision and its

effects. Hosp. San Cristóbal, 358 N.L.R.B. 769, 781 (2012). In

his decision, issued on February 2, 2012, the ALJ found that the

Hospital violated section 8(a)(1) of the NLRA by implementing a

rule that prohibited employees from discussing the Hospital's

subcontracting plans for respiratory therapy technicians, and

violated section 8(a)(1) and 8(a)(5) by unilaterally

subcontracting the Department's work and terminating all

respiratory therapy technicians in favor of workers from RTM. Id.

The Hospital filed various exceptions to the ALJ's findings. On

April 28, 2016, the Board, consisting of Chairman Pearce and

Members Hirozawa and McFerran, affirmed the ALJ's rulings, and

adopted the ALJ's recommended Order with some modifications. 5

Hosp. San Cristóbal, 2016 N.L.R.B. LEXIS 308 (2016). The Board

issued a Decision and Order agreeing with the ALJ's rulings,

findings, and conclusions. Id. That Order required the Hospital

5 Back on July 25, 2012, the Board, consisting of Members Hayes,
Griffin, and Block, had adopted the ALJ's decision. Hosp. San
Cristóbal, 358 N.L.R.B. 769 (2012). The Hospital filed a Petition
to Review before this Court, and the Board sought enforcement. On
January 30, 2015, in light of NLRB v. Noel Canning, 134 S. Ct.
2550 (2014) -- where the Supreme Court held that three recess
appointments to the Board from January 2012 were invalid, including
the appointment of Members Griffin and Block -- the Board requested
that this Court vacate the Board's July 25, 2012 Order and remand
the case to the Board. Hosp. San Cristóbal, 2016 N.L.R.B. LEXIS
308 (2016). Subsequently, the Board reviewed the ALJ's
determination de novo. Id.

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to: (1) cease and desist from all unfair labor practices

"interfering with, restraining, or coercing employees in the

exercise of" their statutory rights; (2) bargain with the Union;

(3) cease subcontracting the respiratory therapy technicians'

work; (4) make the impacted respiratory therapy technicians whole

and offer reinstatement to the terminated technicians; (5) post a

remedial notice; and (6) rescind the prohibition on discussing the

subcontracting decision, the decision to subcontract unit work to

as-needed employees, and the terminations. The Hospital timely

challenged this April 28, 2016 Decision and Order. The Board

subsequently submitted a cross-application for enforcement of its

Order.

II. Discussion

A. Jurisdiction to Consider the Validity of the Complaints

The Hospital challenges for the first time the validity

of the underlying unfair labor practice complaints. The Hospital

argues that because Acting General Counsel Solomon was serving in

violation of the Federal Vacancies Reform Act ("FVRA"), 5 U.S.C.

§ 3345 et seq., at the time he issued the complaints against the

Hospital, the complaints were voidable. The Hospital further

argues that because the incoming General Counsel did not ratify

the complaints, they must be set aside.

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 In so contending, the Hospital relies mostly on

SW Gen., Inc. v. NLRB, in which the D.C. Circuit held that the

NLRB's Acting General Counsel Solomon was serving in violation of

the FVRA when he issued the complaint against SW General, and

therefore vacated the Board's order against SW General. 796 F.3d

67, 72 (D.C. Cir. 2015). The Supreme Court recently affirmed that

decision, concluding that after January 5, 2011, when President

Obama nominated Solomon to serve as General Counsel, the FVRA

prohibited Solomon from continuing to serve as Acting General

Counsel.6 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 943-44 (2017).

According to the Hospital, because Acting General Counsel Solomon

issued the complaints against it after January 5, 2011, when the

FVRA prohibited him from continuing his acting service, those

complaints are invalid.

Unlike in SW General, however, the Hospital did not raise

this argument before the Board. See 796 F.3d at 82. The Hospital

6 5 U.S.C. § 3345(b) prohibits a person from serving as acting
officer once the President submits a nomination of such person to
the Senate for appointment to such office, unless: (1) the person
has served in that same office as first assistant for at least
ninety (90) days "during the 365-day period preceding the date of
the death, resignation, or beginning of inability to serve" of the
officer of the Executive agency, or (2) the Senate confirmed such
person as a first assistant of that office. 5 U.S.C. § 3345(b);
SW Gen., Inc., 796 F.3d at 72-73. Prior to his appointment as
NLRB's Acting General Counsel, Solomon had never served as first
assistant at the NLRB, or any other agency.

