United States Court of Appeals
For the First Circuit
No. 06-2277
HOSPITAL CRISTO REDENTOR, INC.
d/b/a Hospital Cristo Redentor,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Lynch, Lipez, and Howard,
Circuit Judges.
José A. Oliveras-González for petitioner.
Stacy Garrick Zimmerman, Attorney, National Labor Relations
Board, with whom David Habenstreit, Supervisory Attorney, Ronald
Meisburg, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, and Aileen
A. Armstrong, Deputy Associate General Counsel, National Labor
Relations Board, were on brief, for respondent.
May 30, 2007
LYNCH, Circuit Judge. Hospital Cristo Redentor of Puerto
Rico petitions for review of a decision and order of the National
Labor Relations Board; the Board has filed a cross-application to
enforce the order.
While the outcome of the case is largely driven by the
facts and by the substantial evidence rule, there is one basic
point of law worth stressing. This court has previously rejected,
and we do so again, arguments by petitioners that because they
supposedly have complied with Puerto Rico Law 80, P.R. Laws Ann.
tit. 29, §§ 185a-185m, they have a defense against enforcement of
a Board unfair labor practice decision and order. Such arguments
fundamentally misunderstand both the operation of federal labor
relations law and the role of courts reviewing Board orders.
The Board's July 31, 2006 decision and order affirmed an
Administrative Law Judge's decision that the Hospital had violated
the National Labor Relations Act, 29 U.S.C. §§ 151-169, as to its
employee and union delegate Carlos Garcia Santiago ("Garcia"). The
Hospital did so by: (1) interrogating Garcia about his union
activities and threatening him in relation to those activities, in
violation of section 8(a)(1) of the Act; and (2) both suspending
and discharging Garcia for his union activities in violation of
section 8(a)(3) and section 8(a)(1) of the Act. Hosp. Cristo
Redentor, Inc., 347 N.L.R.B. No. 65, at 1 (July 31, 2006). The
Board's remedy consisted of a cease-and-desist order, posting of
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the remedial order, and full reinstatement of Garcia, with make-
whole compensation and removal of all references to the unlawful
suspension and discharge from the Hospital's files. Id. at 6, 25.
We have jurisdiction to review the Board's final order.
29 U.S.C. § 160(e)-(f).
I.
With one exception related to the interplay between Law
80 and the NLRA, discussed later, the Hospital does not contend
that the Board utilized incorrect legal standards. We outline the
basic federal labor laws at issue, and then discuss the evidence
within that context.
Section 7 of the NLRA guarantees employees the right to
organize. Id. § 157. It provides: "Employees shall have the right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection
. . . ." Id. Section 8(a)(1) of the Act implements the guarantees
in section 7 of the Act. Id. § 158(a)(1). Section 8(a)(1)
provides: "It shall be an unfair labor practice for an employer
. . . to interfere with, restrain, or coerce employees in the
exercise of" their section 7 rights. Id.
Employers violate section 8(a)(1) of the Act by, inter
alia, "coercively interrogating employees about their union
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activities or sentiments, or about the activities or sentiments of
others, and by either directly or indirectly threatening
employees." NLRB v. Horizons Hotel Corp., 49 F.3d 795, 804 (1st
Cir. 1995) (quoting 3-E Co. v. NLRB, 26 F.3d 1, 3 (1st Cir. 1994))
(internal quotation marks omitted). The Board determines whether
there is coercive interrogation by looking to whether, under all of
the circumstances, the interrogation reasonably tends to interfere
with, restrain, or coerce the exercise of rights guaranteed by the
Act. Rossmore House, 269 N.L.R.B. 1176, 1177 (1984), aff'd sub
nom. Hotel Employees & Rest. Employees Union, Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985); accord 3-E Co., 26 F.3d at 3. "It is
the coercive tendency of employer statements, not their actual
effect, that constitutes a violation of the Act." Horizons Hotel
Corp., 49 F.3d at 804 (alteration omitted) (emphasis added)
(quoting NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.
