HealthBridge Management, LLC v. National Labor Relations Board

17-934, 17-1149
HealthBridge Management, LLC v. National Labor Relations Board

United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
Nos. 17-934, 17-1149

HEALTHBRIDGE MANAGEMENT, LLC; 107 OSBORNE STREET OPERATING COMPANY
II, LLC D/B/A DANBURY HEALTH CARE CENTER; 710 LONG RIDGE ROAD OPERATING
COMPANY II, LLC D/B/A LONG RIDGE OF STAMFORD; 240 CHURCH STREET
OPERATING COMPANY II, LLC D/B/A NEWINGTON HEALTH CARE CENTER; 1 BURR
ROAD OPERATING COMPANY II, LLC D/B/A WESTPORT HEALTH CARE CENTER; 341
JORDAN LANE OPERATING COMPANY II, LLC D/B/A WETHERSFIELD HEALTH CARE
CENTER,
Petitioners/Cross-Respondents,

v.

NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.

ARGUED: MAY 31, 2018
DECIDED: AUGUST 23, 2018

Before: JACOBS and DRONEY, Circuit Judges, UNDERHILL,* District Judge.

HealthBridge Management, LLC, and six healthcare centers that it operates
(collectively “HealthBridge”) petition for review of a decision of the National

* Judge Stefan R. Underhill, United States District Court for the District of
Connecticut, sitting by designation.
Labor Relations Board (“the Board”) finding that HealthBridge engaged in a
number of unfair labor practices in violation of the National Labor Relations Act.
See 29 U.S.C § 158(a)(1), (5). The Board cross-applies for enforcement of its
remedial order.

The proceeding arises chiefly from the 15-month employment of certain
HealthBridge workers by a management company retained by HealthBridge and
their return to HealthBridge without seniority, tenure, and other features of their
prior positions. Also in contention are several additional charges of unfair labor
practices lodged by the employees’ union. We deny the petition for review and
enforce the Board’s remedial order.

BRIAN J. GERSHENGORN (with Seth D.
Kaufman on the brief), Fisher & Phillips
LLP, New York, NY, for Petitioners/Cross-
Respondents.

ERIC WEITZ (with Usha Dheenan,
Supervisory Attorney, Linda Dreeben,
Deputy Associate General Counsel, John
W. Kyle, Deputy General Counsel, and
Peter B. Robb, General Counsel, on the
brief), National Labor Relations Board,
Washington, DC, for Respondent/Cross-
Petitioner.

DENNIS JACOBS, Circuit Judge:

HealthBridge Management, LLC and six healthcare centers that it operates
(collectively “HealthBridge”) petition for review of a decision of the National
Labor Relations Board (“the Board”) finding that HealthBridge engaged in a
number of unfair labor practices in violation of the National Labor Relations Act
(“NLRA”), 29 U.S.C § 158(a)(1), (5). See HealthBridge Mgmt., LLC, 365 NLRB
37, 2017 WL 971615 (Feb. 22, 2017). The Board cross-applies for enforcement of

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its remedial order. Our standard of review is well established, and we discuss it
further below. See NLRB v. Katz’s Delicatessen of Houston St., Inc., 80 F.3d 755,
763 (2d Cir. 1996).

The proceeding arises chiefly from the 15-month employment of certain
HealthBridge workers by a management company retained by HealthBridge, and
their purported rehiring by HealthBridge without seniority, tenure, and other
features of their prior positions. At issue are the validity of the rehiring, and
two related matters: the company’s failure to rehire two of the workers, and its
threat to call the police to quell worker dissatisfaction when the rehiring terms
were announced. (Point II)

Also in contention are additional charges of unfair labor practices lodged
by the employees’ union based on HealthBridge's discontinuation of two
practices: providing holiday premium pay for part-time and per diem workers,
and counting lunch periods as time worked for purposes of calculating overtime.
(Point III)

We deny the petition for review and enforce the Board’s remedial order.

