Petition for Writ of Certiorari — Hospital Menonita de Guayama, Inc., Petitioner v. National Labor Relations Board

No. ____________

IN THE

Supreme Court of the United States

HOSPITAL MENONITA DE GUAYAMA, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United State Court of Appeals

District of Columbia Circuit

___________________

PETITION FOR WRIT OF CERTIORARI

____________________

Angel Muñoz Noya

SÁNCHEZBETANCES,

SIFRE &

MUÑOZNOYA

33 Calle Bolivia

Suite 500

San Juan, PR 00917

787-756-7880

Patrick M. Muldowney

Counsel of Record

Meagan L. Martin, Esq.

BAKER & HOSTETLER LLP

200 S. Orange Ave., Ste. 2300

Orlando, FL 32801

407-649-4000

pmuldowney@bakerlaw.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the National Labor Relations Act

establishes a bar on a successor employer from

challenging the continued support for a previously

certified union.

2. Whether courts should defer to the National Labor

Relations Board’s successor bar rule that creates

an irrebuttable presumption that an incumbent

union retains its majority status for a reasonable

period of time following the successor employer’s

voluntary recognition of the union.

ii

PARTIES TO THE PROCEEDING

Petitioner (petitioner/cross-respondent below)

is Hospital Menonita de Guayama, Inc.

Respondent

(respondent/cross-petitioner

below) is the National Labor Relations Board.

Unidad Laboral de Enfermeras (OS) y

Empleados de la Salud (“the Union”) was a party to

the proceeding before the National Labor Relations

Board.

iii

CORPORATE DISCLOSURE STATEMENT

Hospital Menonita de Guayama, Inc., is a nonprofit corporation. Hospital Menonita certifies that it

has a parent corporation named Mennonite General

Hospital, Inc., which is also a non-profit corporation,

and no publicly held corporation has a 10% or greatest

interest in Hospital Menonita de Guayama, Inc., or

Mennonite General Hospital, Inc.

iv

STATEMENT OF RELATED PROCEEDINGS

This case directly related to the following

proceedings:

United States Court of Appeals (D.C. Cir.)

Hospital Menonita de Guayama, Inc. v.

N.L.R.B., No. 22-1163 (reported at 94 F.4th

1 (D.C. Cir. 2024))

v

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED .............................. i

PARTIES TO THE PROCEEDING ................ ii

CORPORATE DISCLOSURE STATEMENT

................................................................... iii

STATEMENT OF RELATED

PROCEEDINGS ..................................... iv

TABLE OF CONTENTS ................................... v

TABLE OF CITED AUTHORITIES ............... ix

PETITION FOR WRIT OF CERTIORARI .... 1

OPINIONS BELOW ........................................... 1

JURISDICTION ................................................. 2

STATUTORY PROVISIONS INVOLVED ...... 2

STATEMENT OF THE CASE .......................... 3

A.

Statutory Background..... 3

B.

Factual Background ........ 4

C.

Proceedings Below ........... 5

vi

REASONS FOR GRANTING THE PETITION

.................................................................... 7

I.

The D.C. Circuit’s Deference To

The

Board

Regarding

Its

Current Incarnation Of The

Successor

Bar

Doctrine

Conflicts With This Court’s

Holding

In

Loper

Bright

Enterprises. ................................... 7

II.

Neither The D.C. Circuit Nor

The First Circuit Decision Upon

Which It Relied Engaged In Any

Independent Analysis Of The

Successor Bar Doctrine. .......... 10

III.

The Best Reading Of The NLRA,

Consistent With This Court’s

Precedent, Is A Union Enjoys A

Rebuttable

Presumption

of

Majority Status In Determining

Whether A Successor Employer

Has A Duty To Bargain With The

Union............................................ 11

IV.

This Court Should Vacate The

D.C. Circuit’s Decision So As To

Allow It To Re-Consider Its

Decision In Light Of Loper

Bright Enterprises. .................... 15

CONCLUSION ................................................. 16

vii

APPENDIX

Opinion of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), on the Petition for

Review and Cross-Application for Enforcement of an

Order of the National Labor Relations Board,

reported at Hosp. Menonita de Guayama, Inc. v.

NLRB, 94 F.4th 1 (D.C. Cir. 2024) [February 27,

2024] ................................................................... App. 1

Judgment of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), Denying Petitioner’s

Petition for Review and Granting the Board’s CrossApplication for Enforcement [February 27, 2024]

.......................................................................... App. 37

Order of the United States Court of Appeals, District

of Columbia Circuit, Case No. 22-1163 (Consolidated

with 22-1180), Denying Petitioner’s Petition for Panel

Rehearing [May 7, 2024] .................................. App. 39

Order of the United States Court of Appeals, District

of Columbia Circuit, Case No. 22-1163 (Consolidated

with 22-1180), Denying Petitioner’s Petition for

Rehearing En Banc [May 7, 2024]................... App. 41

Order of the United States Court of Appeals, District

of Columbia Circuit, Case No. 22-1163 (Consolidated

with 22-1180), Denying Petitioner’s Motion to Stay

Issuance of the Mandate Pending the Filing of a

Petition for Writ of Certiorari [June 11, 2024]

.......................................................................... App. 43

viii

Order of the National Labor Relations Board, Cases

No. 12-CA-214830; 12-CA-214908; 12-CA-215039; 12CA-215040; 12-CA-215665; 12-CA-217862; 12-CA218260; Hospital Menonita de Guayama, Inc. and

Unidad Laboral de Enfermeras(os) y Empleados de la

Salud, 371 NLRB 108 [June 28, 2022]

.......................................................................... App. 45

Mandate of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180) [June 21, 2024]

........................................................................ App. 159

Statutory Provisions

29 U.S.C. § 151 ............................................... App. 161

29 U.S.C. § 157 ............................................... App. 164

29 U.S.C. § 158 ............................................... App. 165

29 U.S.C. § 159 ............................................... App. 179

29 U.S.C. § 160 ............................................... App. 185

5 U.S.C. § 706 …………………………………..App. 196

28 U.S.C. § 2106……………..……………….. .. App. 198

ix

TABLE OF CITED AUTHORITIES

Page(s)

Cases

Bartenwerfer v. Buckley,

598 U.S. 63 (2024) .................................................. 8

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc.,

467 U.S. 837 (1984) ...............................7, 10, 11, 13

Fall River Dyeing & Finishing Corp. v. N.L.R.B.,

482 U.S. 27 (1987) .......................................... 12, 14

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 11

Harley-Davidson Transportation Co.,

273 NLRB 1531 (1985) ........................................... 6

KC Transport, Inc. v. Su, Acting sec. of Labor,

Case No. 23-876, 2024 WL 3259666, at *1 (U.S.

July 2, 2024) ......................................................... 16

Landmark Intern. Trucks,

257 NLRB 1375 (1981) ........................................... 6

Landmark Intern. Trucks, Inc. v. N.L.R.B.,

699 F.2d 815 (6th Cir. 1983) ............................ 6, 13

Lechmere, Inc. v. N.L.R.B.,

502 U.S. 527 (1992) .............................................. 14

Loper Bright Enterprises v. Raimondo,

603 U.S. ___, 144 S. Ct. 2244 (2024) .......7, 8, 11, 16

x

MV Transp.,

337 NLRB 770 (2002) ............................................. 6

N.L.R.B. v. Burns Int’l Sec. Servs., Inc.,

406 U.S. 272 (1972) ........................................ 13, 14

N.L.R.B. v. Fin. Inst. Emps. of Am., Loc. 1182,

Chartered by United Food & Com. Workers Int’l

Union, AFL-CIO,

475 U.S. 192 (1986) ........................................ 12, 13

N.L.R.B. v. Lily Transportation Corporation,

853 F.3d 31 (1st Cir. 2017) ..................................... 6

Southern Mouldings, Inc.,

219 NLRB 119 (1975) ............................................. 6

St. Elizabeth Manor, Inc.,

329 NLRB 341 (1999) ............................................. 6

Starbucks Corp. v. McKinney,

602 U.S. ___, 144 S. Ct. 1570 (2024) .................... 14

UGL-UNICCO Serv. Co.,

357 NLRB 801 (2011) ......................................... 6, 9

Van Buren v. United States,

593 U.S. 374 (2021) ................................................ 8

Statutes

28 U.S.C. § 2106 ....................................................... 16

29 U.S.C. § 151 ......................................................... 14

29 U.S.C. § 157 ............................................3, 9, 10, 14

xi

29 U.S.C. § 158(a)....................................................... 3

29 U.S.C. § 159(a)................................................. 3, 10

29 U.S.C. § 159(c)(1)(A)(ii) ......................................... 3

29 U.S.C. § 159(c)(3)................................................... 3

5 U.S.C. § 706 ............................................................. 7

PETITION FOR WRIT OF CERTIORARI

Hospital Menonita de Guayama, Inc.

respectfully petitions for a writ certiorari to review

the judgment of the D.C. Circuit in this case.

OPINIONS BELOW

The panel opinion of the court of appeals is

reported at Hosp. Menonita de Guayama, Inc. v.

N.L.R.B., 94 F.4th 1 (D.C. Cir. 2024), and reproduced

at App. 1-36.

The judgment of the court of appeals is

reproduced at App.37-38.

The order of the court of appeals denying

Petitioner’s petition for rehearing is reproduced at

App. 39-40.

The order of the court of appeals denying

Petitioner’s petition for rehearing en banc is

reproduced at App. 41-42.

The order of the court of appeals denying

Petitioner’s motion to stay issuance of the mandate is

reproduced at App. 43-44.

The order of the National Labor Relations

Board and attached decision of Administrative Law

Judge Ira Sandron is reported at Hosp. Menonita de

Guayama,

Inc.

and

Unidad

Laboral

de

Enfermeras(os) y Empleados de la Salud, 371 NLRB

108 (June 28, 2022), and reproduced at App. 45-158.

2

The mandate issued by the court of appeals is

reproduced at App. 159-160.

JURISDICTION

The judgment of the court of appeals was

entered on February 27, 2024. A petition for

rehearing and rehearing en banc was denied on May

7, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of the National Labor

Relations Act and other relevant substantive statutes

are reproduced at App. 161-198.

3

STATEMENT OF THE CASE

A.

Statutory Background

The National Labor Relations Act of 1935

(“NLRA” or the “Act”) provides employees with “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,” but, just as important, “to refrain from

any or all of such activities ….” 29 U.S.C. § 157. As a

result, employees of a company retain the right to

decide whether to be represented by a union. 29

U.S.C. § 159(a) (the “exclusive representatives” of

employees in a bargaining unit are those “designated

or selected for the purposes of collective bargaining by

the majority of the employees in the unit”). An

employer is, thus, entitled to claim a union no longer

commands majority support to serve as the

employees’

representative.

29

U.S.C.

§

159(c)(1)(A)(ii).

An employer, however, cannot

challenge a valid election for a twelve-month period.

29 U.S.C. § 159(c)(3), (e)(2). Except for that limited

temporal period, the statutory scheme imposes no

limitations on a challenge to union support.

In 29 U.S.C. § 158(a), the NLRA provides that

any employer that “interfere[s] with, restrain[s], or

coerce[s] employees in the exercise of the rights

guaranteed in section 157”—that necessarily includes

the “right to refrain from any or all such activities,”

29 U.S.C. §157—or “refuse[s] to bargain collectively

with the representatives of his employees,” has

committed an unfair labor practice. 29 U.S.C.

§158(a)(1), (5).

4

B.

Factual Background

Petitioner (“Hospital”) assumed operations of

Hospital Menonita de Guayama on September 13,

2017, after purchasing the assets from the prior

owner. App. 127. At the time of the acquisition, the

existing Union asked the Hospital to recognize it as

the representative of the five collective bargaining

units it purportedly represented prior to the sale

(although there was no collective-bargaining

agreement in place for the units at the time) and

requested other information about employees. See id.

Because Hurricane Maria impacted the operations of

the hospital, the Hospital unilaterally adjusted the

work schedule of nurses and was slow to respond to

the Union’s request for information.

While the Hospital initially recognized the

Union in early November, the Hospital ultimately

withdrew recognition of the Union as the bargaining

representative for: (1) technicians (Unit D) effective

February 5, 2018; (2) clerical workers (Unit E) on

February 14; (3) medical technologists (Unit A) on

February 16; (4) RNs (Unit C) on April 6; and (5)

LPNs (Unit B) on April 24, after it received documents

with signatures establishing a majority (and in some

cases all) of the employees in each of the respective

units no longer supported the Union. 1 No changes

1 The loss of support is hardly surprising. At the time Petitioner

withdrew recognition, none of the units had effective bargaining

agreements. App. 126-127. In fact, the effective dates of the

collective bargaining agreements for the Units were as follows:

(1) for Unit A - September 1, 2008, to August 11, 2011; (2) for

Unit B - June 15, 2010, to June 16, 2013; and (3) for Unit C June 15, 2010, to June 16, 2013. Id. No collective bargaining

agreements were ever reached for Units D or E, despite the

5

were made to the respective employees’ terms or

conditions of employment until after the withdrawals

of recognition.

C.

Proceedings Below

The Union brought an unfair labor practice

charge against the Hospital claiming the Hospital

failed to bargain with the Union (as the purported

representative of the employees) over terms and

conditions of employment. See App. 3, 123.

In considering the charge, the administrative

law judge (“ALJ”) failed to determine whether the

Union enjoyed majority status. Id. Rather, during

evidentiary hearings in December 2018 and March

2019, the ALJ disallowed evidence proffered by the

Hospital demonstrating the Union’s lack of majority

support from the employees. App. 125. In doing so,

the ALJ found the documents were irrelevant under

a Board-created presumption that a successor

employer has an obligation to bargain with a union.

See id. The Union was, thus, presumed to have the

support of a majority of employees, regardless of

whether it actually did, and the Hospital was not

permitted to rebut that presumption. Within the

context of this Board-created presumption, the ALJ

concluded the Hospital unlawfully withdrew

recognition of the Union as the employees’ lawful

bargaining agent in five separate units and refused to

bargain in good faith with the Union in violation of

the NLRA. App. 143 (finding “withdrawal of

recognition of the Union for all five units ran afoul of

the successor bar rule”). The Board ultimately

Union having been recognized as the representative for both

Units since 2012. Id.

6

adopted the ALJ’s findings and conclusions. App. 4546.

Petitioner sought review in the court of

appeals; the court, however, denied the petition for

review. App. 33. The court of appeals determined the

Board’s decision adhered to the Board’s established

precedent recognizing the successor bar rule and

agreed the rule ultimately controlled the decision in

this case. App. 22. The court’s reasoning emphasized

the Board’s authority to revisit policy—including its

vacillating position on the successor bar rule. 2 And,

in considering Petitioner’s statutory challenge to the

successor bar rule, the court relied heavily on

N.L.R.B. v. Lily Transportation Corporation, which

found the rule was “within the scope of reasoned

interpretation [of the NLRA].” 853 F.3d 31, 38 (1st

Cir. 2017) (alteration in original). Relying on Lily

Transportation, the court found “the Board is entitled

to deference when it has thoroughly and reasonably

justified a change in policy.” App. 31.

In a concurring opinion, Judge Katsas

acknowledged “there is a plausible argument that the

National Labor Relations Act prohibits a successor

When it first articulated the successor bar doctrine in 1975, the

Board held that the presumption of majority status was

rebuttable. Southern Mouldings, Inc., 219 NLRB 119 (1975).

Since then, however, it has reversed itself multiple times as to

whether the presumption of majority status was rebuttable or

irrebuttable. See Landmark Intern. Trucks, 257 NLRB 1375

(1981), vacated by Landmark Intern. Trucks, Inc. v. N.L.R.B.,

699 F.2d 815 (6th Cir. 1983) (irrebuttable); Harley-Davidson

Transportation Co., 273 NLRB 1531, 1532 (1985) (rebuttable);

St. Elizabeth Manor, Inc., 329 NLRB 341, 344 (1999)

(irrebuttable); MV Transp., 337 NLRB 770, 771-72 (2002)

(rebuttable); UGL-UNICCO Serv. Co., 357 NLRB 801, 806 (2011)

(irrebuttable).

2

7

bar.” App. 34. However, because the court was

constrained by the framework established in Chevron,

U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), Judge Katsas agreed with

the court and the First Circuit that the Board’s

current successor bar “is within the scope of reasoned

interpretation and thus subject to judicial deference

under Chevron.” App. 36.

Petitioner sought rehearing and rehearing en

banc. The court of appeals denied both requests. App.

39-42.

REASONS FOR GRANTING THE PETITION

Nothing in the NLRA justifies the Boardcreated successor bar rule. Because the court of

appeals, in light of the obligation to defer to the Board

under Chevron, failed to conduct a de novo review of

whether the NLRA supports the creation of an

irrebuttable presumption of majority status for an

existing union, and that failure is contrary to this

Court’s recent decision in Loper Bright Enterprises v.

Raimondo, 603 U.S. ___, 144 S. Ct. 2244, 2261 (2024),

the court of appeals should be given the opportunity

to consider the issue on the merits in light of the

intervening decision.

I.

The D.C. Circuit’s Deference To The

Board Regarding Its Current Incarnation

Of The Successor Bar Doctrine Conflicts

With This Court’s Holding In Loper Bright

Enterprises.

