Fallbrook Hospital Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2015 Decided May 8, 2015

No. 14-1056

FALLBROOK HOSPITAL CORPORATION, DOING BUSINESS AS

FALLBROOK HOSPITAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1094

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations

Board

Kaitlin A. Kaseta argued the cause for petitioner. On the

briefs was Bryan T. Carmody.

Barbara A. Sheehy, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Jill A. Griffin,

Supervisory Attorney.

2

Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the court by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge: In a decision issued on

April 14, 2014, the National Labor Relations Board (“Board”)

held that Fallbrook Hospital Corporation (“Fallbrook” or

“Hospital”) had violated Sections 8(a)(1) and (5) of the

National Labor Relations Act (the “Act”), 29 U.S.C.

§ 158(a)(1), (5), by refusing to bargain in good faith with the

California Nurses Association/National Nurses Organizing

Committee, AFL-CIO (“Union”), after the Union had been

certified to represent a bargaining unit of registered nurses

working in the Hospital’s acute care unit. See Fallbrook

Hosp. Corp., 360 N.L.R.B. No. 73 (2014), slip op. at 1–2 &

n.2. The Board further held that “an award of negotiating

expenses [was] necessary to fully remedy the detrimental

impact [that Fallbrook’s] unlawful conduct has had on the

bargaining process.” Id. at 2. Fallbrook now petitions for

review of the Board’s decision ordering it to pay negotiation

expenses to the Union. The Board, in turn, cross-petitions for

enforcement of its order. We deny Fallbrook’s petition and

grant the Board’s cross-petition.

Far from the run-of-the-mill failure to bargain, the Board

specifically found that Fallbrook acted in an “obstinate and

pugnacious manner,” id. at 9, “operated with a closed mind

and put up a series of roadblocks designed to thwart and delay

bargaining,” id., and that the totality of Fallbrook’s conduct

made it “clear” that “there was no intent to bargain,” id. at 15.

The Board found multiple violations of the Act based on

Fallbrook’s conduct at the bargaining table, including but not

limited to refusing to bargain over mandatory subjects and

3

refusing to provide information requested by the Union. Id. at

1 & n.2; see also id. at 15.

As the Board’s decision makes clear, a reimbursement

remedy is appropriate “where it may fairly be said that [an

employer’s] substantial unfair labor practices have infected

the core of a bargaining process to such an extent that their

effects cannot be eliminated by the application of traditional

remedies.” Id. at 2 (internal quotation marks omitted) (quoting

Unbelievable, Inc., 318 N.L.R.B. 857, 859 (1995), enf’d in

pertinent part, Unbelievable, Inc. v. NLRB, 118 F.3d 795

(D.C. Cir. 1997)). Such a remedy “is warranted both to make

the charging party whole for the resources that were wasted

because of the unlawful conduct, and to restore the economic

strength that is necessary to ensure a return to the status quo

ante at the bargaining table.” Unbelievable, 318 N.L.R.B. at

859.

On May 21, 2014, after the Hospital filed its Petition for

Review with this court, Fallbrook gave notice to the Union

that it intended to terminate the acute care unit in which

members of the bargaining unit worked. In light of this

development, “Fallbrook has decided to abandon all issues

presented on appeal, except for the Board’s award of

negotiating expenses.” Br. of Petitioner 2 n.2. In other words,

the Hospital does not challenge the findings underlying the

Board’s conclusion that Fallbrook “deliberately acted to

prevent any meaningful progress during bargaining” and that

it committed a number of serious violations of the Act.

Fallbrook, 360 N.L.R.B. No. 73, slip op. at 2.

The only question before the court on the petition for

review is whether the Board’s award of negotiation expenses

was a “clear abuse of discretion.” See United Steelworkers of

Am. v. NLRB, 376 F.2d 770, 773 (D.C. Cir. 1967). Fallbrook

4

argues that the Board’s decision is wanting because it fails to

take account of the totality of the circumstances and is

unsupported by law. We reject this argument. As explained

below, the Board’s decision that negotiation expenses were

warranted in this case is amply supported by substantial

evidence in the record and has a rational basis in the law.