I

New England Health Care Employees Union (“the union”) has
represented bargaining units of workers employed at HealthBridge’s healthcare
centers since the early 1990s. These units include certified nursing assistants,
cooks, central supply clerks, and the employees primarily at issue here:
housekeeping and laundry workers (hereinafter “housekeeping workers”). The
union and the various centers entered into materially identical collective
bargaining agreements (“CBAs”) that were effective from 2004 to 2011.

Article 9(F) of each CBA provided that “[n]o bargaining unit work shall be
subcontracted unless the subcontractor agrees in advance to retain the
Employees and recognize all their rights, including seniority, under this
agreement.” HealthBridge, 2017 WL 971615, at *1 n.7. “[A]ny purchaser,
transferee, lessee, assign[ee],” “or other successor[]” was required to accept the

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CBAs’ terms and to honor any benefits accrued by the employees thereunder.
Id.

In 2006, HealthBridge subcontracted the supervision of its housekeeping
workers to Healthcare Services Group (“HSG”). HSG supplied on-site
managers to supervise (and provided certain supplies) while the employees
continued to perform the same work as before at the HealthBridge centers and
remained on HealthBridge’s payroll. The terms of the CBAs were given full
effect during the three years of that arrangement.

In February 2009, HealthBridge and HSG entered into a full-service
subcontract covering the housekeeping workers at three of the HealthBridge
centers. Under the new arrangement, HSG assumed “all managerial and
payroll responsibility” for the workers, who continued to perform the same work
as before. Id. at *2. HealthBridge continued to run the centers, and workers in
other bargaining units (such as certified nursing assistants) continued to work
independently of HSG.

At the outset of this new arrangement, the 48 affected housekeeping
workers were told simply that they were being “transferred to HSG’s payroll”;
they were not told that they were being laid off or otherwise terminated by
HealthBridge, and they were not asked to apply for employment with HSG. Id.
(internal quotation marks omitted). HealthBridge assured the union that “all
[of the housekeeping workers’] accrued benefits, seniority and job status w[ould]
[remain] intact and [that] HSG w[ould] agree to all terms and conditions of the
contract between the Union and [HealthBridge].” Id.

Fifteen months later (several months before the expiration of the 2004-2011
CBAs), that subcontract arrangement ended. On May 17, 2010, the 48
housekeeping workers received individual letters from HSG informing them that
they would “no longer be employed by” HSG and that “[p]ayroll services”
would no longer “be provided” for housekeeping workers at the three relevant
centers. Id. at *3 (internal quotation marks omitted). The workers were
further informed that they would need to attend meetings at their respective
centers to reapply for their jobs.

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 At each meeting, HealthBridge told the workers that those who wished to
remain employed at the centers would need to apply for “rehire” by
HealthBridge and that rehired workers would be treated as “new hires,” without
any of the seniority that they had accrued. Id. (internal quotation marks
omitted). The upshot was that the rehired workers would lose up to a third of
their hourly pay, as well as other contractual benefits, including job security and
health insurance. When, at one of the three centers, the housekeeping workers
protested the new arrangement, the HealthBridge administrator in charge
threatened to call the police to eject workers who did not either fill out a rehire
application or leave the premises immediately.

Within 24 hours, 47 of the 48 workers applied for rehire. All but two who
applied were rehired either the same day or one day later. (Not rehired were
Newton Daye and Myrna Harrison, who had worked at HealthBridge for 13 and
22 years, respectively.) The “‘rehiring’ interviews were ‘non-existent,
perfunctory or cursory,’” and “[m]ost employees returned to work the same day
they were reemployed, continuing to do the same work they had performed
before and during the full-service HSG subcontracts.” Id. at *4. HealthBridge
refused to honor the seniority of the 45 rehired workers, and the union
responded by filing charges of unfair labor practices with the Board.

The proceedings before the Board also resolved charges that were
unrelated to the rehiring of the housekeeping workers, and which affected other
units as well. Around 2009-10, HealthBridge ended two policies that had
undisputedly been in place for the duration of the CBAs’ term: (1) part-time and
per-diem employees who worked fewer than 20 hours per week had been paid
time-and-one-half plus an extra day’s pay for hours worked on holidays, and
(2) paid half-hour lunch periods had been counted as time actually worked for
purposes of calculating overtime. Around the same time, HealthBridge also
ended longstanding policies pertaining to layoff notice and benefit eligibility.
HealthBridge did not consult with the union prior to ending any of these polices.

