Hospital Cristo Redentor, Inc. v. National Labor Relations Board

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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