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State's number 22-1272 et al.

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Hospital de la Concepcion Petitioner versus National Labor Relations Board.

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Mr. Fortney for the petitioner.

[00:00:10] Speaker 00:
Mr. Francisco Fitzmaurice for the respondent.

[00:00:16] Speaker 02:
All right.

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Mr. Fortney.

[00:00:18] Speaker 02:
Good morning.

[00:00:24] Speaker 01:
Good morning.

[00:00:25] Speaker 01:
May I please the court?

[00:00:26] Speaker 01:
David Fortney on behalf of the petitioner.

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respondent hospital de la Concepcion.

[00:00:33] Speaker 01:
This is a labor case and it requires this court to determine whether the changes in work shifts and assignments for certain hospital employees was covered by an extensive, very detailed management rights clause in the party's collective bargaining agreement and that that clause which actually expressly authorized the changes that occurred.

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Under the contract coverage test,

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This court established in the US Postal Service case, actually 30 years ago, almost to the day.

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The hospital's conduct, we submit, was fully authorized by the literal language of the collective bargaining agreement.

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And therefore, we, of course, would ask that the board's decision and order be vacated.

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Let me just take a moment and go back to what the underlying facts were, because facts matter in addition to the contract laws.

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These changes occurred during the onset of the global

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COVID pandemic.

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Following the issuance of repeated executive orders by the governor of Puerto Rico, the orders restricted the hospital's operation to essential services, including COVID responses.

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And it was only following the issuance of the third executive order by the governor

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that the hospital undertook the necessary reduction in hours, certain bargaining unit employees who are not required to perform the limited authorized operations and managerial employees that is non bargaining unit employees also were subject to similar revisions and restrictions in their work hours.

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I noted the disposition of the case, not only we believe it controlled by Scourge ruling and US Postal Service, but the National Labor Relations Board, which after some time did adopt Scourge rule MV transportation that was in 2019.

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and specifically embraces this court's test, noting that the contract coverage language really requires us to look at whether the conduct is within the compass or scope of the agreement.

[00:02:40] Speaker 03:
Mr. Forney, the board did not rely on or did not embrace your contract coverage argument.

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And I think that's because there's a well-established difference between changing shifts and changing work hours.

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So if you could address the argument

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that the board did accept, which was about unilateral reduction, that would be helpful.

[00:03:05] Speaker 01:
I'd be happy to.

[00:03:06] Speaker 01:
So the board principally, as I understand the argument, because it did change, it's kind of evolved as it's gone along, but currently in the brief, the board argues that there was a practice relating to 40 hours.

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Prior to that, the board had argued that the contract laws required 40 hours.

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But in any event, the record demonstrates that the 40-hour work week was, in fact, but not the practice and not required by the contract.

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Specifically, the union's witness testified that he worked less than 40 hours.

[00:03:38] Speaker 03:
My understanding is that the ALJ made a finding that the practice was 40 hours and inverted to the contract clause as a kind of baseline piece of evidence on that.

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And indeed, the evidence and the record

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that the ALJ accepted was what the board embraced.

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It was a practice of 40-hour a week scheduling.

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And I know you have a witness who said that on two or three occasions, he was allowed to go home early.

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But I take it that the ALJ and the board did not accept that as showing that there was no such practice.

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Also, the part-time employees that regularly work, did not work 40 hours a week, was part of the record.

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Additionally, the contract language does not support, and respectfully, there is no deference owed to the board or the ALJ on interpreting collective bargaining agreements.

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Under Lytton, that is what this board must do.

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And if you read the collective bargaining agreement, these parties, very sophisticated, detailed collective bargaining agreements,

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The parties knew how to mandate certain actions, in contrast to the provision for a, quote, regular work week.

[00:04:53] Speaker 03:
Right, and they're not arguing that it's mandated.

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They're arguing that it was a practice and that the employer made a unilateral change without bargaining.

[00:05:03] Speaker 01:
And tied to the concept in the contract of a regular work week, obviously,

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in responding to the governor's orders at the outset of COVID, this was certainly not regular work.

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It was not.

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This was not a regular schedule.

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And I think that the additional points with respect to the contract that need to be considered include that there were mandates in the contract, very specific, a two-day rest period will be provided.

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Meal breaks will be provided.

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And there's a living Christmas policy.

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But that's an argument saying that

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that the 40 hours wasn't a requirement.

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But as I take it, the board is not arguing that it was the requirement and that the employer violated.

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They're taking it as a baseline.

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And indeed, I think it wasn't until your reply brief that you argued that there's no substantial evidence supporting the 40 hour per week past practice.

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And indeed, the letters you sent to the employees suggest

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that you thought that there was a past practice and that the hospital was seeking to change that in light of COVID.

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So given our rules about preservation of arguments, has the challenge to whether the finding that there was a past practice of 40 hours been adequately preserved

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if the first time that you raise that challenge is in your reply brief before us?

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Well, respectfully, in terms of the board's argument, that was raised in their brief here.

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And I would just put that the tension between arguing a practice which conflicts with an express provision in the collective bargaining agreement.

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Practice cannot amend the collective bargaining agreement.

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What does it conflict with?

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It conflicts with the specific provisions going back to the management rights clause.

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Nothing limits without any limitation whatsoever.

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There's a normal, very broad language.

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And then it goes through and gives a litany of actions that can be undertaken unilaterally.

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That has been agreed to by the union.

