Quality Health Services of Puerto Rico, Inc. d/b/a Hospital San Cristobal

National Labor Relations Board - Board Decisions

Apr 28, 2016

363 NLRB No. 164 (N.L.R.B. 2016)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Quality Health Services of Puerto Rico, Inc. d/b/a
Hospital San Cristobal and Unidad Laboral De
Enfermeras(OS) Y Empleados De La Salud.
Cases 24–CA–011782 and 24–CA–011884
April 28, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On July 25, 2012, the Board issued a Decision and Or-
der in this proceeding, which is reported at 358 NLRB
769. Thereafter, the Respondent filed a petition for re-
view in the United States Court of Appeals for the First
Circuit, and the General Counsel filed a cross-application
for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Recognizing that
under the Supreme Court’s decision the Board panel de-
ciding the instant case was not properly constituted, the
Board, on January 30, 2015, moved the First Circuit to
vacate the Board’s order and promptly remand the case
to the Board for consideration by a properly constituted
Board panel. Thereafter, on March 27, 2015, the court
entered a judgment granting the General Counsel’s mo-
tion and issued mandate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 358 NLRB
769 (2012), which is incorporated herein by reference.
The judge’s recommended Order, as further modified
herein, is set forth in full below.1
1 In accordance with our decisions in Don Chavas, LLC d/b/a Tortil-
las Don Chavas, 361 NLRB No. 10 (2014), and Advoserv of New Jer-
sey, Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s rec-
ommended Order to require the Respondent to compensate employees
ORDER
The National Labor Relations Board orders that the
Respondent, Quality Health Services of Puerto Rico, Inc.
d/b/a Hospital San Cristobal, Ponce, Puerto Rico, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Unidad La-
boral De Enfermeras(os) y Empleados De La Salud (the
Union) as the exclusive collective-bargaining representa-
tive of the employees in the following bargaining unit:

Unit B—24–RC–7308: All Licensed Practical Nurses
and Respiratory Therapy Technicians, Operating Room
and Radiology Technicians employed by the Respond-
ent, at the Hospital located in Cotto Laurel Ward,
Ponce, Puerto Rico; excluding all other hospital em-
ployees, including Executives, Administrators, Super-
visors, Administrative Employees, Managers and
Guards as defined by the Act.

(b) Making any changes in wages, hours, or other
terms and conditions of employment of the employees
represented by the Union without first bargaining with
the Union as their exclusive collective-bargaining repre-
sentative.
(c) Unilaterally changing the terms and conditions of
employment of its respiratory therapy technicians by
subcontracting their work to per diem employees without
first notifying the Union and giving it an opportunity to
bargain.
(d) Promulgating, maintaining, or enforcing a rule that
unlawfully prohibits employees from having discussions
related to the Respondent’s plan to subcontract the work
performed by its respiratory therapy technicians.
(e) Unilaterally discharging respiratory therapy tech-
nicians and subcontracting their work to Respiratory
Therapy Management without first notifying the Union
about its decision and affording the Union an opportunity
to bargain over the decision and effects on the respiratory
therapy technicians.
(f) In any like or related manner interfering with, re-
straining, 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) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
for the adverse tax consequences, if any, of receiving lump-sum back-
pay awards. We shall substitute a new Notice to reflect this remedial
change, and in accordance with our decision in Durham School Ser-
vices, 360 NLRB No. 85 (2014).
363 NLRB No. 164