As recently recognized by this Court, reviewing

courts must “independently interpret the statute and

effectuate the will of Congress subject to

constitutional limits.” Loper Bright Enterprises144 S.

Ct. at 2263; see also 5 U.S.C. § 706 (“To the extent

necessary to decision and when presented, the

8

reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions,

and determine the meaning or applicability of the

terms of an agency action.”). The D.C. Circuit did not

do that here.

Rather than engage in de novo review, the

panel impermissibly deferred to the Board, making no

real attempt to independently consider whether the

successor bar rule is consistent with the NLRA.

Instead, the panel denied the petition for review,

finding: (1) the Board sufficiently justified its changed

policy with respect to the successor bar rule, and (2)

the First Circuit’s recent opinion in Lily

Transportation “considered the merits of the Board’s

successor bar rule.” App. 28, 29. Both justifications

improperly defer to the Board’s promulgation and

interpretation of the rule without properly exercising

the court’s independent judgment. See Loper Bright

Enterprises, 144 S. Ct. at 2265. Had the D.C. Circuit

followed this Court’s direction on statutory

interpretation, see Bartenwerfer v. Buckley, 598 U.S.

63, 74 (2023) (“[W]e start where we always do: with

the text of the statute.”) (quoting Van Buren v. United

States, 593 U.S. 374, 381 (2021)), it would have

reached a different conclusion: namely, that the

NLRA does not permit the successor bar rule.

Starting with the text, the NLRA does not

explicitly provide for the successor bar rule

championed by the Board. As this Court recognized

in Loper Bright Enterprises, this statutory silence

does not create an ambiguity the Board (as opposed to

a court) was meant to resolve. 144 S. Ct. at 2266 (“Of

course, when faced with a statutory ambiguity in such

a case, the ambiguity is not a delegation to anybody,

and a court is not somehow relieved of its obligation

9

to independently interpret the statute.”). Statutory

silence, however, is all the Board can present here.

As Judge Katsas recognized, the NLRA itself

provides only one temporal limitation to challenge a

union’s representation, which, “[u]nder normal

principles of statutory construction,” would likely

“preclude, by negative implication, the imposition of

others.” App. 34. Congress knew how to draft

language limiting an employer (including a successor

employer) from challenging a union’s representation

as evidenced by the one temporal limitation (the

certification bar), see 29 U.S.C. § 159(c)(3)). But as

long as an employer’s challenge to a union’s

representation occurs more than one year following a

valid election, nothing in the NLRA permits the

Board to presume a union continues to enjoy majority

employee support.

Indeed, the presumption

contradicts the express statutory directive that

employees shall have the right to refrain from

collective representation. 29 U.S.C. § 157.

Absent the Board’s application of the successor

bar rule, the Hospital would have presented evidence

demonstrating the majority of employees did not

support the Union. App. 125 (disallowing evidence of

Union’s loss of majority status based on “Board’s

governing precedent” in UGL-UNICCO). While the

NLRA dictates employees retain the right to refrain

from collective bargaining, the Board’s creation and

application of an irrebuttable presumption that an

incumbent union enjoys majority support prevents a

successor employer from presenting evidence

regarding the employees’ choice. Rather than require

the employer or union to establish a majority of the

employees continue to want collective representation,

the Board created a rule that flaunts the statutory

10

scheme established in Sections 7 and 9 of the NLRA

and 159 and instead precludes evidence of employee

choice. The NLRA does not condone such a

presumption, which results in a concomitant failure

to determine whether the Union was in fact the

chosen representative of the employees pursuant to

Section 9(a) of the Act and, therefore, whether the

rights of employees were safeguarded under Section

7. See 29 U.S.C. §§ 157, 159(a).

II.

Neither The D.C. Circuit Nor The First

Circuit Decision Upon Which It Relied

Engaged In Any Independent Analysis Of

The Successor Bar Doctrine.

Nothing in the court of appeals’ decision

demonstrates the D.C. Circuit exercised its

independent legal judgment. 3 At best, the panel

relied on a First Circuit opinion that considered the

substantive challenges to the successor bar rule. But

the First Circuit decision is expressly premised on

deference to the Board under Chevron. See N.L.R.B.

v. Lily Transportation Corp., 853 F.3d 31, 38 (1st Cir.

2017) (“We see no cause to doubt that the Board’s

position taken here is within the scope of reasoned

interpretation and thus subject to judicial deference

under Chevron….”) (emphasis added). The First

Circuit did not determine whether the successor bar

rule is consistent with the NLRA.

Rather

than

engage

in

statutory

interpretation, the D.C. Circuit found the Board’s

adoption of the successor bar rule was a permissible

3 Judge Katsas’ separate concurrence confirms the panel

decision is required by the Chevron framework and took “no

position on whether the bar would survive under de novo review

in a post-Chevron world.” App. 36.

11

policy. While the court acknowledged the changing

policy regarding whether to apply a rebuttable or

irrebuttable presumption of majority support, App.

24, the court held the Board “need not demonstrate to

a court’s satisfaction that the reasons for the new

policy are better than the reasons for the old one; it

suffices that the new policy is permissible under the

statute, that there are good reasons for it, and that

the agency believes it to be better….” App. 23

(emphasis added) (quoting FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009)). This

reasoning, while potentially defensible under

Chevron deference, no longer stands. Loper Bright

Enterprises, 144 S. Ct. at 2266.

Permissibility and adequacy of the Board’s

reasoning under the Act do not suffice; rather the best

interpretation of a statute, as determined by the

courts, is the one that must be employed. Loper Bright

Enterprises, 144 S. Ct. at 2266 (“It therefore makes no

sense to speak of a ‘permissible’ interpretation that is

not the one the court, after applying all relevant

interpretive tools, concludes is best. In the business of

statutory interpretation, if it is not the best, it is not

permissible.”). There was no analysis of the statute

here; instead, there was deference to the Board’s

interpretation of its own authority.

III. The Best Reading Of The NLRA,

Consistent With This Court’s Precedent,

Is That A Union Enjoys A Rebuttable

Presumption Of Majority Status In

Determining

Whether

A

Successor

Employer Has A Duty to Bargain With The

Union.

12

In determining whether employees’ decisions

are adequately considered in collective representation

under the NLRA, this Court has provided guidance

regarding the reach of the statute. Specifically, in

finding a successor employer has a duty to bargain

with a union, the Fall River Court acknowledged “the

interest of the employees in continued representation

by the union.” Fall River Dyeing & Finishing Corp. v.

N.L.R.B., 482 U.S. 27, 41 (1987) (emphasis added).

However, when the employees are no longer

interested in the union’s continued representation,

the employees should have the option to shirk it.

Indeed, the Fall River Court, quoting its decision in

Financial Institution, acknowledged employee choice,

noting that the NLRA:

assumes that stable bargaining

relationships are best maintained by

allowing an affiliated union to

continue representing a bargaining

unit unless the Board finds that the

affiliation raises a question of

representation. The Board’s rule

contravenes this assumption, since

an employer may invoke a perceived

procedural defect to cease bargaining

even though the union succeeds the

organization the employees chose,

the employees have made no effort to

decertify the union, and the employer

presents no evidence to challenge the

union’s majority status.

Fall River Dyeing & Finishing Corp., 482 U.S. at 41,

n.9 (1987) (quoting N.L.R.B. v. Fin. Inst. Emps. of

Am., Loc. 1182, Chartered by United Food & Com.

13

Workers Int’l Union, AFL-CIO, 475 U.S. 192, 209

(1986)) (emphasis added).

In Burns International Security Services, this

Court similarly highlighted what it called a

“fundamental theme of the legislation”: The NLRA

“does not compel any agreement whatever…. The

theory of the Act is that free opportunity for

negotiation with accredited representatives of

employees is likely to promote industrial peace and

may bring about the adjustments and agreements

which the Act in itself does not attempt to compel.”

N.L.R.B. v. Burns Int’l Sec. Servs., Inc., 406 U.S. 272,

282–83 (1972) (quoting N.L.R.B. v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 45 (1937), and citing other

cases) (emphasis added) (ellipses in original).

The Sixth Circuit is the only appellate court to

have considered the successor bar before Chevron’s

existence. Landmark Int’l Trucks, Inc. v. N.L.R.B.,

699 F.2d 815 (6th Cir. 1983). The court noted the

Board “treated the obligation to bargain for a

reasonable time as absolute, without regard to

whether intervening events created a reasonable,

good faith doubt concerning majority status of the

union.” Id. at 818. The court rejected the Board’s

utilization of the successor bar, finding instead that,

in successorship situations, “[w]hile the relationship

between employees and employer is a new one, the

relationship between employees and union is one of

long standing,” and a “successor’s duty to continue

recognition under such circumstances is no different

from that of any other employer after the certification

year expires.” Id. Therefore, when “a successor

employer recognizes a union which has been certified

as the exclusive representative of employees of the

predecessor employer for one year or more, there is a

14

rebuttable presumption only that the union continues

to have the support of a majority of the employees.”

Id. at 818–19.

Moreover, a rebuttable presumption is

consistent with Congress’s goal under the NLRA to

promote stability. In doing so, Congress explicitly

provided employees the right to choose their

representatives and to participate or to refrain from

participating in collective activities. 29 U.S.C. §§ 151,

157. The Board’s authority does not extend to making

policy decisions—or “Board laws”—that conflict with

the statute, regardless of the Board’s interpretation of

nebulous mandates to the contrary. Cf. Starbucks

Corp. v. McKinney, 602 U.S. ___, 144 S. Ct. 1570, 1578

(2024) (rejecting Board’s assertion that “contextual

considerations” require courts to impose a lower

standard than normally required for relief when

Board seeks an injunction under Section 10(j) of the

Act).

As this Court has made clear, the NLRA

protects employees, not unions or employers. See

Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 531-32

(1992). The Board’s interpretation of the NLRA,

which provides unions an irrebuttable presumption of

majority status and results in unwanted unions

continuing their “representation” in disregard of

employees’ wishes, conflicts with the purpose of the

NLRA. Requiring unwanted representation is a

denial of the rights protected by Burns, Fall River,

and the NLRA. The Board’s interpretation of the

NLRA and application of the successor bar is

incorrect.

There is no dispute that a union that

represented employees before the entrance of a

successor employer is entitled to the presumption

15

that it remains the representative of the bargaining

unit. However, when an employer is presented with

evidence that its employees no longer wish to be

represented by a union, it should be able to consider

that evidence and act accordingly (i.e., withdraw

recognition from the union). To find otherwise would

result in employers being forced to engage in futile

negotiations with rejected unions.

Here, nothing in the statute justifies a

prohibition on evidence to challenge a union’s

majority status at a hearing before an ALJ. Yet the

factfinder rejected Petitioner’s evidence because

Petitioner was a successor employer and the Board

required the ALJ to presume the Union was the

employees’ representative for purposes of collective

bargaining, regardless of the employees’ expressions

and employer’s evidence to the contrary. The Board’s

current iteration of the successor bar rule imposes an

irrebuttable presumption unauthorized by statute

and contradicting employees’ Section 7 rights. A

rebuttable presumption, however, is consistent with

the statutory text and canons of construction.

IV.

This Court Should Vacate The D.C.

Circuit’s Decision So As To Allow It To ReConsider Its Decision In Light Of Loper

Bright Enterprises.

Because the court of appeals rendered its

decision and denied rehearing prior to this Court’s

decision in Loper Bright Enterprises—and because its

reasoning and result cannot be reconciled with the

command of Loper Bright Enterprises—the petition

for writ of certiorari should be granted, the judgment

of the court of appeals vacated, and the case

remanded for further consideration in light of Loper

Bright Enterprises. KC Transport, Inc. v. Su, Acting

16

sec. of Labor, Case No. 23-876, 2024 WL 3259666, at

*1 (U.S. July 2, 2024) (granting petition for writ of

certiorari, vacating judgment, and remanding case to

the D.C. Circuit for further consideration in light of

Loper Bright Enterprises); 28 U.S.C. § 2106 (“[t]he

Supreme Court … may … vacate … any judgment,

decree, or order of a court lawfully brought before it

for review, and may remand the cause and … require

such further proceedings to be had as may be just

under the circumstances”).

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for certiorari, vacate the decision of

the D.C. Circuit, and remand for further

consideration of the merits in light of Loper Bright

Enterprises v. Raimondo.

August 5, 2024

Respectfully submitted,

Angel Muñoz Noya

SÁNCHEZ-BETANCES,

SIFRE

& MUÑOZ-NOYA

33 Calle Bolivia, Ste.500

San Juan, PR 00917

Tele: 787-756-7880

amunoz@sbsmnlaw.com

Patrick M. Muldowney

Counsel Of Record

Meagan L. Martin, Esq.

BAKER & HOSTETLER LLP

200 S. Orange Ave., Ste. 2300

Orlando, FL 32801

Tele: 407-649-4000

pmuldowney@bakerlaw.com

mmartin@bakerlaw.com

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Description of Document

Page

Opinion of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), on the Petition

for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board, reported at Hosp. Menonita de

Guayama, Inc. v. NLRB, 94 F.4th 1

(D.C. Cir. 2024) [February 27, 2024] ................. App. 1

Judgment of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), Denying

Petitioner’s Petition for Review and Granting the

Board’s Cross-Application for Enforcement

[February 27, 2024] .......................................... App. 3

Order of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), Denying

Petitioner’s Petition for Panel Rehearing

[May 7, 2024] .................................................... App. 3

Order of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), Denying

Petitioner’s Petition for Rehearing En Banc

[May 7, 2024] .................................................... App. 

Order of the United States Court of Appeals,

District of Columbia Circuit, Case No. 22-1163

(Consolidated with 22-1180), Denying Petitioner’s

Motion to Stay Issuance of the Mandate

Pending the Filing of a Petition for Writ of

Certiorari [June 11, 2024] ............................... App. 

Order of the National Labor

Relations Board, Cases No. 12-CA-214830;

12-CA-214908; 12-CA-215039; 12-CA-215040;

12-CA-215665; 12-CA-217862; 12-CA-218260;

Hospital Menonita de Guayama, Inc. and Unidad

Laboral de Enfermeras(os) y Empleados

de la Salud, 371 NLRB 108 [June 28, 2022]... App. 4

Mandate of the United States Court of

Appeals, District of Columbia Circuit,

Case No. 22-1163 (Consolidated with 22-1180)

[June 21, 2024] ............................................... App. 159

Statutory Provisions

29 U.S.C. § 151 ............................................... App. 161

29 U.S.C. § 157 ............................................... App. 164

29 U.S.C. § 158 ............................................... App. 165

29 U.S.C. § 159 ............................................... App. 179

29 U.S.C. § 160 ............................................... App. 185

5 U.S.C. § 706 …………………………………..App. 196

28 U.S.C. § 2106………………………………...App. 198

App.001

94 F.4th 1

United States Court of Appeals, District of Columbia

Circuit.

HOSPITAL MENONITA DE GUAYAMA, INC.,

Petitioner

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent

No. 22-1163

|

Consolidated with 22-1180

|

Argued September 21, 2023

|

Decided February 27, 2024

Synopsis

Background: Successor employer petitioned for

review of order of National Labor Relations Board

(NLRB), 2022 WL 2355898, that relied on its

successor bar rule, under which incumbent union

enjoyed irrebuttable presumption of continuing

majority support from employees for reasonable

period of time following successor employer's

voluntary recognition of union, in determining that

employer engaged in unfair labor practices in

violation of National Labor Relations Act (NLRA) by

unlawfully withdrawing recognition of union as

employees' collective bargaining agent after

acquiring predecessor employer, failing and refusing

to bargain in good faith with union, unilaterally

changing terms and conditions of employment, and

failing to respond to union's requests for information

App.002

relevant to its bargaining duties. NLRB crosspetitioned for enforcement of its order.

Holdings: The Court of Appeals, Edwards, Senior

Circuit Judge, held that: NLRB's successor bar rule

warranted deference, and application of successor

bar was within scope of NLRB's reasoned

interpretation of NLRA.

Petition denied; cross-petition granted.

Katsas, Circuit Judge, filed concurring opinion.

Procedural Posture(s): Review of Administrative

Decision; Motion to Enforce.

*3 On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board

Attorneys and Law Firms

Patrick M. Muldowney argued the cause for

petitioner. With him on the briefs were Ángel Muñoz

Noya and Gerardo De Jesús.

Heather Beard, Senior Attorney, National Labor

Relations Board, argued the cause for respondent.

With her on the brief were Jennifer Abruzzo,

General Counsel, Peter Sung Ohr, Deputy General

Counsel, Ruth E. Burdick, Deputy Associate General

Counsel, David Habenstreit, Assistant General

Counsel, and Elizabeth Heaney, Supervisory

Attorney.

Before: Henderson and Katsas, Circuit Judges, and

Edwards, Senior Circuit Judge.

Opinion

Concurring opinion filed by Circuit Judge Katsas.

Edwards, Senior Circuit Judge:

This case emanates from actions taken by Hospital

Menonita de Guayama, Inc. (“Petitioner”) after it

App.003

acquired Hospital San Lucas Guayama (“Hospital

San Lucas”) and became a successor employer with

an obligation to recognize and bargain with the

Unidad Laboral de Enfermeras (OS) y Empleados de

la Salud (“the Union”). When Petitioner acquired

Hospital San Lucas, the Union represented five

distinct bargaining units of employees. Over the

course of five months after the acquisition, Petitioner

first failed and refused to bargain in good faith with

the Union. It then serially withdrew recognition

from the Union as the employees’ collective

bargaining agent in each of the five units.

