Fallbrook Hospital Corp. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2015 Decided May 8, 2015
No. 14-1056
FALLBROOK HOSPITAL CORPORATION, DOING BUSINESS AS
FALLBROOK HOSPITAL,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1094
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
Kaitlin A. Kaseta argued the cause for petitioner. On the
briefs was Bryan T. Carmody.
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Jill A. Griffin,
Supervisory Attorney.
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Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the court by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: In a decision issued on
April 14, 2014, the National Labor Relations Board (“Board”)
held that Fallbrook Hospital Corporation (“Fallbrook” or
“Hospital”) had violated Sections 8(a)(1) and (5) of the
National Labor Relations Act (the “Act”), 29 U.S.C.
§ 158(a)(1), (5), by refusing to bargain in good faith with the
California Nurses Association/National Nurses Organizing
Committee, AFL-CIO (“Union”), after the Union had been
certified to represent a bargaining unit of registered nurses
working in the Hospital’s acute care unit. See Fallbrook
Hosp. Corp., 360 N.L.R.B. No. 73 (2014), slip op. at 1–2 &
n.2. The Board further held that “an award of negotiating
expenses [was] necessary to fully remedy the detrimental
impact [that Fallbrook’s] unlawful conduct has had on the
bargaining process.” Id. at 2. Fallbrook now petitions for
review of the Board’s decision ordering it to pay negotiation
expenses to the Union. The Board, in turn, cross-petitions for
enforcement of its order. We deny Fallbrook’s petition and
grant the Board’s cross-petition.
Far from the run-of-the-mill failure to bargain, the Board
specifically found that Fallbrook acted in an “obstinate and
pugnacious manner,” id. at 9, “operated with a closed mind
and put up a series of roadblocks designed to thwart and delay
bargaining,” id., and that the totality of Fallbrook’s conduct
made it “clear” that “there was no intent to bargain,” id. at 15.
The Board found multiple violations of the Act based on
Fallbrook’s conduct at the bargaining table, including but not
limited to refusing to bargain over mandatory subjects and
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refusing to provide information requested by the Union. Id. at
1 & n.2; see also id. at 15.
As the Board’s decision makes clear, a reimbursement
remedy is appropriate “where it may fairly be said that [an
employer’s] substantial unfair labor practices have infected
the core of a bargaining process to such an extent that their
effects cannot be eliminated by the application of traditional
remedies.” Id. at 2 (internal quotation marks omitted) (quoting
Unbelievable, Inc., 318 N.L.R.B. 857, 859 (1995), enf’d in
pertinent part, Unbelievable, Inc. v. NLRB, 118 F.3d 795
(D.C. Cir. 1997)). Such a remedy “is warranted both to make
the charging party whole for the resources that were wasted
because of the unlawful conduct, and to restore the economic
strength that is necessary to ensure a return to the status quo
ante at the bargaining table.” Unbelievable, 318 N.L.R.B. at
859.
On May 21, 2014, after the Hospital filed its Petition for
Review with this court, Fallbrook gave notice to the Union
that it intended to terminate the acute care unit in which
members of the bargaining unit worked. In light of this
development, “Fallbrook has decided to abandon all issues
presented on appeal, except for the Board’s award of
negotiating expenses.” Br. of Petitioner 2 n.2. In other words,
the Hospital does not challenge the findings underlying the
Board’s conclusion that Fallbrook “deliberately acted to
prevent any meaningful progress during bargaining” and that
it committed a number of serious violations of the Act.
Fallbrook, 360 N.L.R.B. No. 73, slip op. at 2.
The only question before the court on the petition for
review is whether the Board’s award of negotiation expenses
was a “clear abuse of discretion.” See United Steelworkers of
Am. v. NLRB, 376 F.2d 770, 773 (D.C. Cir. 1967). Fallbrook
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argues that the Board’s decision is wanting because it fails to
take account of the totality of the circumstances and is
unsupported by law. We reject this argument. As explained
below, the Board’s decision that negotiation expenses were
warranted in this case is amply supported by substantial
evidence in the record and has a rational basis in the law.