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So notwithstanding, if there was a past practice, and that includes schedule modifications, that includes up to and including suspension, that didn't hurry, but that's all.

[00:07:24] Speaker 03:
Right, but that would be a disciplinary, typically it would be a disciplinary fraction.

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So if you're an hourly worker, changing your shift and your schedule doesn't affect your paycheck.

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whereas changing your work hours does, they're very different things, no?

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I'm sure, I mean, you appreciate that.

[00:07:45] Speaker 01:
I appreciate that, but respectfully, I'm not sure I agree that changing a shift doesn't affect your paycheck.

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Because different shifts get paid at different rates, they may work different hours.

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I mean, there's a host of things that are embodied changing a shift.

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Also, there's another specific provision.

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Again, if you look at the letter, you raise the letter to the employees, it tracked closely

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language in the management rights clause noting among other things safety measures expressly authorized in the management rights clause the ability both for the employees and their families and members of the community to maintain spacing safety but you wrote this uniform letter to you know almost 400 employees at once

[00:08:28] Speaker 04:
Right?

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And it was the same letter to everybody.

[00:08:30] Speaker 01:
There was a general letter and then the implementation was filled up with individual employees.

[00:08:35] Speaker 01:
Yes.

[00:08:36] Speaker 04:
I told them there was going to be a reduction in hours.

[00:08:41] Speaker 04:
Yes.

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Uniformly.

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Everybody got that same letter.

[00:08:45] Speaker 01:
That's correct.

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Hours are going to be reduced.

[00:08:47] Speaker 04:
So when you send a letter that says to everyone, hours are going to be reduced, doesn't it assume that there is a baseline that employees were already expecting and that's what was changing?

[00:08:58] Speaker 01:
Well, employees were working various shifts.

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Some were working part time.

[00:09:03] Speaker 04:
I say, if I say your pay is being reduced, I'm assuming you know what your pay already is that we both know what your pay is.

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And when you say your hours are being reduced, there's a common understanding of what the hours are now.

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And that's what's going to change.

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Correct?

[00:09:23] Speaker 01:
Correct.

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And that common understanding of what those hours were is what the ALJ said was 40 hours.

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Part-time employees are different.

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But for those who are full-time, they got this letter.

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It was a baseline understanding.

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The ALJ found, as a matter of fact, to be 40 hours.

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And the employer itself seems to have assumed that there was a baseline understanding.

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Maybe you think it was 42 or 39 hours.

[00:09:52] Speaker 04:
but that it was there was a baseline understanding of a settled amount of hours of people work and that's why it's changed otherwise if hours are changing all the time and no one has any um settled expectation about hours you don't need to send a letter saying things are changing because people would know they're always changing so the letter sort of itself evidence that there was a baseline that's now going to be departed from so respectfully we we do not agree that there was a practice and i appreciate the argument here

[00:10:20] Speaker 01:
The contract, whether it had been previously exercised or not, didn't provide the hospital with this authority to engage unilaterally.

[00:10:30] Speaker 01:
That's what the union had agreed to.

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And the contract did not include a guarantee of 40 hours.

[00:10:36] Speaker 04:
Again, this isn't a case about what the contract required.

[00:10:40] Speaker 04:
This is a case about what the, there's two ways to create obligations.

[00:10:45] Speaker 04:
One is through the contact.

[00:10:47] Speaker 03:
Right.

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Another is through

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custom and practice.

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And the ALJ and the board said, this is a custom and practice case.

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So put aside the language of the contract.

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You had a custom and practice, this is what was found, a custom and practice of having people work 40 hours and it seems that you felt obliged to send a letter to everybody, a uniform letter saying, your existing hours are gonna go down, suggest that everybody had a baseline.

[00:11:20] Speaker 04:
I think you agreed you have to have a baseline.

[00:11:21] Speaker 04:
If you sell, people are going to reduce.

[00:11:22] Speaker 04:
There's a baseline.

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And what the ALJ found, as a matter of fact, was what that baseline was.

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You may disagree with that fact-finding.

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I understand that.

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But there was a communication here that recognized some existing baseline.

[00:11:37] Speaker 01:
There was a baseline to the extent the hospital had been operating pre-COVID.

[00:11:41] Speaker 04:
Yes.

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just as all institutions have been operating.

[00:11:44] Speaker 04:
What was that baseline?

[00:11:45] Speaker 01:
And the letter and the part-time, some people working under 40 hours, people working over, I mean, it varied.

[00:11:51] Speaker 01:
It depended on where they work.

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There was a variety.

[00:11:53] Speaker 04:
Why didn't you just send a letter?

[00:11:54] Speaker 04:
If everybody's hours varied all the time, then you were just going to vary them some more.

[00:11:57] Speaker 01:
Exactly.

[00:11:59] Speaker 04:
So why do you need to send a letter?

[00:12:01] Speaker 04:
If everybody had any stable assumption about their hours, why did you need a letter?

[00:12:06] Speaker 01:
A, you have to communicate what the changes are so people know when to work or when not to work.

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as any organization does.

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So that's certainly.

[00:12:14] Speaker 04:
If you have unstable hours, people would already have a system of checking each week or so to figure out what their shifts are going to be.

[00:12:20] Speaker 01:
But the hospital shifts were changing dramatically per the governor's orders.

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This was not a regular work week.

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That is correct.

[00:12:38] Speaker 03:
Sorry?