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acknowledges the general rule that arguments "not raised in the

lower courts [or administrative agencies] cannot be brought for

the first time on appeal[]" and concedes that it did not raise

this issue before the Board. Nonetheless, it urges us to relieve

it of its forfeiture, arguing that this case involves

"extraordinary circumstances."

We have jurisdiction to review the Board's final Order,

and the application for enforcement, pursuant to 29 U.S.C. § 160(e)

and (f). Our jurisdiction over particular issues, however, is

limited by section 10(e) of the NLRA, which establishes an

exhaustion requirement by providing that "[n]o objection that has

not been urged before the Board, its member, agent, or agency,

shall be considered by the court, unless the failure or neglect to

urge such objection shall be excused because of extraordinary

circumstances." 29 U.S.C. § 160(e); see Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 666 (1982) (holding that "the Court of

Appeals lacks jurisdiction to review objections that were not urged

before the Board"). Thus, we have jurisdiction to consider an

argument made for the first time before us only if the statutory

"extraordinary circumstances" exception is met. See Detroit

Edison Co. v. NLRB, 440 U.S. 301, 311 n.10 (1979) (stating that

"unless a party's neglect to press an exception before the Board

is excused by the statutory 'extraordinary circumstances'

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exception or unless the Board determination at issue is patently

in excess of its authority, we are bound by it"); see also Pegasus

Broad. of San Juan, Inc. v. NLRB, 82 F.3d 511, 514 (1st Cir. 1996)

("[W]e lack the same broad right or supervisory power over the

Board that we might have over a district court on new matter.").

We are not persuaded that this case presents extraordinary

circumstances that warrant relieving the Hospital of its

forfeiture.

The Hospital argues that the "extraordinary

circumstance" is met here because the validity of the complaints

issued by Acting General Counsel Solomon involves a "purely legal

issue" and that "this was a straightforward case of statutory

interpretation." But the Hospital does not cite any authority

establishing that raising a "purely legal issue" constitutes an

extraordinary circumstance. And, if we accepted this ground as

an extraordinary circumstance, little would be left of the

statutory forfeiture rule. Furthermore, if, as the Hospital

asserts, "this was a straightforward case of statutory

interpretation," we find it even harder to understand why it never

raised this issue before the Board and why its apparent ignorance

about the FVRA provisions amounts to an extraordinary

circumstance.

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 The Hospital also urges us to find that this case

presents extraordinary circumstances because, at the time the

Board cross-applied for enforcement of the NLRB Order, "the Board

knew or should've known of the problems that would arise from

Solomon's actions" after his nomination in January 2011. But that

argument cuts both ways. We are hard-pressed to find that this

amounts to an extraordinary circumstance when all of the facts and

legal arguments necessary to raise this issue were also available

to the Hospital before the Board, and when this same matter was so

prominently litigated in other courts. As it turns out, by the

time this case was before the Board, both the D.C. Circuit and the

Ninth Circuit had issued opinions addressing the validity of

complaints issued by Acting General Counsel Solomon after he was

nominated to fill the position of General Counsel. See Hooks v.

Kitsap Tenant Support Servs. Inc., 816 F.3d 550 (9th Cir. 2016);

SW Gen., Inc., 796 F.3d 67. Thus, the Hospital was also in a

position to raise the argument before the Board. And, although

it is true that the Board must have known by that time that there

were problems with Solomon's actions while he was serving as Acting

General Counsel after January 5, 2011, the Board also disagreed

with the D.C. Circuit's ruling in SW General and was actively

contesting it before the Supreme Court. See Ford Motor Co. v.

NLRB, 441 U.S. 488, 493 (1979) (noting that the Board had adhered

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to its legal position despite the fact that said position had "not

been accepted by reviewing courts"). Furthermore, if an attempt

to salvage a barred claim by relying "on arguments raised in a

dissent or on a discussion of the relevant issues by the majority"

has been found insufficient to overcome the section 10(e) bar,

see, e.g., HTH Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016),

it certainly should not suffice in a case such as this one where

the issue was nowhere raised by anyone.

Finally, the Hospital argues that this case meets the

"extraordinary circumstances" exception because this is an issue

of great importance that involves the "type of over-reaching for

authority by the Board . . . that the Supreme Court struck down in

Noel Canning v. NLRB, 134 S. Ct. 2550 (2014)." We are unpersuaded.

We have previously rejected the argument that merely raising a

potentially important issue satisfies the extraordinary

circumstance requirement. See Edward St. Daycare Ctr., Inc. v.