Fallbrook has filed a motion to remand the case to the
Board pursuant to Section 10(e), 29 U.S.C. § 160(e), for the
Board to hear additional evidence. A remand is permissible
under Section 10(e) if the movant can demonstrate to the
court’s satisfaction that any purported new evidence is
material and could not reasonably have been raised before the
Board. Fallbrook argues that, because the Hospital has
effectively terminated the entire bargaining unit by closing its
acute care facility, there are “changed factual circumstances”
that justify remand to the Board to reconsider its award of
negotiating expenses. Fallbrook’s theory is that there are two
separate purposes for the Board’s negotiation expenses
remedy: one to redress the effect of Fallbrook’s past
misconduct on the Union (which Fallbrook does not contest),
and one to provide the Union prospective strength at the
bargaining table (which Fallbrook claims is now
“unnecessary” due to the closure of the Hospital’s acute care
unit). Fallbrook thus argues that the case should be remanded
to the Board to allow it to reconsider whether the disputed
remedy is still justified. This argument is not only meritless,
it reflects real chutzpah. See, e.g., Harbor Ins. Co. v. Schnabel
Found., 946 F.2d 930, 937 n.5 (D.C. Cir. 1991) (“It reminds
us of the legal definition of chutzpah: chutzpah is a young
man, convicted of murdering his parents, who argues for
mercy on the ground that he is an orphan.”).
The Board’s decision does not, as Fallbrook suggests,
apportion the remedy to distinguish between relief for past
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misconduct and relief to ensure that the Union has prospective
strength in collective bargaining. Rather, the Board’s decision
states that the purpose for the remedy is to make the Union
whole and to put the Union in the same place it was before the
bargaining ever occurred. Furthermore, the Hospital and the
Union held a number of bargaining sessions to negotiate over
the effects of the closure of the acute care unit, and these
bargaining sessions occurred after the Board issued its
decision and after Fallbrook announced the closure.
Therefore, even accepting Fallbrook’s theory – that a portion
of the Board’s order was only intended to give the Union
prospective strength at the bargaining table – it is still clear
that the Board’s remedy is fully justified. In sum, we find no
merit in Fallbrook’s motion to remand the case to the Board
pursuant to Section 10(e).
I. BACKGROUND
A. Statutory and Legal Background
Section 8(a)(5) of the Act makes it “an unfair labor
practice for an employer . . . to refuse to bargain collectively
with the representatives of his employees. . . .” 29 U.S.C.
§ 158(a)(5). As is relevant here, the duty to bargain
collectively means, “to meet at reasonable times and confer in
good faith with respect to . . . the negotiation of an
agreement.” Id. § 158(d). Because the statutory standard of
“good faith” bargaining is determined by the facts of each
case, whether or not a party has failed to live up to this duty
falls squarely within the province of the Board’s expertise.
Sign & Pictorial Union Local 1175 v. NLRB, 419 F.2d 726,
731 (D.C. Cir. 1969). “A violation of Section 8(a)(5) is also a
violation of Section 8(a)(1), which makes it an unfair labor
practice for an employer to ‘interfere with, restrain, or coerce
employees in the exercise’ of their statutory right to bargain
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collectively through representatives of their own choosing.”
S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1356 n.6
(D.C. Cir. 2008) (quoting 29 U.S.C. § 158(a)(1)).
The Board has discretion to fashion appropriate remedies
for violations of the duty to bargain. See 29 U.S.C. § 160(c)
(authorizing the Board to order the violator “to take such
affirmative action . . . as will effectuate the policies of this
subchapter”). As noted above, “[i]n cases of unusually
aggravated misconduct,” the Board may order an offending
party “to reimburse the charging party for negotiation
expenses.” Unbelievable, 318 N.L.R.B. at 859. The Board
determines whether negotiating expenses are warranted after
weighing the evidence in a particular case. Hosp. of Barstow,
Inc., 361 N.L.R.B. No. 34 (Aug. 29, 2014), slip op. at 5 n.13.
There are no per se rules regarding when reimbursement of
negotiation expenses will be ordered.