[00:12:38] Speaker 03:
I thought the hospitals were exempt from the governor's

[00:12:42] Speaker 01:
There were very specific requirements in terms of essential services addressing hospital obligations that modified hospital operations.

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So essentially, they were down to COVID-related operations and other necessary treatment, which was reflected certain components of the hospital.

[00:13:08] Speaker 01:
Their hours weren't changed in order to respond to this.

[00:13:12] Speaker 01:
the environmental unit, the intensive care unit, respiratory, the laboratory work.

[00:13:18] Speaker 01:
Other sections of the hospital were reduced, some by one day a week, some by two days.

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And it depended.

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And similarly, management employees were affected in a similar fashion, depending on where they were.

[00:13:32] Speaker 03:
And your argument, just to make sure that I've given you a chance on the preservation of the point, was that

[00:13:40] Speaker 03:
In your view, the board's position didn't crystallize until its primary brief, and that's why you didn't challenge whether there was substantial evidence to support the past practice of 40 hours until your reply brief?

[00:13:56] Speaker 01:
Correct.

[00:13:57] Speaker 01:
With respect to the practice, because candidly, we had understood the advancement which the board, I think, has now abandoned to be trying to interpret the 40-hour provision as a contractual mandate.

[00:14:10] Speaker 01:
which it obviously is not.

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And I think the parties are aligned on this thing.

[00:14:16] Speaker 01:
I mean, the board's decision, one lengthy footnote, which I'm sure everyone has read several times, is somewhat confusing, I think.

[00:14:26] Speaker 01:
That's how we understood it.

[00:14:28] Speaker 03:
And the ALJ made findings on both, both a contract claim and a unilateral change claim.

[00:14:34] Speaker 01:
The ALJ made a number of findings, including which, again,

[00:14:39] Speaker 01:
The board has abandoned the ALJ-made findings with respect to COVID.

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The board has been in exigent circumstances.

[00:14:46] Speaker 01:
It appears that the board has backed away from that and said, no, it's really more of an economic consideration.

[00:14:52] Speaker 01:
So respectfully, I find some of the rulings to be the board's rulings didn't just adopt the ALJ.

[00:15:00] Speaker 01:
They substantively modified, I believe, some of the findings, factual findings, as well as certainly the reasoning that was deployed.

[00:15:10] Speaker 04:
You don't dispute that the board's allowed to do that.

[00:15:13] Speaker 04:
Pardon me?

[00:15:13] Speaker 04:
You don't dispute that the board is allowed to do that.

[00:15:16] Speaker 01:
The board, in its review of the ALJ decision, well, I would dispute if they modify factual findings, respectfully, yes.

[00:15:23] Speaker 01:
That is highly unusual.

[00:15:26] Speaker 01:
Typically- The board lacks the power to make its own- Well, it doesn't have the benefit, obviously, of witnesses and credibility- I'm just asking you about their power.

[00:15:34] Speaker 04:
Are you challenging?

[00:15:34] Speaker 04:
I didn't understand you being challenging about their power.

[00:15:36] Speaker 01:
No, I'm not challenging them.

[00:15:37] Speaker 01:
I'm just noting that.

[00:15:39] Speaker 04:
Got it.

[00:15:40] Speaker 01:
Thank you for that.

[00:15:43] Speaker 02:
Mr. Courtney, you've gone over your time, but yes, I just want to make clear under this accident circumstances argument, the time, the so-called delay between when you were ordered to stop elective surgery and so forth and just close down with a COVID patient.

[00:16:05] Speaker 02:
What was the period of time between that third

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order.

[00:16:11] Speaker 02:
And so the governor, you sent the notice on April 14th, right to the employees.

[00:16:18] Speaker 01:
So the governor had issued, uh, there were, I'll call them rolling executive orders.

[00:16:24] Speaker 01:
The first one was for two weeks.

[00:16:26] Speaker 01:
Let's go back.

[00:16:27] Speaker 01:
We all know there was great uncertainty as to what this situation was.

[00:16:31] Speaker 01:
That was an order of two weeks duration.

[00:16:34] Speaker 01:
And the order, second executive order was issued.

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at the conclusion for another two weeks.

[00:16:41] Speaker 01:
Then a third executive order was issued that was much more open-ended, which basically said, look, three weeks or until this situation is addressed.

[00:16:49] Speaker 02:
That's a paraphrase.

[00:16:50] Speaker 02:
What was the date of that?

[00:16:51] Speaker 01:
That is... I have 3.30, but... Let's see, that is 3.30.

[00:16:59] Speaker 01:
I'm sorry, 4.12 is the executive order number three.

[00:17:03] Speaker 01:
And the first general letter that Judge Miller, you raised, went out on

[00:17:07] Speaker 01:
two days later on April 14th.

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And then there was follow-up with the necessarily impacted both bargaining unit and non-bargaining unit.

[00:17:17] Speaker 02:
So is it fair to say that the third order told you cut out the elective surgery, do whatever you can do, shut down basically except for COVID, and two days later you sent the letter to the employees?

[00:17:31] Speaker 02:
Yes.

[00:17:32] Speaker 02:
Okay.

[00:17:32] Speaker 02:
The other question I had was about these interim earnings.

[00:17:36] Speaker 02:
The board says in footnote five, distinguishing this case from applying the Ogle protection formula because interim earnings are not involved in this case.

[00:17:55] Speaker 02:
That's wrong, isn't it?