The Union filed unfair labor practice charges with

the National Labor Relations Board (“Board” or

“NLRB”) and the Board's General Counsel then filed

a complaint against Petitioner. The complaint

alleged that Petitioner had violated Sections 8(a)(5)

and (1) of the National Labor Relations Act (“NLRA”

or “Act”), *4 29 U.S.C. § 158(a)(1), (5). A hearing was

held before an Administrative Law Judge (“ALJ”),

who determined that Petitioner had violated the

NLRA by withdrawing recognition from the Union,

failing and refusing to bargain in good faith with the

Union, unilaterally changing the terms and

conditions of employment, and withholding

information relevant to the Union's bargaining

duties. See Hosp. Menonita de Guayama, Inc., No.

12-CA-214830, 2019 WL 2354716 (N.L.R.B. Div.

Judges May 30, 2019) (“ALJ Decision”). In reaching

his decision, the ALJ relied on the Board's “successor

bar” rule, which holds that an incumbent union

enjoys an irrebuttable presumption of majority

status for a reasonable period of time following the

App.004

successor employer's voluntary recognition of the

union. Id.

The Board largely adopted the findings and

conclusions of the ALJ, with one member dissenting.

Hosp. Menonita de Guayama, Inc., 371 N.L.R.B. No.

108, at 1 (June 28, 2022). The Board denied

Petitioner's request to overrule the successor bar

rule and afford incumbent unions in successorship

situations only a rebuttable presumption of majority

support. Id. at 3-4. The Board carefully explained its

adherence to the successor bar rule, noting that its

decade-old decision implementing the rule was

soundly reasoned and vindicated by subsequent legal

and economic developments. Id. at 5-6. The Board

also noted that each of the arguments raised by the

dissent had been carefully considered and rejected

by the Board in a prior decision. Id.

In its petition for review, Petitioner asks this court

to overturn the successor bar rule. We decline the

invitation and deny the petition for review. On the

facts presented, the Board's application of the

successor bar rule was consistent with established

Board precedent, permissible, and reasonable. The

ALJ's factual findings, which the Board adopted, are

supported by substantial evidence. The Board's

conclusion that Petitioner refused to bargain in good

faith with the Union and engaged in multiple unfair

labor practices follows directly from established

Board precedent. Indeed, based on the record in this

case, there can be no doubt whatever that Petitioner

was guilty of the unfair labor practices as charged.

The only issue we consider is whether the Board

App.005

erred in applying established precedent and

enforcing the successor bar rule to preclude

Petitioner's challenges to the Union's majority

support. After carefully reviewing the record before

us, we find that the Board more than adequately

justified its application of the successor bar and the

factual findings before us fall comfortably within the

rule's ken. We find no merit in Petitioner's

arguments to the contrary.

I.

Background

A. Legal and Statutory Background

Section 7 of the NLRA grants employees “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,” as well as “the right to refrain

from any or all of such activities.” 29 U.S.C. § 157.

Section 8(a)(1) makes it an unfair labor practice for

an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed”

by the NLRA. 29 U.S.C. § 158(a)(1). Similarly,

Section 8(a)(5) labels as an unfair labor practice an

employer's “refus[al] to bargain collectively with the

representatives of [one's] employees.” Id. § 158(a)(5).

When an employer violates Section 8(a)(5), it

concurrently violates Section 8(a)(1). Enter. Leasing

Co. of Fla. v. NLRB, 831 F.3d 534, 546 (D.C. Cir.

2016).

App.006

*5 The NLRB is tasked with enforcing the NLRA.

And the Supreme Court “has emphasized often that

the NLRB has the primary responsibility for

developing and applying national labor policy.”

NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775,

786, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990).

Accordingly, the Court has directed lower federal

courts reviewing a Board decision to “uphold a Board

rule as long as it is rational and consistent with the

[NLRA], even if we would have formulated a

different rule had we sat on the Board.” Id. at 787,

110 S.Ct. 1542 (citations omitted).

As part of its authority to interpret and enforce the

NLRA, the Board has adopted a “successor bar” rule.

The Board first used the term “successor bar” in St.

Elizabeth Manor, Inc., 329 N.L.R.B. 341 (1999),

which held that, “once a successor's obligation to

recognize an incumbent union has attached (where

the successor has not adopted the predecessor's

contract), the union is entitled to a reasonable period

of bargaining without challenge to its majority

status through a decertification effort, an employer

petition, or a rival petition.” Id. at 344 (footnote

omitted). In reaching its conclusion, the Board

reasoned as follows:

In both initial recognition and successorship

situations, the employer has incurred a

recognitional obligation by a voluntary act, either

by extending recognition to a union after

ascertaining demonstrated majority support or by

hiring a sufficient number of a predecessor's

employees to constitute a majority and thereby

incurring a bargaining obligation .... In both

App.007

situations, because the employer and the union are

embarking on a new relationship, all the issues are

likely to be open. Thus, bargaining in both

situations is likely to present a greater challenge

than bargaining between partners in an

established relationship who are negotiating a new

contract after having lived under an earlier

contract or contracts so that only selected issues

are likely to be on the table.

Moreover, as in the case of voluntary recognition

following an initial campaign, parties in a

successorship relationship are in a stressful

transitional period. Although in many cases the

employees may have had adequate time to

determine whether the incumbent union was

effective in representing them in negotiations with

the predecessor employer, they have not had the

opportunity to learn if the incumbent will be

effective with the successor. The employees may

fear that the successor employer will not want the

union or would give them a better deal without it.

This is particularly true if the employer has

exercised its prerogative to set initial terms and

conditions of employment that differ from those

that employees have enjoyed pursuant to the

union's collective-bargaining relationship with the

predecessor. With mergers and acquisitions

commonplace, and with publicized downsizings,

restructurings, and facility closings accompanying

them, employees’ concern over the security of their

continued employment and working conditions is

understandably increased in the course of any

change in ownership. Thus, although at the time of

transition there may be no indication that the

employees had become dissatisfied with their

App.008

union, anxiety about their status under the

successor may lead to employee disaffection before

the union has had the opportunity to demonstrate

its continued effectiveness.

Furthermore, the successor may be reluctant to

commit itself wholeheartedly to bargain for a

collective-bargaining

agreement

with

the

incumbent union when at any time following the

recognition, *6 the union's majority status may be

attacked. A reasonable period free of outside

distractions will permit the parties to attempt to

bring their new relationship to fruition, i.e., to

engage in the process of collective bargaining.

Id. at 342-43 (footnote omitted).

The Board's decision in St. Elizabeth did not write on

a blank slate. In 1975, the Board had held that,

absent a successor employer's adoption of an existing

collective bargaining agreement, an incumbent

union was entitled only to a rebuttable presumption

of majority support following a successor's voluntary

recognition of the union. See Southern Mouldings,

Inc., 219 NLRB 119, 119 (1975). Six years later, the

Board modified its position and made the

presumption

irrebuttable

without

expressly

overruling – or even mentioning – its decision in

Southern Mouldings. See Landmark Int'l Trucks,

Inc., 257 N.L.R.B. 1375, 1375 (1981). The Sixth

Circuit denied enforcement of the Board's order,

finding “no basis” for the Board's holding. Landmark

Int'l Trucks, Inc. v. NLRB, 699 F.2d 815, 818 (6th

Cir. 1983). The court posited that, “where the union

has represented the employees for a year or more a

change in ownership of the employer does not

App.009

disturb the relationship between employees and the

union.” Id. Accordingly, “[a] successor's duty to

continue recognition ... is no different from that of

any other employer after the certification year

expires.” Id. Following the Sixth Circuit's decision,

the Board returned to a rebuttable presumption of

majority status for an incumbent union in a

successorship situation. Harley-Davidson Transp.

Co., 273 N.L.R.B. 1531, 1531 (1985).

The Board subsequently overruled Southern

Mouldings and Harley-Davidson when it decided St.

Elizabeth Manor. See St. Elizabeth, 329 N.L.R.B. at

344. The Board's decision in St. Elizabeth Manor

expressly addressed the Sixth Circuit's reasoning in

Landmark, labeling it “faulty.” Id. at 342. As noted

above, the Board offered its own account of why

employees in a successorship situation “must be

given a reasonable opportunity to determine the

effectiveness of the union's representation, free of

any attempts to challenge its majority status.” Id.

St. Elizabeth Manor was not the final word on the

successor bar. Three years after the issuance of the

decision, the Board again changed its view of the

rule, switching back to a rebuttable presumption of

majority status for an incumbent union following a

successor employer's voluntary recognition. MV

Transp., 337 N.L.R.B. 770, 770 (2002). The Board's

decision was prompted, in part, by the worry that

the successor bar, in conjunction with other bars

established under Board precedent, could block

challenges to a union's majority status for several

years. See id. at 773. For example, under the Board's

App.010

“contract bar” rule, challenges to a union's majority

status are precluded for the first three years of a

valid collective bargaining agreement. See Gen.

Cable Corp., 139 N.L.R.B. 1123, 1125 (1962). This

raised the possibility that employees may be

prevented

from

changing

their

bargaining

representative for up to six years if they are subject

to a contract bar under their predecessor employer, a

successor bar, and then a contract bar again, should

the incumbent union reach an agreement with the

successor. MV Transp., 337 N.L.R.B. at 773. This

prospect, in the Board's view, demonstrated that the

successor bar might hamper employee freedom of

choice, as guaranteed by Section 7 of the NLRA. Id.

Nine years later, the Board overruled MV

Transportation and readopted the rule that an

incumbent union in a successorship situation is

entitled to an irrebuttable presumption of majority

support for a *7 reasonable period of time following

the successor's voluntary recognition of the union.

UGL-UNICCO Serv. Co., 357 N.L.R.B. 801, 801

(2011). The Board also defined the “reasonable

period” over which the successor bar applied,

limiting the period to a minimum of six months and

a maximum of a year. Id. at 809. The Board

explicitly addressed the MV Transportation Board's

concern about the consecutive application of the

contract bar and successor bar doctrines, modifying

the contract bar period to a maximum of 2 years in

circumstances where (1) an initial contract is

reached by the successor employer and incumbent

union within a reasonable period of bargaining, and

(2) there was no open period for challenges to the

App.011

incumbent union's majority status during the final

year of the predecessor employer's bargaining

relationship with the union. Id. at 810. The Board

also left for future cases “whether any further

refinements in the contract-bar doctrine are

appropriate in particular successorship situations.”

Id.

Since UGL-UNICCO, the Board has held firm to its

interpretation of the successor bar as requiring an

irrebuttable presumption of majority status for a

reasonable period following a successor employer's

voluntary recognition of the union. See, e.g., Empire

Janitorial Sales & Serv., LLC, 364 N.L.R.B. 1874,

1885 (2016); Lily Transp. Corp., 363 N.L.R.B. 176,

177 (2015), enf'd, 853 F.3d 31 (1st Cir. 2017);

Jamestown Fabricated Steel & Supply, Inc., 362

N.L.R.B. 1314, 1314 n.1 (2015).

B. Factual Background

On September 12, 2017, Petitioner bought the assets

of Hospital San Lucas. At the time of Petitioner's

purchase, the Union represented five distinct

bargaining units of hospital employees: (1) Medical

Technologists, (2) Registered Nurses (“RNs”), (3)

Licensed Practical Nurses (“LPNs”), (4) Technicians,

and (5) Clerical Workers. The Union had represented

the Medical Technologists since on or about March

22, 2005, and the RNs and LPNs since on or about

August 25, 1998. The collective-bargaining

agreements for these three units expired several

years prior to the sale of Hospital San Lucas. The

Union had represented the Technicians and Clerical

App.012

Workers since on or about April 12, 2012, and since

on or about May 21, 2012, respectively. No collectivebargaining agreement had ever been reached for

either unit.

In early September 2017, before the formal

acquisition of Hospital San Lucas, a representative

for Petitioner, Pedro Meléndez, informed the Union

that Petitioner rejected the terms and conditions

established in the expired collective-bargaining

agreements between the Union and Hospital San

Lucas. He also notified the Union that all unionrepresented Hospital San Lucas employees had

received offers of employment from Petitioner,

subject to new terms and conditions of employment.

Meléndez told the Union that if a majority of the

employees in the bargaining units currently

represented by the Union accepted Petitioner's job

offers, Petitioner would recognize the Union as the

collective-bargaining representative of each of the

five units. By September 12, 2017, all employees who

had previously worked for Hospital San Lucas,

union-represented or otherwise, agreed to work for

Petitioner. The next day, Petitioner assumed

operation of the hospital. As a result, no new hires

were considered. The parties have stipulated that

Petitioner qualifies as a successor employer.

On September 13, Union representative Ariel

Echevarría requested that Petitioner recognize the

Union. He also sought information about the

employees

who

were

offered

employment.

Petitioner's response to *8 the Union was not

received for at least a month and was inconclusive.

App.013

On September 19, Hurricane Maria hit Puerto Rico.

During the disruption caused by the hurricane,

Petitioner assigned the RNs to work 12-hour shifts,

rather than their regularly scheduled 8-hour shifts.

On October 21, Petitioner restored the RNs’ 8-hour

shifts, after the Union and Petitioner could not come

to an agreement about whether and how to make the

shift change permanent.

Petitioner finally recognized the Union by letter on

November 6, 2017, and provided its response to some

of the Union's September 13 requests for

information. At a Thanksgiving lunch on November

22, the hospital administrator gave certificates and

$150 bonuses to the employees who worked

overnight during Hurricane Maria. Although

Petitioner had officially recognized the Union prior

to the lunch, it did not inform the Union of its

intention to award the certificates or bonuses, nor

did Petitioner give the Union an opportunity to

bargain over either. Petitioner and the Union

engaged in no meaningful collective bargaining after

the luncheon. Quite the contrary.

On February 5, 2018, Petitioner informed the Union

that it was withdrawing recognition from the Union

as the collective bargaining representative of the

Technicians unit. The next day, Petitioner met with

employees in the Technicians unit to notify them

that they were no longer represented by the Union

and that they would receive new benefits as nonunion employees, including a salary increase, full

payment of their health insurances plans, and a

uniform incentive. Six days after its withdrawal of

App.014

recognition, Petitioner increased the Technicians’

wages.

On February 7, the Union requested that Petitioner

propose dates for bargaining sessions. Petitioner

responded the same day, asking the Union to submit

proposals for the four units it still represented.

Petitioner stated it would be available to negotiate

once it had reviewed the Union's proposals. Five

days later, the Union submitted bargaining

proposals for all five bargaining units. No bargaining

followed, however.

On February 14, Petitioner, claiming the Union's

loss of majority status, withdrew recognition from

the Union as the collective bargaining representative

for the Clerical Workers’ unit. As part of its

notification to the Union of its withdrawal of

recognition, Petitioner also returned the Union's

bargaining proposals for the Technicians’ and

Clerical Workers’ units, stating that the Union no

longer represented either group. By separate letter

on the same day, Petitioner confirmed that it had

received the Union's proposals but contended that

bargaining could only begin after Petitioner

submitted its counterproposals, which it estimated

would happen by the third week of April. This

proved to be a hollow offer.

On February 16, Petitioner withdrew recognition

from the Union as the collective bargaining

representative of the Medical Technologists’ unit,

again claiming that the Union had lost its majority

status. On April 6, Petitioner did the same for RN

App.015

unit. Petitioner also returned the Union's February

12 bargaining proposal for the RN unit, on the

grounds that the Union no longer represented the

unit.

On April 18, Petitioner gave the Union a counter

proposal covering employees in the LPN unit. This,

too, amounted to a largely meaningless gesture,

because six days later Petitioner withdrew

recognition from the Union as the collective

bargaining representative of the LPN unit.

As Petitioner successively withdrew recognition of

the Union and declined to engage *9 in any good

faith bargaining, it also made unilateral changes to

employees’ conditions of employment. Between April

and June, Petitioner eliminated the health insurance

premium for employees in all five Union-represented

units. On May 18, Petitioner awarded a $200

uniform bonus to employees in the RN and LPN

units for the first time. On June 17, Petitioner reinstituted 12-hour shifts for RNs. In late June or

early July, Petitioner circulated and put into effect

an employee handbook, an employee manual, and a

code of conduct, altering disciplinary procedures and

employee benefits. The Union was not informed of

any of these changes prior to Petitioner's

announcements nor was it given the opportunity to

bargain over any of these matters.

Along with its withdrawals of recognition and

unilateral changes to the employees’ conditions of

employment, Petitioner failed to respond to the

Union's requests for relevant information. On March

App.016

14, Petitioner held a meeting with unit employees

regarding renewal of their health insurance. That

same day, the Union requested copies of all

documents signed by employees at the meeting,

which included the documents employees signed to

renew their health insurance as well as the

meeting's attendance sheet. Petitioner responded to

the Union's request for information by sending a

copy of a document given to RNs and LPNs

summarizing their health insurance benefits and a

copy of the signed attendance sheets for the RN and

LPN units. On April 4, the Union renewed its

request for copies of all documents signed at the

meeting, asserting that Petitioner had not provided

all documents requested. Petitioner never responded

to the Union's second request.