B. The Facts
It is unnecessary for us to offer a detailed statement of the
facts in this case. As noted above, Fallbrook does not contest
the Board’s findings, which are fully set forth in the Board’s
decision and in the Statement of the Case issued by the
Administrative Law Judge (“ALJ”). See Fallbrook, 360
N.L.R.B. No. 73, slip op. at 2, 5–8. The Board’s decision
notes, in relevant part:
[T]he Union was certified as the exclusive collective-
bargaining representative of the Respondent’s nurses on
May 24, 2012, and the parties held their first bargaining
session on July 3. As found by the judge, the Respondent
engaged in bad-faith bargaining from the outset, and this
conduct continued until the final bargaining session on
January 8, 2013. Thereafter, the Respondent refused to
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respond to any of the Union’s requests for future
bargaining dates. Thus, by its conduct, the Respondent
effectively precluded any meaningful bargaining for
virtually the entire certification year.
....
As described in detail in the judge’s decision, the
record shows that the Respondent deliberately acted to
prevent any meaningful progress during bargaining
sessions that were held. For example, the Respondent’s
bargaining team failed to provide any proposals or
counterproposals during the first eight bargaining
sessions until it received a full set of proposals from the
Union, left the September 12 bargaining session abruptly
and without explanation, and left the October 11
bargaining session 3 minutes after arriving. In addition,
although the Respondent proffered some proposals
during the next three bargaining sessions, it subsequently
threatened that it would not continue bargaining if the
Union persisted in encouraging employees’ use of the
Union’s assignment despite objection (ADO) form. At a
bargaining session held on January 8, 2013, the
Respondent falsely claimed that the nurses’ use of the
ADO forms caused the parties to be at impasse, refused
to bargain further, and left the meeting after about 15
minutes. Thereafter, the Respondent reaffirmed its
refusal to bargain when it refused to respond to the
Union’s requests for future bargaining dates.
Id. at 2–3 (footnote omitted). The Board’s summary of the
facts is amplified by the ALJ’s findings, id. at 6–8, which
were largely adopted by the Board, id. at 1. The ALJ found
that Fallbrook had engaged in a slew of unfair labor practices,
including “failing and refusing to bargain with the Union in
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good faith over the terms of a collective-bargaining
agreement, failing and refusing to bargain with the Union
over the terminations of unit employees Robinson and
Sandwell, and failing to furnish relevant information to the
Union, in violation of Section 8(a)(1) and (5) of the Act.” Id.
at 15.
In light of these findings, the Board concluded that
Fallbrook should be required “to reimburse the Union for the
expenses it incurred for the collective-bargaining negotiations
held from July 3, 2012, through the final bargaining session
on January 8, 2013.” Id. at 3. On this point, the Board said:
We find that the Respondent’s misconduct infected
the core of the bargaining process to such an extent that
its effects cannot be eliminated by the mere application
of our traditional remedy of an affirmative bargaining
order. In these circumstances, requiring the Respondent
to reimburse the Union’s negotiation expenses is also
warranted both to make the [Union] whole for the
resources that were wasted because of the [Respondent’s]
unlawful conduct, and to restore the economic strength
that is necessary to ensure a return to the status quo ante
at the bargaining table. Such expenses may include, for
example, reasonable salaries, travel expenses, and per
diems.
Id. (citations and internal quotation marks omitted).
Fallbrook now petitions for review of the Board’s
decision ordering the Hospital to reimburse the Union’s
negotiation expenses. The Board cross-petitions for
enforcement.
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II. ANALYSIS
A. Standard of Review
It is well understood that “the choice of remedies is
primarily within the province of the Board.” United
Steelworkers, 376 F.2d at 773. “[T]he breadth of agency
discretion is, if anything, at zenith when the action assailed
relates primarily not to the issue of ascertaining whether
conduct violates the statute, or regulations, but rather to the
fashioning of policies, remedies, and sanctions . . . in order to
arrive at maximum effectuation of Congressional objectives.”