[00:17:57] Speaker 01:
I think it is wrong.

[00:17:58] Speaker 01:
I mean, Ogle, again, the ALJ, these are all interestingly, you know, everyone,

[00:18:05] Speaker 01:
Citing this case was in Puerto Rico at the time.

[00:18:07] Speaker 01:
The case, by the way, was heard via Zoom call.

[00:18:09] Speaker 01:
People still weren't in person a year later when this was adjudicated.

[00:18:14] Speaker 01:
Ogle was not ordered except by the board.

[00:18:16] Speaker 01:
Yes, the board has authority, but the predicate requirements to impose the Ogle factors, which is a detailed factual hearing, which this court has said in Deming Hospital Corp is what should be followed, has not occurred.

[00:18:32] Speaker 01:
And F.W.

[00:18:33] Speaker 01:
Woolworth, remember, these were folks that were just for one or two days for a period of several weeks, several months were impacted by this decision.

[00:18:43] Speaker 01:
So it does feel, OGO has candidly a bit of a punitive component to it.

[00:18:49] Speaker 01:
And under the circumstances of compliance with a governor's executive order seems wholly inappropriate.

[00:18:55] Speaker 01:
Not to mention that the requisite findings are lacking.

[00:19:02] Speaker 02:
Mr. Francisco, it's Maurice.

[00:19:16] Speaker 05:
Good morning, may it please the court.

[00:19:18] Speaker 05:
I'm Brady Francisco, it's Maurice for the National Labor Relations Board.

[00:19:21] Speaker 02:
Can I just ask you at the beginning just to get at the end?

[00:19:26] Speaker 02:
Do you agree this was a two-day delay?

[00:19:29] Speaker 02:
between the final order that said shut it down except with respect to COVID patients.

[00:19:36] Speaker 02:
And they sent a letter out two days later.

[00:19:38] Speaker 02:
Excuse me, Ryan.

[00:19:40] Speaker 05:
The dates I believe that were discussed are correct.

[00:19:43] Speaker 05:
There was an initial order from the governor of Puerto Rico in mid-March that lasted two weeks, a second one two weeks later that lasted two weeks, and then a third as discussed by brother council.

[00:19:56] Speaker 05:
So that is correct.

[00:19:58] Speaker 05:
That goes to the issue of exigency.

[00:20:02] Speaker 05:
And the board's finding here was that they analyzed the hospital's claim, which was they expected to suffer operating losses if they continued to schedule 40-hour weeks for other employees as had been done.

[00:20:20] Speaker 05:
And the board took that at face value and said, under controlling board law,

[00:20:26] Speaker 05:
or even actual operating losses would be insufficient to establish exigency.

[00:20:33] Speaker 02:
Well, how is that different from the case, and I don't recall the name, with the hurricane where that was an exigent circumstance?

[00:20:43] Speaker 05:
Well, I believe in the hurricane case, there was an evacuation order in place.

[00:20:50] Speaker 02:
Is that what it would take, in your opinion, in the board's opinion, do you think?

[00:20:54] Speaker 05:
I mean, under controlling board law, that is sufficient, for sure.

[00:20:58] Speaker 05:
That's not what we have here.

[00:21:00] Speaker 05:
There was no evacuation order.

[00:21:02] Speaker 05:
The hospital was allowed to continue its operations.

[00:21:05] Speaker 05:
And it should be noted this was a pandemic.

[00:21:08] Speaker 05:
Of course, the hospital should have and could have continued its operations.

[00:21:13] Speaker 05:
And also to note that the board didn't find that the hospital could not reduce hours.

[00:21:21] Speaker 05:
What the board found was there's a bargaining obligation.

[00:21:24] Speaker 05:
And if the hospital felt found that it needed to reduce hours, it could do so within the confines of the act.

[00:21:32] Speaker 05:
It requires notifying the employees collective bargaining representative and providing an opportunity to bargain over that decision.

[00:21:39] Speaker 05:
The facts here show that the hospital rather didn't notify the union at all, directly informed its employees and did not bargain over that decision or the effects of that decision.

[00:21:52] Speaker 05:
Um, so I'll just note that the issue as noted by the court is whether there was a regular and long standing practice scheduling employees 40 hours a week such that it constituted status quo.

[00:22:09] Speaker 05:
Uh, I won't dwell on this because it's, it's already been noted by the court, but this issue was not raised, um, in the opening brief hospital, uh, and should be deemed waived.

[00:22:20] Speaker 05:
And,

[00:22:20] Speaker 05:
It's also hard to wrap your brain around, given that the hospital admits it implemented a change.

[00:22:28] Speaker 05:
That raises the question, change from what?

[00:22:32] Speaker 05:
Obviously, there was an understanding in place that employees were to regularly work 40 hours per week.

[00:22:40] Speaker 05:
This wasn't only crystallized in the board's opening brief before this court, as has been mentioned.

[00:22:48] Speaker 05:
This was integral to litigation throughout.

[00:22:53] Speaker 05:
I'll draw the court's attention to the complaint, the administrative complaint before the administrative law judge, which alleged that the hospital, quote, reduced the regular working hours 40 hours per week to fewer hours per week without a notice and an opportunity to bargain.

[00:23:11] Speaker 05:
After that complaint, the hospital filed an answer in which

[00:23:15] Speaker 05:
They argued that they had provided adequate notice and opportunity to bargain.