Fallbrook has filed a motion to remand the case to the

Board pursuant to Section 10(e), 29 U.S.C. § 160(e), for the

Board to hear additional evidence. A remand is permissible

under Section 10(e) if the movant can demonstrate to the

court’s satisfaction that any purported new evidence is

material and could not reasonably have been raised before the

Board. Fallbrook argues that, because the Hospital has

effectively terminated the entire bargaining unit by closing its

acute care facility, there are “changed factual circumstances”

that justify remand to the Board to reconsider its award of

negotiating expenses. Fallbrook’s theory is that there are two

separate purposes for the Board’s negotiation expenses

remedy: one to redress the effect of Fallbrook’s past

misconduct on the Union (which Fallbrook does not contest),

and one to provide the Union prospective strength at the

bargaining table (which Fallbrook claims is now

“unnecessary” due to the closure of the Hospital’s acute care

unit). Fallbrook thus argues that the case should be remanded

to the Board to allow it to reconsider whether the disputed

remedy is still justified. This argument is not only meritless,

it reflects real chutzpah. See, e.g., Harbor Ins. Co. v. Schnabel

Found., 946 F.2d 930, 937 n.5 (D.C. Cir. 1991) (“It reminds

us of the legal definition of chutzpah: chutzpah is a young

man, convicted of murdering his parents, who argues for

mercy on the ground that he is an orphan.”).

The Board’s decision does not, as Fallbrook suggests,

apportion the remedy to distinguish between relief for past

5

misconduct and relief to ensure that the Union has prospective

strength in collective bargaining. Rather, the Board’s decision

states that the purpose for the remedy is to make the Union

whole and to put the Union in the same place it was before the

bargaining ever occurred. Furthermore, the Hospital and the

Union held a number of bargaining sessions to negotiate over

the effects of the closure of the acute care unit, and these

bargaining sessions occurred after the Board issued its

decision and after Fallbrook announced the closure.

Therefore, even accepting Fallbrook’s theory – that a portion

of the Board’s order was only intended to give the Union

prospective strength at the bargaining table – it is still clear

that the Board’s remedy is fully justified. In sum, we find no

merit in Fallbrook’s motion to remand the case to the Board

pursuant to Section 10(e).

I. BACKGROUND

A. Statutory and Legal Background

Section 8(a)(5) of the Act makes it “an unfair labor

practice for an employer . . . to refuse to bargain collectively

with the representatives of his employees. . . .” 29 U.S.C.

§ 158(a)(5). As is relevant here, the duty to bargain

collectively means, “to meet at reasonable times and confer in

good faith with respect to . . . the negotiation of an

agreement.” Id. § 158(d). Because the statutory standard of

“good faith” bargaining is determined by the facts of each

case, whether or not a party has failed to live up to this duty

falls squarely within the province of the Board’s expertise.

Sign & Pictorial Union Local 1175 v. NLRB, 419 F.2d 726,

731 (D.C. Cir. 1969). “A violation of Section 8(a)(5) is also a

violation of Section 8(a)(1), which makes it an unfair labor

practice for an employer to ‘interfere with, restrain, or coerce

employees in the exercise’ of their statutory right to bargain

6

collectively through representatives of their own choosing.”

S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1356 n.6

(D.C. Cir. 2008) (quoting 29 U.S.C. § 158(a)(1)).

The Board has discretion to fashion appropriate remedies

for violations of the duty to bargain. See 29 U.S.C. § 160(c)

(authorizing the Board to order the violator “to take such

affirmative action . . . as will effectuate the policies of this

subchapter”). As noted above, “[i]n cases of unusually

aggravated misconduct,” the Board may order an offending

party “to reimburse the charging party for negotiation

expenses.” Unbelievable, 318 N.L.R.B. at 859. The Board

determines whether negotiating expenses are warranted after

weighing the evidence in a particular case. Hosp. of Barstow,

Inc., 361 N.L.R.B. No. 34 (Aug. 29, 2014), slip op. at 5 n.13.

There are no per se rules regarding when reimbursement of

negotiation expenses will be ordered.