Niagara Mohawk Power Corp. v. Fed. Power Comm’n, 379
F.2d 153, 159 (D.C. Cir. 1967) (footnote omitted). The
Board’s order of remedies “should stand unless it can be
shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies
of the Act.” Virginia Elec. Co. v. NLRB, 319 U.S. 533, 540
(1943). In other words, there must be “so gross an abuse of
power as to be arbitrary.” United Steelworkers, 376 F.2d at
773. We find no “abuse of power” in the Board’s disposition
of this case.
B. Summary Enforcement of the Board’s Findings of
Section 8(a)(1) and (5) Violations and Uncontested
Remedies
Because Fallbrook has expressly abandoned its challenge
to the Board’s determinations that Fallbrook violated Sections
8(a)(1) and (5) by refusing to bargain in good faith, the
Board’s award of an affirmative bargaining order, one-year
extension of the Union’s certification period, cease-and-
desist order, and notice posting, we summarily enforce the
Board’s findings and order with respect to those charges and
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uncontested remedies. See Allied Mech. Servs. v. NLRB, 668
F.3d 758, 765 (D.C. Cir. 2012).
C. The Board’s Decision Ordering Reimbursement of
Negotiation Expenses
Fallbrook claims that the Board “singled out Fallbrook
for the extraordinary remedy based upon three factors: (1)
Fallbrook did not make any proposals until the eighth
bargaining session by which point the Union had submitted
the entirety of its proposals, (2) the short duration of two of
the parties’ eleven bargaining sessions, and (3) Fallbrook’s
suspension of negotiations based upon the Union’s refusal to
cease distribution of the ADO[ Forms].” Br. of Petitioner 14.
The Hospital also contends that the Board failed to consider
some factors that “demonstrate that Fallbrook did not engage
in any ‘unusually aggravated misconduct.’” Id. Fallbrook
points to only two such factors: a claim that the Union and the
Hospital had entered into a pre-certification agreement
pertaining to certain subjects of bargaining; and a claim that
the Hospital was operating under the belief that any dispute
between the parties would be submitted to an arbitrator. See
id. at 15. Fallbrook also disputes that its extensive unfair labor
practices amounted to “unusually aggravated conduct.” See
id. at 15–20. We find no merit in these arguments.
Fallbrook’s claim that the Board based its order on only
“three factors” both mischaracterizes the Board’s decision and
fails to account for the fact that the Board affirmed and
adopted the ALJ’s extensive factual findings that “the totality
of the conduct indicates [Fallbrook] operated with a closed
mind and put up a series of roadblocks designed to thwart and
delay bargaining.” Fallbrook, 360 N.L.R.B. No. 73, slip op. at
9. Moreover, the Board found that it was “clear” that
Fallbrook had “no intent to bargain, and [that Fallbrook’s]
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continued attempts to challenge the Board’s certification
make it clear it does not welcome the Union.” Id. at 15. Much
more than basing its determination “upon three factors,” Br.
of Petitioner 14, the Board based its decision on the extensive
list of unfair labor practices found by the ALJ and
uncontested by the Hospital. Given this litany of misconduct
showing Fallbrook’s deliberate attempts to prevent any actual
bargaining, see Fallbrook, 360 N.L.R.B. No. 73, slip op. at 5–
9, the Board’s chosen remedy is supported by substantial
evidence in the record.
Fallbrook’s claim that its misconduct did not amount to
“unusually aggravated misconduct,” see Br. of Petitioner 15–
20, is belied by the record. Fallbrook has cherry-picked the
record and then argued that isolated examples of its
misconduct, in and of themselves, do not justify the Board’s
chosen remedy. For example, Fallbrook argues that the
duration of the bargaining sessions does not justify an award
of negotiation expenses because “the Board has frequently
encountered employers who walk out of bargaining sessions
and . . . has not assessed the extraordinary remedy of
negotiating expenses.” Id. 17–18. This argument entirely
misses the point. The problem with Fallbrook’s approach is
obvious: the Board’s decision rests on the Hospital’s entire
record of unfair labor practices, which in this case is quite
extensive. The Board found that the totality of Fallbrook’s
misconduct justified the remedy. This is perfectly appropriate
under established law. See Hosp. of Barstow, 361 N.L.R.B.