[00:23:20] Speaker 05:
You can find those quotes at pages 15, 29, and 43 of the joint appendix.

[00:23:26] Speaker 05:
So there was really no question about what the theory of this case was from day one.

[00:23:32] Speaker 05:
And in the board's decision in order, what the board found was a violation of section 8A5 because of a failure to provide notice and opportunity to bargain.

[00:23:45] Speaker 05:
If the board reaches the question of substantial evidence, there was plenty in the record here.

[00:23:51] Speaker 05:
There was the testimony of two different witnesses.

[00:23:54] Speaker 05:
One worked in x-ray.

[00:23:55] Speaker 05:
One was a nurse.

[00:23:57] Speaker 05:
Both testified that they worked 40 hours per week for their entire careers.

[00:24:02] Speaker 05:
The x-ray.

[00:24:03] Speaker 04:
I have to say, this seems like incredibly thin evidence that you're talking about 400-some employees.

[00:24:11] Speaker 04:
You have two people say,

[00:24:14] Speaker 04:
We work 48 hours a week.

[00:24:16] Speaker 04:
They have one person who says, I didn't, mine went up and down.

[00:24:20] Speaker 04:
And then you had records from April, two weeks of records from April 2020.

[00:24:26] Speaker 04:
You're trying to show a long standing custom.

[00:24:31] Speaker 04:
And you, the only pay records, the only hour records you have are from the end.

[00:24:36] Speaker 04:
You don't show any beginning.

[00:24:39] Speaker 04:
How can that be substantial evidence?

[00:24:41] Speaker 05:
So I'll note a few things.

[00:24:43] Speaker 05:
You know, the question here is whether practice was regular and long-standing.

[00:24:49] Speaker 04:
Such that it creates an expectation in the employees.

[00:24:52] Speaker 05:
Correct.

[00:24:53] Speaker 05:
And first, to take the testimony of the two witnesses.

[00:24:57] Speaker 05:
It is true.

[00:24:58] Speaker 05:
These were two witnesses that gave testimony.

[00:25:01] Speaker 05:
The expert technician, Ms.

[00:25:03] Speaker 05:
Rodriguez Vicenz, had worked for 33 years.

[00:25:06] Speaker 05:
So her testimony I think is worthy of substantial weight.

[00:25:10] Speaker 04:
One person out of 400, and you've got four different contracts here.

[00:25:15] Speaker 04:
She's only one of the contracts.

[00:25:16] Speaker 05:
She's one.

[00:25:17] Speaker 05:
And then Nurse Ruiz Bonet worked for five years as well.

[00:25:21] Speaker 04:
Five years.

[00:25:23] Speaker 05:
So I understand that these are two.

[00:25:25] Speaker 04:
One witness for 30-something years.

[00:25:27] Speaker 04:
They have a witness that wasn't stable.

[00:25:31] Speaker 04:
One person said, well, for five years I've been stable.

[00:25:35] Speaker 04:
Nobody speaks to the other.

[00:25:36] Speaker 04:
groups that are covered by their own separate contracts.

[00:25:40] Speaker 04:
How is that?

[00:25:40] Speaker 04:
And then your only work records are from April 2020.

[00:25:45] Speaker 04:
How is that sufficient to show a long-standing customer practice?

[00:25:51] Speaker 05:
Um, well, I think the long standing issue, you know, goes to the testimony of those employees, but the work schedules that your honor mentions from April 2020 before the change was implemented show that, uh, regular 40 hour works week work weeks, five days a week, eight hours each held by two days off as bargained for by the parties and contract was the norm.

[00:26:16] Speaker 05:
And that, uh, those records at general counsel exhibit 10,

[00:26:20] Speaker 04:
That's what the norm was in April 2020.

[00:26:22] Speaker 05:
It does, that's correct, but throughout each of the four bargaining units, you know, in all aspects of the hospital's operation.

[00:26:33] Speaker 04:
I'm just curious why I would have expected if I were to establish a long-standing customer practice that I would have gone back in time for some records or witnesses and have had more witnesses.

[00:26:45] Speaker 04:
Is this commonly sort of all the Board has or was it particularly

[00:26:50] Speaker 04:
been here?

[00:26:52] Speaker 05:
Well, I think the court also needs to take into account that the language of the collective bargaining agreement was relied upon by the board as well as evidence of that practice being in place.

[00:27:03] Speaker 04:
But this is, they're trying to have their cake and eat it too, saying this is not a contract case.

[00:27:10] Speaker 04:
But we're only going to have this tiny amount of evidence and then point to the contract and say, it's not a contract case, it's a custom case.

[00:27:18] Speaker 04:
But we don't really have, we have very, very, very thin evidence on custom.

[00:27:24] Speaker 05:
I think if I were to add one more thing to the court consideration is the fact that the hospital

[00:27:31] Speaker 05:
It's never really seriously contested.

[00:27:33] Speaker 04:
Who had the burden of proof to establish the custom?

[00:27:35] Speaker 05:
Well, the board bears the burden of proof.

[00:27:37] Speaker 04:
Okay, so the fact that they didn't say anything doesn't really matter, does it?

[00:27:41] Speaker 05:
Substantial evidence is the board's burden, for sure.

[00:27:44] Speaker 05:
I agree with your honor.

[00:27:45] Speaker 04:
Right.

[00:27:45] Speaker 05:
But, you know, in this case, we have uncontroverted testimony.