1982)) (internal quotation marks omitted). The Board's finding of
"coercive tendency" will not be disturbed if the finding is
reasonable, even if the evidence is also susceptible to an
alternative interpretation. Id.
Like section 8(a)(1) of the Act, section 8(a)(3) defines
an unfair labor practice. 29 U.S.C. § 158(a)(3). An employer
violates section 8(a)(3), as well as section 8(a)(1), by
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discharging an employee for engaging in union activities.1 Holsum
de P.R., Inc. v. NLRB, 456 F.3d 265, 269 (1st Cir. 2006).
Resolving an alleged section 8(a)(3) violation thus requires an
inquiry into the employer's motives. In NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), the Supreme Court set forth
the test for determining whether an employer has an unlawful
motive. Id. at 395, 404. The Transportation Management Court
adopted the test announced by the Board in Wright Line, 251
N.L.R.B. 1083, 1089 (1980), enforced on other grounds, 662 F.2d 899
(1st Cir. 1981). Under the Wright Line test, the Board's General
Counsel must first demonstrate that "the employee's protected
conduct was a substantial or motivating factor in the adverse
action." Transp. Mgmt., 462 U.S. at 401; accord Holsum, 456 F.3d
at 269. The General Counsel is not required to demonstrate that
the employee's protected union activity was the sole factor for the
discharge. Holsum, 456 F.3d at 269; accord NLRB v. Hosp. San
Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000).
Once the General Counsel has made the showing that union
animus was a motivating factor in the adverse employment action,
1
Section 8(a)(3) of the Act makes it an unfair labor
practice for an employer to discriminate "in regard to hire or
tenure of employment or any term or condition of employment to
. . . discourage membership in any labor organization." 29 U.S.C.
§ 158(a)(3). A violation of section 8(a)(3) of the Act necessarily
interferes with the exercise of statutory rights, and therefore
derivatively violates section 8(a)(1) of the Act. See Metro.
Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983).
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the employer must prove, as an affirmative defense, that it would
have taken the same action even in the absence of the employee's
protected activity. Transp. Mgmt., 462 U.S. at 400-03; Holsum, 456
F.3d at 269. Even if the employer proffers a "seemingly plausible
explanation," the Board need not accept such an explanation at face
value. E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 42 (1st Cir. 2004).
Rather, "[i]f the Board supportably finds that the reasons advanced
by the employer are either insufficient or pretextual, the
violation is deemed proven." Holsum, 456 F.3d at 269 (quoting E.C.
Waste, 359 F.3d at 42) (internal quotation marks omitted); accord
Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R. v. NLRB,
414 F.3d 158, 161 (1st Cir. 2005).
Because an employer rarely admits unlawful
discrimination, the Board may determine motive by relying on
circumstantial evidence and inferences reasonably drawn from the
totality of the evidence. E.C. Waste, 359 F.3d at 42; see also
NLRB v. Link-Belt Co., 311 U.S. 584, 602 (1941). Among the factors
the Board often considers in assessing the unlawfulness of an
employer's motive are the timing of the adverse action in relation
to the union activity, the employer's hostility toward union
activity, and the employer's reliance on pretextual justifications.
See, e.g., E.C. Waste, 359 F.3d at 42 (timing); id. at 43 (deep-
seated hostility toward union activity); Hosp. San Pablo, 207 F.3d
at 73-74 (pretext).
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The Board's factual findings, including findings of
unlawful motive and inferences from the facts, are binding on this
court if supported by substantial evidence on the record considered
as a whole. 29 U.S.C. § 160(e)-(f); E.C. Waste, 359 F.3d at 42;
McGaw of P.R., Inc. v. NLRB, 135 F.3d 1, 7 (1st Cir. 1997); see
also NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 956 (2d Cir. 1988)
("[I]n cases where difficult issues regarding employer motivation
are of primary concern, the Act vests primary responsibility in the
Board to resolve these critical issues of fact."). "[T]he
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's finding from
being supported by substantial evidence." Hosp. San Pablo, 207
F.3d at 70 (alteration in original) (quoting Am. Textile Mfrs.
Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)) (internal
quotation marks omitted).
We turn to the question of whether the Hospital has met
its burden of showing that the Board's conclusions that the
Hospital engaged in unfair labor practices are not supported by
substantial evidence on the record as a whole. In that context we
describe the pertinent facts.
II.
The Board sustained the ALJ's findings that the Hospital
had threatened and disciplined Garcia for his union activities.
Hosp. Cristo Redentor, 347 N.L.R.B. No. 65, at 1. There is
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adequate support in the record for those findings and conclusions.
We summarize the record; more details are to be found in the
Board's decision, 347 N.L.R.B. No. 65.
Garcia started working as a registered nurse at the
Hospital in February 1995.2 After a 1998 election, the Board
certified a union to be the exclusive bargaining representative for
a unit of registered nurses. Negotiations for a collective
bargaining agreement started in November 1998. In January 1999,
Garcia became the union delegate for the unit employees in the
emergency room. In the meantime, the relationship between the
Hospital and the union grew fractious. The union filed an unfair
labor practice charge in April 1999. Over the next fifteen months,
the union filed several additional unfair labor practice charges
against the Hospital. The General Counsel issued a number of
complaints.
After Garcia became a delegate, he received, for the
first time, a written warning from his supervisor, Osvaldo Rivera
David ("Rivera"). It warned Garcia that he needed to improve his
attitude. Thereafter, Garcia received a series of disciplinary
warnings about his attitude. In a letter to Garcia, Rivera stated
that Garcia's "attitude problems" consisted of Garcia's expressing
2
Garcia began work at the Guayama Area Hospital. In June
1998, the Hospital was privatized and became the Hospital Cristo
Redentor, Inc.
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dissatisfaction with some hospital working conditions and policies
and making complaints about inequitable shift allotments and
favoritism by management in front of patients and visitors.
On July 7, 2000, Human Resources Director Ivette Lacot
Ramos ("Lacot") and others met with Garcia and a union
representative about Garcia's "attitude problems." On July 27,
2000, Lacot issued Garcia a written warning. The warning
acknowledged Garcia's "competence as a professional" but warned him
to stop making complaints about working conditions in front of co-
workers, patients, and visitors, particularly because he acted as
a "leader."
After a disagreement in March 2001 about whether Garcia
had failed to comply with medical records protocols when he wrote
in a correction over a mistake on a patient's chart, Rivera again
issued a warning to Garcia about his attitude problems. Management
met with Garcia and various union representatives on March 29 to
discuss the incident.
After accusations of other alleged improprieties, which
were denied by Garcia, Lacot issued Garcia a "formal admonishment,"
which purported to memorialize the March 29 meeting, noted the
subsequent alleged incidents, and again requested that Garcia
"improve [his] attitude." The admonishment acknowledged that
Garcia had said he was feeling persecuted because he was a union
delegate.
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Eventually Garcia was suspended on May 11, 2001 for
alleged misconduct on April 23. On April 23, Garcia had been
responsible for the key to the emergency room narcotics cabinet,
which was kept locked at all times. The emergency room was
understaffed, and when no nurses were available to take patient
samples to the laboratory for analysis, Garcia twice left the
emergency room, with the narcotics key, to take samples to the lab.
During both of Garcia's trips to the lab, a patient began
convulsing in the emergency room; both times, Garcia's absence
caused a delay in administering a drug to the patient. Later
during the same shift, Garcia used the emergency room loudspeaker
to call on his coworkers to assist him. The Hospital alleged that
Garcia had announced over the loudspeaker that "there [was] a lot
of work, that [he was] the only one who was working[,] and [that]
nobody was helping [him]." Garcia disputed that he had insulted
his coworkers.