B. The Facts

It is unnecessary for us to offer a detailed statement of the

facts in this case. As noted above, Fallbrook does not contest

the Board’s findings, which are fully set forth in the Board’s

decision and in the Statement of the Case issued by the

Administrative Law Judge (“ALJ”). See Fallbrook, 360

N.L.R.B. No. 73, slip op. at 2, 5–8. The Board’s decision

notes, in relevant part:

[T]he Union was certified as the exclusive collective-

bargaining representative of the Respondent’s nurses on

May 24, 2012, and the parties held their first bargaining

session on July 3. As found by the judge, the Respondent

engaged in bad-faith bargaining from the outset, and this

conduct continued until the final bargaining session on

January 8, 2013. Thereafter, the Respondent refused to

7

respond to any of the Union’s requests for future

bargaining dates. Thus, by its conduct, the Respondent

effectively precluded any meaningful bargaining for

virtually the entire certification year.

....

As described in detail in the judge’s decision, the

record shows that the Respondent deliberately acted to

prevent any meaningful progress during bargaining

sessions that were held. For example, the Respondent’s

bargaining team failed to provide any proposals or

counterproposals during the first eight bargaining

sessions until it received a full set of proposals from the

Union, left the September 12 bargaining session abruptly

and without explanation, and left the October 11

bargaining session 3 minutes after arriving. In addition,

although the Respondent proffered some proposals

during the next three bargaining sessions, it subsequently

threatened that it would not continue bargaining if the

Union persisted in encouraging employees’ use of the

Union’s assignment despite objection (ADO) form. At a

bargaining session held on January 8, 2013, the

Respondent falsely claimed that the nurses’ use of the

ADO forms caused the parties to be at impasse, refused

to bargain further, and left the meeting after about 15

minutes. Thereafter, the Respondent reaffirmed its

refusal to bargain when it refused to respond to the

Union’s requests for future bargaining dates.

Id. at 2–3 (footnote omitted). The Board’s summary of the

facts is amplified by the ALJ’s findings, id. at 6–8, which

were largely adopted by the Board, id. at 1. The ALJ found

that Fallbrook had engaged in a slew of unfair labor practices,

including “failing and refusing to bargain with the Union in

8

good faith over the terms of a collective-bargaining

agreement, failing and refusing to bargain with the Union

over the terminations of unit employees Robinson and

Sandwell, and failing to furnish relevant information to the

Union, in violation of Section 8(a)(1) and (5) of the Act.” Id.

at 15.

In light of these findings, the Board concluded that

Fallbrook should be required “to reimburse the Union for the

expenses it incurred for the collective-bargaining negotiations

held from July 3, 2012, through the final bargaining session

on January 8, 2013.” Id. at 3. On this point, the Board said:

We find that the Respondent’s misconduct infected

the core of the bargaining process to such an extent that

its effects cannot be eliminated by the mere application

of our traditional remedy of an affirmative bargaining

order. In these circumstances, requiring the Respondent

to reimburse the Union’s negotiation expenses is also

warranted both to make the [Union] whole for the

resources that were wasted because of the [Respondent’s]

unlawful conduct, and to restore the economic strength

that is necessary to ensure a return to the status quo ante

at the bargaining table. Such expenses may include, for

example, reasonable salaries, travel expenses, and per

diems.

Id. (citations and internal quotation marks omitted).

Fallbrook now petitions for review of the Board’s

decision ordering the Hospital to reimburse the Union’s

negotiation expenses. The Board cross-petitions for

enforcement.

9

II. ANALYSIS

A. Standard of Review

It is well understood that “the choice of remedies is

primarily within the province of the Board.” United

Steelworkers, 376 F.2d at 773. “[T]he breadth of agency

discretion is, if anything, at zenith when the action assailed

relates primarily not to the issue of ascertaining whether

conduct violates the statute, or regulations, but rather to the

fashioning of policies, remedies, and sanctions . . . in order to

arrive at maximum effectuation of Congressional objectives.”