NLRB, 189 F.3d 40, 44 (1st Cir. 1999) ("[The petitioner] raise[d]

a potentially important issue which was never presented to the

Board during the unfair labor practice proceedings. This omission

is fatal to the consideration of this issue here."). Furthermore,

we find Noel Canning distinguishable. In Noel Canning the D.C.

Circuit found an order of the NLRB to be void ab initio for lack

of quorum because the President had appointed three of the five

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Board members under the Recess Appointments Clause while he lacked

authority to do so, meaning that the Board could not exercise its

power. Noel Canning v. NLRB, 705 F.3d 490, 493, 497-98, 513-14

(D.C. Cir. 2013) (citing New Process Steel, L.P. v. NLRB,

130 S. Ct. 2635 (2010)), aff'd, 134 S. Ct. 2550 (2014). These

amounted to extraordinary circumstances that allowed the

petitioner to challenge the validity of the NLRB order

notwithstanding section 10(e)'s exhaustion requirement. Id. at

497; see also NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388

(1946) ("[I]f the Board has patently traveled outside the orbit of

its authority" then "there is legally speaking no order to

enforce."). Here, however, the Hospital does not challenge the

Board's authority to act, but rather challenges the service of a

single officer. See Marquez Bros. Enters., Inc. v. NLRB, 650 F.

App'x 25, 27 (D.C. Cir. 2016) (declining to consider the

petitioner's argument that Acting General Counsel Solomon's

service violated the FVRA inasmuch as the petitioner had not

presented the issue to the Board, and drawing a distinction between

a challenge "based on the agency's lack of authority to take any

action at all" and "attack[ing] the service of a single officer").

Furthermore, the Hospital concedes that, unlike the complaint in

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Noel Canning, the complaints at issue here were not void ab initio,

but rather simply voidable.7

Because the Hospital failed to raise the issue before

the Board, and has not shown any extraordinary circumstances

excusing its forfeiture, we lack jurisdiction to consider its claim

regarding the validity of the complaints issued by Acting General

Counsel Solomon. Our decision is consistent with SW General, on

which the Hospital heavily relies, in which the D.C. Circuit

"emphasize[d] the narrowness of [its] decision," clarified that

the case was "not Son of Noel Canning," and that it did not expect

its decision to "undermine a host of NLRB decisions." SW Gen.,

Inc., 796 F.3d at 82-83. The D.C. Circuit explained that it had

"address[ed] the FVRA objection in [that] case because the

petitioner [had] raised the issue in its exceptions to the ALJ

decision as a defense to an ongoing enforcement proceeding," id.

at 83, and expressed "doubt that an employer that failed to timely

raise an FVRA objection -- regardless [of] whether [the]

7 Although we find it unnecessary to decide whether the complaints
were void or voidable, we accept the Hospital's concession and
note that, while section 3348(d) of the FVRA states that "[a]n
action taken by any person who is not acting [in compliance with
the FVRA] . . . shall have no force or effect" and "may not be
ratified", thus rendering any action taken in violation of the
statute void ab initio, the NLRB's General Counsel is exempted
from the provisions of section 3348. See 5 U.S.C. § 3348(d)(1)-
(2) and (e)(1).

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enforcement proceedings are ongoing or concluded -- will enjoy the

same success." Id. In conformity with its suggestion in

SW General, in Marquez Bros. Enters., Inc., the D.C. Circuit

declined to consider the petitioner's similar argument inasmuch as

the petitioner had not raised it before the Board. 650 F. App'x

at 27. Moreover, other circuits have similarly refused to allow

petitioners to challenge the validity of actions taken by Acting

General Counsel Solomon when those petitioners failed to challenge

them first before the Board. See NLRB v. Pier Sixty, LLC, 855 F.3d

115, 121 (2d Cir. 2017) (holding that "even an apparently

meritorious challenge to the authority of an NLRB agent in itself

does not qualify as an 'exceptional circumstance' allowing the

party to raise the argument for the first time before our Court");

1621 Route 22 West Operating Co., LLC v. NLRB, 825 F.3d 128, 142

(3d Cir. 2016) (refusing to consider the petitioner's challenge to

the validity of a complaint issued by Acting General Counsel

Solomon after January 5, 2011, because the petitioner failed to

make that objection before the Board, and refusing to look to "some

non-statutory ground" beyond the extraordinary circumstances

exception to section 10(e) for purposes of excusing petitioner's

failure to exhaust); see also Hooks, 816 F.3d at 564 (noting that

"not . . . every violation of the FVRA will result in the

invalidation of the challenged agency action").