C. Procedural History

Acting on the unfair labor practice charges filed by

the Union, the NLRB's General Counsel issued a

complaint against Petitioner on July 31, 2018. ALJ

Decision at 1. The complaint alleged that Petitioner's

conduct violated Sections 8(a)(5) and (1) of the

NLRA. See id. at 1, 14. An ALJ conducted a hearing

and, following consideration of the parties’

submissions, issued a decision on May 30, 2019. Id.

at 1.

The ALJ concluded that, based on the evidence in

the record, Petitioner violated the NLRA by: (1)

unlawfully withdrawing recognition of the Union as

the employees’ lawful bargaining agent in five

separate units; (2) failing and refusing to bargain in

App.017

good faith with the Union; (3) unilaterally altering

the employees’ terms and conditions of employment;

and (4) failing to provide the Union with information

that was relevant to the Union's duties as the

employees’ collective-bargaining representative. Id.

at 14. The ALJ ordered Petitioner to cease and desist

from its unfair labor practices and determined that

special remedies were necessary given the

Petitioner's “pattern of conduct that showed no

serious interest in engaging in collective bargaining”

and “its imposition of unilateral changes [that]

demonstrated a desire to shirk its obligations as a

successor employer.” Id. at 15. The ALJ ordered

Petitioner to recognize and bargain with the Union

for a reasonable period of at least six months to up to

a year, measured from the date of the first

bargaining meeting. Id. at 16. The ALJ also ordered

that these bargaining sessions be held for a

minimum of 15 hours a week and required Petitioner

to submit written bargaining process reports to an

NLRB compliance officer every 30 days. Id.

In finding that Petitioner unlawfully withdrew

recognition from the Union, the ALJ denied

Petitioner's request to present evidence in support of

its claim that the *10 Union had lost its majority

status in each of the bargaining units. Id. at 3. To do

so, the ALJ relied on the “successor bar” rule as

articulated by the Board in UGL-UNICCO. The

parties had stipulated that Petitioner was a

successor employer and the ALJ accordingly held

that UGL-UNICCO required Petitioner to have

bargained in good faith with the Union for at least

six months from the date of its recognition of the

App.018

Union. Id. at 4, 10-11. Because each of Petitioner's

actions to withdraw recognition from the Union

occurred before the six-month period had elapsed,

the ALJ held that Petitioner had unlawfully failed

and refused to bargain with the Union. Id. at 11.

The ALJ next examined the parties’ limited

bargaining history. He noted that Petitioner never

provided justification for telling the Union that it

would take over two months to review the Union's

proposals. Id. The ALJ additionally observed that

the parties never had face-to-face negotiations, even

though the Union had requested that the parties

meet to bargain. Id. The ALJ held that this history,

in

conjunction

with

Petitioner's

unlawful

withdrawals of recognition, “[gave] rise to a strong

suspicion that the [employer] had no intention of

engaging in meaningful bargaining with the Union.”

Id.

The ALJ further found that Petitioner unlawfully

made unilateral changes to employees’ terms and

conditions of employment. Id. at 11-13. In support of

this finding, the ALJ noted that Petitioner had acted

unilaterally by: (1) giving out Hurricane Maria

bonuses; (2) reinstituting 12-hour shifts for RNs on

June 17, 2018; (3) granting a wage increase to

Technicians on February 11, 2018; (4) eliminating

the requirement that unit employees pay a portion of

their health insurance premium; (5) granting a $200

uniform bonus for the first time to RNs and LPNs on

May 18, 2018; and (6) distributing and putting into

effect an employee manual and general rules of

conduct, which made changes in disciplinary rules

App.019

and benefits for employees in all five units. Id. at 13.

In addition, the ALJ found that Petitioner had

unlawfully refused to provide the Union with

presumptively relevant information concerning

employees’ health insurance. Id. at 13-14.

Petitioner filed exceptions with the Board

challenging the ALJ's decision. See Hosp. Menonita,

371 N.L.R.B. No. 108, at 1. In particular, Petitioner

objected to the ALJ's reliance on the successor bar

rule and his refusal to consider evidence of the

Union's alleged loss of majority status. Id. Petitioner

requested that the Board overrule UGL-UNICCO

and replace it with the rule applied in MV

Transportation, pursuant to which an incumbent

union in a successorship situation is entitled only to

a rebuttable presumption of majority support. See id.

at 3.

The Board majority found no merit in Petitioner's

exceptions. Id. at 7. The Board began by stating that,

“[t]he explicit policy of the National Labor Relations

Act is to promote collective bargaining.” Id. at 4. It

went on to say:

The successor bar ... is designed to promote

collective bargaining when a new employer,

the successor, takes over a workplace where

employees are already represented by a

union. As it did in this case, the new

employer is typically free to decide—without

the union's participation—which of the

predecessor's employees to hire and how to

change employees’ wages, benefits, and

working conditions. In such situations, the

App.020

incumbent union is in an especially

vulnerable position, through no fault of its

own. Accordingly, the Board has held, with

the Supreme Court's approval, that the

policies of the Act are best served by

presuming that the union has *11

continuing majority support from employees

and by requiring the successor employer to

recognize and bargain with the union. The

successor bar is an extension of this

principle ....

Id. (footnote omitted). Member Ring dissented in

part. Id. at 10. He did not doubt that Petitioner could

not prevail under established law. Rather, he simply

argued that the Board should return to the regime

under MV Transportation pursuant to which the

presumption of majority support was rebuttable. In

Member Ring's view, the successor bar doctrine is

“contrary to Supreme Court precedent and imposes

an unwarranted restriction on employees’ Section 7

rights.” Id. at 13.

The Board majority addressed the arguments raised

by its dissenting member. Looking to the Board's

opinion in UGL-UNICCO, the majority noted that

every argument raised by the dissent had been “fully

considered and rejected” by the Board in UGLUNICCO. Id. at 5. The Board also noted that the

rates of mergers and acquisitions, which had formed

part of the Board's rationale in UGL-UNICCO, had

increased in the years since UGL-UNICCO was

decided. Id. While “the soundness of the Board's

policy choice ... does not depend on [these economic]

developments,” this continued pattern demonstrated

App.021

that the Board was justified in altering its view of

the successor bar and “that no economic changes

since UGL-UNICCO suggest that it is now time to

take another look.” Id. at 6. The Board concluded its

analysis by noting that “[t]he facts in this case make

crystal clear why the protection of a successor bar is

needed and appropriately balances the successor

employer's and the employees’ interests. ... It is

working, as Congress intended, to promote stable

and effective collective bargaining relationships.” Id.

at 7.

Having reaffirmed the validity of the successor bar

doctrine, the Board agreed with the ALJ's

straightforward application of the rule and largely

adopted the ALJ's factual findings and conclusions.

Id. at 1 & n.2. The Board thus concluded that

Petitioner had violated Sections 8(a)(5) and (1) of the

NLRA by unlawfully withdrawing recognition from

the Union, failing and refusing to bargain with the

Union, unilaterally changing the terms and

conditions of employment for represented employees,

and failing to respond to the Union's requests for

information relevant to its bargaining duties. Id. at

1.

Petitioner now seeks review of the Board's order.

The Board cross-petitions for enforcement of its

order.

App.022

II.

Analysis

A. Standard of Review

This court “will uphold a decision of the Board

unless it relied upon findings that are not supported

by substantial evidence, failed to apply the proper

legal standard, or departed from its precedent

without providing a reasoned justification for doing

so.” E.I. Du Pont De Nemours v. NLRB, 682 F.3d 65,

67 (D.C. Cir. 2012). When “the Board adopts the

ALJ's findings and conclusions as its own, we apply

the same deferential standard to those findings and

conclusions.” Weigand v. NLRB, 783 F.3d 889, 895

(D.C. Cir. 2015). This court, however, does not

“merely rubber-stamp NLRB decisions.” Avecor, Inc.

v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991). Rather,

“[i]t is our responsibility to examine carefully both

the Board's findings and its reasoning.” Id. (quoting

Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.

Cir. 1980)).

B. The “Successor Bar” Rule

Lest there be any confusion here, we want to make it

clear that, in reaching its *12 decision in this case,

the Board adhered to established precedent. The

Board's decision in UGL-UNICCO, which controls

the disposition of this case, was issued 13 years ago

and has been followed ever since. Petitioner and the

dissenting member of the Board appear to suggest

that UGL-UNICCO is a fragile precedent because

the judgment in that case resulted from a change in

App.023

the Board’s policy regarding the successor bar. This

is a specious claim.

“Agencies are free to change their existing policies as

long as they provide a reasoned explanation for the

change.” Encino Motorcars, LLC v. Navarro, 579

U.S. 211, 221, 136 S.Ct. 2117, 195 L.Ed.2d 382

(2016). As the Supreme Court has explained, an

“agency must show that there are good reasons for

[a] new policy. But it need not demonstrate to a

court's satisfaction that the reasons for the new

policy are better than the reasons for the old one; it

suffices that the new policy is permissible under the

statute, that there are good reasons for it, and that

the agency believes it to be better, which the

conscious change of course adequately indicates.”

FCC v. Fox Television Stations, Inc., 556 U.S. 502,

515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009)

(emphasis omitted).

Considered “flexibility and adaptability to changing

needs and patterns ... is an essential part of the

office of a regulatory agency.” American Trucking

Ass'ns v. Atchison, Topeka & Santa Fe Railway Co.,

387 U.S. 397, 416, 87 S.Ct. 1608, 18 L.Ed.2d 847

(1967). “Regulatory agencies do not establish rules of

conduct to last forever; they are supposed, within the

limits of the law and of fair and prudent

administration, to adapt their rules and practices to

the Nation's needs in a volatile, changing economy.”

Id. Indeed, the Supreme Court has explicitly blessed

the NLRB's refusal to stand by decisions that no

longer serve appropriate policy ends: “The use by an

administrative agency of the evolutional approach is

App.024

particularly fitting. To hold that the Board's earlier

decisions froze the development of ... the national

labor law would misconceive the nature of

administrative decisionmaking.” NLRB v. J.

Weingarten, Inc., 420 U.S. 251, 265-66, 95 S.Ct. 959,

43 L.Ed.2d 171 (1975).

Consistent with this mandate, over the years, the

NLRB has sometimes overruled precedent and

established a new rule after reweighing competing

policy considerations. See, e.g., Stericycle, Inc., 372

N.L.R.B. No. 113 (Aug. 2, 2023); Wendt Corp., 372

N.L.R.B. No. 135 (Aug. 26, 2023). So long as the

Board provides “a reasoned explanation for the

change,” such a change poses no serious issue. See

Encino Motorcars, 579 U.S. at 221, 136 S.Ct. 2117;

see also Golden State Bottling Co. v. NLRB, 414 U.S.

168, 174-76, 181-85, 94 S.Ct. 414, 38 L.Ed.2d 388

(1973); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 883

(D.C. Cir. 1988); Loc. 900, Int'l Union of Elec., Radio

& Mach. Workers v. NLRB, 727 F.2d 1184, 1189

(D.C. Cir. 1984) (enforcing NLRB decisions

overruling precedent).

Nothing unusual occurred in 2011 when the Board

reversed

precedent,

adopted

its

current

interpretation

of

the

successor

bar,

and

comprehensively justified its decision in UGLUNICCO. The Board's decision to overrule its

previous rule was neither hastily reached nor

unthinkingly decided. Rather, the Board reached its

decision after issuing a notice and invitation to file

briefs, inviting the parties as well as amici to

address whether the Board should reconsider MV

App.025

Transportation. See UGL-UNICCO, 357 N.L.R.B. at

801. The Board received briefs from the parties,

including two intervenors, as well as seven amici on

both sides of the issue. Id. at 802. The *13 UGLUNICCO Board's full attention was trained on

“whether to adhere to MV Transportation.” Id.

Above all, the UGL-UNICCO Board provided ample

explanation for its decision to overrule MV

Transportation and adopt the Board's current view

of the successor bar rule. In its decision, the Board

outlined clear reasons for its view that “labor law's

overriding policy” of “preserving industrial peace by

promoting stability in collective bargaining

relationships, without impairing the free choice of

employees” was better served by an irrebuttable

presumption than a rebuttable one. Id. at 805

(alteration omitted) (footnote and quotations

omitted). The Board concluded that, “[a]n insulated

period for the union ... enables the union to focus on

bargaining, as opposed to shoring up its support

among employees, and to bargain without being

under exigent pressure to produce hothouse results

or be turned out, pressure that can precipitate a

labor dispute and surely does not make reaching

agreement easier.” Id. at 807 (quotations omitted).

The Board noted further that “[a]n insulated period

also increases the incentives for successor employers

to bargain toward an agreement” by disallowing an

employer from delaying bargaining as a means of

implicitly undermining support for the union. Id.

Importantly, the decision in UGL-UNICCO explicitly

addressed the reasoning in MV Transportation,

App.026

providing a clear account of why the UGL-UNICCO

Board believed the judgment in that earlier decision

was ultimately flawed. First, the Board noted that

MV Transportation “does not come to terms with the

basic fact of the successorship situation: that the

bargaining relationship is an entirely new one.” Id.

at 806-07. Looking to the Supreme Court's decision

in Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 40, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987), the

Board noted that, “as the Fall River Court

recognized, the new relationship will often begin in a

context where everything that the union has

accomplished in the course of the prior bargaining

relationship (including, of course, a contract) is at

risk, if not already eliminated.” Id. at 807. “This is,

emphatically, a new bargaining relationship that

should be given a reasonable chance to succeed.” Id.

The Board found implausible MV Transportation’s

assumption that “the environment of uncertainty

and anxiety created by successorship might well

make employees more, not less, likely to support the

union,” given that successorship law makes it “very

difficult” for an incumbent union to protect the

status quo that existed under the predecessor

employer. Id. (quotation omitted).

Second, the Board rejected MV Transportation’s view

that insulating a union from a challenge to its status

for a reasonable period would heighten instability in

the workplace if a union no longer enjoyed majority

support. Id. Looking to the purposes of the NLRA,

the Board determined that the Act “seeks to preserve

... the stability of the existing collective-bargaining

relationship, which an insulated period obviously

App.027

protects.” Id. While “[e]mployee support for the

union may well fluctuate during the period following

successorship ... such fluctuations in employee

sentiment are not inconsistent with stable

bargaining so long as employees have a periodic

opportunity

to

change

or

revisit

their

representation.” Id.

UGL-UNICCO also addressed the effect of a

successor bar on the statutory right of employees to

freely choose (or reject) a union. Id. at 808. First, the

Board acknowledged that “[e]mployee freedom of

choice is ... a bedrock principle of the statute.” Id.

(alterations in original) (quotation omitted). Noting

that its previous decisions had *14 left undefined the

reasonable time period over which the successor bar

operates, the Board sought to specify the bounds of a

“reasonable period of bargaining” with an eye to

striking the “appropriate[ ] balance [between] the

goals of bargaining stability and the principle of free

choice.” Id. The Board turned to the multifactor

analysis it had outlined in Lee Lumber & Building

Material Corp., 334 N.L.R.B. 399 (2001), which

defined a reasonable time period of bargaining in the

context of remedying an unlawful refusal to

recognize and bargain with an incumbent union. Id.

at 808-09. Drawing on Lee Lumber, the Board

decided that the reasonable bargaining period

applicable to the successor bar was between six

months to a year. Id. at 809-10. With the outer edges

of the successor bar's application limited to one year,

the Board determined that the bar did not unduly

burden employee freedom of choice. Id. at 808.

App.028

Petitioner argues that the Board's application of the

successor bar rule is unworthy of the deference

normally afforded Board decisions, both because the

Board precedent supporting the rule is fragile and

because the successor bar rule contravenes Section 7

of the NLRA as well as the Supreme Court's

decisions in NLRB v. Burns International Security

Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32

L.Ed.2d 61 (1972) and Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 96

L.Ed.2d 22 (1987). Petitioner is wrong on both

counts.

Petitioner's first argument is squarely foreclosed by

case law from the Supreme Court and this court.

Because “the NLRB has the primary responsibility

for developing and applying national labor policy,”

the Supreme Court has required that reviewing

courts “accord[ ] Board rules considerable deference.”

Curtin Matheson, 494 U.S. at 786, 110 S.Ct. 1542.

This deference stands “even if [a contested Board

rule] represents a departure from the Board's prior

policy.” Id. at 787, 110 S.Ct. 1542. As we have

discussed at length above, an agency is permitted to

change its policies so long as it provides a reasoned

explanation for doing so. Encino Motorcars, 579 U.S.

at 221, 136 S.Ct. 2117. Here, there is no question

that, in UGL-UNICCO, the Board permissibly

changed its policy by acknowledging that it was

overruling existing precedent and by providing a

sound explanation for its decision. Since then, the

Board has consistently enforced UGL-UNICCO’s

successor bar, as it did in the case before us. Because

the Board acted reasonably in adopting the successor

App.029

bar in UGL-UNICCO, our normal deference to

reasoned Board policy choices applies. See Stephens

Media, LLC v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir.

2012).

Petitioner's substantive challenges to the successor

bar also fail. In the years since UGL-UNICCO was

issued, only the First Circuit has considered the

merits of the Board's successor bar rule. See NLRB

v. Lily Transp. Corp., 853 F.3d 31, 38 (1st Cir. 2017).