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as the exclusive collective-bargaining representative of
the bargaining unit employees.
(b) Discontinue subcontracting the work of its respira-
tory therapy technicians and bargain with the Union as
the exclusive collective-bargaining representative of the
respiratory therapy technicians over any decision to sub-
contract.
(c) Rescind and give no effect to the work rule prohib-
iting employees from having discussions related to the
Respondent’s plan to subcontract the work of its respira-
tory therapy technicians.
(d) Rescind the change of subcontracting the work of
respiratory therapy technicians to per diem employees
unilaterally implemented on March 25, 2011.
(e) Make Rafael Colon, Mirna Leon, Jose Cruz, Nan-
cy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, Enid Ortiz, Ivette Borrero, and German Mercado
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful decision to sub-
contract the work of the respiratory therapy technicians
to per diem employees on or about March 25, 2011, in
the manner as set forth in the remedy section of the
judge’s decision.
(f) Rescind the discharges of the respiratory therapy
technicians and the change of subcontracting the work of
the respiratory therapy technicians to Respiratory Thera-
py Management unilaterally implemented on July 8,
2011.
(g) Within 14 days from the date of this Order, offer
Rafael Colon, Mirna Leon, Jose Cruz, Nancy Gonzalez,
Norma Rivera, Felicita Leon, Catherine Colon, and Enid
Ortiz full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(h) Make Rafael Colon, Mirna Leon, Jose Cruz, Nan-
cy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s
unlawful decision to subcontract the work of the respira-
tory therapy technicians to Respiratory Therapy Man-
agement on or about July 8, 2011, in the manner set forth
in the remedy section of the judge’s decision.
(i) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
24, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(j) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(l) Within 14 days after service by the Region, post at
its Ponce, Puerto Rico facility copies of the attached no-
tice marked “Appendix.”2 Copies of the notice in Eng-
lish and Spanish, on forms provided by the Regional
Director for Region 24, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 25,
2011.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 24 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 28, 2016

______________________________________
Mark Gaston Pearce, Chairman

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

QUALITY HEALTH SERVICES OF PUERTO RICO, INC. 3
______________________________________
Kent Y. Hirozawa, Member

______________________________________
Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Unidad Laboral De Enfermeras(os) y Empleados De
La Salud (the Union) as the exclusive collective-
bargaining representative of our employees in the follow-
ing bargaining unit:

Unit B—24–RC–7308: All Licensed Practical Nurses
and Respiratory Therapy Technicians, Operating Room
and Radiology Technicians employed by the Respond-
ent, at the Hospital located in Cotto Laurel Ward,
Ponce, Puerto Rico; excluding all other hospital em-
ployees, including Executives, Administrators, Super-
visors, Administrative Employees, Managers and
Guards as defined by the Act.

WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT subcontract the work of our respiratory
therapy technicians without first notifying the Union
about our decision and affording the Union an opportuni-
ty to bargain over the decision and its effects on our res-
piratory therapy technicians.
WE WILL NOT promulgate, maintain, or enforce rules
that unlawfully prohibit employees from having discus-
sions related to plans to subcontract the work performed
by our respiratory therapy technicians.
WE WILL NOT unilaterally discharge and subcontract
the work of our respiratory therapy technicians without
first bargaining with the Union to a good-faith impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, 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 representa-
tive of our bargaining unit employees.
WE WILL discontinue subcontracting the work of our
respiratory therapy technicians and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the respiratory therapy technicians over any decision
to subcontract.
WE WILL rescind and give no effect to the work rule
prohibiting employees from having discussions related to
our plan to subcontract the work performed by our res-
piratory therapy technicians.
WE WILL rescind the change of subcontracting the
work of our respiratory therapy technicians to per diem
employees unilaterally implemented on March 25, 2011.
WE WILL make Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, Enid Ortiz, Ivette Borrero, and German Mercado
whole for any loss of earnings and other benefits result-
ing from our March 25, 2011 decision to subcontract unit
work in the respiratory therapy department, less any net
interim earnings, plus interest.
WE WILL rescind the discharges of our respiratory
therapy technicians and the change of subcontracting
their work to Respiratory Therapy Management unilater-
ally implemented on July 8, 2011.
WE WILL, within 14 days from the date of the Board’s
Order, offer Rafael Colon, Mirna Leon, Jose Cruz, Nan-
cy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz full reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz whole for any loss of earnings and
other benefits resulting from their discharges on July 8,
2011, less any net interim earnings, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional
Director for Region 24, within 21 days of the date the
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Rafael Colon, Mirna Leon, Jose Cruz,
Nancy Gonzalez, Norma Rivera, Felicita Leon, Catherine
Colon, and Enid Ortiz, and WE WILL, within 3 days there-
after, notify each of them in writing that this has been
done and that the discharges will not be used against
them in any way.

QUALITY HEALTH SERVICES OF PUERTO RICO,
INC. D/B/A HOSPITAL SAN CRISTOBAL

The Board’s decision can be found at
www.nlrb.gov/case/24–CA–011782 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.