No. 34, slip op. at 5 n.13 (explaining that “decisions [by the
Board] make clear that, in determining whether to award
negotiating expenses, [the Board] will consider each case on
its own merits, evaluating the effect of the violation on the
wronged party and the injury to the collective-bargaining
process”). In this case, it cannot be seriously doubted that
substantial evidence supports the Board’s decision.
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Fallbrook further protests that the Board failed to credit
the fact that there was a pre-certification agreement between
the Union and Fallbrook’s parent company. However, the
ALJ found that “[t]here is no evidence of record about what
happened during these [pre-certification] negotiations other
than they resulted in agreement [between the Union and
Community Health Systems, the parent company] on certain
provisions and [Community Health Systems] was not named
as a respondent in this case.” Fallbrook, 360 N.L.R.B. No. 73,
slip op. at 9 n.12. In other words, Fallbrook never executed an
agreement with the Union; the pre-certification negotiations
involved only the parent company, not Fallbrook. Thus, the
ALJ concluded, “[t]hat there may have been good faith
negotiations between the Hospital’s parent company and the
Union at some point in the past does not impact my findings
[regarding Fallbrook’s unfair labor practices] based on the
record before me.” Id. at 9. The Board adopted these findings
and the conclusion.
The Board’s decision here is also consistent with its
decision in Harowe Servo Controls, Inc., 250 N.L.R.B. 958
(1980). In that case, the Board held:
That the Respondent can cite some evidence of
agreement on specific issues is therefore of no
consequence in the circumstances of this case. Indeed,
these circumstances lead inexorably to the conclusion
that such agreement as was reached was no more than the
vehicle chosen by the Respondent to conceal a strategy
designed to render bargaining futile.
It is thus evident that the economic resources wasted by
the Union in the futile pursuit of a collective-bargaining
agreement are a direct and proximate result of the
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Respondent’s willful defiance of its statutory obligation.
Accordingly, in order to restore the status quo ante, we
shall require that the Respondent reimburse the Union for
the bargaining expenses it incurred during the period here
in question.
Id. at 965 (emphasis added) (footnote omitted). The same
considerations apply here.
Fallbrook moreover argues that “the Board ignored the
fact that, at the time the negotiations were taking place, the
Hospital believed that . . . any disputes would be brought to
the parties’ arbitrator.” Br. of Petitioner 15. There is no
finding of fact to support this claim and Fallbrook has not
contested the Board’s findings in this case. Furthermore, the
Board expressly adopted the ALJ’s “finding that deferral to
arbitration under Collyer Insulated Wire, 192 N.L.R.B. 837
(1971), is not appropriate here, because the parties [had] not
executed a written contract setting forth an agreed-upon
grievance-arbitration procedure.” Fallbrook, 360 N.L.R.B.
No. 73, slip op. at 1 n.2. Fallbrook does not contend that the
Board’s decision on this point is wrong either as a matter of
fact or law.
Fallbrook additionally contends that the Board’s decision
to award negotiation expenses is contrary to law. In particular,
Fallbrook contends that its misconduct was not as egregious
as the employers’ conduct in Unbelievable, 318 N.L.R.B. 857,
Harowe Servo Controls, 250 N.L.R.B. 958, and other cases in
which the Board has ordered a respondent to reimburse the
charging party for negotiation expenses. Fallbrook’s view of
the applicable precedent is distorted.
The Board has made it clear that:
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[the decision in Unbelievable] . . . did not set the bar for
an award of negotiating expenses at the level of the
misconduct in that case. Nor did the Board in Harowe
Servo Controls set some threshold level of egregiousness
that must be satisfied in order to conclude that an
employer’s conduct infected the core of the bargaining
process.
Hosp. of Barstow, Inc., 361 N.L.R.B. No. 34, slip op. at 5
n.13. The Board’s approach in each case is to weigh the facts
in the record to determine whether a reimbursement of
negotiation expenses is appropriate to “to make the charging
party whole for the resources that were wasted because of the
unlawful conduct, and to restore the economic strength that is
necessary to ensure a return to the status quo ante at the
bargaining table.” Unbelievable, 318 N.L.R.B. at 859. The
Board adhered to this standard in this case.
