HealthBridge Management, LLC v. National Labor Relations Board ( 2018 )


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  • 17-934, 17-1149
    HealthBridge Management, LLC v. National Labor Relations Board
    United States Court of Appeals
    for the Second Circuit
    AUGUST TERM 2017
    Nos. 17-934, 17-1149
    HEALTHBRIDGE MANAGEMENT, LLC; 107 OSBORNE STREET OPERATING COMPANY
    II, LLC D/B/A DANBURY HEALTH CARE CENTER; 710 LONG RIDGE ROAD OPERATING
    COMPANY II, LLC D/B/A LONG RIDGE OF STAMFORD; 240 CHURCH STREET
    OPERATING COMPANY II, LLC D/B/A NEWINGTON HEALTH CARE CENTER; 1 BURR
    ROAD OPERATING COMPANY II, LLC D/B/A WESTPORT HEALTH CARE CENTER; 341
    JORDAN LANE OPERATING COMPANY II, LLC D/B/A WETHERSFIELD HEALTH CARE
    CENTER,
    Petitioners/Cross-Respondents,
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent/Cross-Petitioner.
    ARGUED: MAY 31, 2018
    DECIDED: AUGUST 23, 2018
    Before:         JACOBS and DRONEY, Circuit Judges, UNDERHILL,* District Judge.
    HealthBridge Management, LLC, and six healthcare centers that it operates
    (collectively “HealthBridge”) petition for review of a decision of the National
    * Judge Stefan R. Underhill, United States District Court for the District of
    Connecticut, sitting by designation.
    Labor Relations Board (“the Board”) finding that HealthBridge engaged in a
    number of unfair labor practices in violation of the National Labor Relations Act.
    See 29 U.S.C § 158(a)(1), (5). The Board cross-applies for enforcement of its
    remedial order.
    The proceeding arises chiefly from the 15-month employment of certain
    HealthBridge workers by a management company retained by HealthBridge and
    their return to HealthBridge without seniority, tenure, and other features of their
    prior positions. Also in contention are several additional charges of unfair labor
    practices lodged by the employees’ union. We deny the petition for review and
    enforce the Board’s remedial order.
    BRIAN J. GERSHENGORN (with Seth D.
    Kaufman on the brief), Fisher & Phillips
    LLP, New York, NY, for Petitioners/Cross-
    Respondents.
    ERIC WEITZ (with Usha Dheenan,
    Supervisory Attorney, Linda Dreeben,
    Deputy Associate General Counsel, John
    W. Kyle, Deputy General Counsel, and
    Peter B. Robb, General Counsel, on the
    brief), National Labor Relations Board,
    Washington, DC, for Respondent/Cross-
    Petitioner.
    DENNIS JACOBS, Circuit Judge:
    HealthBridge Management, LLC and six healthcare centers that it operates
    (collectively “HealthBridge”) petition for review of a decision of the National
    Labor Relations Board (“the Board”) finding that HealthBridge engaged in a
    number of unfair labor practices in violation of the National Labor Relations Act
    (“NLRA”), 29 U.S.C § 158(a)(1), (5). See HealthBridge Mgmt., LLC, 
    365 N.L.R.B. 37
    , 
    2017 WL 971615
    (Feb. 22, 2017). The Board cross-applies for enforcement of
    2
    its remedial order. Our standard of review is well established, and we discuss it
    further below. See NLRB v. Katz’s Delicatessen of Houston St., Inc., 
    80 F.3d 755
    ,
    763 (2d Cir. 1996).
    The proceeding arises chiefly from the 15-month employment of certain
    HealthBridge workers by a management company retained by HealthBridge, and
    their purported rehiring by HealthBridge without seniority, tenure, and other
    features of their prior positions. At issue are the validity of the rehiring, and
    two related matters: the company’s failure to rehire two of the workers, and its
    threat to call the police to quell worker dissatisfaction when the rehiring terms
    were announced. (Point II)
    Also in contention are additional charges of unfair labor practices lodged
    by the employees’ union based on HealthBridge's discontinuation of two
    practices: providing holiday premium pay for part-time and per diem workers,
    and counting lunch periods as time worked for purposes of calculating overtime.
    (Point III)
    We deny the petition for review and enforce the Board’s remedial order.