The petitioner in Lily raised many of the same

arguments Petitioner now urges us to adopt.

However, the First Circuit handily upheld the

successor bar, seeing “no cause to doubt that the

Board's position ... is within the scope of reasoned

interpretation [of the NLRA].” Id. Writing for the

court, former Associate Justice David Souter

described the Board's decision in UGL-UNICCO as

“an adequately explained interpretive change

reflecting the Board's judgment of a reasonable

balance between the Section 7 right of employee

choice and the need for some period of stability to

give the new relationships a chance to settle down.”

Id.

Lily rejected without difficulty the argument that

the successor bar violates employees’ Section 7

rights. Id. at 35. The *15 First Circuit noted that the

bar lasts only for a limited period – between just six

months to a year – and that the bar's “limited

discouragement of an unduly hasty reexamination of

a prior Section 7 choice serves ... [the NLRA's]

‘underlying purpose.’ ” Id. at 35-36 (quoting Brooks

v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 99 L.Ed.

App.030

125 (1954)). Moreover, the decision in Lily tellingly

notes that it is not even clear that a rebuttable

presumption would be obviously more effective than

an irrebuttable presumption in securing employees’

bargaining rights. Id. at 35. A rebuttable

presumption could ultimately become “more

onerous” than the successor bar, given the “added

burden of rebuttal ... which could increase litigation

time and expense.” Id. Indeed, the case before us

amplifies the point. Petitioner's attempt to force the

adoption of a rebuttable presumption has prolonged

the length of the controversy and generated

considerable litigation expense. Given that both the

successor bar and a rebuttable presumption further

“the obviously legitimate objective of stability in

labor and management relations during a period in

which the entrance of new management can destroy

the prior modus operandi among union, employer,

and employees,” a choice between the two

approaches should bow to reasoned Board

decisionmaking. Id.

The First Circuit also easily dispensed with the

suggestion that UGL-UNICCO is contrary to Burns

and Fall River. Although both cases refer to a

rebuttable presumption of majority status for

incumbent unions, see Burns, 406 U.S. at 278-79,

279 n.3, 92 S.Ct. 1571; Fall River, 482 U.S. at 41 &

n.8, 107 S.Ct. 2225, the First Circuit found that the

Supreme Court's language in those cases “simply

describes the legal landscape at the time.” Lily, 853

F.3d at 38-39. “Neither case holds that a rebuttable

presumption, rather than a bar, is required in a

successorship situation.” Id. at 39.

App.031

We can find no reason to disagree with the First

Circuit's analysis. As former Justice Souter reminds

us in Lily, the Board is entitled to deference when it

has thoroughly and reasonably justified a change in

policy. Id. at 38. It is not the role of the court to

second-guess the Board in such matters.

We do not purport to decide the permissible outer

limits of the successor bar rule – a question the

Board itself left open for further refinement in UGLUNICCO. See 357 N.L.R.B. at 810. Nor is there any

need for us to do this. The Board reasonably applied

established precedent to find an employer liable for

unfair labor practices. We are, therefore, bound to

enforce the Board's decision. See Avecor, 931 F.2d at

928 (“We owe substantial deference to ... the

reasoned exercise of [the Board's] expert judgment

....”) (alteration in original) (quotation omitted).

Petitioner concedes it is a successor employer, and it

voluntarily opted to retain all its predecessor's

employees. At the time when the hospital was

acquired, Petitioner knew that many of its new

employees were represented by a union and that,

under established law, it was obliged to bargain in

good faith with their union for a period ranging from

six months to a year. Instead of abiding by settled

law, Petitioner first recognized the Union and then

blocked all efforts by the Union to pursue collective

bargaining. As the ALJ and Board found, Petitioner

failed and refused to bargain with the Union over

the terms of initial collective-bargaining agreements,

unlawfully withdrew recognition from the Union,

unilaterally changed the terms and conditions of

employment of union-represented employees, and

App.032

refused to furnish relevant information to the Union

when requested.

*16 Six years have now passed since Petitioner

started stonewalling the Union. Had Petitioner

followed the law, this matter would have been

resolved long ago and without protracted litigation.

The bargaining parties might have decided upon a

mutually acceptable collective bargaining agreement

or the employees might have opted to leave the

union if good faith bargaining failed. Neither a

contract bar nor any other bar doctrine would have

been in play. Given the record before us, it is clear

that the Board applied established precedent to a

case that fell easily within the compass of the

successor bar rule.

C. Other Matters Raised by Petitioner

In addition to challenging the successor bar doctrine,

Petitioner raises a number of other issues, arguing

that the Board erred in its specific findings of unfair

labor practices and in its imposition of special

remedies. None of these arguments succeed.

Petitioner did not properly preserve many of the

arguments it now presents, either by including the

claims in its exceptions to the Board regarding the

ALJ's decision or by moving for reconsideration of

the Board's decision. 29 U.S.C. § 160(e); see, e.g.,

Flying Food Group Inc. v. NLRB, 471 F.3d 178, 18586 (D.C. Cir. 2006) (“Whatever the merits of

[Petitioner's] argument, we are barred from

considering it because the company never presented

it to the Board.”). Petitioner also lists several issues

App.033

in its brief without adequately amplifying its claims.

These are matters that we do not consider. Bode &

Grenier, LLP v. Knight, 808 F.3d 852, 861 (D.C. Cir.

2015) (“Simply listing the issues on review without

briefing them does not preserve them.”) (quotation

omitted).

Petitioner's remaining arguments fail under the

relevant standard of review. The Board's legal

findings are supported by substantial evidence, and

the Board properly exercised its discretionary

authority to impose remedies as it deemed

appropriate. 29 U.S.C. § 160(c); Fallbrook Hosp.

Corp. v. NLRB, 785 F.3d 729, 738, (D.C. Cir. 2015)

(“[T]he court has no business second-guessing the

Board's judgments regarding remedies for unfair

labor practices.”).

III.

Conclusion

For the reasons set forth above, we deny the petition

for review and grant the Board's cross-application

for enforcement.

Katsas, Circuit Judge, concurring:

When one employer succeeds to the collectivebargaining obligations of another, should the

successor be barred for some time from challenging

the majority status of an incumbent union? The

National Labor Relations Board has taken shifting

positions on this question. The Board declined to

impose a successor bar in 1975, imposed one in 1981,

abandoned it in 1985, imposed a different bar in

1999, abandoned it in 2002, and imposed yet a third

App.034

bar in 2011. Ante at 6–7. In doing so, the Board

focused on policy questions about how best to foster

collective bargaining while still ensuring ongoing

employee support for incumbent unions. The Board

was more terse, however, in addressing what the

governing statute has to say about this question.

In my view, there is a plausible argument that the

National Labor Relations Act prohibits a successor

bar. Section 7 gives employees the right to bargain

collectively “through representatives of their own

choosing” or to refrain from such bargaining. 29

U.S.C. § 157. Section 8 makes it an unfair labor

practice for employers to interfere with this right or

refuse to bargain collectively with a union, subject to

section 9(a). Id. § 158(a)(1), (5). Section 9(a) requires

unions to be chosen *17 by a majority of employees

within the relevant bargaining unit. Id. § 159(a).

Section 9(c) permits claims that a union no longer

commands majority support. Id. § 159(c)(1)(A)(ii). It

also sets forth one—and only one—time bar for

challenges to the continuing support of a previously

certified union, which runs for one year after any

valid election. Id. § 159(c)(3); see also id. § 159(e)(2).

Under normal principles of statutory construction,

the express imposition of that time bar may

preclude, by negative implication, the imposition of

others. See, e.g., Leatherman v. Tarrant Cnty.

Narcotics Intel. & Coordination Unit, 507 U.S. 163,

168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); A.

Scalia & B. Garner, Reading Law: The Interpretation

of Legal Texts 107–11 (2012).

App.035

On the other hand, our governing standard of review

is deferential. Under current Supreme Court

precedent, we must apply the familiar Chevron

framework when reviewing NLRA interpretations

rendered by the Board in unfair-labor-practice

adjudications. E.g., Lechmere, Inc. v. NLRB, 502

U.S. 527, 536, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992);

UC Health v. NLRB, 803 F.3d 669, 673–74 (D.C. Cir.

2015). So, we consider whether Congress spoke

“directly” to the question presented and, if not,

whether the agency adopted a “reasonable”

interpretation of the governing statute. Chevron

U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842–44, 104

S.Ct. 2778, 81 L.Ed.2d 694 (1984). Of course, the

Supreme Court has declined to apply Chevron in

many recent cases and is now considering whether to

overrule it. Loper Bright Enters. v. Raimondo, U.S.

No. 22-451; Relentless, Inc. v. Dep't of Com., U.S. No.

22-1219. But until that Court instructs otherwise,

we remain bound to apply Chevron. See Agostini v.

Felton, 521 U.S. 203, 237–38, 117 S.Ct. 1997, 138

L.Ed.2d 391 (1997).

Under Chevron, the Court's decision seems to me

correct. As noted above, the statutory bar on

challenges to the continuing support for a union,

which is keyed to elections and runs for one year,

may preclude the Board from imposing other bars

with different lengths or triggers. But many of our

cases have rejected application of the negativeimplication canon to foreclose agency interpretations

that would otherwise be reasonable under Chevron.

Specifically, we have said that the canon is “an

especially feeble helper in an administrative setting,

App.036

where Congress is presumed to have left to

reasonable agency discretion questions that it has

not directly resolved.” Cheney R.R. v. ICC, 902 F.2d

66, 69 (D.C. Cir. 1990) (citing Chevron, 467 U.S. at

843–44, 104 S.Ct. 2778); see also Loper Bright

Enters. v. Raimondo, 45 F.4th 359, 366–67 (D.C. Cir.

2022), cert. granted, ––– U.S. ––––, 143 S. Ct. 2429,

216 L.Ed.2d 414 (2023); Adirondack Med. Ctr. v.

Sebelius, 740 F.3d 692, 696–97 (D.C. Cir. 2014);

Mobile Commc'ns Corp. of Am. v. FCC, 77 F.3d 1399,

1404–05 (D.C. Cir. 1996). And without any

compelled negative implication from the statutory

time bar, the Board could reasonably conclude that

its current successor bar, which runs for six months

to one year depending on the circumstances, does not

by itself frustrate employees’ section 7 rights to

bargain “through representatives of their own

choosing.” Accordingly, I agree with my colleagues

and the First Circuit that the current successor bar

“is within the scope of reasoned interpretation and

thus subject to judicial deference under Chevron.”

NLRB v. Lily Transp. Corp., 853 F.3d 31, 38 (1st Cir.

2017); see ante at 14–15. In so doing, I take no

position on whether the bar would survive under de

novo review in a post-Chevron world. I also agree

with my colleagues that the Board has adequately

explained the *18 policy justifications driving its

interpretive choice.

All Citations

94 F.4th 1

App.037

USCA Case #22-1163

Filed: 02/27/2024

Document #2042426

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-1163

September Term, 2023

FILED ON: FEBRUARY 27, 2024

HOSPITAL MENONITA DE GUAYAMA, INC.,

PETITIONER,

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT.

_______________________________________________

Consolidated with 22-1180

_________________

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board

_________________

Before: HENDERSON and KATSAS, Circuit Judges,

and EDWARDS, Senior Circuit Judge

JUDGMENT

These causes came on to be heard on the petition for

review and cross-application for enforcement of an

App.038

order of the National Labor Relations Board and were

argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the petition for

review be denied and the Board’s cross-application for

enforcement be granted, in accordance with the

opinion of the court filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:/s/ Daniel J. Reidy

Deputy Clerk

Date: February 27, 2024

Opinion for the court filed by Senior Circuit Judge

Edwards. Concurring opinion filed by Circuit Judge

Katsas.

App.039

USCA Case #22-1163 Document #2053249

Filed: 05/07/2024

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________

No. 22-1163

September Term, 2023

NLRB-12-CA-214830

NLRB-12-CA- 214908

NLRB-12-CA-215039

NLRB--12-CA-215665

NLRB-12-CA-21786 2

NLRB-12-CA-218260

NLRB-12-C A-221108

NLRB-12-CA-215040

Filed On: May 7, 2024

Hospital Menonita de Guayama, Inc.,

Petitioner,

v.

National Labor Relations Board,

Respondent.

_____________________________________

Consolidated with 22-1180

App.040

BEFORE:

Henderson and Katsas, Circuit

Judges; and Edwards, Senior

Circuit Judge

ORDER

Upon consideration of petitioner’s petition

for panel rehearing filed on April 12, 2024, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy

Deputy Clerk

App.041

USCA Case #22-1163

Filed: 05/07/2024

Document #2053252

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________

No. 22-116

September Term, 2023

NLRB-12-CA-214830

NLRB-12-CA-214908

NLRB-12-CA-215039

NLRB-12-CA-215665

NLRB-12-CA-21786 2

NLRB-12-CA-218260

NLRB-12-C A-221108

NLRB-12-CA-215040

Filed On: May 7, 2024

Hospital Menonita de Guayama, Inc.,

Petitioner,

v.

National Labor Relations Board,

Respondent.

_______________________________

Consolidated with 22-1180

App.042

BEFORE: Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas,

Rao, Walker, Childs, Pan, and

Garcia, Circuit Judges; and Edwards,

Senior Circuit Judge

ORDER

Upon consideration of petitioner’s petition

for rehearing en banc, and the absence of a request

by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy

Deputy Clerk

App.043

USCA Case #22-1163

Filed: 06/11/2024

Document #2058976

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 22-1163

September Term, 2023

NLRB-12-CA-214830

NLRB-12-CA-214908

NLRB-12-CA-215039

NLRB-12-CA-215040

NLRB-12-CA-215665

NLRB-12-CA-217862

NLRB-12-CA-218260

NLRB-12-CA-221108

Filed On: June 11, 2024

Hospital Menonita de Guayama, Inc.,

Petitioner,

v.

National Labor Relations Board,

Respondent.

______________________________

Consolidated with 22-1180

App.044

BEFORE: Henderson and Katsas, Circuit Judges;

and Edwards, Senior Circuit Judge

ORDER

Upon consideration of petitioner’s motion to

stay issuance of the mandate pending the filing of a

petition for writ of certiorari, the response thereto,

and petitioner’s motion to extend time to file a reply

to the motion to stay the mandate, it is

ORDERED that the motions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy

Deputy Clerk

App.045

371 NLRB No. 108 (N.L.R.B.), 2022 L.R.R.M. (BNA)

223996, 2022 WL 2355898

NATIONAL LABOR RELATIONS BOARD

(N.L.R.B.)

HOSPITAL MENONITA DE GUAYAMA, INC.

AND

UNIDAD LABORAL DE ENFERMERAS (OS) Y

EMPLEADPS DE LA SALUD

Cases 12-CA-214830, 12-CA-214908, 12-CA-215039,

12-CA-215040, 12-CA-215665, 12-CA-217862, 12-CA218260, and 12-CA-221108

June 28, 2022

SUMMARY

*1 The Board unanimously adopted the

Administrative Law Judge's conclusions that the

Respondent, a successor employer, violated Section

8(a)(5) and (1) by failing to bargain initial

collective-bargaining agreements in good faith with

the union that represented five bargaining units at

the predecessor employer, by unilaterally paying

employees a bonus without bargaining with the

Union, and by failing to respond to the Union's

request for information relating to two of the five

bargaining units.

A Board majority consisting of Chairman

McFerran and Member Wilcox adopted the judge's

conclusions that the Respondent violated Section

8(a)(5) and (1) by withdrawing recognition from all

five bargaining units, by making unilateral

changes both during and after withdrawing

recognition, and by failing to respond to the

Union's request for information as to the

App.046

remaining three bargaining units, and adopted the

judge's recommended special remedies.

Dissenting in part, Member Ring would

overrule the successor bar rule in UGL-UNICCO

Service Co., 357 NLRB 801 (2011) and would

remand the claims in which he does not join the

majority to the judge to determine whether the

withdrawals of recognition were supported by

untainted evidence of employees' loss of support for

the Union.

Charges filed by Unidad Laboral de

Enfermeras (Os) y Empleados de la Salud.

Administrative Law Judge Ira Sandron issued his

decision on May 30, 2019. Chairman McFerran and

Members Ring and Wilcox participated.

DECISION AND ORDER

BY CHAIRMAN MCFERRAN AND MEMBERS

RING AND WILCOX

The primary issue in this case is whether the

Respondent, an admitted successor employer,

unlawfully withdrew recognition seriatim from the

incumbent Union representing five separate

bargaining units before any negotiations had taken

place. The judge found the withdrawals unlawful

based on the successor bar doctrine as set forth in

UGL-UNICCO Service Co., 357 NLRB 801 (2011),

and rejected the Respondent's evidence proffered to

show that a majority of its employees no longer

supported the Union. In conjunction with finding the

withdrawals of recognition unlawful, the judge also

found that the Respondent violated Section 8(a)(5)

App.047

and (1) by failing and refusing to bargain with the

Union over collective-bargaining agreements for the

five units, unilaterally changing its employees' terms

and conditions of employment, and failing to respond

to the Union's request for information relevant to its

bargaining duties.1

On May 30, 2019, Administrative Law Judge Ira Sandron

issued the attached decision. The Respondent filed exceptions

and a supporting brief. The General Counsel filed an answering

brief and cross-exceptions with a supporting brief, and the

Charging Party filed an answering brief, cross-exceptions, and

supporting documents. The Respondent filed answering briefs

to the General Counsel and Charging Party's cross-exceptions,

and the Respondent filed separate reply briefs to the General

Counsel's and the Charging Party's answering briefs, and the

General Counsel filed a reply brief to the Respondent's

answering brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel. The

Board has considered the decision and the record in light of the

exceptions and briefs and has decided to affirm the judge's

rulings, findings, and conclusions and to adopt the

recommended Order as modified and set forth in full below.