The Board ultimately held HealthBridge liable for violations of the NLRA,
and HealthBridge now challenges several of the underlying findings. We reject

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each of those challenges and enforce the Board’s remedial order.

II

HealthBridge challenges the finding that it violated the NLRA by
temporarily requiring the housekeeping workers to work under a subcontractor
only to rehire them as new employees following their termination by the
subcontractor--thereby divesting them of seniority and related benefits accrued
under the CBAs. See 29 U.S.C § 158(a)(1) (making it unlawful for an employer
“to interfere with, restrain, or coerce employees in the exercise of the[ir] right[]”
to bargain collectively); id. § 158(a)(5) (making it unlawful for an employer to
“refuse to bargain collectively with” its employees).

The Board adduced three rationales to support the conclusion that
HealthBridge’s use of the subcontracting arrangement violated the NLRA. But
only one of those rationales commanded unanimity. The Board members
disagreed among themselves as to whether HealthBridge was a joint employer of
the subcontracted employees and as to whether HealthBridge ever terminated
the employees. We need not consider those two rationales because we affirm
the relevant portion of the Board’s order only on the basis of the rationale to
which all three Board members subscribed. The Board unanimously concluded
that HealthBridge violated the NLRA because an employer may not use a “short-
duration operational change[], [such as a] temporary shutdown[], . . . to
circumvent union obligations [and] extinguish collectively bargained rights.”
HealthBridge, 2017 WL 971615, at *8-9 (internal quotation marks omitted).
Applying that legal conclusion to the facts before it, the Board reasoned that
HealthBridge unlawfully subverted its obligations to the union when it utilized
the short-term subcontracting arrangement to eliminate union members’
seniority-based rights.

We review the Board’s decision for both its legal soundness and its factual
basis. That review “is quite limited. We must enforce the Board’s order where
its legal conclusions are reasonably based, and its factual findings are supported
by substantial evidence on the record as a whole.” Katz’s, 80 F.3d at 763 (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). As to legal

6
conclusions, we must give the Board “considerable deference” and afford the
Board a “degree of legal leeway.” NLRB v. Caval Tool Div., 262 F.3d 184, 188
(2d Cir. 2001) (citations omitted). And as to factual conclusions, remand is
“warranted if, after looking at the record as a whole, we are left with the
impression that no rational trier of fact could reach the conclusion drawn by
Board.” Katz’s, 80 F.3d at 763 (citation omitted); see also Caval, 262 F.3d at 188
(“Substantial evidence means more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.”).

The Board’s decision’s is “reasonably based” in the NLRA. Katz’s, 80
F.3d at 763. It is settled law in this circuit that an employer may not “avoid the
obligations of a collective bargaining agreement through a sham transaction or
technical change in operations” that amounts to a “disguised continuance.”
Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 748 (2d Cir. 1996) (quoting Truck
Drivers Local Union No. 807 v. Reg'l Imp. & Exp. Trucking Co., 944 F.2d 1037,
1046 (2d Cir. 1991)). Thus, we have held that an employer may not in
succession terminate its employees, cease its operations, form a new company to
engage in the same business, hire back the same employees to perform the same
work, and do so without honoring the parties’ CBA. See id. at 747-48 (affirming
the Board’s finding of a violation of 29 U.S.C § 158(a)(1), (5)). Nor can an
employer terminate its employees only to rehire a subset of them (to perform the
same work), without regard to their seniority under the CBA, even if the
employer shifts the putatively new employees onto the payroll of another entity.
See NLRB v. G & T Terminal Packaging Co., 246 F.3d 103, 112, 117-18 (2d Cir.
2001) (same).