    I
    New England Health Care Employees Union (“the union”) has
    represented bargaining units of workers employed at HealthBridge’s healthcare
    centers since the early 1990s. These units include certified nursing assistants,
    cooks, central supply clerks, and the employees primarily at issue here:
    housekeeping and laundry workers (hereinafter “housekeeping workers”). The
    union and the various centers entered into materially identical collective
    bargaining agreements (“CBAs”) that were effective from 2004 to 2011.
    Article 9(F) of each CBA provided that “[n]o bargaining unit work shall be
    subcontracted unless the subcontractor agrees in advance to retain the
    Employees and recognize all their rights, including seniority, under this
    agreement.” HealthBridge, 
    2017 WL 971615
    , at *1 n.7. “[A]ny purchaser,
    transferee, lessee, assign[ee],” “or other successor[]” was required to accept the
    3
    CBAs’ terms and to honor any benefits accrued by the employees thereunder.
    
    Id. In 2006,
    HealthBridge subcontracted the supervision of its housekeeping
    workers to Healthcare Services Group (“HSG”). HSG supplied on-site
    managers to supervise (and provided certain supplies) while the employees
    continued to perform the same work as before at the HealthBridge centers and
    remained on HealthBridge’s payroll. The terms of the CBAs were given full
    effect during the three years of that arrangement.
    In February 2009, HealthBridge and HSG entered into a full-service
    subcontract covering the housekeeping workers at three of the HealthBridge
    centers. Under the new arrangement, HSG assumed “all managerial and
    payroll responsibility” for the workers, who continued to perform the same work
    as before. 
    Id. at *2.
    HealthBridge continued to run the centers, and workers in
    other bargaining units (such as certified nursing assistants) continued to work
    independently of HSG.
    At the outset of this new arrangement, the 48 affected housekeeping
    workers were told simply that they were being “transferred to HSG’s payroll”;
    they were not told that they were being laid off or otherwise terminated by
    HealthBridge, and they were not asked to apply for employment with HSG. 
    Id. (internal quotation
    marks omitted). HealthBridge assured the union that “all
    [of the housekeeping workers’] accrued benefits, seniority and job status w[ould]
    [remain] intact and [that] HSG w[ould] agree to all terms and conditions of the
    contract between the Union and [HealthBridge].” 
    Id. Fifteen months
    later (several months before the expiration of the 2004-2011
    CBAs), that subcontract arrangement ended. On May 17, 2010, the 48
    housekeeping workers received individual letters from HSG informing them that
    they would “no longer be employed by” HSG and that “[p]ayroll services”
    would no longer “be provided” for housekeeping workers at the three relevant
    centers. 
    Id. at *3
    (internal quotation marks omitted). The workers were
    further informed that they would need to attend meetings at their respective
    centers to reapply for their jobs.
    4
    At each meeting, HealthBridge told the workers that those who wished to
    remain employed at the centers would need to apply for “rehire” by
    HealthBridge and that rehired workers would be treated as “new hires,” without
    any of the seniority that they had accrued. 
    Id. (internal quotation
    marks
    omitted). The upshot was that the rehired workers would lose up to a third of
    their hourly pay, as well as other contractual benefits, including job security and
    health insurance. When, at one of the three centers, the housekeeping workers
    protested the new arrangement, the HealthBridge administrator in charge
    threatened to call the police to eject workers who did not either fill out a rehire
    application or leave the premises immediately.
    Within 24 hours, 47 of the 48 workers applied for rehire. All but two who
    applied were rehired either the same day or one day later. (Not rehired were
    Newton Daye and Myrna Harrison, who had worked at HealthBridge for 13 and
    22 years, respectively.) The “‘rehiring’ interviews were ‘non-existent,
    perfunctory or cursory,’” and “[m]ost employees returned to work the same day
    they were reemployed, continuing to do the same work they had performed
    before and during the full-service HSG subcontracts.” 
    Id. at *4.
    HealthBridge
    refused to honor the seniority of the 45 rehired workers, and the union
    responded by filing charges of unfair labor practices with the Board.
    The proceedings before the Board also resolved charges that were
    unrelated to the rehiring of the housekeeping workers, and which affected other
    units as well. Around 2009-10, HealthBridge ended two policies that had
    undisputedly been in place for the duration of the CBAs’ term: (1) part-time and
    per-diem employees who worked fewer than 20 hours per week had been paid
    time-and-one-half plus an extra day’s pay for hours worked on holidays, and
    (2) paid half-hour lunch periods had been counted as time actually worked for
    purposes of calculating overtime. Around the same time, HealthBridge also
    ended longstanding policies pertaining to layoff notice and benefit eligibility.