The Board found that Fallbrook “deliberately acted to
prevent any meaningful progress during bargaining sessions
that were held” and “deprive[d] the [U]nion of the
opportunity to bargain during the time of the [U]nion’s
greatest strength.” Fallbrook, 360 N.L.R.B. No. 73, slip op. at
2 (internal quotation marks omitted). “The Union fruitlessly
expended time and financial resources associated with
arranging dates to be available for bargaining, developing and
drafting proposals and counter-proposals, consulting with the
mediator, and keeping union members apprised of bargaining
efforts.” Br. for NLRB 26. Thus, the Board’s determination
that Fallbrook’s deliberate misconduct so infected the core of
the bargaining process as to justify a reimbursement of
negotiations expenses remedy is supported by substantial
evidence in the record and it is eminently rational.
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“The Board’s discretion in fashioning remedies under the
Act is extremely broad and subject to very limited judicial
review.” St. Francis Fed’n of Nurses & Health Prof’ls v.
NLRB, 729 F.2d 844, 848 (D.C. Cir. 1984). This means that
the court has no business second-guessing the Board’s
judgments regarding remedies for unfair labor practices. The
“choice of remedies is entitled to a high degree of deference”
by a reviewing court. Teamsters Local 115 v. NLRB, 640 F.2d
392, 399 (D.C. Cir. 1981); see also Fibreboard Paper Prods.
Corp. v. NLRB, 379 U.S. 203, 216 (1964) (the Board’s
remedial power “is a broad, discretionary one, subject to
limited judicial review”).
In fashioning an appropriate remedy to address the
substantial unfair labor practices in this case, the Board was
acting at the “zenith” of its discretion. Niagara Mohawk, 379
F.2d at 159. Under this highly deferential standard of review,
we have no basis upon which to overturn the Board’s order
requiring Fallbrook to reimburse the Union for negotiation
expenses.
****
Fallbrook has raised one additional point regarding the
merits of the Board’s decision. It complains that the Board
failed to adequately explain its finding of causation between
Fallbrook’s misconduct and the Union’s losses. Br. of
Petitioner at 26–27. Section 10(e) of the Act prevents us from
considering this argument, however, because it is raised for
the first time on petition for review. See 29 U.S.C. § 160(e)
(“No objection that has not been urged before the Board . . .
shall be considered by the court, unless the failure or neglect
to urge such objection shall be excused because of
extraordinary circumstances.”). “Where, as here, a petitioner
objects to a finding on an issue first raised in the decision of
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the Board rather than of the ALJ, the petitioner must file a
petition for reconsideration with the Board to permit it to
correct the error (if there was one).” Flying Food Group, Inc.
v. NLRB, 471 F.3d 178, 185 (D.C. Cir. 2006).
D. Motion to Remand
As noted at the outset of this opinion, Fallbrook has
requested the court to remand the case to the Board pursuant
to Section 10(e) of the Act to allow the Board to reconsider its
remedy of reimbursement of negotiation expenses in light of
changed circumstances. The disposition of such a motion is
within the “sound judicial discretion of the court.” NLRB v.
Mexia Textile Mills, 339 U.S. 563, 569 (1950) (internal
quotation marks omitted). Finding no merit in Fallbrook’s
request, we deny the motion.
The Board issued its decision and order in this case on
April 14, 2014. On May 21, 2014, Fallbrook notified
Fallbrook Healthcare District, from which it leased the acute
care hospital, that it intended to terminate “nearly all core
services” at that hospital. On December 20, 2014, Fallbrook
terminated the provision of core services at the leased acute
care hospital and terminated the employment of virtually all
of its employees, including all the employees represented by
the Union. From August to December of 2014, Fallbrook and
the Union held several bargaining sessions concerning the
effects of the closure. Apparently, Fallbrook declared impasse
in the effects bargaining in December 2014, with no
agreement having been reached by the parties. The Union has
filed at least three unfair labor practice charges against
Fallbrook arising from the Hospital’s conduct during the
effects bargaining. Opp’n of the NLRB to Mot. to Remand,
Exs. C–E.