The Board’s decision also finds substantial support in the law of other
circuits, which have addressed legal arrangements that more closely resemble
HealthBridge’s actions. For example, other circuits have recognized that
temporary shutdowns in business operations do not terminate unionized
employees’ rights under a CBA. See, e.g., NLRB v. Rockwood Energy &
Mineral Corp., 942 F.2d 169, 175-76 (3d Cir. 1991) (holding that the Board could
require a “post-hiatus employer” to respect the CBA seniority rights of
employees of the pre-hiatus employer despite the five-year hiatus, in part

7
because the “employees had a continuing expectation of employment”
throughout that period); El Torito-La Fiesta Restaurants, Inc. v. NLRB, 929 F.2d
490, 493-96 (9th Cir. 1991) (affirming a Board decision applying the terms of a
pre-shutdown CBA to an employer following a 14-month shutdown in
operations). The Tenth Circuit’s decision in NLRB v. F&A Food Sale, Inc., in
particular, shares many features with the instant appeal. See 202 F.3d 1258
(10th Cir. 2000). In that case, the employer subcontracted its unionized truckers’
work to another company for a period of just over one year, with the agreement
of the union. Id. at 1259. The subcontractor “operated from the same facility,
used the same trucks, and employed substantially the same employees” during
the subcontract period. Id. Following the end of the subcontract, the original
employer resumed its own trucking operations, using the same facility, trucks,
and most of the same employees. Id. at 1260. Nevertheless, the employer
refused to recognize the union. Id. The Board concluded that the employer’s
refusal to recognize the union constituted an unfair labor practice. Id. On
appeal, the Tenth Circuit affirmed, holding that the temporary hiatus in direct
employment of the truckers did not allow the employer to disregard the CBA
following the subcontract. Id. at 1260-62. We agree with these decisions of
other circuits insofar as they supplement our own case law supporting the
Board’s legal conclusion that an employer may not use a “short-duration
operational change[], including [a] temporary shutdown[],” to subvert the terms
of a collective bargaining agreement. HealthBridge, 2017 WL 971615, at *8; see
also G & T Terminal Packaging Co., 246 F.3d at 118 (noting that operational
changes specifically motivated by “a desire to avoid [bargained-for] obligations”
are likely to be found unlawful).

Substantial evidence supports the Board’s factual determination that
HealthBridge engaged in an unlawful scheme of this sort. “[T]he record,” as the
Board pointed out, is “even more indicative of unlawful conduct than [the
record] presented in many [comparable] cases” of NLRA violations.
HealthBridge, 2017 WL 971615, at *9 n.32 (internal quotation marks omitted). In
such comparable cases, an employer terminates its employees, dissolves,
reconstitutes itself as an alter ego entity, and rehires its old employees without
the contractual entitlements of their prior positions. See, e.g., Lihli, 80 F.3d at
748-49. Here, the entity bound by the CBAs--HealthBridge--did much the same

8
thing without the hassle of a metamorphosis. HealthBridge effected its scheme
by temporarily loaning its employees to a third-party subcontractor; but in no
material way does that differentiate this case from our line of alter ego cases or
the case law of other circuits holding that CBAs survive brief, manufactured
breaks in direct employment. See, e.g., F&A Food Sale, 202 F.3d at 1260-62. As
in those cases, the employees here were off-loaded and then rehired (without
their contractual rights) to perform the same work, at the same site, for the same
ultimate beneficiary. Insofar as there are distinctions, they do not assist
HealthBridge: the third-party transactions through which HealthBridge (as it
were) laundered its employees had the chief practical effect of divesting those
employees of their contractual rights. Indeed, the record supports the
conclusion that the dominant (if not sole) purpose of HealthBridge’s use of the
subcontractor was to disguise what amounts to a quasi alter-ego scheme.