Niagara Mohawk Power Corp. v. Fed. Power Comm’n, 379

F.2d 153, 159 (D.C. Cir. 1967) (footnote omitted). The

Board’s order of remedies “should stand unless it can be

shown that the order is a patent attempt to achieve ends other

than those which can fairly be said to effectuate the policies

of the Act.” Virginia Elec. Co. v. NLRB, 319 U.S. 533, 540

(1943). In other words, there must be “so gross an abuse of

power as to be arbitrary.” United Steelworkers, 376 F.2d at

773. We find no “abuse of power” in the Board’s disposition

of this case.

B. Summary Enforcement of the Board’s Findings of

Section 8(a)(1) and (5) Violations and Uncontested

Remedies

Because Fallbrook has expressly abandoned its challenge

to the Board’s determinations that Fallbrook violated Sections

8(a)(1) and (5) by refusing to bargain in good faith, the

Board’s award of an affirmative bargaining order, one-year

extension of the Union’s certification period, cease-and-

desist order, and notice posting, we summarily enforce the

Board’s findings and order with respect to those charges and

10

uncontested remedies. See Allied Mech. Servs. v. NLRB, 668

F.3d 758, 765 (D.C. Cir. 2012).

C. The Board’s Decision Ordering Reimbursement of

Negotiation Expenses

Fallbrook claims that the Board “singled out Fallbrook

for the extraordinary remedy based upon three factors: (1)

Fallbrook did not make any proposals until the eighth

bargaining session by which point the Union had submitted

the entirety of its proposals, (2) the short duration of two of

the parties’ eleven bargaining sessions, and (3) Fallbrook’s

suspension of negotiations based upon the Union’s refusal to

cease distribution of the ADO[ Forms].” Br. of Petitioner 14.

The Hospital also contends that the Board failed to consider

some factors that “demonstrate that Fallbrook did not engage

in any ‘unusually aggravated misconduct.’” Id. Fallbrook

points to only two such factors: a claim that the Union and the

Hospital had entered into a pre-certification agreement

pertaining to certain subjects of bargaining; and a claim that

the Hospital was operating under the belief that any dispute

between the parties would be submitted to an arbitrator. See

id. at 15. Fallbrook also disputes that its extensive unfair labor

practices amounted to “unusually aggravated conduct.” See

id. at 15–20. We find no merit in these arguments.

Fallbrook’s claim that the Board based its order on only

“three factors” both mischaracterizes the Board’s decision and

fails to account for the fact that the Board affirmed and

adopted the ALJ’s extensive factual findings that “the totality

of the conduct indicates [Fallbrook] operated with a closed

mind and put up a series of roadblocks designed to thwart and

delay bargaining.” Fallbrook, 360 N.L.R.B. No. 73, slip op. at

9. Moreover, the Board found that it was “clear” that

Fallbrook had “no intent to bargain, and [that Fallbrook’s]

11

continued attempts to challenge the Board’s certification

make it clear it does not welcome the Union.” Id. at 15. Much

more than basing its determination “upon three factors,” Br.

of Petitioner 14, the Board based its decision on the extensive

list of unfair labor practices found by the ALJ and

uncontested by the Hospital. Given this litany of misconduct

showing Fallbrook’s deliberate attempts to prevent any actual

bargaining, see Fallbrook, 360 N.L.R.B. No. 73, slip op. at 5–

9, the Board’s chosen remedy is supported by substantial

evidence in the record.

Fallbrook’s claim that its misconduct did not amount to

“unusually aggravated misconduct,” see Br. of Petitioner 15–

20, is belied by the record. Fallbrook has cherry-picked the

record and then argued that isolated examples of its

misconduct, in and of themselves, do not justify the Board’s

chosen remedy. For example, Fallbrook argues that the

duration of the bargaining sessions does not justify an award

of negotiation expenses because “the Board has frequently

encountered employers who walk out of bargaining sessions

and . . . has not assessed the extraordinary remedy of

negotiating expenses.” Id. 17–18. This argument entirely

misses the point. The problem with Fallbrook’s approach is

obvious: the Board’s decision rests on the Hospital’s entire

record of unfair labor practices, which in this case is quite

extensive. The Board found that the totality of Fallbrook’s

misconduct justified the remedy. This is perfectly appropriate

under established law. See Hosp. of Barstow, 361 N.L.R.B.