We have amended the judge's conclusions of law to clarify that

the Respondent's failure to bargain on the terms of initial

collective-bargaining agreements began about February 7,

2018, as alleged in the complaint. We have amended the judge's

remedy section to include the Board's standard remedies for

unilateral change violations and the failure to furnish

requested information, which the judge included in his

recommended Order and notice provisions, but did not include

in his remedy section.

We consider all submissions as amended. The Charging Party

amended its initial submissions on October 3, 2019. We granted

Acting General Counsel Peter Sung Ohr's motion for leave to

withdraw certain of his predecessor's arguments regarding the

validity of UGL-UNICCO Service Co., 357 NLRB 801 (2011),

and declined to exercise jurisdiction over the Respondent's

challenge to the Acting General Counsel's appointment. See

1

App.048

Hospital Menonita de Guayama, Inc., Case 12-CA-214830, et al.

(May 5, 2021) (unpublished order). The Board has determined

that such challenges to the authority of the Board's General

Counsel based upon the President's removal of former General

Counsel Peter Robb have no legal basis. See Aakash, Inc.,

d/b/a Park Central Care and Rehabilitation Center, 371 NLRB

No. 46, slip op. at 1-2 (2021). In addition, the Fifth Circuit

recently rejected a similar challenge to the President's removal

of the former General Counsel. See Exela Enterprise Solutions,

Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022).

Further, on August 16, 2021, General Counsel Abruzzo issued a

Notice of Ratification in this case approving the continued

prosecution of the complaint, and, on December 2, 2021, she

issued a second Notice of Ratification in this case that states as

follows:

On March 1, 2021, a motion was filed under the authority of

former Acting General Counsel Peter Sung Ohr in this case

pending on exceptions before the Board. The motion sought to

withdraw portions of the General Counsel's answering brief to

Respondent's exceptions and portions of the General Counsel's

brief in support of cross-exceptions.

Respondent alleged that such motion was an ultra vires act by

former Acting General Counsel Ohr. Specifically, Respondent

alleged that President Biden had unlawfully removed former

General Counsel Peter B. Robb and unlawfully designated

former Acting General Counsel Ohr.

I was confirmed as General Counsel on July 21, 2021. My

commission was signed and I was sworn in on July 22, 2021.

On August 16, 2021, I ratified the filing of the motion in

question.

Former General Counsel Robb's term has indisputably now

expired. In an abundance of caution, I was re-sworn in on

November 29, 2021. Following appropriate review and

consultation with my staff, I have again decided to ratify the

filing of the motion in question. The motion correctly noted that

the portions of the General Counsel's briefs recommending that

the Board overturn existing law were unwarranted, and that

overturning the existing Board law in question would not be

consistent with the mission of the Act. My action does not

reflect an agreement with Respondent's argument in this case

or arguments in any other case challenging the validity of

App.049

We agree with the judge's findings2 and conclusions,

for the reasons he gave. We agree with the judge

that, having applied UGL-UNICCO, supra, to find

that the Respondent violated Section 8(a)(5) and (1)

by withdrawing recognition of the Union and the five

bargaining units it represented, it is unnecessary to

reach the General Counsel's alternative theory that

unremedied unfair labor practices tainted any

potential evidence of employees' loss of support for

the Union, because finding a violation under that

theory would be cumulative and would not affect the

remedy. As discussed below, we rely on additional

facts and reasoning in adopting the judge's finding

that the Respondent failed to meet and bargain in

good faith with the Union. Finally, we respond to our

actions taken following the removal of former Acting General

Counsel Robb. Rather, my decision is a practical response

aimed at facilitating the timely resolution of the case.

For the foregoing reasons, I hereby ratify the filing of the

motion in question, the filing of the reply in support of that

motion, and all actions taken in this case subsequent to the

removal of former General Counsel Robb including by former

Acting General Counsel Ohr and his subordinates.

Applying Wilkes-Barre Hospital Company LLC, d/b/a WilkesBarre General Hospital, 371 NLRB No. 55, slip op. at 1 fn. 2

(2022) (full-Board decision; collecting cases), we find that

General Counsel Abruzzo's ratification renders the

Respondent's argument moot.

2 The judge's decision contains some apparently inadvertent or

inconsistent statements which do not, however, affect the

results herein. We have corrected those statements, as noted in

the Background section below. In light of NLRB v. Noel

Canning, 573 U.S. 513 (2014), we do not rely on the recessBoard decision cited by the judge, Postal Service, 359 NLRB 56

(2012).

App.050

dissenting colleague's disagreement with UGLUNICCO, and the balance it struck between

employees' freedom of choice and the stabilizing

effects of the successor bar with its mandated

reasonable period for collective bargaining, which in

this case never took place.

Background

As set forth in more detail in the judge's decision,

the Respondent, Hospital Menonita de Guayama,

Inc., purchased the assets of Hospital San Lucas

Guayama (San Lucas) on September 12, 2017, and

offered employment to all of San Lucas's employees

in five bargaining units. At San Lucas, the Union

had represented the registered nurses (RNs) and

practical nurses (LPNs) since 1998, the medical

technologists since 2005, and the technicians and the

clerical workers since 2012. At the time of the

acquisition, the Union was in the process of

negotiating collective-bargaining agreements for all

five units: initial agreements for the technicians and

the clerical workers, and renewal agreements for the

three older units. The Respondent informed

employees that it would not honor any of San

Lucas's collective-bargaining agreements, but would

bargain terms anew. 3 All employees accepted the

Respondent's offers of employment (under new terms

and conditions of employment going into effect on

September 13, 2017), and operations continued

3 There were no exceptions to the judge's conclusions that the

Respondent did not violate the Act by setting initial terms and

conditions of employment for unit employees without giving the

Union notice or an opportunity to bargain.

App.051

otherwise unchanged. On September 13, the Union

requested recognition from the Respondent as well

as information concerning the employees who were

offered employment.

*2 On September 19-20, Hurricane Maria hit Puerto

Rico, disrupting power and telecommunications. 4

The Respondent assigned the RNs to work 12-hour

schedules instead of their usual 8-hour shifts. On

October 21, however, the Respondent restored the 8hour shifts after the parties' informal discussions

yielded

no

agreement

on

the

permanent

implementation of the shift change.5

The Respondent recognized the Union by letter of

November 6, and, as stated in its prior

communications, provided documents in response to

the Union's September 13 request.6 On November 22

4 Since September 18, the Respondent had made several failed

attempts to deliver a response to the Union's September 13

request for recognition and information, which it finally handdelivered on October 13, stating that “Once we finalize the

process of determining whether a majority of employees who

previously worked for Hospital Episcopal San Lucas Guayama

accepted the offer of employment of Hospital Menonita

Guayama, then we will proceed according to law, regarding the

recognition of the Union. If the Union is recognized, then we

will proceed to comply with your request.”

5 There were no exceptions to the judge's conclusion that the

Respondent's September-October 2017 shift change for its

registered nurses occurred outside the Sec. 10(b) period and

could not form the basis of an unfair labor practice.

6 The General Counsel excepts to the judge's failure to consider

how the Respondent's delay in recognizing the Union “shed

light” on the circumstances surrounding its withdrawals of

recognition, while the Respondent excepts to the judge's

App.052

at a Thanksgiving luncheon, the Respondent's

hospital administrator and human resources director

distributed certificates and $150 checks to the

employees in the five units who had worked

overnight during the hurricane. 7 Despite having

officially recognized the Union at this point, the

Respondent neither gave the Union advance

notification, nor offered to bargain concerning the

hurricane bonuses.

Between February and April 2018, the Respondent

withdrew recognition seriatim from each of the five

bargaining units, claiming that the Union had

ceased to represent the employees in the affected

units based on objective evidence that they no longer

wished to be represented by the Union. After each

withdrawal of recognition, the Respondent made

unilateral changes to the terms and conditions of

statement that the Respondent's 2017 change to the registered

nurses' shift could be used to “shed[] light ‘on the true character

of matters occurring within the limitations period.”’ We find it

unnecessary to rely on the judge's determination to use or not

use certain facts to “shed light” on later events, as neither

instance would materially affect the analysis. Member Wilcox

agrees but emphasizes that there was nothing improper about

the judge considering the Respondent's actions as background

evidence of misconduct. See, e.g., Fruehauf Trailer Services,

335 NLRB 393, 393 fn. 5 (2001).

7 We correct the inadvertent inconsistencies in the judge's

decision to reflect that the Respondent recognized the Union on

November 6, 2017, and that only one of the alleged unilateral

changes--the granting of a bonus for employees who worked

during Hurricane Maria--was made when the Respondent still

recognized the Union for the units involved. We have also

corrected the inadvertent errors in the judge's decision and

recommended Order as set forth in the General Counsel's

unopposed exceptions Nos. 2, 5, 6, and 8.

App.053

employment of the newly-unrepresented employees.

On February 5, the Respondent withdrew

recognition from the technicians unit; 6 days later it

granted the technicians a wage increase. On

February 7, the Union requested dates to meet and

bargain

the

various

collective-bargaining

agreements. By letter that day the Respondent

requested that the Union send bargaining proposals

for each of the five units before it would schedule

negotiation meetings. The Union sent five

bargaining proposals on February 12. On February

14, the Respondent withdrew recognition from the

clerical workers, and by separate letter, confirmed

that it received the Union's proposals, but stated

that bargaining could only begin after it submitted

its counterproposals by the third week in April. Two

days later, it withdrew recognition from the medical

technologists.

In March 2018, the Union learned that the

Respondent was planning to hold an orientation

meeting to explain the Menonita Health Plan to

employees and requested bargaining over the

selection of an insurance carrier. The Respondent

answered that it had not made any changes to the

medical benefits provided to the RNs and LPNs, the

remaining two units that the Union represented. On

March 14, the date of the meeting, the Union

requested documents that the employees had signed

at the meeting including the document to renew

their medical insurance, as well as copies of the

attendance sheet for the meeting. The Respondent

eventually provided the attendance sheet, but never

App.054

replied to the Union's second request on April 4, for

the documents signed by employees.

*3 Between April 1 and June 1, 2018, the

Respondent eliminated the requirement that

employees pay a portion of their health insurance

premiums for those units from which it had

withdrawn recognition. Represented employees paid

50 percent of their premium; after recognition was

withdrawn, they paid nothing. On April 6, the

Respondent withdrew recognition from the RNs and

on June 17, increased the RNs' shift schedule from 8

to 12 hours. On April 18, the Respondent emailed

the Union its proposal for the final unit it still

recognized - the LPNs, but soon after withdrew

recognition from that unit on April 24, without

engaging in any bargaining on its own proposal. On

May 18, the Respondent for the first time granted its

RNs and LPNs a uniforms bonus of $200. Finally, in

late June or early July, after it had withdrawn

recognition from all five units, without notifying or

bargaining with the Union, the Respondent

distributed an employee manual and general rules of

conduct which had not existed before, and which

changed disciplinary rules and benefits for

employees in all five units.

i.

As described above, after the Respondent withdrew

recognition from the technicians unit, the Union

App.055

repeated its request for bargaining on February 7,

2018.8

We agree with the judge's finding that the

Respondent failed and refused to meet and bargain

in good faith with the Union on the terms of initial

collective-bargaining agreements. We further find

that the Respondent has not excepted to the merits

of the judge's conclusion that it failed and refused to

meet and bargain with the Union since on or around

February 7, 2018. The Respondent does except to the

judge's statement that its “unlawful withdrawals of

recognition give rise to a strong suspicion that [it]

had no intention of engaging in meaningful

bargaining,” and to the judge's recommended special

bargaining remedies, which we discuss in the

amended remedy section below. But those exceptions

are insufficient to challenge the merits of the failure

to bargain violation. Accordingly, under the Board's

Rules and Regulations, the Respondent has waived

its opportunity to do so.9

Even if the Respondent had not waived all

arguments on the merits, however, we would still

adopt the judge's conclusion that the Respondent did

not discharge its Section 8(d) duty to bargain, which

was separate from the Union's duty, by conditioning

Although the judge did not make findings as to every

communication between the parties, the record reflects, and the

Respondent admits, that the Union requested bargaining by

text as early as October 12, 2017. We focus on the period

alleged in the complaint, that the Respondent's failure to

bargain began on February 7, 2018.

9 See Board's Rules Secs. 102.46(a)(1)(ii) and (f); 102.48.

8

App.056

an in-person meeting upon the submission of written

proposals and then further delaying bargaining for

over 2 months without explanation after the Union

had submitted proposals for all five units. 10 We

would also reject the Respondent's effort to attribute

its failure to bargain to the Union. As admitted by

the Respondent, the Union had been asking to

bargain since mid-October 2017 and was not

required to repeat its request.11

ii.

*4 The Respondent excepts to the judge's reliance on

the successor bar doctrine to reject its evidence of

employees' loss of majority support for the Union,

and requests that the Board overrule UGL-UNICCO,

supra, and replace it with the standard in MV

Transportation, 337 NLRB 770 (2002), in which an

incumbent union's presumption of continued

majority support under a successor employer was

rebuttable. It argues that UGL-UNICCO enlarged

its Section 8(a)(5) duty to bargain, contrary to

Supreme Court precedent, and failed to achieve the

proper balance between employees' right to refrain

from representation and the goal of the Act to

promote labor relations stability. Our dissenting

See Gene's Bus Co., 357 NLRB 1009, 1012 (2011); Quality

Roofing Supply Co., 357 NLRB 789, 789 (2011).

10

11See Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 52-53 (1987); Cypress Lawn Cemetery Assn., 300

NLRB 609, 616 (1990).

Member Wilcox agrees that the Respondent did not meet

its duty to bargain but finds it unnecessary to pass on whether

the Respondent adequately excepted to the judge's finding.

App.057

colleague agrees with this perspective, and instead of

finding the Respondent's withdrawal of recognition

unlawful, he would remand the relevant allegations

to the judge to determine whether untainted

evidence established that the Union had lost its

majority support. His elaboration on the

Respondent's arguments, however, only restates

contentions carefully considered and rejected by the

UGL-UNICCO Board (as well as the only circuit

court to review its reasoning). As we explain below,

the balancing of interests that are in tension with

each other must be done in the service of promoting

collective bargaining.

The explicit policy of the National Labor Relations

Act is to promote collective bargaining. 12 In UGLUNICCO, the Board explained the successor bar and

the rationale for bar doctrines generally:

Under [the successor bar] doctrine, when a successor

employer acts in accordance with its legal obligation

to recognize an incumbent representative of its

employees, the previously chosen representative is

entitled to represent the employees in collective

bargaining with their new employer for a reasonable

period of time, without challenge to its

representative status . . . . [A]nalogous “bar”

doctrines are well established in labor law, based on

Sec. 1 of the Act declares that the “policy of the

United States” is to “encourag[e] the practice and

procedure of collective bargaining” and to “protect[] the

exercise by workers of . . . designation of representatives of

their own choosing.” 29 U.S.C. § 151.

12

App.058

the principle that “a bargaining relationship once

rightfully established must be permitted to exist and

function for a reasonable period in which it can be

given a fair chance to succeed.” Franks Bros. Co. v.

NLRB, 321 U.S. 702, 705 (1944). These bar doctrines

. . . promote a primary goal of the National Labor

Relations Act by stabilizing labor-management

relationships and so promoting collective bargaining,

without interfering with the freedom of employees to

periodically select a new representative or reject

representation.13

The successor bar, then, is designed to promote

collective bargaining when a new employer, the

successor, takes over a workplace where employees

are already represented by a union. As it did in this

case, the new employer typically is free to decide-without the union's participation--which of the

predecessor's employees to hire and how to change

employees' wages, benefits, and working conditions.

In such situations, the incumbent union is in an

especially vulnerable position, through no fault of its

own. Accordingly, the Board has held, with the

Supreme Court's approval, that the policies of the

Act are best served by presuming that the union has

continuing majority support from employees and by

requiring the successor employer to recognize and

bargain with the union. 14 The successor bar is an

extension of this principle, as the UGL-UNICCO

Board explained. 15 The new collective-bargaining

relationship between the union and the successor

357 NLRB at 801 (footnotes and citations omitted).

See Fall River, supra, 482 U.S. at 38-40.

15

357 NLRB at 806-808.

13

14

App.059

employer “must be permitted to exist and function

for a reasonable period in which it can be given a fair

chance to succeed” 16 before the union's

representative status can be challenged by the

employer or employees. 17 UGL-UNICCO addressed

the effect of a successor bar on the statutory right of

employees to freely choose (or reject) a union,

acknowledging that “employee freedom of choice is . .