    HealthBridge did not consult with the union prior to ending any of these polices.
    The Board ultimately held HealthBridge liable for violations of the NLRA,
    and HealthBridge now challenges several of the underlying findings. We reject
    5
    each of those challenges and enforce the Board’s remedial order.
    II
    HealthBridge challenges the finding that it violated the NLRA by
    temporarily requiring the housekeeping workers to work under a subcontractor
    only to rehire them as new employees following their termination by the
    subcontractor--thereby divesting them of seniority and related benefits accrued
    under the CBAs. See 29 U.S.C § 158(a)(1) (making it unlawful for an employer
    “to interfere with, restrain, or coerce employees in the exercise of the[ir] right[]”
    to bargain collectively); 
    id. § 158(a)(5)
    (making it unlawful for an employer to
    “refuse to bargain collectively with” its employees).
    The Board adduced three rationales to support the conclusion that
    HealthBridge’s use of the subcontracting arrangement violated the NLRA. But
    only one of those rationales commanded unanimity. The Board members
    disagreed among themselves as to whether HealthBridge was a joint employer of
    the subcontracted employees and as to whether HealthBridge ever terminated
    the employees. We need not consider those two rationales because we affirm
    the relevant portion of the Board’s order only on the basis of the rationale to
    which all three Board members subscribed. The Board unanimously concluded
    that HealthBridge violated the NLRA because an employer may not use a “short-
    duration operational change[], [such as a] temporary shutdown[], . . . to
    circumvent union obligations [and] extinguish collectively bargained rights.”
    HealthBridge, 
    2017 WL 971615
    , at *8-9 (internal quotation marks omitted).
    Applying that legal conclusion to the facts before it, the Board reasoned that
    HealthBridge unlawfully subverted its obligations to the union when it utilized
    the short-term subcontracting arrangement to eliminate union members’
    seniority-based rights.
    We review the Board’s decision for both its legal soundness and its factual
    basis. That review “is quite limited. We must enforce the Board’s order where
    its legal conclusions are reasonably based, and its factual findings are supported
    by substantial evidence on the record as a whole.” 
    Katz’s, 80 F.3d at 763
    (citing
    Universal Camera Corp. v. NLRB, 
    340 U.S. 474
    , 488 (1951)). As to legal
    6
    conclusions, we must give the Board “considerable deference” and afford the
    Board a “degree of legal leeway.” NLRB v. Caval Tool Div., 
    262 F.3d 184
    , 188
    (2d Cir. 2001) (citations omitted). And as to factual conclusions, remand is
    “warranted if, after looking at the record as a whole, we are left with the
    impression that no rational trier of fact could reach the conclusion drawn by
    Board.” 
    Katz’s, 80 F.3d at 763
    (citation omitted); see also 
    Caval, 262 F.3d at 188
    (“Substantial evidence means more than a mere scintilla. It means such relevant
    evidence as a reasonable mind might accept as adequate to support a
    conclusion.”).
    The Board’s decision’s is “reasonably based” in the NLRA. 
    Katz’s, 80 F.3d at 763
    . It is settled law in this circuit that an employer may not “avoid the
    obligations of a collective bargaining agreement through a sham transaction or
    technical change in operations” that amounts to a “disguised continuance.”
    Lihli Fashions Corp. v. NLRB, 
    80 F.3d 743
    , 748 (2d Cir. 1996) (quoting Truck
    Drivers Local Union No. 807 v. Reg'l Imp. & Exp. Trucking Co., 
    944 F.2d 1037
    ,
    1046 (2d Cir. 1991)). Thus, we have held that an employer may not in
    succession terminate its employees, cease its operations, form a new company to
    engage in the same business, hire back the same employees to perform the same
    work, and do so without honoring the parties’ CBA. See 
    id. at 747-48
    (affirming
    the Board’s finding of a violation of 29 U.S.C § 158(a)(1), (5)). Nor can an
    employer terminate its employees only to rehire a subset of them (to perform the
    same work), without regard to their seniority under the CBA, even if the
    employer shifts the putatively new employees onto the payroll of another entity.
    See NLRB v. G & T Terminal Packaging Co., 
    246 F.3d 103
    , 112, 117-18 (2d Cir.
    2001) (same).