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 Accordingly, pursuant to the section 10(e) exhaustion

bar, we lack jurisdiction to consider the Hospital's challenge, on

the basis of the FVRA, to the Board's Order. We now proceed to

consider the objections that the Hospital did make before the

Board.

B. The Hospital's NLRA Violations

This Court defers to the Board's interpretation of the

Act, "as long as its interpretation is rational and consistent

with the statute." Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1, 6

(1st Cir. 2011) (quoting NLRB v. Beverly Enters.-Mass., Inc.,

174 F.3d 13, 25 (1st Cir. 1999)). "A Board order must be enforced

if the Board correctly applied the law and if its factual findings

are supported by substantial evidence on the record." NLRB v.

Ne. Land Servs., Ltd., 645 F.3d 475, 478 (1st Cir. 2011).

Substantial evidence, in turn, means "relevant evidence" that a

"reasonable mind might accept as adequate to support a conclusion."

NLRB v. Int'l Bhd. of Teamsters, Local 251, 691 F.3d 49, 55

(1st Cir. 2012) (internal quotations omitted). When this Court

must decide "between two fairly conflicting views," this Court

will not substitute its judgment for the Board's, even if it "would

justifiably have made a different choice had the matter been before

it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951). Specifically, due to the ALJs' proximity to witnesses,

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their credibility determinations "are entitled to great weight."

NLRB v. Hosp. San Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000).

It is an unfair labor practice for an employer "to refuse

to bargain collectively with the representatives of his

employees." 29 U.S.C. § 158(a)(5). The duty to bargain

collectively is "the mutual obligation of the employer and the

representative of the employees to meet at reasonable times and

confer in good faith with respect to wages, hours, and other terms

and conditions of employment." 29 U.S.C. § 158(d). "An employer

violates this duty when he changes a mandatory term or condition

of employment without giving the employee's representative

adequate notice and an opportunity to bargain." Pan Am. Grain Co.

v. NLRB, 558 F.3d 22, 26 (1st Cir. 2009). "[A]n employer has a

duty to bargain to impasse with its employees over the terms and

conditions of employment before making a unilateral change in

conditions." Sociedad Española de Auxilio Mutuo y Beneficiencia

de P.R. v. NLRB, 414 F.3d 158, 165 (1st Cir. 2005) (citing Litton

Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991)).

Furthermore, an employer is subject to the duty to

bargain if its decision to subcontract work consists of

"replac[ing] existing employees with those of an independent

contractor to do the same work under similar conditions of

employment." Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203,

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213 (1964). This requirement encompasses, as a general rule, "an

employer's decision to subcontract work that could be performed by

members of the bargaining unit." Sociedad Española de Auxilio

Mutuo y Beneficiencia de P.R., 414 F.3d at 165 (citing Fibreboard

Paper, 379 U.S. at 209-17). "Failure to bargain over subcontracting

in such circumstances violates sections 8(a)(1) and 8(a)(5) of the

Act."8 Id.

Here, the Board affirmed the ALJ's determination that

the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act in

both deciding to hire subcontractors and firing the Hospital's

respiratory therapy technicians without first bargaining with the

Union. Hosp. San Cristóbal, 358 N.L.R.B. at 779 & n.27. Because

substantial evidence in the record supports the Board's

determinations on both fronts, we affirm the Board's finding that

the Hospital engaged in unfair labor practices.

1. The Hospital's Decision to Subcontract the Department

First, substantial evidence supports the Board's

determination that the Hospital did not provide the Union adequate

8 Section 8(a) of the Act establishes that "[i]t shall be an
unfair labor practice for an employer -- (1) to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in [29 U.S.C. § 157]" and "(5) to refuse to bargain
collectively with the representatives of his employees, subject to
the provisions of [29 U.S.C. § 159(a)]." 29 U.S.C. § 158(a)(1),
(5).

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notice and opportunity to bargain regarding the Hospital's

decision to subcontract. The Hospital informed the Union of its

decision on March 15, 2011. On March 24, 2011, the Hospital first

invited the Union to discuss the decision, but only with regard to

the decision's impact. Shortly thereafter, on April 7, 2011, the

Hospital signed a contract with RTM to provide per diem respiratory

therapy technicians to the Hospital. The Hospital argues that it

was not required to bargain with the Union regarding this decision

because it had an established practice of using professional

services to hire per diem employees to cover vacant shifts or to

substitute for absent employees.