Garcia was discharged from employment on October 19,
2001. The discharge came after an incident on October 6 in which
Garcia had left the Hospital to attend to a medical emergency of a
family member. The Hospital claimed that Garcia had not received
his supervisor's permission before leaving. The Hospital also
alleged that on October 18, Garcia had made inappropriate
statements suggesting a suicide attempt to a mother when her
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daughter was admitted to the emergency room after having taken five
Panadol PM tablets and fainted at school.
III.
A. Substantial Evidence Analysis
1. Whether the General Counsel Met His Burden
On petition for review, the Hospital appears to argue
that the General Counsel failed to meet his burden under Wright
Line on the alleged violations.3 The record makes it easy to
conclude that the burden was met. There were several smoking guns
indicating that the Hospital both had anti-union animus and had
retaliated against Garcia for his role in the union.
Indeed, there was an explicit conversation between
management and Garcia in which Garcia was told that his lot in life
would improve if he abandoned his union activities. The general
supervisor of nursing services, Ausberto Felix Ortiz ("Felix"),
point-blank asked Garcia if he was going to engage in union protest
activity on August 6, 2001. When Garcia said that he was, Felix
replied that that was why Garcia would never be a supervisor and
why he was "always in trouble." After a pregnant pause, Felix then
made a comment associating the union -- and Garcia by implication
3
The Board expressly noted that the Hospital had not
contested the ALJ's determination that Garcia's union activity was
a motivating factor in the suspension decision. Hosp. Cristo
Redentor, 347 N.L.R.B. No. 65, at 4. We read the Hospital's
pleadings to the Board somewhat more charitably.
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-- with a Satanic sect. The ALJ found Felix's denial of the
conversation not credible.
The Hospital argues that the ALJ improperly based his
credibility determination on the plausibility of Felix's assertion
that he had no interest in union affairs. The ALJ noted that Felix
"carried significant responsibility for providing adequate nursing
staff during union picketing," and that Felix conceded that he
undertook necessary preparations before each union strike. Hosp.
Cristo Redentor, 347 N.L.R.B. No. 65, at 17. This court will set
aside an ALJ's credibility finding "only when [the ALJ] oversteps
the bounds of reason." Holyoke Visiting Nurses Ass'n v. NLRB, 11
F.3d 302, 308 (1st Cir. 1993) (quoting NLRB v. Am. Spring Bed Mfg.
Co., 670 F.2d 1236, 1242 (1st Cir. 1982)) (internal quotation marks
omitted). It was certainly not unreasonable for the ALJ to
conclude that a supervisor charged with ensuring adequate nursing
coverage during union strikes would have at least some interest in
that union activity, and that Felix's denial of any such interest
was not credible. Moreover, the ALJ buttressed his conclusion with
his observation of "Felix's haughty demeanor on the witness stand."
Hosp. Cristo Redentor, 347 N.L.R.B. No. 65, at 18. Credibility
assessments by the ALJ, in particular, are entitled to great
weight, "since he heard and saw the witnesses testify." McGaw, 135
F.3d at 7 (quoting Holyoke Visiting Nurses Ass'n, 11 F.3d at 308)
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(internal quotation marks omitted); accord Hosp. San Pablo, 207
F.3d at 70.
There was additional evidence of anti-union animus. In
September 2001, Garcia was called in for a disciplinary meeting;
the Hospital had apparently prepared a letter dismissing Garcia for
a supposed incident on a particular date. The Hospital had
neglected to look at its own records, which, when produced at the
union's insistence, showed that Garcia had not been on duty on the
day of the alleged incident. Management's trumping up charges to
dismiss a union representative is hardly evidence of neutrality.