17
According to Fallbrook, the “integral changed
circumstances” requiring remand are: (1) the hospital no
longer employs any Union-represented employees; (2) given
the closure of the acute care unit, the parties will never
resume negotiations toward a collective bargaining
agreement; and (3) the parties have reached what appears to
be an interminable impasse over effects bargaining.
Petitioner’s Mot. to Remand 11.
As noted above, the theory underlying Fallbrook’s
motion to remand is that these purported changed
circumstances are “material” because the Board’s decision to
award negotiation expenses rested on two distinct and
severable purposes: one to redress the effect of Fallbrook’s
past misconduct on the Union, and one to provide the Union
prospective strength at the bargaining table. Fallbrook claims
that the latter purpose can no longer be served because of the
closure of the acute care unit, and, therefore, a principal
justification for the Board’s remedy has been undercut. This is
a specious argument and we reject it.
Fallbrook concedes that the Board can – and did –
impose a “make whole” remedy on behalf of the Union. Oral
Argument at 4:05–4:09. Nonetheless, the Hospital contends
that we can read into the Board’s decision a second remedial
purpose to restore strength to the Union solely for prospective
bargaining sessions with Fallbrook. However, Fallbrook
concedes – as it must – that this purported second remedial
purpose is not actually written anywhere in the Board’s
decision; Fallbrook simply “believe[s] it’s implied.” Id. at
4:30. We disagree.
The plain truth here is that Fallbrook’s theory regarding
the Board’s remedy is unsupported by the language of the
Board’s decision. The purpose of the Board’s order – which is
18
plainly stated in its decision – was to reimburse the Union for
resources wasted by attempting in vain to bargain with
Fallbrook, and to restore the status quo ante – i.e., to place
the Union in the same position it was in before the parties
began bargaining. See BLACK’S LAW DICTIONARY 1633 (10th
ed. 2014) (“status quo ante” defined as “[t]he situation that
existed before something else (being discussed) occurred”).
Nothing in the Board’s decision discusses prospective (i.e.,
future) bargaining strength vis-à-vis Fallbrook in the manner
suggested by the Hospital.
Furthermore, nothing in the Board’s decision suggests
that the remedy can be apportioned in the manner urged by
Fallbrook: some percentage to remedy the resources wasted
by the Union in past futile bargaining sessions with Fallbrook
and some percentage for the Union’s prospective power in
bargaining sessions yet to come with Fallbrook. Fallbrook’s
argument makes no sense.
Under established case law, this court has the discretion
to remand a case to the Board to hear additional evidence that
is “material and [for which] there were reasonable grounds for
the failure to adduce such evidence in the hearing before the
Board.” See, e.g., L’Eggs Prods., Inc. v. NLRB, 619 F.2d
1337, 1352 (9th Cir. 1980) (quoting 29 U.S.C. § 160(e)). We
agree with the Board that the “changed circumstances”
alleged in Fallbrook’s motion are irrelevant because they do
not mitigate the injury inflicted on the Union through the
period of futile bargaining. Opp’n of the NLRB to Mot. to
Remand 2. In addition, even taking Fallbrook’s “two prongs”
theory of the Board’s remedy at face value, Fallbrook admits
that it continued to bargain with the Union after the Board
issued its decision and after the acute care unit had been
closed. See Petitioner’s Mot. to Remand 2. Therefore, even if
the Board’s decision contemplated “prospective” relief for the
19
benefit of the Union in future bargaining with Fallbrook, such
future bargaining did occur after the Board issued its order.
Accordingly, even if we were to accept Fallbrook’s theory of
the Board’s decision (which we do not), we would disagree
with Fallbrook that the Board’s rationale for returning the
Union to its status quo ante at the bargaining table was
rendered moot. See id. at 13.
In sum, because we find no material changed
circumstances necessitating a remand of the case to the Board
pursuant to Section 10(e) of the Act, we deny Fallbrook’s
motion.
III. CONCLUSION
For the reasons set forth above, Fallbrook’s petition for
review and motion for remand are denied. The Board’s cross-
motion for enforcement is granted.
So ordered.