We have recognized an exception to the duty to bargain

for the subcontracting of union work, whereby an employer may

"benefit from [a] safe harbor for an established past practice of

subcontracting" by establishing "that it subcontracted [the] work

on a consistent basis prior to [the election of the Union]."

Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R.,

414 F.3d at 166 (citing NLRB v. Westinghouse Broad. & Cable, Inc.,

849 F.2d 15, 20-22 (1st Cir. 1988)); Westinghouse Elec. Corp.,

150 N.L.R.B. 1574, 1577 (1965) (finding that an employer did not

need to provide an opportunity to bargain with the union regarding

its decision to subcontract union work because, among other

reasons, that decision was consistent with the employer's

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traditional business operations and established practices, and it

did not have a demonstrable impact on union employees).

Here, the Board concluded that the Hospital had failed

to show that it had consistently previously relied on

subcontracting and thus was not exempt from the duty to bargain.

Hosp. San Cristóbal, 358 N.L.R.B. at 779 n.27. The Hospital argued

that its decision to subcontract employees was both consistent

with past practices and with the expired CBA between the Hospital

and the Union. That CBA had allowed for temporary employees to

"substitute a regular employee in case of absence due to illness,

vacation or any similar motive." However, the testimony of

Rodríguez, the Hospital's Human Resources Director, undermined

both of these contentions. During her testimony, Rodríguez

admitted that the Hospital only hired per diem employees

intermittently, and conceded that the new per diem subcontractors

were not considered temporary employees. Intermittent use of per

diem subcontracted employees is insufficient to establish past

practices for purposes of avoiding the duty to engage in collective

bargaining. See Sociedad Española de Auxilio Mutuo y Beneficiencia

de P.R., 414 F.3d at 166 (affirming the Board's conclusion that

the sporadic use of per diem employees for employee shortages was

not equivalent to a past practice of subcontracting that would

have allowed the defendant hospital to act unilaterally in hiring

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subcontractors). Furthermore, given Rodríguez's concession that

the new employees were not considered temporary employees, the

Hospital cannot rely on those provisions in the CBA to argue that

this new development was consistent with Union-negotiated past

practices. Therefore, substantial evidence supports the Board's

determination that the Hospital was not entitled to the past

practice exemption, and therefore that its unilateral decision to

hire subcontractors to perform union work violated sections

8(a)(1) and 8(a)(5).

2. The Hospital's Decision to Terminate the Respiratory
Therapy Technicians

Second, there is substantial evidence that the Hospital

did not bargain to an impasse with the Union regarding its decision

to terminate the union employees and subcontract their work to the

new per diem employees. Sections 8(a)(1) and 8(a)(5) prohibit an

employer from implementing "a unilateral change of an existing

term or condition of employment" without first bargaining to an

impasse. Litton Fin. Printing Div., 501 U.S. at 198 (citing NLRB

v. Katz, 369 U.S. 736, 743 (1962)); see also Beverly Enters.-

Mass., Inc., 174 F.3d at 25 (finding failure to bargain to impasse

prior to unilateral change constitutes an unfair labor practice

under the Act). A good-faith impasse occurs when "the parties are

deadlocked so that any further bargaining would be futile," and

"no realistic prospect" exists that continued bargaining would be

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"fruitful." Beverly Enters.-Mass., Inc., 174 F.3d at 27 (quoting

Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1083

(D.C. Cir. 1991)). The party asserting the existence of an

impasse has the burden of proving that the impasse existed when it

implemented the unilateral change in question. Ryan Iron Works,

Inc., 257 F.3d at 12.

Determining whether an impasse exists is "an intensely

fact-driven question." Visiting Nurse Servs. of W. Mass., Inc.

v. NLRB, 177 F.3d 52, 58 (1st Cir. 1999). The Board may consider

factors such as "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." Ryan Iron Works, 257

F.3d at 12 (quoting NLRB v. Charles D. Bonanno Linen Serv., Inc.,

630 F.2d 25, 35 n.24 (1st Cir. 1980)). Crucially, an impasse does

not exist where either party is willing to continue negotiating

towards an agreement. Teamsters Local Union No. 639, 924 F.2d at

1084 ("[T]he parties' perception regarding the progress of the

negotiations is of central importance to the Board's impasse

inquiry."); PRC Recording Co., 280 N.L.R.B. 615, 635 (1986),

enforced, 836 F.2d 289 (7th Cir. 1987) (asserting that an impasse

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does not exist unless "[b]oth parties . . . believe that they are

at the end of their rope").