Franks Bros. Co., supra, 321 U.S. at 705. The

collective-bargaining relationship in this case quite clearly

had no “fair chance to succeed” under any reasonable

understanding of that principle. Although the Respondent

had recognized the Union in November 2017 and was aware

of the Union's request to bargain, it withdrew recognition

from the technicians unit and promptly granted those

employees

wage

increases

without notifying

and

bargaining with the Union. After the Union reiterated its

request on February 7, 2018, asking for specific dates to

meet and negotiate collective-bargaining agreements, the

Respondent proceeded to withdraw recognition from the

remaining units, making unilateral changes to the terms

and conditions of employment of each newly-unrepresented

unit, blatantly weakening any perception of effectiveness

that the Union might have possessed until that point. Within

6 days of finally producing a proposal relating to the final

remaining represented unit - the LPNs - the Respondent

withdrew recognition without even attempting to meet and

bargain

over

its

own

proposal.

16

“An insulated period for the union clearly promotes collective

bargaining. It enables the union to focus on bargaining, as

opposed to shoring up its support among employees, and to

bargain without being ‘under exigent pressure to produce

hothouse results or be turned out,’ pressure that can

precipitate a labor dispute and surely does not make reaching

agreement easier. An insulated period also increases the

incentives for successor employers to bargain toward an

agreement.” UGL-UNICCO, supra, 357 NLRB at 807, quoting

Brooks v. NLRB, 348 U.S. 96, 100 (1954).

17

App.060

. a bedrock principle of the statute.”18 Because the

insulated period created by the successor bar

extended only for a reasonable period of bargaining,

with an outer limit of 1 year (and a minimum of 6

months), the Board concluded that the bar did not

unduly burden employee free choice.19

*5 The decision in UGL-UNICCO was reached after

the Board had issued a notice and invitation to file

briefs to the public, as well as to the parties.20 And

while the Board reversed the precedent that our

colleague prefers, 21 it comprehensively explained

why. The UGL-UNICCO Board carefully traced the

Board's doctrinal twists and turns in this area over

decades and showed why revisiting the successor-bar

issue was appropriate, given developments in the

American economy that had made successorship

situations much more common. 22 The Board also

persuasively explained why reinstating the successor

bar doctrine was the better policy choice,

demonstrating the flawed reasoning of earlier Board

decisions.23

In attacking the successor bar, our dissenting

colleague does not make any new arguments. He sets

forth a detailed evolution of the doctrine, but adopts

UGL-UNICCO, supra, 357 NLRB at 808 (citing St. Elizabeth

Manor, Inc., 329 NLRB 341 (1999)).

19

UGL-UNICCO, supra, 357 NLRB at 808-809.

20

Id. at 801-802.

21

MV Transportation, 337 NLRB 770 (2002), which itself had

overruled St. Elizabeth Manor, supra.

22

357 NLRB at 803-806.

23

Id. at 806-808.

18

App.061

the flawed reasoning from MV Transportation and

its antecedents, and cites with approval arguments

from Member Hayes' dissenting opinion in UGLUNICCO, all of which the Board fully considered

and rejected.24 And while leaning heavily on a 1983

Sixth Circuit decision 25 --issued before the current

successor bar was adopted or explained by the Board

- he accords little weight to the most relevant and

recent circuit court reasoning on the subject.

In the decade since UGL-UNICCO issued, the only

federal appellate court to consider its reestablished

successor bar doctrine, the First Circuit, upheld it

without difficulty, seeing “no cause to doubt that the

Board's position . . . is within the scope of reasoned

interpretation and thus subject to judicial deference .

. . .”26 Writing for the court, Associate Justice David

Souter described the Board's decision as an

“adequately explained interpretive change reflecting

the Board's judgment of a reasonable balance

between the Section 7 right of employee choice and

the need for some period of stability to give the new

relationships a chance to settle down.”27 “The need to

Id. at 810.

Landmark lnternational Trucks v. NLRB, 699 F.2d 815, 818

(6th Cir. 1983).

26

NLRB v. Lily Transportation Corp., 853 F.3d 31, 38 (1st Cir.

2017).

27

Id. (Associate Justice Souter was sitting by designation.) The

First Circuit also rejected the argument that our dissenting

colleague makes here, that UGL-UNICCO is contrary to Fall

River, supra, and NLRB v. Burns Int'l Security Services, Inc.,

406 U.S. 272 (1972). Although both cases refer to the rebuttable

presumption, the First Circuit found that the Supreme Court's

24

25

App.062

strike such a balance is not itself challenged, and

hardly could be,” he observed.28

There can be no suggestion here that because the

rebuttable presumption of majority status was in

place longer than the successor bar was before the

Board decided UGL-UNICCO, it is the superior rule.

The former rule came into being in a different era

well before our country's annual volume of mergers

and acquisitions had reached $822 billion in 2010.29

In deferring to the Board's balancing of competing

language in those cases “simply describes the legal landscape

at the time,” and that “[n]either case holds that a rebuttable

presumption, rather than a bar, is required in a successorship

situation.” NLRB v. Lily Transp., 853 F.3d at 38-39. These

same arguments were made by dissenting Member Hayes in

UGL-UNICCO and rejected by the Board for the same reason,

as well as on more technical grounds. Thus the UGL-UNICCO

Board quoted the Court's own explanation that a “court's prior

judicial construction of a statute trumps an agency construction

otherwise entitled to Chevron deference only if the prior court

decision holds that its construction follows from the

unambiguous terms of the statute and thus leaves no room for

agency discretion.”' UGL-UNICCO, 357 NLRB at 806 fn. 22,

quoting Nat'l Cable & Telecomm. Assn. v. Brand X Internet

Servs., 545 U.S. 967, 982 (2005); see also Chevron USA, Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 863-864

(1984). It is clear that the Act does not unambiguously address

the existence or contours of a successor bar, or what type of

presumption should apply in a successorship situation.

Therefore even if the language relied on by our colleague in

Fall River could be described as a holding of the Supreme

Court, it would not prevent the Board from adjusting the

delicate balance of competing rights against the changing

patterns of industrial life in the successor arena.

28

29

NLRB v. Lily Transp. Corp., 853 F.3d at 38.

UGL-UNICCO, supra at 805 fn. 17.

App.063

interests in UGL-UNICCO, the First Circuit

favorably observed that the Board “brought up to

date the commercial reality ignored by the MV

Transportation majority[.]”30 The First Circuit also

recognized that the greater the number of mergers

and acquisitions, the greater the likely incidence of

successor situations with unionized employees,

leading to greater volatility in union-management

relationships across the national labor market,

which in turn would result in more litigation

challenging union support during the unsettled

period with the new employer. It warned that “[t]his

risk would not only affect the actual employment

relations in the market overall owing to the quantity

of successorships, but by the same token would also

portend a heavier burden on the . . . Board itself, in

administering the National Labor Relations Act.”31

*6 The annual volume of mergers and acquisitions in

the U.S. continues to expand. Indeed, from the time

of the UGL-UNICCO decision to the present, the

annual volume of mergers and acquisitions has

increased from $822 billion in 2010 to somewhere in

the vicinity of $2.6 trillion in 2021. 32 Accordingly,

since the economic drivers leading to an increased

likelihood of successorship situations continue their

expansion, it is no less urgent for Board doctrine

such as a successor bar to facilitate smooth

NLRB v. Lily Transp. Corp., 853 F.3d at 38.

Id. at 37.

32

See Matthew Toole, Dealmakers Ring Out 2021 as the Year of

M&A,

Refinitiv

(Jan.

12,

2022),

https://www.refinitiv.com/perspectives/marketinsights/dealmakers-ring-out-2021-as-the-year-of-ma/

(last

visited June 3, 2022).

30

31

App.064

transitions from one employer to another, which

“would serve stability in labor relations better in a

market likely to be fraught with higher numbers of

upsets than in the world of forty years ago.” 33 We

believe, then, that the UGL-UNICCO Board was

justified in revisiting the successor-bar issue in light

of economic developments, even if the soundness of

the Board's policy choice there does not depend on

those developments, and that no economic changes

since UGL-UNICCO suggest that it is now time to

take another look. In any case, we reject our

dissenting colleague's legal and policy arguments,

including his characterization of our reasons for

adhering to UGL-UNICCO.

Our colleague's criticism of the successor bar as a

“prohibition on the exercise of employee free choice,”

distinct from the established bars that protect

certification, voluntary recognition,34 and collectiveNLRB v. Lily Transp. Corp., 853 F.3d at 37.

our colleague asserts that employees have greater

scope to exercise Sec. 7 rights following a grant of voluntary

recognition than they do in a successorship situation, this is

only because the recently enacted Election Protection Rule

(2020) provides for a notice period of 45 days during which the

employees may petition for an election. See Representation-Case Procedures: Election Bars; Proof of Majority Support in

Construction-Industry Collective-Bargaining Relationships, 85

Fed. Reg. 18366, 18380-18388 (April 1, 2020; effective July 31,

2020); Board's Rules and Regulations, Sec. 103.21. This recent

rule, to which then-Member McFerran dissented at the NPRM

stage, aligns with our colleague's views on employees' right to

choose not to be represented, but it does not obviate the need

for a successor bar. See 84 Fed. Reg. 39930, 39939-39940,

39949-39951 (Aug. 12, 2019). (Chairman McFerran was not a

member of the Board when the prior majority codified the

33

34 While

App.065

bargaining agreements, fails to keep in sight the

Act's overarching goal of promoting collective

bargaining. Indeed, as noted above, each of these

doctrines are based on the principle that rightfully

established bargaining relationships “must be

permitted to exist and function for a reasonable

period in which [they] can be given a fair chance to

succeed.” 35 While our colleague repeats the

characterization in MV Transportation of the bar as

relying “on a paternalistic assumption that the

employees in a successor employer situation need

the protection of an insulated period . . . to make an

informed decision regarding the effectiveness of their

bargaining representative,” 36 the First Circuit

addressed such concerns by finding that “some

limited discouragement of an unduly hasty

reexamination of a prior Section 7 choice serves to

provide time for second thoughts, a subject the

statute does not directly address in successor cases,

but which falls within its ‘underlying purpose,”’

approving the Board's justification for rejecting the

rebuttable presumption in UGL-UNICCO.37

*7 Our colleague's concern that successive bar

periods restrict employee free choice is also a wellworn argument set forth by the majority in MV

Transportation. But that too is incongruent with the

Act's goal of promoting collective bargaining because

proposal in a final rule, and Member Wilcox was not a member

of the Board when the rule was proposed or finalized.)

35 UGL-UNICCO, supra at 801, quoting Franks Bros. Co.,

supra, 321 U.S. at 705.

36MV Transportation, 337 NLRB at 773 fn. 12.

37 853 F.3d at 35-36, citing Brooks v. NLRB, supra.

App.066

it adds the contract bar of the predecessor employer

who has successfully fulfilled that goal, to the bar

periods that could potentially apply to the successor

employer (but only if it successfully reaches a

collective-bargaining agreement), to conclude that

the total period affected by bars excessively restricts

employees' right to challenge an incumbent union.

The Board addressed this concern by shortening the

potential contract bar applicable to a successor

employer from 3 to 2 years, where there was no open

period during the final year of the predecessor's

bargaining relationship with the union.38

Our colleague further objects to the practical effect of

the length of a bar period that does not commence

until the first bargaining session. But this built-in

incentive for the parties to begin bargaining sooner

UGL-UNICCO, supra at 810. See also NLRB v. Lily Transp.,

supra, 853 F.3d at 37-38 (noting the Board's temporal

modification of the successor bar as part of its “adequately

explained interpretive change”).

38

Our colleague's related concern that UGL-UNICCO creates too

much uncertainty by providing a flexible bar duration ranging

from a minimum of 6 months to no more than a year (where the

successor changes its employees' baseline terms and conditions

of employment) merely restates the age-old tradeoff between

flexible legal standards and bright line rules. That he would

strike the balance differently does nothing to suggest that

UGL-UNICCO's standard is infirm. In any event, the limits set

provide a degree of certainty, while reflecting that a reasonable

period for bargaining is necessarily a factual determination

that will vary from bargaining relationship to bargaining

relationship, drawing on another legal standard that has met

with judicial approval. See UGL-UNICCO, supra at 808-809,

citing Lee Lumber & Building Material Corp., 334 NLRB 399

(2001), enfd. 310 F.3d 209 (D.C. Cir. 2002).

App.067

rather than later is hardly outside the employer's

control. As can be seen by the facts here, if the

Respondent had been ready to negotiate immediately

after recognizing the Union on November 6, the bar

period could have begun and ended in short order.

By starting the clock at the parties' first bargaining

session, the rule buffers the bargaining relationship

from an employer's potential exploitation of

unexpected delays and unforeseen disasters--such as

hurricanes--to erode the waning support that

employees in an uncertain situation are likely to give

their union.39

The facts in this case clearly demonstrate the need

to protect the collective-bargaining process during

the disruptive transition between employers. When

the Respondent acquired Hospital San Lucas in

2017, all five units were in the process of negotiating

collective-bargaining agreements. The three units

negotiating successor agreements had been

represented by the Union since 1998 (RNs and

LPNs) and 2005 (technologists). The two units

We are unpersuaded by our colleague's suggestion that we

should build a rule around the unlikely hypothetical that a

union might, through delaying the onset of bargaining, attempt

to extend the successor bar period to regain their unit's

support. Unions are well aware that their efficacy is best

advertised through successfully reaching a collectivebargaining agreement. Indeed, the much more common

scenario in Board precedent is of successor employers, like this

one, refusing to bargain altogether with their employees'

chosen representative. In any event, the Board is fully capable

of crafting exceptions to the application of its bar doctrines in

the anomalous circumstances of unreasonable union delay. See,

e.g., Virginia Mason Medical Center, 350 NLRB 923, 923-924

(2007).

39

App.068

negotiating a first agreement (technicians and

clerical workers) had been represented since 2012.

The relationship between the Union and Hospital

San Lucas was replaced by a new relationship with

the Respondent, who lawfully changed the existing

terms and conditions of employment while

determining over a period of almost 2 months

whether a sufficient number of employees had

accepted its offers of employment to entitle the

Union to recognition. Soon, the employees may have

lost confidence in the Union's ability to protect their

interests when it was unable to schedule its first

bargaining session or obtain documents relevant to

negotiations. Instead of bargaining, the Respondent

granted bonuses without notifying the Union,

withdrew recognition from the five units, granted

increased benefits to the newly-unrepresented units,

and issued new employee rules of conduct. Without a

temporary bar period, there would be little hope that

the parties' collective-bargaining relationship could

have a chance of succeeding.

*8 Given this period of uncertainty, our colleague is

mistaken when he asserts that affirming majority

status through a decertification election would have

no disruptive effect on collective bargaining. Quick

access to a decertification election goes far beyond a

successor employer's right to set initial terms and

conditions of employment, long established in Board

successorship

doctrine.

Moreover,

allowing

decertification petitions to proceed to elections

during the period of initial bargaining between an

incumbent union and a new successor employer

would distract the parties from focusing on

App.069

negotiations and require diversion of their available

resources, giving the new relationship little chance

to succeed. Most pointedly though, if we follow our

colleague's claim (repeated from former Member

Hayes) to its logical conclusion--that it is a

decertification election itself, and not a temporary

bar, that contributes to labor relations stability-then there is no justification for any of the bar

periods established under Board law. It is one thing

to express disagreement with how to strike the

appropriate balance between labor relations stability

and employee free choice. It is quite another to

essentially deny that any need for balancing exists.40

Indeed, if we were to embrace the argument that

decertification elections should be accorded weight on both the

employee free choice and the stability side of the scale because

(according to our colleague) their results “either affirm[] the

majority upon which stability must be based, or reveal [] that

there is no real relationship to be stabilized,” then one would be

drawn to reconsider the wisdom behind any of the Board's bar

doctrines foreclosing such elections, no matter how venerable

their age. The First Circuit had no trouble describing the

balancing involved with greater accuracy. See NLRB v. Lily

Transp., supra, 853 F.3d at 38 (describing UGL-UNICCO's

successor bar as “a reasonable balance between the Section 7

right of employee choice and the need for some period of

stability to give the new relationships a chance to settle down”).

We reject our colleague's reasoning which focuses on the known

relationship between the Union and its members instead of the

unknown bargaining relationship between the Union and the

new employer that the 6-12 month bar period seeks to protect.

Instead, we stand behind the need to give bargaining

relationships a reasonable chance to succeed as reflected by the

Board applying various bar doctrines for decades.

40

App.070

The facts in this case make crystal clear why the

protection of a successor bar is needed and

appropriately balances the successor employer's and

the employees' interests. There is simply no reason

to revisit sound Board doctrine in this case. It is

working, as Congress intended, to promote stable

and effective collective bargaining relationships.

Amended Conclusion of Law

Substitute the following for Conclusion of Law 3(b):

“(b) Failed and refused to meet and bargain in good

faith with the Union since about February 7, 2018,

on the terms of initial collective-bargaining

agreements.”