No. 34, slip op. at 5 n.13 (explaining that “decisions [by the

Board] make clear that, in determining whether to award

negotiating expenses, [the Board] will consider each case on

its own merits, evaluating the effect of the violation on the

wronged party and the injury to the collective-bargaining

process”). In this case, it cannot be seriously doubted that

substantial evidence supports the Board’s decision.

12

Fallbrook further protests that the Board failed to credit

the fact that there was a pre-certification agreement between

the Union and Fallbrook’s parent company. However, the

ALJ found that “[t]here is no evidence of record about what

happened during these [pre-certification] negotiations other

than they resulted in agreement [between the Union and

Community Health Systems, the parent company] on certain

provisions and [Community Health Systems] was not named

as a respondent in this case.” Fallbrook, 360 N.L.R.B. No. 73,

slip op. at 9 n.12. In other words, Fallbrook never executed an

agreement with the Union; the pre-certification negotiations

involved only the parent company, not Fallbrook. Thus, the

ALJ concluded, “[t]hat there may have been good faith

negotiations between the Hospital’s parent company and the

Union at some point in the past does not impact my findings

[regarding Fallbrook’s unfair labor practices] based on the

record before me.” Id. at 9. The Board adopted these findings

and the conclusion.

The Board’s decision here is also consistent with its

decision in Harowe Servo Controls, Inc., 250 N.L.R.B. 958

(1980). In that case, the Board held:

That the Respondent can cite some evidence of

agreement on specific issues is therefore of no

consequence in the circumstances of this case. Indeed,

these circumstances lead inexorably to the conclusion

that such agreement as was reached was no more than the

vehicle chosen by the Respondent to conceal a strategy

designed to render bargaining futile.

It is thus evident that the economic resources wasted by

the Union in the futile pursuit of a collective-bargaining

agreement are a direct and proximate result of the

13

Respondent’s willful defiance of its statutory obligation.

Accordingly, in order to restore the status quo ante, we

shall require that the Respondent reimburse the Union for

the bargaining expenses it incurred during the period here

in question.

Id. at 965 (emphasis added) (footnote omitted). The same

considerations apply here.

Fallbrook moreover argues that “the Board ignored the

fact that, at the time the negotiations were taking place, the

Hospital believed that . . . any disputes would be brought to

the parties’ arbitrator.” Br. of Petitioner 15. There is no

finding of fact to support this claim and Fallbrook has not

contested the Board’s findings in this case. Furthermore, the

Board expressly adopted the ALJ’s “finding that deferral to

arbitration under Collyer Insulated Wire, 192 NLRB 837

(1971), is not appropriate here, because the parties [had] not

executed a written contract setting forth an agreed-upon

grievance-arbitration procedure.” Fallbrook, 360 N.L.R.B.

No. 73, slip op. at 1 n.2. Fallbrook does not contend that the

Board’s decision on this point is wrong either as a matter of

fact or law.

Fallbrook additionally contends that the Board’s decision

to award negotiation expenses is contrary to law. In particular,

Fallbrook contends that its misconduct was not as egregious

as the employers’ conduct in Unbelievable, 318 N.L.R.B. 857,

Harowe Servo Controls, 250 N.L.R.B. 958, and other cases in

which the Board has ordered a respondent to reimburse the

charging party for negotiation expenses. Fallbrook’s view of

the applicable precedent is distorted.

The Board has made it clear that:

14

[the decision in Unbelievable] . . . did not set the bar for

an award of negotiating expenses at the level of the

misconduct in that case. Nor did the Board in Harowe

Servo Controls set some threshold level of egregiousness

that must be satisfied in order to conclude that an

employer’s conduct infected the core of the bargaining

process.

Hosp. of Barstow, Inc., 361 N.L.R.B. No. 34, slip op. at 5

n.13. The Board’s approach in each case is to weigh the facts

in the record to determine whether a reimbursement of

negotiation expenses is appropriate to “to make the charging

party whole for the resources that were wasted because of the

unlawful conduct, and to restore the economic strength that is

necessary to ensure a return to the status quo ante at the

bargaining table.” Unbelievable, 318 N.L.R.B. at 859. The

Board adhered to this standard in this case.