Further, Ingrid Vega Méndez, a union representative who
attended the September meeting, testified that Lacot, the human
resources director, said after the meeting that Garcia's attitude
could not be tolerated "and that [it] could bring about his
dismissal, and, even more so, when he was the delegate." Lacot's
comment directly ties management's actions to Garcia's role as a
union delegate. The Board thus had unusually strong evidence that
Garcia's union activity was a "substantial or motivating factor" in
the actions taken against him.
2. Whether the Hospital Met Its Burden
The Hospital also argues that even if the General Counsel
met his burden under Wright Line, substantial evidence does not
support the Board's conclusion that the Hospital had not met its
burden of showing it would have suspended Garcia and later
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terminated his employment in the absence of his union activity.4
The Hospital argued to the Board that two incidents would have led
to the suspension even if Garcia had not been a union delegate:
Garcia's absence from the emergency room with the narcotics key and
Garcia's making an announcement deemed inappropriate by the
Hospital over the emergency room loudspeaker.
The Board justifiably found that the Hospital had not met
its burden and that the true reason for suspending Garcia was
Garcia's union activity.5 As the Board noted, the Human Resources
Director herself referred to the narcotics-key incident as a "minor
offense" and testified that she had not disciplined Garcia for it.
Hosp. Cristo Redentor, 347 N.L.R.B. No. 65, at 4. There also was
evidence that other employees had similarly left the emergency room
with the narcotics key, but no evidence that they had been
similarly disciplined. As both the ALJ and the Board stated,
Garcia was faced with a Hobson's choice among several undesirable
alternatives when he left with the key in order to take patient
4
The Hospital's arguments are primarily focused on
Garcia's dismissal. Giving the Hospital the benefit of the doubt,
we also review the Board's finding that Garcia's suspension also
constituted an unfair labor practice. To the extent the Hospital
challenges the Board's finding that Garcia was interrogated and
threatened because of his union membership, Felix's remarks to
Garcia more than adequately support the finding of an unfair labor
practice.
5
One member of the Board would have revised the ALJ's
finding on the suspension, but joined in adopting the findings of
violations as to the interrogation, threats, and discharge. Hosp.
Cristo Redentor, 347 N.L.R.B. No. 65, at 6.
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samples to the lab when no one else was able to do so. Id. at 4,
23.
The Hospital contends that Garcia should have left the
narcotics key in the emergency room when he went to the lab. That
may be so, and it may even have been reasonable for the Hospital to
treat the incident as a serious one. But the evidence in the
record indicates that the Hospital did not treat such incidents as
serious infractions. The issue is not whether Garcia should have
handled the situation differently.
As for the loudspeaker episode, the ALJ characterized the
announcement as a brief outburst by a frustrated Garcia, who was
using undiplomatic means to get more staffing assistance in a
severely understaffed emergency room. Id. at 22-23. As the ALJ
and the Board indicated, the record is devoid of evidence, save for
the suspension letter itself, that Garcia actually made
objectionable remarks over the loudspeaker. Id. at 5, 23. Even
assuming that the Hospital's characterization of the episode is
correct, the record does not show that Garcia would have been
suspended absent his union activities. The suspension letter notes
that the loudspeaker incident was the third time that there had
been a problem with Garcia's attitude, and that because the
"available corrective measures" had been exhausted, Garcia was
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being suspended.6 However, at least one of the prior two incidents
involved union-related activities. The Board's conclusion that the
Hospital would not have suspended Garcia save for his union
activities is thus supported by substantial evidence.
The Board also supportably found that the Hospital had
not met its burden of showing it would have terminated Garcia's
employment regardless of union activity. The Hospital's
termination letter gave three reasons for discharging Garcia: the
October 6 incident in which he left the hospital to attend to a
family emergency, the incidents resulting in his suspension, and
the improper diagnosis of a patient on October 18. Our earlier
holding that substantial evidence supports the Board's findings as
to the incidents resulting in Garcia's suspension eliminate them as
a legitimate basis for termination.