Amended Remedy

Having found that the Respondent has engaged in

certain unfair labor practices, we shall order it to

cease and desist and to take certain steps to

effectuate the policies of the Act. In addition to the

remedies set forth by the judge, and having adopted

the judge's findings that the Respondent violated

Section 8(a)(5) and (1) by withdrawing recognition

from the Union, failing and refusing to bargain with

the

Union

for

initial

collective-bargaining

agreements, and unilaterally changing employees'

terms and conditions of employment without first

notifying the Union and giving it an opportunity to

bargain, we shall order the Respondent to (1)

recognize and, on request, bargain in good faith with

App.071

the Union as set forth in the judge's remedy section;

(2) on request by the Union, rescind the following

changes in unit employees' terms and conditions of

employment and restore the previously existing

terms and conditions of employment: changing the

shifts of registered nurses; increasing the wages of

technicians; granting employees a Hurricane Maria

bonus or incentive; eliminating the requirement that

employees pay a portion of their health insurance

premiums; granting a uniforms bonus to registered

nurses and practical nurses; and distributing and

implementing an employee manual and general

rules of conduct that changed unit employees' terms

and conditions of employment.41

*9 Having further adopted the judge's finding that

the Respondent violated Section 8(a)(5) and (1) by

failing and refusing to furnish the Union with

requested information that is relevant and necessary

to performing its functions as the collectivebargaining representative of its unit employees, we

shall order the Respondent to furnish to the Union

in a timely manner the information it requested on

March 14, 2018, concerning documents employees

signed at a March 14, 2018 meeting on health

insurance benefits.

The judge included an affirmative bargaining

provision in his recommended Order to remedy the

To the extent that the unlawful unilateral changes have

improved the terms and conditions of unit employees, the

Order set forth below shall not be construed as requiring or

authorizing the Respondent to rescind such improvements

unless requested to do so by the Union.

41

App.072

Respondent's unlawful withdrawal of recognition.

For the reasons set forth in Caterair International,

322 NLRB 64 (1996), we agree that this remedy is

warranted. We adhere to the view that an

affirmative bargaining order is “the traditional,

appropriate remedy for an 8(a)(5) refusal to bargain

with the lawful collective-bargaining representative

of an appropriate unit of employees.” Id. at 68. The

Respondent does not argue that the judge's

recommended affirmative bargaining order is

improper if the Board affirms the judge's 8(a)(5)

finding. We thus find it unnecessary to provide a

specific justification for that remedy. See Sunbelt

Rentals, Inc., 370 NLRB No. 102, slip op. at 5 fn. 18

(2021) (and cited cases); see also Scepter, Inc. v.

NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (in the

absence of particular exceptions, the Board may

issue an affirmative bargaining order without

specifically stating the basis for the order).

We reject the Respondent's argument that the

judge's recommended special remedies of a

bargaining schedule and reporting requirements are

not warranted because its conduct was not

sufficiently egregious and occurred only after it

withdrew recognition in response to employees'

desire not to be represented. We agree with the

judge that the recommended bargaining remedies

are appropriate for the reasons stated by the judge,

and note that, in these circumstances, would

function effectively together to ensure compliance.

We deny the Charging Party's exception to the

judge's failure to recommend a back pay remedy that

App.073

includes a uniform allowance. The Charging Party

provided no evidence of a past practice that a

successor employer setting initial terms and

conditions of employment would have been required

to continue. We also deny the Charging Party's

request for a bargaining order of 1 year in duration.

UGL-UNICCO, supra, provides for a reasonable

period of bargaining (a minimum of 6 months to a

maximum of 1 year) measured from the date of the

first bargaining session, and the determination

whether a reasonable time has passed “cannot be

made prospectively, but can only be made after an

examination of the bargaining history.” Exxel-Atmos,

Inc., 323 NLRB 888, 889 (1997), enfd. in relevant

part 147 F.3d 972 (D.C. Cir. 1998).

*10 We shall modify the judge's recommended Order

to provide for the posting of the notice in accordance

with our recent decision in Paragon Systems, Inc.,

371 NLRB No. 104 (2022), and in accord with J.

Picini Flooring, 356 NLRB 11 (2010), and to conform

to the Board's standard remedial language, and we

shall substitute a new notice to conform to the Order

as modified and set forth in full below.

ORDER

The National Labor Relations Board orders that the

Respondent, Hospital Menonita de Guayama, Inc.,

Guayama, Puerto Rico, its officers, agents,

successors, and assigns, shall

1. Cease and desist from

App.074

(a) Withdrawing recognition from the Unidad

Laboral de Enfermeras (OS) y Empleados de

la Salud (the Union) or failing or refusing to

bargain with the Union as the exclusive

collective-bargaining representative of the

employees in the five bargaining units.

(b)

Changing the terms and conditions of

employment of its unit employees without

first notifying the Union and giving it an

opportunity to bargain.

(c) Refusing to bargain collectively with the

Union 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.

(d) 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) On request, bargain with the Union in good

faith as the exclusive collective-bargaining

representative of the employees in the

following appropriate units concerning terms

and conditions of employment and, if an

App.075

understanding is reached, embody

understanding in a signed agreement:

the

All medical technologists; excluding all other

employees, executives, administrators, supervisors,

head nurses, nurses in charge of training, and all

other individuals with the authority to employ,

discharge, promote, discipline or who in any way can

change the status of an employee, or make

recommendations, the infirmary director and the

infirmary director's assistants.

All registered nurses; excluding all other employees,

executives, administrators, supervisors, head nurses,

nurses in charge of trainings, and all other

individuals with the authority to employ, discharge,

promote, discipline or who in any way can change

the

status

of

an

employee,

or

make

recommendations, the infirmary director and the

infirmary director's assistants.

All practical nurses; excluding all other employees,

executives, administrators, supervisors, head nurses,

nurses in charge of trainings, and all other

individuals with the authority to employ, discharge,

promote, discipline or who in any way can change

the

status

of

an

employee,

or

make

recommendations, the infirmary director and the

infirmary director's assistants.

*11 All full-time Surgery Room Technicians, CT

Technicians, Physical Therapy Technicians and X

Ray Technicians employed by Respondent; excluding

all other employees, Child and Adult Food

App.076

Coordinators, X Ray Coordinators, Operation Room

Coordinators,

CT

Coordinators,

confidential

employees, guards and supervisors as defined in the

Act.

All full-time office clerks at its facility in Guayama,

Puerto Rico; excluding all other employees,

secretaries, guards and supervisors, as defined in

the Act.

Such bargaining sessions shall be held for a

minimum of 15 hours a week, and the Respondent

shall submit written bargaining progress reports

every 30 days to the compliance officer of Region 12,

serving copies thereof on the Union.

(b) On request by the Union, rescind the following

changes in the terms and conditions of

employment for its unit employees that it made

without affording the Union notice and an

opportunity to bargain: changing the shifts of

registered nurses; increasing the wages of

technicians; granting employees a Hurricane

Maria bonus or incentive; eliminating the

requirement that employees pay a portion of

their health insurance premiums; granting a

uniforms bonus to registered nurses and

practical nurses; and distributing and

implementing an employee manual and

general rules of conduct that made changes in

unit employees' terms and conditions of

employment.

App.077

(c) Furnish to the Union in a timely manner the

information requested by the Union on March

14, 2018, concerning a March 14, 2018 meeting

the Respondent held with employees on health

insurance benefits.

(d) Post at its facility in Guayama, Puerto Rico,

copies of the attached notice marked

“Appendix,”42 in English and Spanish. Copies

of the notice, on forms provided by the

Regional Director for Region 12, after being

signed

by

Respondent's

authorized

representative, shall be posted by the

Respondent and maintained for 60 consecutive

days in conspicuous places including all places

42 If the facilities involved in these proceedings are open and

staffed by a substantial complement of employees, the notice

must be posted within 14 days after service by the Region. If

the facilities involved in these proceedings are closed or not

staffed by a substantial complement of employees due to the

Coronavirus Disease 2019 (COVID-19) pandemic, the notice

must be posted within 14 days after the facilities reopen and a

substantial complement of employees have returned to work. If,

while closed or not staffed by a substantial complement of

employees due to the pandemic, the Respondent is

communicating with its employees by electronic means, the

notice must also be posted by such electronic means within 14

days after service by the Region. If the notice to be physically

posted was posted electronically more than 60 days before

physical posting of the notice, the notice shall state at the

bottom that “This notice is the same notice previously [sent or

posted] electronically on [date].” 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 National Labor

Relations Board” shall read “Posted Pursuant to a Judgment of

the United States Court of Appeals Enforcing an Order of the

National Labor Relations Board.”

App.078

where notices to employees are customarily

posted. In addition to physical posting of

paper notices, notices shall be distributed

electronically, such as by email, posting on an

intranet or an internet site, or other electronic

means, if the Respondent customarily

communicates with its employees by such

means. Reasonable steps shall be taken by

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 facility involved in

these proceedings, Respondent shall duplicate

and mail, at its own expense, a copy of the

notice to all current employees and former

employees employed by Respondent at any

time since November 22, 2017.

(e) Within 21 days after service by the Region, file

with the Regional Director for Region 12 a

sworn certification of a responsible official on

a form provided by the Region attesting to the

steps that the Respondent has taken to

comply.

*12 Dated, Washington, D.C. June 28, 2022

Lauren McFerran

Chairman

Gwynne A. Wilcox

Member

App.079

*13 MEMBER RING, dissenting in part.

A successor employer to a unionized predecessor

under the standards established by the Supreme

Court in Burns and Fall River Dyeing1 must recognize

and bargain with the incumbent union. In other

words, unions representing employees of a successor

employer are presumed to enjoy the support of a

majority of the employees they represent. Whether

that presumption should be deemed rebuttable or, for

a period of time, irrebuttable--i.e., conclusive--has

been a point of contention, and Board law has

oscillated on this issue. Currently, under UGLUNICCO Service Co., 357 NLRB 801 (2011), the

presumption is deemed conclusive for no less than 6

months and no more than 1 year from the date the

successor and incumbent union first meet to bargain.

Id. at 808-809. During that time, it is per se unlawful

for the successor to withdraw recognition from the

union, no matter how clear the evidence that the

union no longer has the support of a majority of

employees in the bargaining unit. Indeed, even a

Board-run, secret-ballot election--“the preferred . . .

method of ascertaining whether a union has majority

An entity is a legal successor under NLRB v. Burns

International Security Services, 406 U.S. 272 (1972), and Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987),

where there is both operational continuity and workforce

continuity. That is, if the acquiring entity continues the

predecessor's operations without substantial change and hires,

as a majority of its workforce, union-represented employees of

the predecessor, then it is a legal successor to its predecessor and

has a duty to recognize and bargain with the incumbent union.

However, the successor typically has the right to set initial

employment terms unilaterally.

1

App.080

support”2--is forbidden. Adopting a term first used in

St. Elizabeth Manor, Inc., 329 NLRB 341 (1999), the

UGL-UNICCO Board called this prohibition on the

exercise of employee free choice the “successor bar.”

Applying UGL-UNICCO, the judge found that the

Respondent's withdrawal of recognition from the

Union in each of five bargaining units3 was unlawful,

and he excluded from the record documentary

evidence the Respondent believes will show that the

Union had lost majority support in each of those

units. My colleagues adopt the judge's application of

UGL-UNICCO and his finding that the withdrawals

of recognition were unlawful. Because I believe that

the successor-bar doctrine is contrary to Supreme

Court precedent and imposes an unwarranted

restriction on employees' Section 7 rights, I would

overrule UGL-UNICCO and hold that the incumbent

union in successorship situations enjoys a rebuttable

presumption of majority status only. Accordingly, I

would remand the allegations that the Respondent

unlawfully withdrew recognition from the Union for

the judge to determine whether the withdrawals were

supported by untainted evidence that 50 percent or

more of employees in each unit no longer wished to be

represented by the Union.4

2 NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969).

3 The bargaining units are designated by letter: Unit A (medical

technologists), Unit B (LPNs), Unit C (RNs), Unit D

(technicians), and Unit E (clerical workers).

4 Sec. 9(a) of the Act makes a labor organization the exclusive

representative of employees in an appropriate bargaining unit if

it is designated or selected as such by a majority of the unit.

Thus, to retain its right under Sec. 9(a) to represent a bargaining

App.081

unit, a union must be supported by more than 50 percent of the

unit employees.

Because they turn on whether the withdrawals of recognition in

Units A, D, and E were lawful, I would also remand the

allegations that, after those withdrawals, the Respondent

violated Sec. 8(a)(5) by making unilateral changes to

employment terms and conditions of employees in those units

and by failing to provide the Union requested information

pertinent to those units.

I agree with my colleagues that, before it withdrew recognition,

the Respondent violated Sec. 8(a)(5) and (1) of the Act by (1)

failing to bargain in good faith with the Union by insisting on

written proposals before it would agree to meet and by delaying

in providing counterproposals; (2) paying $150 bonuses to

employees who worked the night Hurricane Maria struck Puerto

Rico, without first providing the Union notice and opportunity to

bargain; and (3) failing to provide the Union with relevant

requested information concerning Units B and C. Regarding the

first of these three unfair labor practices, I join Chairman

McFerran in finding the violation both on the merits and based

on the Respondent's failure adequately to except.

My colleagues reject the Respondent's argument regarding the

President's removal of former General Counsel Peter Robb,

relying on Aakash, Inc., d/b/a Park Central Care &

Rehabilitation Center, 371 NLRB No. 46 (2021). Additionally,

they find the argument mooted by General Counsel Abruzzo's

December 2, 2021 notice of ratification. I acknowledge and apply

Aakash as Board precedent, although, as noted in that decision,

I disagree with the Board's approach and would have adhered to

the position that “reviewing the actions of the President is

ultimately a task for the federal courts,” as the Board concluded

in National Assoc. of Broadcast Employees and Technicians-The Broadcasting and Cable Television Workers Sector of the

CWA, AFL-CIO, Local 51, 370 NLRB No. 114, slip op. at 2 (2021)

(NABET). See Aakash, 371 NLRB No. 46, slip op. at 4-5; see also

Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436 (5th Cir.

2022) (reaching the same conclusion the Board reached in

Aakash regarding the President's removal of Robb, but based on

de novo review and according the Board's decision no deference).

App.082

i. legal background

As early as 1970, the Board took for granted that in a

successorship situation, the successor steps into its

predecessor's shoes. Thus if, when the business

changed hands, the incumbent union was entitled to

a continuing but rebuttable presumption of majority

status, this remained the case after the successor took

over. See Barrington Plaza & Tragniew, Inc., 185

NLRB 962, 964 (1970) (“[A]t the time of the

[r]espondent's purchase of the Plaza there was

operative a valid presumption of continuing majority

. . . . This presumption would not have stopped the

[r]espondent . . . from questioning the [u]nion's

continuing majority status as of that time.”)

(emphasis added).

Following the Supreme Court's 1972 decision in

Burns, supra, the Board directly addressed the issue

of whether an incumbent union, in a successorship

situation, enjoys a conclusive or rebuttable

presumption of majority status in Southern Moldings,

Inc., 219 NLRB 119 (1975). The issue in Southern

Moldings was whether to direct a decertification

election where the petition was filed shortly after the

successor commenced operations and recognized the

incumbent union. The Board directed an election. It

rejected the incumbent's contention that the petition

was barred “under the Keller Plastics rule”-- i.e., the

rule that voluntary recognition insulates the union's

majority status from challenge for a reasonable period

I also acknowledge the General Counsel's notice of ratification,

but for the same reasons I stated in Aakash and NABET, I

express no view as to its legal effect.

App.083

of time.5 “That rule,” the Board said, “relates to the

initial organization of an employer's employees and

does not apply where . . . [a] successor-employer has

continued to accept an incumbent union as the

representative of its employees.” Id. at 120. The Board

explained that a successor “in effect stands in the

shoes of the predecessor vis-à-vis the [u]nion.” Thus,

if the incumbent union's certification year has

expired, the union enjoys “a rebuttable presumption

of continuing majority status.” “Clearly,” the Board

said, “in a successor situation, the union is not

entitled to greater rights with respect to a successor

than it had with a predecessor.” Id. at 119.

Six years later, the Board did an abrupt about-face in

Landmark International Trucks, Inc., 257 NLRB

1375 (1981). Without so much as mentioning

Southern Moldings, let alone overruling it, the Board

in Landmark--citing the very Keller Plastics decision

that the Southern Moldings Board held inapplicable-concluded that a Burns successor must afford the

incumbent union a reasonable period of time for

bargaining prior to any withdrawal of recognition.

“We can discern no principle,” the Board declared,

“that would support distinguishing a successor's

bargaining obligation based on voluntary recognition

of a majority union from any other employer's duty to

bargain for a reasonable period.” 257 NLRB at 1375

fn. 4.

On review, the Sixth Circuit had no difficulty

discerning such a principle. Pointing out the obvious,

5

See Keller Plastics Eastern, Inc., 157 NLRB 583, 587 (1966).

App.084

the court observed that “[a]s a successor employer

Landmark had a duty to recognize and bargain with

[the incumbent union] . . . .” Landmark International

Trucks, Inc. v. NLRB, 699 F.2d 815, 818 (6th Cir.

1983) (emphasis added). In other words, a successor's

so-called voluntary recognition of an incumbent union

isn't voluntary at all, but mandatory. The court's

cogent explanation why principles drawn from Keller

Plastics do not apply in the successorship situation is

worth quoting in full:

*14 There is no reason to treat a change in ownership

of the employer as the equivalent of a certification or

voluntary recognition of a union following an

organization drive. In the latter cases the employees

must be given an opportunity to determine the

effectiveness of the union's representation free of any

attempts to decertify or otherwise change the

relationship. However, where the union has

represented the employees for a y

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