[00:27:50] Speaker 05:
We have documentary evidence.

[00:27:52] Speaker 04:
It was an uncontroverted testimony.

[00:27:53] Speaker 04:
They had their own witness who said, no, I get sent home when there's not enough work.

[00:27:59] Speaker 05:
Respectfully, I would disagree with the characterization.

[00:28:01] Speaker 05:
I don't think that that's controverting the testimony.

[00:28:06] Speaker 05:
The testimony of that witness was that I think two or three times per year had been sent home early.

[00:28:11] Speaker 05:
This goes to really the crux of the difference between

[00:28:16] Speaker 05:
contract violation of the minimum hours versus what the practice was of scheduling 40 hours per week.

[00:28:24] Speaker 05:
Now there's no claim here that employees are entitled to 40 times their hourly rate every week, regardless of what hours they work.

[00:28:34] Speaker 05:
There's no claim here that they're entitled to actually work 40 hours every single week.

[00:28:40] Speaker 05:
There's no work on a given day occasionally.

[00:28:43] Speaker 05:
The practice was that employees had been sent home.

[00:28:48] Speaker 05:
What the practice was was putting workers on the schedule for 40 hours per week.

[00:28:55] Speaker 05:
That finding is unconscionable.

[00:28:59] Speaker 04:
How does this work if you get to the compliance stage?

[00:29:02] Speaker 04:
At that point, do they get to put on evidence that says, actually, 40% of employees only work 35 hours a week, and they introduce the, because they'll have to come forward then, or does this order require under OGL that they get their back pay, their compensation is for 40 hours a week?

[00:29:22] Speaker 05:
Certainly, at the compliance stage, the board would have to look at evidence of what employees were actually earning over time, especially given the facts, uncontroverted, that some employees worked part-time hours.

[00:29:36] Speaker 04:
So that's part of- Talking about the not part-time workers, but the ones who were not designated part-time, but were not, in fact, always working 40 hours.

[00:29:44] Speaker 05:
Certainly.

[00:29:44] Speaker 05:
So what the board's order requires is that the hospital rescind its change to scheduled hours and make employees hold for that change.

[00:29:52] Speaker 05:
certainly in my mind, making employees pull for the change to scheduled hours would not necessarily mean making sure they've been paid for precisely 40 hours for every week after the change.

[00:30:05] Speaker 04:
But the burden of proof is going to be on the hospital at the compliance?

[00:30:10] Speaker 04:
Or is it on the board or general counsel?

[00:30:14] Speaker 05:
That's a good question, Your Honor.

[00:30:18] Speaker 05:
I don't want to speak out of churn and I'm not certain.

[00:30:21] Speaker 04:
And then you just mentioned that part of the relief that you want is in order to rescind the change in the terms and conditions of employment, the hour changes that were unilaterally implemented and to bargain over them.

[00:30:38] Speaker 04:
But the hospital said in its answer to the general counsel's complaint, these hours of change have already been rescinded.

[00:30:45] Speaker 04:
So as to that aspect of the board's order, there's nothing to rescind

[00:30:50] Speaker 04:
bargaining to be done.

[00:30:51] Speaker 05:
Um, respectfully, I would disagree.

[00:30:55] Speaker 05:
Um, the board's order includes includes a cease and desist order, uh, which are they going to cease and desist?

[00:31:01] Speaker 04:
They've already rescinded it.

[00:31:02] Speaker 04:
Did you, did you, is there any evidence that they had any ongoing violation?

[00:31:05] Speaker 05:
Um, not in the record, your honor, but the, the order, the order would impose an ongoing obligation to, uh, to refrain from similar or related unfair labor

[00:31:19] Speaker 04:
That's just what the law requires.

[00:31:20] Speaker 04:
It's an ongoing obligation to comply with the law?

[00:31:23] Speaker 05:
It's an ongoing obligation imposed by an order that's now enforced by this court to abide by the law, which in other instances would be administered by the NLRB, which, as you know, cannot enforce its own order.

[00:31:40] Speaker 04:
But there's no record that they have any practice of ongoing violations.

[00:31:46] Speaker 04:
In fact, they've been in business all these years.

[00:31:49] Speaker 04:
It's not like this is becoming someone who's got a repeat player of engaging in unfair labor practices.

[00:31:55] Speaker 04:
This is what COVID happened.

[00:31:58] Speaker 04:
They had a response.

[00:32:00] Speaker 04:
The board says, we're not allowed to respond that way.

[00:32:03] Speaker 04:
They say, look, we've rescinded it all.

[00:32:06] Speaker 04:
Everyone's hours are back.

[00:32:08] Speaker 04:
There is nothing for us to bargain over over a past event that's been undone.

[00:32:15] Speaker 04:
you know, relief on making people whole.

[00:32:20] Speaker 04:
But I'm not sure what record there is to say they need to be under some sort of ongoing court supervision for compliance going forward without any showing that there's any risk whatsoever that they're going to, they never had a pattern of not negotiating.

[00:32:34] Speaker 05:
I hear your point, Your Honor.

[00:32:36] Speaker 05:
I think my first response I would have is that this is an argument not raised by the hospital and hasn't been briefed.

[00:32:43] Speaker 05:
I know that there is circuit court case law on this, having not briefed you.

[00:32:48] Speaker 04:
But you're the ones who are asking for enforcement of the order.

[00:32:50] Speaker 04:
You have a cross appeal here, and so you didn't brief why we should enforce that aspect of the order.