    The Board’s decision also finds substantial support in the law of other
    circuits, which have addressed legal arrangements that more closely resemble
    HealthBridge’s actions. For example, other circuits have recognized that
    temporary shutdowns in business operations do not terminate unionized
    employees’ rights under a CBA. See, e.g., NLRB v. Rockwood Energy &
    Mineral Corp., 
    942 F.2d 169
    , 175-76 (3d Cir. 1991) (holding that the Board could
    require a “post-hiatus employer” to respect the CBA seniority rights of
    employees of the pre-hiatus employer despite the five-year hiatus, in part
    7
    because the “employees had a continuing expectation of employment”
    throughout that period); El Torito-La Fiesta Restaurants, Inc. v. NLRB, 
    929 F.2d 490
    , 493-96 (9th Cir. 1991) (affirming a Board decision applying the terms of a
    pre-shutdown CBA to an employer following a 14-month shutdown in
    operations). The Tenth Circuit’s decision in NLRB v. F&A Food Sale, Inc., in
    particular, shares many features with the instant appeal. See 
    202 F.3d 1258
    (10th Cir. 2000). In that case, the employer subcontracted its unionized truckers’
    work to another company for a period of just over one year, with the agreement
    of the union. 
    Id. at 1259.
    The subcontractor “operated from the same facility,
    used the same trucks, and employed substantially the same employees” during
    the subcontract period. 
    Id. Following the
    end of the subcontract, the original
    employer resumed its own trucking operations, using the same facility, trucks,
    and most of the same employees. 
    Id. at 1260.
    Nevertheless, the employer
    refused to recognize the union. 
    Id. The Board
    concluded that the employer’s
    refusal to recognize the union constituted an unfair labor practice. 
    Id. On appeal,
    the Tenth Circuit affirmed, holding that the temporary hiatus in direct
    employment of the truckers did not allow the employer to disregard the CBA
    following the subcontract. 
    Id. at 1260-62.
    We agree with these decisions of
    other circuits insofar as they supplement our own case law supporting the
    Board’s legal conclusion that an employer may not use a “short-duration
    operational change[], including [a] temporary shutdown[],” to subvert the terms
    of a collective bargaining agreement. HealthBridge, 
    2017 WL 971615
    , at *8; see
    also G & T Terminal Packaging 
    Co., 246 F.3d at 118
    (noting that operational
    changes specifically motivated by “a desire to avoid [bargained-for] obligations”
    are likely to be found unlawful).
    Substantial evidence supports the Board’s factual determination that
    HealthBridge engaged in an unlawful scheme of this sort. “[T]he record,” as the
    Board pointed out, is “even more indicative of unlawful conduct than [the
    record] presented in many [comparable] cases” of NLRA violations.
    HealthBridge, 
    2017 WL 971615
    , at *9 n.32 (internal quotation marks omitted). In
    such comparable cases, an employer terminates its employees, dissolves,
    reconstitutes itself as an alter ego entity, and rehires its old employees without
    the contractual entitlements of their prior positions. See, e.g., 
    Lihli, 80 F.3d at 748-49
    . Here, the entity bound by the CBAs--HealthBridge--did much the same
    8
    thing without the hassle of a metamorphosis. HealthBridge effected its scheme
    by temporarily loaning its employees to a third-party subcontractor; but in no
    material way does that differentiate this case from our line of alter ego cases or
    the case law of other circuits holding that CBAs survive brief, manufactured
    breaks in direct employment. See, e.g., F&A Food 
    Sale, 202 F.3d at 1260-62
    . As
    in those cases, the employees here were off-loaded and then rehired (without
    their contractual rights) to perform the same work, at the same site, for the same
    ultimate beneficiary. Insofar as there are distinctions, they do not assist
    HealthBridge: the third-party transactions through which HealthBridge (as it
    were) laundered its employees had the chief practical effect of divesting those
    employees of their contractual rights. Indeed, the record supports the
    conclusion that the dominant (if not sole) purpose of HealthBridge’s use of the
    subcontractor was to disguise what amounts to a quasi alter-ego scheme.
    Statements by HSG officials are evidence that HealthBridge always
    envisioned the subcontract as a temporary, technical arrangement that would
    conclude with HealthBridge re-absorbing the housekeeping workers, divested of
    their seniority-based benefits. As early as the Spring of 2009, an HSG manager
    informed a housekeeping worker and union delegate “on several occasions” that
    the housekeeping workers “would ‘eventually be going back to [HealthBridge’s]
    payroll.’” HealthBridge, 
    2017 WL 971615
    , at *3. Another HSG manager made
    similar statements to a different housekeeping worker in early 2010. In April
    2010, still another HSG manager informed the union directly that the
    housekeeping workers “would be transferred back to [HealthBridge’s] payroll”--
    only to call the union “[a] few days later” to explain, “I shouldn’t have said that,”
    and that “the transfer back . . . [is] not a set plan.” 