Statements by HSG officials are evidence that HealthBridge always
envisioned the subcontract as a temporary, technical arrangement that would
conclude with HealthBridge re-absorbing the housekeeping workers, divested of
their seniority-based benefits. As early as the Spring of 2009, an HSG manager
informed a housekeeping worker and union delegate “on several occasions” that
the housekeeping workers “would ‘eventually be going back to [HealthBridge’s]
payroll.’” HealthBridge, 2017 WL 971615, at *3. Another HSG manager made
similar statements to a different housekeeping worker in early 2010. In April
2010, still another HSG manager informed the union directly that the
housekeeping workers “would be transferred back to [HealthBridge’s] payroll”--
only to call the union “[a] few days later” to explain, “I shouldn’t have said that,”
and that “the transfer back . . . [is] not a set plan.” Id. at *3 & n.11 (internal
quotation marks omitted). HSG managers testified that they were never
informed of a legitimate business reason for the transfer; they were told by
higher ranking HSG officials simply that “HealthBridge was taking the payroll
back,” that “the employees would no longer be on HSG's payroll,” and that the
workers would “be [HealthBridge’s] employees” again. Id. at *4 (internal
quotation marks omitted).

HealthBridge has failed to proffer evidence of a legitimate business
purpose for its temporary payroll arrangement with HSG. At the

9
administrative hearing in this matter, HealthBridge called none of its
management officials to testify as to why the company would briefly transfer its
housekeeping workers to another entity’s payroll before taking them back as
supposed new hires. From this failure of proof, the Board drew the permissible
adverse inference: the “apparent purpose” of HealthBridge’s actions was to
“extinguish” the employees’ seniority-based entitlements. Id. at *9 (internal
quotation marks omitted); see NLRB v. Dorn’s Transp. Co., 405 F.2d 706, 713 (2d
Cir. 1969) (noting that the Board may draw an adverse inference from a party’s
failure to call critical witnesses). A finding of illegitimate purpose is not
necessary to a finding of an NLRA violation, but it is definitely telling on this
record. See G & T Terminal Packaging Co., 246 F.3d at 118.

A successor employer that relinquishes and later reacquires ownership of
an operation for legitimate business reasons may be free to negotiate a new CBA
with the inherited employees. See Howard Johnson Co. v. Detroit Local Joint
Exec. Bd., Hotel & Rest. Emps. & Bartenders Int'l Union, AFL-CIO, 417 U.S. 249,
261 n.5 (1974). In Howard Johnson, for example, the Supreme Court found that
a successor employer was not bound by the CBAs entered into by its predecessor
even though the successor had previously franchised the business to the
predecessor. The Court reasoned that there was “not the slightest suggestion”
that the arrangement “was in any sense a paper transaction” designed “to avoid
the effect of the labor laws” “without meaningful[ly] impact[ing] . . . the
ownership or operation of the enterprise.” Id. The successor lacked an
“ownership interest” in the enterprise immediately “prior to” the reacquisition,
and “nothing in the record . . . indicate[d] that [the successor] had had any
previous dealings with the Union, or had participated in any way in negotiating
or approving the collective-bargaining agreements” at issue. Id.

The full-service subcontract with HSG did not meaningfully impact the
ownership or operation of the enterprise: the housekeeping workers continued to
service HealthBridge’s centers in substantially the same manner throughout the
period of the subcontract. While HSG performed supervisory and
administrative services on HealthBridge’s behalf, HealthBridge continued its
control over the centers’ operations. It handled grievances filed by the
housekeeping workers and granted certain of their requests to transfer into other

10
departments. Moreover, unlike the successor employer in Howard Johnson,
HealthBridge had extensive prior dealings with the union as a party to the CBAs
at issue. Finally, the evidence suggests that HealthBridge designed the
transactions at issue to evade its obligations under those CBAs. “In these
circumstances, . . . courts have had little difficulty holding that the [putative]
successor is in reality the same employer and is subject to all the legal and
contractual obligations of the [putative] predecessor.” Id.

For the foregoing reasons, sound legal reasoning and substantial evidence
support the Board’s determination that HealthBridge engaged in an unlawful
scheme to “avoid the obligations of a collective bargaining agreement” in
violation of the NLRA. Lihli, 80 F.3d at 748 (internal quotation marks omitted).
The obligations that HealthBridge attempted to shed remained binding, and no
reasonable reading of those obligations permitted HealthBridge to eliminate the
seniority-based entitlements of its housekeeping workers as it did. The Board’s
application for enforcement of its remedial order as to this violation is therefore
granted.