As the ALJ recognized, the evidence indicates that Garcia
spoke with his supervisor before leaving the Hospital on October 6.
Id. at 15-16. The supervisor's testimony indicated that she
understood that Garcia had an emergency and needed to leave the
Hospital, and that after she was unable to find the appropriate
authorization form, she accepted instead a note from Garcia
explaining his reason for leaving.
6
The letter also noted a problem with absenteeism for
which Garcia was reprimanded in April 1999. The letter indicated,
however, that Garcia had "corrected" this problem. Under the
Hospital's policy, then, it was not a valid basis for the
suspension.
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Likewise, the ALJ's finding that the October 18 incident
did not warrant dismissal is supported by the record. On October
18, 2001, a young girl arrived at the emergency room after having
fainted. The Hospital claims that Garcia told the girl's mother
that the girl likely had tried to commit suicide. In fact, the
girl had taken several Panadol tablets for a headache from having
not eaten and had then fainted because she had not had enough to
eat. In the termination letter, this episode was characterized as
a breach of the Hospital's privacy and confidentiality policy. As
the ALJ indicated, there is no evidence that Garcia revealed
confidential information. Id. at 23.
The Hospital has now recharacterized the violation as
more general "improper handling of patient care." Regardless, the
only evidence in the record is that Garcia assumed based on the
information provided to him that the girl had attempted to commit
suicide, and that in informing the mother of the procedures that
her daughter would undergo, Garcia indicated that if necessary the
daughter would be subject to the protocol for dealing with cases of
attempted suicide. There is no evidence to support the Hospital's
suggestion that Garcia diagnosed the patient, and in fact Garcia
directly denied having done so and indicated that he had told the
mother that the physician would be the one to make the diagnosis.
The Hospital also presents an after-the-fact
justification for the suspension and discharge. It now says that
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the suspension and discharge were justified by an admitted medical
records mistake by Garcia. On March 12, 2001, Garcia made a
mistake recording a medication dosage onto a patient's chart. When
he corrected the mistake, he deviated from Hospital protocol, which
required him to strike through the erroneous order, write "Omit,"
and initial and date the strike-through before noting the correct
order. Instead, Garcia simply wrote the correct order on top of
the incorrect order.
The Hospital characterizes the episode as an attempt to
evade responsibility for a medical mistake, in which the incorrect
dosage actually was administered to the patient.7 The record does
not support such an argument. As the ALJ noted, the correct dosage
was written over the incorrect dosage without any apparent attempt
to conceal the change. Moreover, this error in correcting a record
was not a reason proffered by the Hospital in either the suspension
letter or the termination letter. The Hospital's volte face on the
grounds for suspension and termination undermines its argument.
See E.C. Waste, 359 F.3d at 44 ("[A]n employer's shifting
explanations for discharging an employee may themselves serve
either to ground or to reinforce a finding of pretext."); see also
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56
7
Although Garcia denied that any medication was
incorrectly administered, the ALJ found that such an error had been
made by a trainee nurse for whom Garcia ultimately was responsible.
Hosp. Cristo Redentor, 347 N.L.R.B. No. 65, at 13.
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(1st Cir. 2000). The ALJ was justified in finding that the
recording error was at most a minor records protocol error that did
not justify suspension or dismissal.
The sum, it is true, may be greater than the total of its
parts. A series of incidents none of which individually would
warrant dismissal in total may nonetheless justify it. But that
argument cannot plausibly be made by the Hospital here. The after-
the-fact justification offered by the Hospital only further
supports the Board's conclusion that the Hospital's proffered
reasons for the suspension and discharge were pretext.
The Board's finding that the Hospital engaged in unfair
labor practices is supported by substantial evidence.