    Id. at *3
    & n.11 (internal
    quotation marks omitted). HSG managers testified that they were never
    informed of a legitimate business reason for the transfer; they were told by
    higher ranking HSG officials simply that “HealthBridge was taking the payroll
    back,” that “the employees would no longer be on HSG's payroll,” and that the
    workers would “be [HealthBridge’s] employees” again. 
    Id. at *4
    (internal
    quotation marks omitted).
    HealthBridge has failed to proffer evidence of a legitimate business
    purpose for its temporary payroll arrangement with HSG. At the
    9
    administrative hearing in this matter, HealthBridge called none of its
    management officials to testify as to why the company would briefly transfer its
    housekeeping workers to another entity’s payroll before taking them back as
    supposed new hires. From this failure of proof, the Board drew the permissible
    adverse inference: the “apparent purpose” of HealthBridge’s actions was to
    “extinguish” the employees’ seniority-based entitlements. 
    Id. at *9
    (internal
    quotation marks omitted); see NLRB v. Dorn’s Transp. Co., 
    405 F.2d 706
    , 713 (2d
    Cir. 1969) (noting that the Board may draw an adverse inference from a party’s
    failure to call critical witnesses). A finding of illegitimate purpose is not
    necessary to a finding of an NLRA violation, but it is definitely telling on this
    record. See G & T Terminal Packaging 
    Co., 246 F.3d at 118
    .
    A successor employer that relinquishes and later reacquires ownership of
    an operation for legitimate business reasons may be free to negotiate a new CBA
    with the inherited employees. See Howard Johnson Co. v. Detroit Local Joint
    Exec. Bd., Hotel & Rest. Emps. & Bartenders Int'l Union, AFL-CIO, 
    417 U.S. 249
    ,
    261 n.5 (1974). In Howard Johnson, for example, the Supreme Court found that
    a successor employer was not bound by the CBAs entered into by its predecessor
    even though the successor had previously franchised the business to the
    predecessor. The Court reasoned that there was “not the slightest suggestion”
    that the arrangement “was in any sense a paper transaction” designed “to avoid
    the effect of the labor laws” “without meaningful[ly] impact[ing] . . . the
    ownership or operation of the enterprise.” 
    Id. The successor
    lacked an
    “ownership interest” in the enterprise immediately “prior to” the reacquisition,
    and “nothing in the record . . . indicate[d] that [the successor] had had any
    previous dealings with the Union, or had participated in any way in negotiating
    or approving the collective-bargaining agreements” at issue. 
    Id. The full-service
    subcontract with HSG did not meaningfully impact the
    ownership or operation of the enterprise: the housekeeping workers continued to
    service HealthBridge’s centers in substantially the same manner throughout the
    period of the subcontract. While HSG performed supervisory and
    administrative services on HealthBridge’s behalf, HealthBridge continued its
    control over the centers’ operations. It handled grievances filed by the
    housekeeping workers and granted certain of their requests to transfer into other
    10
    departments. Moreover, unlike the successor employer in Howard Johnson,
    HealthBridge had extensive prior dealings with the union as a party to the CBAs
    at issue. Finally, the evidence suggests that HealthBridge designed the
    transactions at issue to evade its obligations under those CBAs. “In these
    circumstances, . . . courts have had little difficulty holding that the [putative]
    successor is in reality the same employer and is subject to all the legal and
    contractual obligations of the [putative] predecessor.” 
    Id. For the
    foregoing reasons, sound legal reasoning and substantial evidence
    support the Board’s determination that HealthBridge engaged in an unlawful
    scheme to “avoid the obligations of a collective bargaining agreement” in
    violation of the NLRA. 
    Lihli, 80 F.3d at 748
    (internal quotation marks omitted).
    The obligations that HealthBridge attempted to shed remained binding, and no
    reasonable reading of those obligations permitted HealthBridge to eliminate the
    seniority-based entitlements of its housekeeping workers as it did. The Board’s
    application for enforcement of its remedial order as to this violation is therefore
    granted.