It follows directly from that ruling that the Board was correct in finding
that HealthBridge committed two additional NLRA violations. First,
HealthBridge violated the NLRA by failing to “rehire” Newton Daye and Myrna
Harrison when every other housekeeping worker who sought continued
employment with the company was returned to its payroll. See 29 U.S.C
§ 158(a)(1), (5). Under the circumstances, the two employees’ contractual
seniority--properly honored--entitled them to retain their positions. Second,
HealthBridge violated the NLRA by threatening to call the police on workers
who would not either immediately vacate the premises or accede to the unlawful
elimination of their bargained-for seniority. See id. § 158(a)(1). This threat had
“a reasonable tendency to coerce” the employees into relinquishing their
collective bargaining rights. N.Y. Univ. Med. Ctr. v. NLRB, 156 F.3d 405, 410
(2d Cir. 1998). Accordingly, the portions of the Board’s remedial order that
address these two violations are also granted enforcement.

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 III

HealthBridge challenges the finding that it violated the NLRA when it
discontinued two of its policies: (1) part-time and per-diem employees who
worked fewer than 20 hours per week had been paid time-and-one-half plus a
regular day’s pay for hours worked on holidays and (2) employees’ paid half-
hour lunch period had been counted as time actually worked for purposes of
calculating overtime. See HealthBridge, 2017 WL 971615, at *11-12 (citing 29
U.S.C § 158(a)(1), (5)). An employer violates the NLRA when it discontinues an
established policy, resulting in “chang[es] [to its] employees’ wages, hours, and
other terms and conditions of employment,” “without [first] notifying and
bargaining with the [employees’] collective bargaining representative.” Local
Union 36, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 706 F.3d 73, 81 (2d Cir.
2013) (internal quotation marks omitted). HealthBridge does not dispute that it
unilaterally discontinued the policies, that they had been in place for the full
course of the CBAs’ term, and that there were effects on the employees’ terms
and conditions of employment. HealthBridge contests the Board’s findings
solely on the ground that its actions were authorized under the CBAs.

We apply a “two-step framework” in cases involving unilateral changes to
established policies, asking “(1) whether the applicable CBA clearly and
unmistakably resolves (or ‘covers’) the disputed issue,” and “(2) if not, whether
the [union] has clearly and unmistakably waived th[e] right” to bargain over the
disputed issue. Id. at 79. We decide de novo “whether a matter is ‘covered’ by
the contract--meaning that the parties have already bargained over the matter
and set out their agreement in the contract.” Id. at 83. “Only if we conclude as
a matter of law that the matter was not covered by the contract [do] we consider”
the issue of waiver, reviewing any finding made by the Board for substantial
evidence. Id.

We conclude at step one that the CBAs cover the disputed issues and
require HealthBridge to pay part-time and per-diem employees premium pay for
holidays worked and to count employees’ lunch period as time worked for
purposes of overtime. Accordingly, we affirm the Board’s finding that
HealthBridge violated the NLRA by discontinuing those policies without

12
attempting to bargain, and we grant the Board enforcement of its appropriately
tailored remedial order.

Holiday Pay. Article 15(B) of the CBAs provides that “[i]n the event an
Employee is required to work on any [of nine enumerated] holidays,” “she/he
shall be paid at the rate of one and one-half times her/his regular rate of pay for
all hours worked . . . and shall in addition receive [either] an extra day’s pay at
her/his regular rate[] or an additional day off with regular pay.” App’x at 353
(emphasis added). HealthBridge points to no provision (and we find none)
defining the term “Employee” to exclude part-time or per-diem employees who
work fewer than 20 hours per week, or any other class of employees. We
therefore read “Employee” to have its ordinary meaning, which encompasses the
employees in question.

HealthBridge seizes on this wording in Article 15(A): “Full-time or part-
time Employees who work twenty (20) hours or more [per week] . . . shall be
entitled to holiday pay at their regular straight time hourly rate . . . for each of
[nine enumerated] holidays.” Id. (emphasis added). HealthBridge contends
that this provision limits eligibility for holiday premium pay to employees who
work at least 20 hours per week. It plainly does not. Article 15(A) specifies the
(limited) class of employees entitled to receive their regular pay for holidays on
which they do not work; Article 15(B) establishes that all employees who do work
on one of those holidays shall receive premium pay. The two provisions thus
prescribe distinct benefits payable upon mutually exclusive conditions: going to
work on a holiday, or staying home. Nor do they bear on one another, except
insofar as the explicit limitation of the benefit in Article 15(A) to employees who
work at least 20 hours per week suggests that the parties declined to similarly
limit the benefit in Article 15(B).