B. Puerto Rico Law 80
The Hospital argues, from its view of the facts, that it
had "just cause" under Puerto Rico Law 80 to dismiss Garcia for
flagrant offenses, and so it cannot have violated the NLRA. The
Hospital urges us to look to Law 80 in determining whether an
employer suspended or discharged an employee "for cause,"8 29
U.S.C. § 160(c), and argues that its supposed compliance with Law
80 satisfies its burden under Wright Line. The Hospital made this
argument to the Board, but the Board did not discuss it, presumably
8
Because the Hospital expressly concedes that federal law
governs, we do not discuss the NLRA's preemption of inconsistent
state law. See, e.g., Building & Constr. Trades Council v. Assoc.
Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224
(1993).
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because it found that Garcia was suspended and discharged because
of his union activities.
We discuss the issue simply to emphasize that any
employer argument that a Board order may not be enforced because
the employer has arguably complied with Law 80 necessarily fails
for a series of reasons. The Hospital misperceives both the effect
of local law and the limited role of judicial review of Board
decisions.
Section 10(c) of the NLRA states, in relevant part: "No
order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged, or
the payment to him of any back pay, if such individual was
suspended or discharged for cause." 29 U.S.C. § 160(c). There is
no reason whatsoever to think that Congress, in setting uniform
national standards governing labor relations, intended
section 10(c) to incorporate laws such as Puerto Rico Law 80. Cf.
NLRB v. E. Mass. St. Ry. Co., 235 F.2d 700, 709 (1st Cir. 1956)
(noting the development by the Board of a section 10(c) "for cause"
body of case law).
Indeed, we have consistently held that purported
compliance with Law 80 does not preclude a finding of an unfair
labor practice. We have rejected claims that Law 80 requires (or
at least permits) layoffs on the basis of seniority, and that this
provides a defense to an allegation of an unfair labor practice.
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See, e.g., McGaw, 135 F.3d at 9-11. In E.C. Waste, we rejected a
claim based on the effect of Law 80 on a period of probation. 359
F.3d at 43-44.
Nor, as a matter of Puerto Rico law, is Law 80 itself
intended to serve as a defense to an unfair labor practice charge.
As we noted in Rodriguez v. Eastern Air Lines, Inc., 816 F.2d 24
(1st Cir. 1987), Law 80 "was intended to increase protection for
dismissed workers." Id. at 27. The Guidelines for the
Interpretation and Application of Law 80 (May 30, 1976)
("Guidelines"), promulgated by the Puerto Rico Department of Labor
and Human Resources, indicate that Law 80 was not meant to
interfere with the enforcement of the NLRA. The Guidelines are
clear that "if [a] dismissal of an employee turns out to be an
illegal work practice, the applicable law is the Puerto Rico Labor
Relations Act or the National Labor Relations Act, as the case may
be." McGaw, 135 F.3d at 10-11 (alteration in original) (quoting
Guidelines at 11) (internal quotation marks omitted). Moreover,
the Hospital's argument requires an inversion of logic. As we said
in McGaw, it "would be perverse indeed to allow [the employer] now
to invoke a statute enacted for the protection of workers as a
justification for its unlawful labor practices." Id. at 10.
The Hospital also misunderstands a basic principle of
judicial review in invoking Law 80 as a defense to enforcement of
the Board's order. It is the ALJ and the Board who are the finders
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of fact; Law 80 does not change that. The ALJ's and the Board's
factual determinations must be upheld if based on substantial
evidence. E.g., E.C. Waste, 359 F.3d at 42. The Board has
supportably found that Garcia was suspended and discharged because
of his union activities, not because of any deficiency in his
performance of his duties. Hosp. Cristo Redentor, 347 N.L.R.B. No.
65, at 1.
We deny the Hospital's petition for review and grant
enforcement of the Board's order. Costs are awarded to the Board.
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Hospital Cristo Redentor, Inc. v. National Labor Relations Board
Court: Court of Appeals for the First Circuit
Date filed: 2007-05-30
Citations: 488 F.3d 513
Copy CitationsCombined Opinion