[00:32:56] Speaker 04:
You have an affirmative showing to make us a cross appellant.

[00:33:00] Speaker 05:
Certainly.

[00:33:01] Speaker 05:
And I'll rest on my statement that there's an ongoing obligation imposed by the board's order.

[00:33:07] Speaker 05:
And if Your Honor would like supplementary case law on that, I can certainly follow up after the argument.

[00:33:12] Speaker 05:
I see that I'm past time.

[00:33:14] Speaker 05:
I would like the opportunity to address Bogle very briefly, since it was raised by Judge Henderson.

[00:33:20] Speaker 05:
Very briefly.

[00:33:20] Speaker 05:
OK.

[00:33:21] Speaker 05:
Just to note that this was an issue that Bogle was imposed by the administrative law judge in the first instance.

[00:33:29] Speaker 05:
And so it was at issue in the administrative litigation.

[00:33:32] Speaker 05:
It was not opposed by the hospital in its exceptions to the board or in its answering brief, the general counsel's brief to the board.

[00:33:40] Speaker 05:
And because that was not raised, it's barred at this point by section 10E.

[00:33:46] Speaker 05:
But in any event, you know, stemming this court's case fully supports application of Fogel when there's been no cessation of employment.

[00:33:56] Speaker 05:
And that's what happened here.

[00:33:58] Speaker 05:
These employees had their hours cut.

[00:34:00] Speaker 05:
They continued to work.

[00:34:02] Speaker 05:
They had no duty to mitigate their losses.

[00:34:05] Speaker 05:
And under the policy rationale set out in the board's community health services case, the board found that the policy favored not subtracting, not offsetting interim earnings from back pay order and discount.

[00:34:21] Speaker 04:
That policy was as to, we don't expect employees in a non-termination or suspension status, just in a layoff status, to go find other work.

[00:34:34] Speaker 04:
And so if they happen to pick up some other work, the employer doesn't get that windfall, because the windfall has said, the employer has made the choice just to lay off.

[00:34:44] Speaker 04:
But here, some of the money they're talking about that they want as an offset is governmental checks.

[00:34:51] Speaker 04:
stimulus checks and support checks through to help people get through COVID.

[00:34:57] Speaker 04:
What is the policy argument that that type of payment shouldn't be offset against what the hospital has to pay?

[00:35:06] Speaker 05:
Certainly.

[00:35:08] Speaker 05:
So as a general matter, the board does not deduct unemployment benefits from back pay owed in calculating that remedy.

[00:35:18] Speaker 05:
The reason for that is because governmental agencies, whether state or federal, that afford unemployment benefits assistance can call back those funds.

[00:35:29] Speaker 04:
And is that the same true for these?

[00:35:30] Speaker 04:
I'm talking about the special sort of COVID stimulus checks that people were getting.

[00:35:33] Speaker 04:
Is that true for those?

[00:35:35] Speaker 05:
I don't know, Your Honor, to be frank.

[00:35:37] Speaker 05:
I know that that's the general policy that's in place.

[00:35:41] Speaker 05:
I have no reason to think it would be different for

[00:35:44] Speaker 05:
the unemployment benefits that were in place due to COVID.

[00:35:47] Speaker 05:
The board didn't address it?

[00:35:48] Speaker 05:
The board did not.

[00:35:50] Speaker 04:
Is there evidence of the type of payments that they had?

[00:35:52] Speaker 04:
I'm understanding it was that there was, but I could be wrong.

[00:35:55] Speaker 05:
No, the record doesn't contain evidence of employees actually receiving this.

[00:36:00] Speaker 03:
And do you know whether the hospital ever got PPP funds?

[00:36:05] Speaker 05:
The record doesn't disclose that.

[00:36:07] Speaker 05:
I don't know.

[00:36:09] Speaker 05:
If there are no further questions, the board respectfully requests enforcement funds.

[00:36:14] Speaker 02:
Mr. Portney, why don't you take two minutes?

[00:36:19] Speaker 01:
A couple of points very quickly.

[00:36:21] Speaker 01:
With respect to the three witnesses, Judge Miller, I think you raised this.

[00:36:25] Speaker 01:
This was not a hospital witness.

[00:36:27] Speaker 01:
This was a witness.

[00:36:28] Speaker 01:
It was actually the union representative called by the union, who is effectively the agent, the representative of the party to the collective bargaining agreement.

[00:36:38] Speaker 01:
He is the one that testified that he wasn't regularly paid 40 hours a week, didn't regularly work a 40 hour work week.

[00:36:44] Speaker 03:
Wait, wait, that's a characterization.

[00:36:46] Speaker 03:
He didn't say I don't regularly work 40 hours a week.

[00:36:49] Speaker 03:
He said there's been two or three times.

[00:36:51] Speaker 01:
Right.

[00:36:53] Speaker 03:
Over a period of a year.

[00:36:54] Speaker 03:
So there's a question whether

[00:36:56] Speaker 03:
But what I'm.

[00:36:57] Speaker 03:
Yeah, no, I understand.

[00:36:58] Speaker 03:
OK, so the employer did not call witnesses to establish that it was less than a 40 hour.

[00:37:05] Speaker 01:
And it was it was the agent of the union agreement that did see that there wasn't a uniform 40 hour work.

[00:37:12] Speaker 01:
That's the only.