HealthBridge argues that since Article 15(B) grants to employees who go to
work on a holiday premium pay in addition to “an extra day’s pay” at their
regular rate, and Article 15(A) expressly limits “holiday pay at [one’s] regular
rate” to employees who work at least 20 hours per week, then only employees
who work at least 20 hours per week can receive the benefit outlined in Article
15(B). Id. However, as explained above, the two provisions prescribe distinct

13
benefits payable upon mutually exclusive conditions.

Accordingly, the wording of Article 15(B) requires HealthBridge to
maintain the policy that it discontinued.

Any doubt regarding the controlling contractual language is dispelled by
the parties’ course of performance. See Marcic v. Reinauer Transp. Cos., 397
F.3d 120, 131-32 (2d Cir. 2005) (“[W]e may look to such evidence as . . . [the
parties’] past practices [under the CBA].”). During the nearly six years that
preceded HealthBridge’s policy change, both the company and the union
understood the CBAs to require HealthBridge to provide premium pay to all
employees who worked on holidays. The CBAs clearly “set out the[] [parties’]
agreement” on the issue of eligibility for holiday premium pay, and as a result,
HealthBridge was required to bargain over changes to the contractual
arrangement. Local Union 36, 706 F.3d at 83. The record confirms the Board’s
finding that the company failed to do so in violation of the NLRA.

Lunch Time. Article 14(E) of the CBAs states that “Employees who, at
management’s request, work in excess of eight (8) hours per day shall receive
one and one-half (1 1/2) times their regular . . . rate for hours actually worked in
excess of eight (8) hours.” App’x at 351. In a change of policy, HealthBridge
now declines to count the half-hour lunch period toward the number of hours
worked for purposes of overtime pay because the lunch period is not “actually
worked.” However, Article 14 clearly treats the lunch period as time worked.

Article 14(A) explains that the “normal work week . . . shall . . . consist[] of
eight (8) hours each day including a paid lunch period of one-half (1/2) hour.” Id.
(emphasis added). The provision further states that “[a]n employee who works
a shift of six (6) hours or more shall work a shift inclusive of a one-half (1/2) hour
paid meal period.” Id. (emphasis added). Article 14 thus treats the lunch
period as paid work time included in the eight hours that employees must work
before qualifying for overtime pay.

The point is illustrated by Article 14(F), which provides that time spent on
paid leave is counted as time worked for purposes of calculating overtime pay.

14
Time “actually worked” is therefore not limited to productive activity; the phrase
more broadly covers work time that is paid. The phrase is not, however,
surplusage or tautology; it would seem to exclude breaks in work that are not
characterized as paid work time elsewhere in the CBAs. In sum, Article 14
entitles employees to have their guaranteed paid lunch periods included in the
overtime calculation.

Once again, the parties’ course of performance provides confirmation.
Prior to the policy change at issue, the parties had always understood the CBAs
that way and had acted accordingly. HealthBridge advances no convincing
reason why this straightforward and consistent application of the contractual
language was mistaken. The company’s unilateral abandonment of that policy
therefore amounted to another NLRA violation. See Local Union 36, 706 F.3d at
81.

* * *

The Board also found that HealthBridge violated the NLRA by unilaterally
changing policies pertaining to layoff notice and benefit eligibility.
HealthBridge does not challenge those findings in its petition for review.
Accordingly, the Board is entitled to enforcement of the relevant portions of its
remedial order. See NLRB v. Consol. Bus Transit, Inc., 577 F.3d 467, 474 n.2 (2d
Cir. 2009).

CONCLUSION

For the foregoing reasons, HealthBridge’s petition for review is DENIED,
and the Board’s cross-application for enforcement is GRANTED.

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