Here, the Hospital and Union continued to negotiate

after the Hospital issued termination letters to the respiratory

therapy technicians in the Union. This supports the Board's view

that the Parties were not, in fact, at an impasse. While the

Hospital did allow the Union an opportunity to discuss the further

subcontracting of union work and those discussions did not bear

fruit, there is substantial evidence that the Parties did not

bargain to impasse before the Hospital terminated the respiratory

therapy technicians.

From April 14, 2011, to July 8, 2011, the Hospital and

the Union discussed allowing the Union to suggest alternative cost-

saving measures other than subcontracting. Then, on July 8, 2011,

the Hospital dismissed all of the respiratory therapy technicians

in order to subcontract all union work to RTM. However, later

that same evening, negotiations resumed at a meeting between the

Hospital and the Union, described by Rodríguez as "one last attempt

to reach an agreement." As Teamsters Local Union No. 639 suggests,

there is no impasse if either party is still willing to negotiate.

924 F.2d at 1084. Moreover, the Parties could not have been at

an impasse if the Hospital was willing to further discuss the issue

with the Union, for why would negotiations continue that evening

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if "further bargaining would be futile[?]" Beverly Enters.-Mass.,

Inc., 174 F.3d at 27. Thus, the Hospital's continued attempts to

negotiate with the Union belie its contention that the Parties

were at an impasse when it decided to dismiss the union employees.

There are, however, two exceptions to the requirement

that an employer bargain with a union to impasse. RBE Elecs. of

S.D., Inc., 320 N.L.R.B. 80, 81 (1995). An employer can act

unilaterally if the Union engages in delaying tactics or because

of economic exigencies. Id. The Hospital attempts to show that

both of these exceptions applied and, thus, that it did not violate

the Act. We are unpersuaded.

First, the Hospital argues that the Union used delaying

tactics to draw out negotiations. These allegations are

unfounded. There is no evidence in the record that the Union

unduly delayed negotiations. On the contrary, the Union responded

with a counterproposal to subcontracting within a mere three days

after the Hospital proffered accurate savings information

reflecting the correct number of employees. Further, the Union

reacted to the Hospital's implementation of its subcontracting

decision with specific requests for continued negotiations that

included concessions, demonstrating a flexibility and desire to

continue to negotiate and make progress towards a resolution.

Thus, the Union engaged in good-faith negotiations and the Hospital

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was not relieved of its duty to negotiate. See Katz, 369 U.S. at

742-43.

Second, we find substantial evidence in the record

supporting the Board's finding that the Hospital's conduct was not

justified by any economic exigency. Hosp. San Cristóbal, 358

N.L.R.B. at 781 n.28. Economic exigencies only justify unilateral

action absent an impasse when "extraordinary events which are 'an

unforeseen occurrence, [have] a major economic effect [requiring]

the company to take immediate action.'" RBE Elecs. of S.D., Inc.,

320 N.L.R.B. at 81 (second alteration in the original) (quoting

Hankins Lumber Co., 316 N.L.R.B. 837, 838 (1995)). The record

clearly demonstrates that the Hospital had known of its revenue

decline since 2009, making the need for cost savings, including

the possibility of subcontracting, foreseeable. The Hospital's

decision to subcontract two years later in 2011 was therefore not

in response to any immediate exigency. Absent an unforeseeable

emergency requiring immediate action, the Hospital's unilateral

implementation of subcontracting the Department and firing the

respiratory therapy technicians was not excused or justified.

Without showing that the bargaining was at an impasse,

that the Union did not engage in good-faith negotiations, or that

the Hospital was facing an economic emergency, the Hospital has

failed to show any reason to undermine the conclusion of the Board

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that the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act

by terminating the respiratory therapy technicians on July 8, 2011.

C. The Hospital's Challenge to the Board's Remedy Is Not Properly
Before the Court.

Finally, the Hospital asks us to vacate the Board's Order

awarding reinstatement and back pay to the union employees

terminated in violation of the Act, alleging that enforcement of

the Order would require an investment that the Hospital cannot

afford at this time due to its delicate financial situation. The

Hospital, however, failed to raise this issue before the Board.

Further, the Hospital did not allege, much less prove, that its

failure to preserve its challenge to the remedy was due to

extraordinary circumstances. Accordingly, under section 10(e) of

the NLRA, we are precluded from reviewing this claim. See 29

U.S.C. § 160(e); Woelke & Romero Framing, Inc., 456 U.S. at 665.

III. Conclusion

For the foregoing, we deny the Hospital's petition for

review and we grant the Board's cross-petition for enforcement.

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