The Board found that Fallbrook “deliberately acted to

prevent any meaningful progress during bargaining sessions

that were held” and “deprive[d] the [U]nion of the

opportunity to bargain during the time of the [U]nion’s

greatest strength.” Fallbrook, 360 N.L.R.B. No. 73, slip op. at

2 (internal quotation marks omitted). “The Union fruitlessly

expended time and financial resources associated with

arranging dates to be available for bargaining, developing and

drafting proposals and counter-proposals, consulting with the

mediator, and keeping union members apprised of bargaining

efforts.” Br. for NLRB 26. Thus, the Board’s determination

that Fallbrook’s deliberate misconduct so infected the core of

the bargaining process as to justify a reimbursement of

negotiations expenses remedy is supported by substantial

evidence in the record and it is eminently rational.

15

“The Board’s discretion in fashioning remedies under the

Act is extremely broad and subject to very limited judicial

review.” St. Francis Fed’n of Nurses & Health Prof’ls v.

NLRB, 729 F.2d 844, 848 (D.C. Cir. 1984). This means that

the court has no business second-guessing the Board’s

judgments regarding remedies for unfair labor practices. The

“choice of remedies is entitled to a high degree of deference”

by a reviewing court. Teamsters Local 115 v. NLRB, 640 F.2d

392, 399 (D.C. Cir. 1981); see also Fibreboard Paper Prods.

Corp. v. NLRB, 379 U.S. 203, 216 (1964) (the Board’s

remedial power “is a broad, discretionary one, subject to

limited judicial review”).

In fashioning an appropriate remedy to address the

substantial unfair labor practices in this case, the Board was

acting at the “zenith” of its discretion. Niagara Mohawk, 379

F.2d at 159. Under this highly deferential standard of review,

we have no basis upon which to overturn the Board’s order

requiring Fallbrook to reimburse the Union for negotiation

expenses.

****

Fallbrook has raised one additional point regarding the

merits of the Board’s decision. It complains that the Board

failed to adequately explain its finding of causation between

Fallbrook’s misconduct and the Union’s losses. Br. of

Petitioner at 26–27. Section 10(e) of the Act prevents us from

considering this argument, however, because it is raised for

the first time on petition for review. See 29 U.S.C. § 160(e)

(“No objection that has not been urged before the Board . . .

shall be considered by the court, unless the failure or neglect

to urge such objection shall be excused because of

extraordinary circumstances.”). “Where, as here, a petitioner

objects to a finding on an issue first raised in the decision of

16

the Board rather than of the ALJ, the petitioner must file a

petition for reconsideration with the Board to permit it to

correct the error (if there was one).” Flying Food Group, Inc.

v. NLRB, 471 F.3d 178, 185 (D.C. Cir. 2006).

D. Motion to Remand

As noted at the outset of this opinion, Fallbrook has

requested the court to remand the case to the Board pursuant

to Section 10(e) of the Act to allow the Board to reconsider its

remedy of reimbursement of negotiation expenses in light of

changed circumstances. The disposition of such a motion is

within the “sound judicial discretion of the court.” NLRB v.

Mexia Textile Mills, 339 U.S. 563, 569 (1950) (internal

quotation marks omitted). Finding no merit in Fallbrook’s

request, we deny the motion.

The Board issued its decision and order in this case on

April 14, 2014. On May 21, 2014, Fallbrook notified

Fallbrook Healthcare District, from which it leased the acute

care hospital, that it intended to terminate “nearly all core

services” at that hospital. On December 20, 2014, Fallbrook

terminated the provision of core services at the leased acute

care hospital and terminated the employment of virtually all

of its employees, including all the employees represented by

the Union. From August to December of 2014, Fallbrook and

the Union held several bargaining sessions concerning the

effects of the closure. Apparently, Fallbrook declared impasse

in the effects bargaining in December 2014, with no

agreement having been reached by the parties. The Union has

filed at least three unfair labor practice charges against

Fallbrook arising from the Hospital’s conduct during the

effects bargaining. Opp’n of the NLRB to Mot. to Remand,

Exs. C–E.

