Hospital Santa Rosa, Inc. a/k/a Clinica Santa Rosa, (2017)

Docket Number:12-CA-143221
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Hospital Santa Rosa Inc. a/k/a Clinica Santa Rosa and Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Case 12–CA–143221

January 3, 2017

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN

On June 16, 2016, Administrative Law Judge Kenneth

W. Chu issued the attached decision. The Respondent filed exceptions with supporting argument, and the General Counsel filed an answering brief. The General Counsel filed cross-exceptions with supporting argument.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2

1 No exceptions were filed to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act when it refused to provide the information the Union requested.

The Respondent excepts to the judge’s conclusion that it changed the terms and conditions of employment of its unit employees by failing to pay them a $600-Christmas bonus without affording the Union adequate opportunity to bargain in violation of Sec. 8(a)(5) and (1) of the Act. The Respondent does not challenge the judge’s findings that the Christmas bonus was a mandatory subject of bargaining, that the Respondent had a practice of paying the bonus to bargaining unit employees, that the parties did not reach impasse, or that the Respondent did not engage in meaningful bargaining with the Union. Rather, the Respondent argues only that under Puerto Rico Law No. 148 of June 30, 1969, as amended, P.R. Laws Ann tit. 29, sec. 501 et seq., it was not obligated to pay the bonus because it suffered financial losses in 2014, filed paperwork to obtain an exemption from paying the bonus with the Puerto Rico Department of Labor and Human Resources, and expected to receive an exemption upon completion of an audit. We reject this argument primarily because there is no record evidence that such an exemption was granted by the date the bonus payment was due under Puerto Rican law. Notably, no exemption had been granted by October 27, 2015, when the parties entered into the stipulation of facts and documents, and the Respondent has not offered to show that one was ever granted.

Moreover, even if the government of Puerto Rico had granted the Respondent’s exemption request for the 2014 bonus, it does not follow that this exemption would have relieved the Respondent of its obligation under the National Labor Relations Act to provide the Union notice and an opportunity to bargain about the bonus payment, as the exemption would not have prohibited the Respondent from paying the 2014 bonus. See, e.g., Watsonville Register-Pajaronian, 327 NLRB 957 (1999) (Fair Labor Standards Act (FLSA) provision allowing employers not to pay overtime to exempt employees did not excuse employer’s failure to bargain over unilateral changes to employees’ schedules because the FLSA provision did not compel employer to

AMENDED REMEDY

In addition to the remedies provided in the judge’s decision, we shall order the Respondent to pay the employees named in the Appendix to the complaint and compliance specification the amount opposite their names, less any applicable Federal or Commonwealth of Puerto Rico taxes. The total amount of backpay for each employee shall be calculated with interest, accrued to the day of payment, plus compensation to offset any adverse tax consequences, as set forth in the remedy section of the judge’s decision, as modified.

ORDER

The Respondent, Hospital Santa Rosa, Inc., a/k/a Clinica Santa Rosa, Guayama, Puerto Rico, its officers, agents, successors, and assigns, shall

  1. Cease and desist from

    (a) Refusing to bargain collectively with the Union, Unidad Laboral de Enfermeras(os) y Empleados de la Salud, by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees.

    (b) Unilaterally changing the terms and conditions of employment of its unit employees by failing and refusing

    bring employees within that exemption; employer could have complied with the FLSA simply by paying the employees overtime). Because an exemption would not prevent the Respondent from paying the bonus under Puerto Rican law, it still has an obligation to bargain with the Union over payment of the bonus.

    Member Miscimarra concurs in finding that the Respondent violated Sec. 8(a)(5) on the basis that the Respondent did not except to the judge’s finding that payment of the annual bonus was an established past practice and a term and condition of employment that, under the holding of NLRB v. Katz, 369 U.S. 736 (1962), the Respondent could not discontinue unilaterally. Because the Respondent did not except to this finding, it is not before the Board for review. See, e.g., Can-Am Plumbing, Inc., 350 NLRB 947, 948 (2007), enfd. 340 Fed.Appx. 354 (9th Cir. 2009). Therefore, Member Miscimarra does not reach or pass on whether, under Katz, the payment of an annual Christmas bonus based on an obligation existing under Puerto Rico law constitutes a past practice that requires notice and the opportunity for bargaining prior to discontinuation of the bonus.