[00:37:13] Speaker 01:
I don't think that's disputed.

[00:37:18] Speaker 04:
You said there was the April 12th order and then you issued your letter shortly to employees shortly thereafter.

[00:37:27] Speaker 01:
April 12th order and then the April 14th.

[00:37:32] Speaker 04:
There was the March 30th order, the one that put the ban on elective procedures.

[00:37:38] Speaker 04:
So what changed between the March 30th and April 12th executive orders that suddenly created the exigency that didn't exist just with the March 30th order?

[00:37:48] Speaker 01:
The duration, at that point, recall there was, we all, including the hospital, had a learning curve on what COVID meant.

[00:37:56] Speaker 01:
The first two executive orders were limited in duration to two weeks.

[00:38:00] Speaker 01:
They were finite.

[00:38:01] Speaker 01:
Two weeks, they expire.

[00:38:03] Speaker 01:
So at that point, everyone reading and thinking, maybe this will end in two weeks.

[00:38:07] Speaker 01:
Obviously, that seems almost silly in retrospect now.

[00:38:10] Speaker 01:
But when the third executive order issued, it said three weeks or as longer as may be required.

[00:38:17] Speaker 01:
It had an open-ended component.

[00:38:19] Speaker 01:
And frankly, the experience level was much different.

[00:38:22] Speaker 01:
It was clear this wasn't going to,

[00:38:24] Speaker 01:
When I say this, COVID wasn't going to end that quickly.

[00:38:27] Speaker 04:
But at the same time, since there was uncertainty, then there was not certainty on your part that you did not have time to notify the union and bargain.

[00:38:37] Speaker 04:
You're now in a period of uncertainty on timing.

[00:38:40] Speaker 04:
And it was your burden to show that not only had an exigency happen, but in fact, it was so imperiling that you did not have time to notify and or bargain

[00:38:52] Speaker 04:
with the union, what evidence did you put in as to that?

[00:38:57] Speaker 01:
Respectfully, the position of the hospital is it had already bargained with the union resulting in the management rights clause.

[00:39:06] Speaker 01:
Okay.

[00:39:07] Speaker 01:
It authorizes, you know, pardon me.

[00:39:09] Speaker 04:
Right.

[00:39:09] Speaker 04:
I get, I understand that you lose that argument.

[00:39:12] Speaker 04:
You lost that before the board.

[00:39:14] Speaker 04:
So in a world where they, you don't have that argument.

[00:39:17] Speaker 04:
Is there anything in the record that asserts or explains why you didn't have time after the April 12th or March 30th executive orders to notify the union and bargain with them, even if it was expedited?

[00:39:31] Speaker 01:
Timing was not the trigger.

[00:39:32] Speaker 01:
It was based on the authorized actions in the contract.

[00:39:35] Speaker 01:
That was the position of the hospital.

[00:39:37] Speaker 04:
Got it.

[00:39:38] Speaker 04:
Okay, I understand.

[00:39:39] Speaker 01:
One or two points quickly with respect to compelling economic considerations.

[00:39:45] Speaker 01:
I just want to point out that

[00:39:47] Speaker 01:
Rule is any unforeseen occurrence, having a major economic effect requiring the company to take immediate action.

[00:39:54] Speaker 01:
That's the board standard Angelica healthcare.

[00:39:56] Speaker 04:
It's I just asked you, but you said you had no evidence on need for immediate action.

[00:40:03] Speaker 01:
Okay, maybe we're hung up on the term media.

[00:40:06] Speaker 04:
because we did act reasonably promptly after the immediate action that cannot first be done through notice and bargaining with the union.

[00:40:15] Speaker 04:
What you have to claim here is that we had to go so fast we couldn't first notify and do expedited bargaining with the union.

[00:40:24] Speaker 04:
That's what you have to show.

[00:40:26] Speaker 04:
That's the part that I'm missing here.

[00:40:29] Speaker 04:
I understand your contract.

[00:40:30] Speaker 01:
We have a contract argument.

[00:40:32] Speaker 04:
But if we put that aside, then we don't have anything.

[00:40:34] Speaker 01:
Right.

[00:40:34] Speaker 01:
And then the second argument would be, under exigent circumstances, which we have discussed, we clearly, the COVID crisis, informed by the executive order and the experience at that point, justified what occurred.

[00:40:59] Speaker 01:
With respect, I just want to say one word on the damages point because the, and I would represent to the court, these parties have just recently entered into a new collective bargaining rate.

[00:41:10] Speaker 01:
I mean, the moodness of this whole situation, thank heavens COVID and all of this is in the rear view mirror.

[00:41:16] Speaker 01:
So providing information, bargaining over a decision, it is mood.

[00:41:22] Speaker 01:
Judge Mellott is, I agree with that.

[00:41:24] Speaker 04:
I didn't say providing information and I didn't say make.

[00:41:27] Speaker 01:
No, I didn't mean to mischaracterize what you said, but I'm in terms of arguing over the decision and so forth that everyone is back to work parties.

[00:41:37] Speaker 04:
These are they haven't been made whole financially.

[00:41:40] Speaker 01:
For the one to two days that they lost during that several week period, that is correct.

[00:41:44] Speaker 01:
That is correct.

[00:41:46] Speaker 01:
And that would certainly require a much more detailed, much more detailed finding than this record would support.

[00:41:53] Speaker 01:
We appreciate it.

[00:41:55] Speaker 01:
Thank you.