    It follows directly from that ruling that the Board was correct in finding
    that HealthBridge committed two additional NLRA violations. First,
    HealthBridge violated the NLRA by failing to “rehire” Newton Daye and Myrna
    Harrison when every other housekeeping worker who sought continued
    employment with the company was returned to its payroll. See 29 U.S.C
    § 158(a)(1), (5). Under the circumstances, the two employees’ contractual
    seniority--properly honored--entitled them to retain their positions. Second,
    HealthBridge violated the NLRA by threatening to call the police on workers
    who would not either immediately vacate the premises or accede to the unlawful
    elimination of their bargained-for seniority. See 
    id. § 158(a)(1).
    This threat had
    “a reasonable tendency to coerce” the employees into relinquishing their
    collective bargaining rights. N.Y. Univ. Med. Ctr. v. NLRB, 
    156 F.3d 405
    , 410
    (2d Cir. 1998). Accordingly, the portions of the Board’s remedial order that
    address these two violations are also granted enforcement.
    11
    III
    HealthBridge challenges the finding that it violated the NLRA when it
    discontinued two of its policies: (1) part-time and per-diem employees who
    worked fewer than 20 hours per week had been paid time-and-one-half plus a
    regular day’s pay for hours worked on holidays and (2) employees’ paid half-
    hour lunch period had been counted as time actually worked for purposes of
    calculating overtime. See HealthBridge, 
    2017 WL 971615
    , at *11-12 (citing 29
    U.S.C § 158(a)(1), (5)). An employer violates the NLRA when it discontinues an
    established policy, resulting in “chang[es] [to its] employees’ wages, hours, and
    other terms and conditions of employment,” “without [first] notifying and
    bargaining with the [employees’] collective bargaining representative.” Local
    Union 36, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 
    706 F.3d 73
    , 81 (2d Cir.
    2013) (internal quotation marks omitted). HealthBridge does not dispute that it
    unilaterally discontinued the policies, that they had been in place for the full
    course of the CBAs’ term, and that there were effects on the employees’ terms
    and conditions of employment. HealthBridge contests the Board’s findings
    solely on the ground that its actions were authorized under the CBAs.
    We apply a “two-step framework” in cases involving unilateral changes to
    established policies, asking “(1) whether the applicable CBA clearly and
    unmistakably resolves (or ‘covers’) the disputed issue,” and “(2) if not, whether
    the [union] has clearly and unmistakably waived th[e] right” to bargain over the
    disputed issue. 
    Id. at 79.
    We decide de novo “whether a matter is ‘covered’ by
    the contract--meaning that the parties have already bargained over the matter
    and set out their agreement in the contract.” 
    Id. at 83.
    “Only if we conclude as
    a matter of law that the matter was not covered by the contract [do] we consider”
    the issue of waiver, reviewing any finding made by the Board for substantial
    evidence. 
    Id. We conclude
    at step one that the CBAs cover the disputed issues and
    require HealthBridge to pay part-time and per-diem employees premium pay for
    holidays worked and to count employees’ lunch period as time worked for
    purposes of overtime. Accordingly, we affirm the Board’s finding that
    HealthBridge violated the NLRA by discontinuing those policies without
    12
    attempting to bargain, and we grant the Board enforcement of its appropriately
    tailored remedial order.
    Holiday Pay. Article 15(B) of the CBAs provides that “[i]n the event an
    Employee is required to work on any [of nine enumerated] holidays,” “she/he
    shall be paid at the rate of one and one-half times her/his regular rate of pay for
    all hours worked . . . and shall in addition receive [either] an extra day’s pay at
    her/his regular rate[] or an additional day off with regular pay.” App’x at 353
    (emphasis added). HealthBridge points to no provision (and we find none)
    defining the term “Employee” to exclude part-time or per-diem employees who
    work fewer than 20 hours per week, or any other class of employees. We
    therefore read “Employee” to have its ordinary meaning, which encompasses the
    employees in question.
    HealthBridge seizes on this wording in Article 15(A): “Full-time or part-
    time Employees who work twenty (20) hours or more [per week] . . . shall be
    entitled to holiday pay at their regular straight time hourly rate . . . for each of
    [nine enumerated] holidays.” 
    Id. (emphasis added).