17

According to Fallbrook, the “integral changed

circumstances” requiring remand are: (1) the hospital no

longer employs any Union-represented employees; (2) given

the closure of the acute care unit, the parties will never

resume negotiations toward a collective bargaining

agreement; and (3) the parties have reached what appears to

be an interminable impasse over effects bargaining.

Petitioner’s Mot. to Remand 11.

As noted above, the theory underlying Fallbrook’s

motion to remand is that these purported changed

circumstances are “material” because the Board’s decision to

award negotiation expenses rested on two distinct and

severable purposes: one to redress the effect of Fallbrook’s

past misconduct on the Union, and one to provide the Union

prospective strength at the bargaining table. Fallbrook claims

that the latter purpose can no longer be served because of the

closure of the acute care unit, and, therefore, a principal

justification for the Board’s remedy has been undercut. This is

a specious argument and we reject it.

Fallbrook concedes that the Board can – and did –

impose a “make whole” remedy on behalf of the Union. Oral

Argument at 4:05–4:09. Nonetheless, the Hospital contends

that we can read into the Board’s decision a second remedial

purpose to restore strength to the Union solely for prospective

bargaining sessions with Fallbrook. However, Fallbrook

concedes – as it must – that this purported second remedial

purpose is not actually written anywhere in the Board’s

decision; Fallbrook simply “believe[s] it’s implied.” Id. at

4:30. We disagree.

The plain truth here is that Fallbrook’s theory regarding

the Board’s remedy is unsupported by the language of the

Board’s decision. The purpose of the Board’s order – which is

18

plainly stated in its decision – was to reimburse the Union for

resources wasted by attempting in vain to bargain with

Fallbrook, and to restore the status quo ante – i.e., to place

the Union in the same position it was in before the parties

began bargaining. See BLACK’S LAW DICTIONARY 1633 (10th

ed. 2014) (“status quo ante” defined as “[t]he situation that

existed before something else (being discussed) occurred”).

Nothing in the Board’s decision discusses prospective (i.e.,

future) bargaining strength vis-à-vis Fallbrook in the manner

suggested by the Hospital.

Furthermore, nothing in the Board’s decision suggests

that the remedy can be apportioned in the manner urged by

Fallbrook: some percentage to remedy the resources wasted

by the Union in past futile bargaining sessions with Fallbrook

and some percentage for the Union’s prospective power in

bargaining sessions yet to come with Fallbrook. Fallbrook’s

argument makes no sense.

Under established case law, this court has the discretion

to remand a case to the Board to hear additional evidence that

is “material and [for which] there were reasonable grounds for

the failure to adduce such evidence in the hearing before the

Board.” See, e.g., L’Eggs Prods., Inc. v. NLRB, 619 F.2d

1337, 1352 (9th Cir. 1980) (quoting 29 U.S.C. § 160(e)). We

agree with the Board that the “changed circumstances”

alleged in Fallbrook’s motion are irrelevant because they do

not mitigate the injury inflicted on the Union through the

period of futile bargaining. Opp’n of the NLRB to Mot. to

Remand 2. In addition, even taking Fallbrook’s “two prongs”

theory of the Board’s remedy at face value, Fallbrook admits

that it continued to bargain with the Union after the Board

issued its decision and after the acute care unit had been

closed. See Petitioner’s Mot. to Remand 2. Therefore, even if

the Board’s decision contemplated “prospective” relief for the

19

benefit of the Union in future bargaining with Fallbrook, such

future bargaining did occur after the Board issued its order.

Accordingly, even if we were to accept Fallbrook’s theory of

the Board’s decision (which we do not), we would disagree

with Fallbrook that the Board’s rationale for returning the

Union to its status quo ante at the bargaining table was

rendered moot. See id. at 13.

In sum, because we find no material changed

circumstances necessitating a remand of the case to the Board

pursuant to Section 10(e) of the Act, we deny Fallbrook’s

motion.

III. CONCLUSION

For the reasons set forth above, Fallbrook’s petition for

review and motion for remand are denied. The Board’s cross-

motion for enforcement is granted.

So ordered.