    2 The judge ordered the Respondent to “restore the full Christmas bonus benefit of $600 to the unit employees,” but he did not name the employees entitled to that remedy. The General Counsel, having listed the names in the compliance specification, excepts. We shall modify the remedy to include the employees’ names. In addition, we do not rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), which the judge cited in his decision. Instead, we rely on AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), which the judge properly applied in his recommended Order and notice. Further, we have substituted a “limited” bargaining order for the judge’s recommended affirmative bargaining order. See Mimbres Memorial Hospital, 337 NLRB 998, 998 fn. 2 (2002), review denied sub nom. NLRB

    v. CHS Community Health Systems, Inc., 108 Fed. Appx. 577 (10th Cir. 2004). We shall modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language.

    365 NLRB No. 5

    2

    to pay the 2014 Christmas bonus without bargaining in good faith with the Union to impasse.

    (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  2. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Furnish to the Union in a timely manner the information requested by the Union on December 12, 2014.

    (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following appropriate bargaining unit:

    All regular full-time and regular part-time registered nurses employed by the Employer at its facilities located in Guayama, Puerto Rico; excluding all other employees, office clerical employees, guards, other professional employees and supervisors as defined under the National Labor Relations Act.

    (c) Rescind the change in the terms and conditions of employment of its unit employees that was unilaterally implemented on December 12, 2014, and make unit employees whole for the Respondent’s failure to pay the 2014 Christmas bonus, by paying them the total amounts shown below opposite their names, with interest in the manner set forth in the remedy section of the judge’s decision as amended, minus any tax withholdings required by Federal and Commonwealth of Puerto Rico laws.

    DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    NAME BACKPAY

    DUE

  3. ORTIZ RODRIGUEZ, ELIZABETH

    $600

  4. RIVERA BURGOS, MYRNA 600

  5. FIGUEROA ORTIZ, ONELIA 600

  6. MUNOZ CEDERO, OLGA 600

  7. COTTO MONTANEZ, SANDRA

    600

  8. VARGAS, ADELAIDA 600

  9. GONZALEZ RIVERA, LUIS 600

  10. CARRION ALICEA, IRIS 600

  11. PICART VAZQUEZ, MARIA 600

  12. ARROYO MEDINA, GLORIVEE

    600

  13. REYES VELEZ, IRMA 600

  14. SANCHEZ RODRIGUEZ, JOSE I.

    600

  15. RIVERA, GLORIA 600

  16. COLON PEREZ, LYMARIE 600

  17. CRUZ CRESPO, LUZ M. 600

  18. CRUZ MAURAS, CYNTHIA 600

  19. GOMEZ CAMACHO, YAMILCA

    600

  20. MARTINEZ TORRES, ROSA 600

  21. ROSA GARCIA, MYRIAM 600

  22. SANTIAGO-FELIX, ADELA , 600

  23. MORALES BAEZ.

    MARILYN

    600

  24. LEBRON FIGUEROA, ENEIDA

    600

    600

  25. ORTIZ ROMAN, NOEMI 600

  26. ESTRADA HERNANDEZ, ZAIDA

  27. MONTANEZ MATOS, MARILYN

    600

  28. RAMOS RODRIGUEZ, YANITZA

    600

    600

  29. FONTANEZ, YOLANDA 600

  30. MILIAN SALCEDO, ANGEL 600

  31. RIVERA SOLIS, JEANNETIE 600

  32. LUGO GONZALEZ, NASHIRA I.

  33. ROSARIO MARTINEZ, LINDA

    600

  34. LA SANTA RODRIGUEZ, MARIBEL

    600

  35. SUAREZ GOMEZ, ANNIBELLE

    600

  36. ALICEA MELENDEZ, 600

    HOSPITAL SANTA ROSA INC. A/K/A CLINICA SANTA ROSA 3

    ADELAURA

  37. JESUS ALVARADO, BERENICE

    600

    600

  38. ORTIZ JR., CARLOS 600

  39. VEGA CRUZ, NANETTE 600

  40. SALGADO CINTRON, VIVIANA

  41. SOSA RODRIGUEZ, EDNILYS

    600

  42. DIAZ ROSARIO, HIDALIS 600

  43. BRITO LABOY, JENNIFER 600

  44. RIVERA ORTIZ, JUANITA 600

  45. VEGA COLON, SHEILA T. 600

  46. ORTIZ TORRES, MARIBEL 600

    TOTAL: $26,400

    (d) Compensate unit employees for the adverse income tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 12, within 21 days from the date of this Order, a report allocating the backpay awards to the appropriate calendar year for each employee.

    (e) Within 14 days after service by the Region, post at its facilities in Guayama, Puerto Rico copies of the attached notice marked “Appendix”3 in English and Spanish. Copies of the notice, on forms provided by the Regional Director for Region...

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