    HealthBridge contends
    that this provision limits eligibility for holiday premium pay to employees who
    work at least 20 hours per week. It plainly does not. Article 15(A) specifies the
    (limited) class of employees entitled to receive their regular pay for holidays on
    which they do not work; Article 15(B) establishes that all employees who do work
    on one of those holidays shall receive premium pay. The two provisions thus
    prescribe distinct benefits payable upon mutually exclusive conditions: going to
    work on a holiday, or staying home. Nor do they bear on one another, except
    insofar as the explicit limitation of the benefit in Article 15(A) to employees who
    work at least 20 hours per week suggests that the parties declined to similarly
    limit the benefit in Article 15(B).
    HealthBridge argues that since Article 15(B) grants to employees who go to
    work on a holiday premium pay in addition to “an extra day’s pay” at their
    regular rate, and Article 15(A) expressly limits “holiday pay at [one’s] regular
    rate” to employees who work at least 20 hours per week, then only employees
    who work at least 20 hours per week can receive the benefit outlined in Article
    15(B). 
    Id. However, as
    explained above, the two provisions prescribe distinct
    13
    benefits payable upon mutually exclusive conditions.
    Accordingly, the wording of Article 15(B) requires HealthBridge to
    maintain the policy that it discontinued.
    Any doubt regarding the controlling contractual language is dispelled by
    the parties’ course of performance. See Marcic v. Reinauer Transp. Cos., 
    397 F.3d 120
    , 131-32 (2d Cir. 2005) (“[W]e may look to such evidence as . . . [the
    parties’] past practices [under the CBA].”). During the nearly six years that
    preceded HealthBridge’s policy change, both the company and the union
    understood the CBAs to require HealthBridge to provide premium pay to all
    employees who worked on holidays. The CBAs clearly “set out the[] [parties’]
    agreement” on the issue of eligibility for holiday premium pay, and as a result,
    HealthBridge was required to bargain over changes to the contractual
    arrangement. Local Union 
    36, 706 F.3d at 83
    . The record confirms the Board’s
    finding that the company failed to do so in violation of the NLRA.
    Lunch Time. Article 14(E) of the CBAs states that “Employees who, at
    management’s request, work in excess of eight (8) hours per day shall receive
    one and one-half (1 1/2) times their regular . . . rate for hours actually worked in
    excess of eight (8) hours.” App’x at 351. In a change of policy, HealthBridge
    now declines to count the half-hour lunch period toward the number of hours
    worked for purposes of overtime pay because the lunch period is not “actually
    worked.” However, Article 14 clearly treats the lunch period as time worked.
    Article 14(A) explains that the “normal work week . . . shall . . . consist[] of
    eight (8) hours each day including a paid lunch period of one-half (1/2) hour.” 
    Id. (emphasis added).
    The provision further states that “[a]n employee who works
    a shift of six (6) hours or more shall work a shift inclusive of a one-half (1/2) hour
    paid meal period.” 
    Id. (emphasis added).
    Article 14 thus treats the lunch
    period as paid work time included in the eight hours that employees must work
    before qualifying for overtime pay.
    The point is illustrated by Article 14(F), which provides that time spent on
    paid leave is counted as time worked for purposes of calculating overtime pay.
    14
    Time “actually worked” is therefore not limited to productive activity; the phrase
    more broadly covers work time that is paid. The phrase is not, however,
    surplusage or tautology; it would seem to exclude breaks in work that are not
    characterized as paid work time elsewhere in the CBAs. In sum, Article 14
    entitles employees to have their guaranteed paid lunch periods included in the
    overtime calculation.
    Once again, the parties’ course of performance provides confirmation.
    Prior to the policy change at issue, the parties had always understood the CBAs
    that way and had acted accordingly. HealthBridge advances no convincing
    reason why this straightforward and consistent application of the contractual
    language was mistaken. The company’s unilateral abandonment of that policy
    therefore amounted to another NLRA violation. See Local Union 
    36, 706 F.3d at 81
    .
    *         *           *
    The Board also found that HealthBridge violated the NLRA by unilaterally
    changing policies pertaining to layoff notice and benefit eligibility.
    HealthBridge does not challenge those findings in its petition for review.
    Accordingly, the Board is entitled to enforcement of the relevant portions of its
    remedial order. See NLRB v. Consol. Bus Transit, Inc., 
    577 F.3d 467
    , 474 n.2 (2d
    Cir. 2009).
    CONCLUSION
    For the foregoing reasons, HealthBridge’s petition for review is DENIED,
    and the Board’s cross-application for enforcement is GRANTED.
    15