District Hospital Partners, L.p., D/ B/ Ageorge Washington University Hospital ,… v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2025 Decided June 27, 2025
No. 24-1134
DISTRICT H OSPITAL PARTNERS, L.P., D/ B/ A GEORGE
W ASHINGTON UNIVERSITY HOSPITAL , A LIMITED
PARTNERSHIP AND UHS OF D.C., I NC ., GENERAL PARTNER,
PETITIONERS
v.
NATIONAL L ABOR RELATIONS BOARD ,
RESPONDENT
1199SEIU UNITED HEALTHCARE W ORKERS EAST ,
I NTERVENOR
Consolidated with 24-1165
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Reyburn W. Lominack, III argued the cause for petitioners.
With him on the briefs were Steven M. Bernstein and Tammie
L. Rattray.

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Kellie J. Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were Ruth E.
Burdick, Deputy Associate General Counsel, Meredith Jason,
Assistant General Counsel, Kira Dellinger Vol, Supervisory
Attorney, and Micah P.S. Jost, Attorney.
G. Micah Wissinger argued the cause for intervenor in
support of respondent. With him on the brief was Daniel J.
Ratner.
Before: SRINIVASAN , Chief Judge, HENDERSON and
CHILDS , Circuit Judges.
Opinion for the Court filed by Circuit Judge CHILDS .
CHILDS , Circuit Judge: The National Labor Relations Act
(NLRA or the Act), 29 U.S.C. § 151 et seq., protects the right
of employees to organize and bargain collectively. That
protection is more than a paper promise. The Act requires both
employers and unions to meet at the table with open minds and
a genuine intent to reach agreement. Thus, when one party’s
proposals abandon compromise and retreat from basic worker
protections, the National Labor Relations Board (NLRB or
Board) has license to scrutinize that conduct under the Act.
This case arises from the collective-bargaining
relationship between a group of entities that manage operations
for a local university hospital and a union representing the
hospital’s service workers. Since 2016, the parties have been
engaged in negotiations over a successor agreement. As
bargaining wore on, the hospital held fast to a trio of proposals
that would have granted it sweeping unilateral control over the
terms and conditions of employment, imposed a no-strike
clause, and eliminated binding arbitration.
The Board concluded that the hospital’s conduct
constituted bad faith surface bargaining in violation of Sections

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8(a)(1) and 8(a)(5) of the NLRA. See 29 U.S.C. § 158(a)(1),
(a)(5). Applying its settled totality-of-conduct test, the Board
found that, when considered together, the hospital’s core
proposals would have left union employees worse off than if
no contract existed at all. Given this, the Board inferred that
the hospital intended to frustrate agreement. The hospital now
petitions for review.
We deny the petition for review and grant the Board’s
cross-application for enforcement. The Board’s factual
findings are supported by substantial evidence, and its legal
conclusions are consistent with governing precedent. Further,
the Board did not abuse its discretion by vacating its initial
decision due to a panel member’s financial conflict of interest
or by seating a panel member for the decision under review. In
so holding, we do not reach the Board’s alternative grounds.
I.
A.
In 1935, Congress enacted the NLRA to promote
industrial peace and safeguard the rights of workers during a
period of profound economic dislocation. See National Labor
Relations Act, Pub. L. No. 74-198, 49 Stat. 449 (1935). As
relevant here, the Act “encourages the practice and procedure
of collective bargaining” as the means by which labor and
management resolve “industrial disputes arising out of
differences as to wages, hours, or other working conditions.”
Glacier Nw., Inc. v. Int’l Bhd. of Teamsters Loc. Union No.
174, 598 U.S. 771, 775 (2023) (citation modified). Because
unequal bargaining power could disrupt commerce and
undermine democratic participation in the workplace,
Congress charged the NLRB with enforcing these rights and

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adjudicating unfair labor practices. See 29 U.S.C. §§ 151, 156–
158, 160.
Section 7 of the NLRA protects employees’ rights to “self-
organization, to form, join, or assist labor organizations, [and]
to bargain collectively through representatives of their own
choosing . . . .” 29 U.S.C. § 157. Two provisions reinforce
those rights. Section 8 of the Act makes it “an unfair labor
practice” for employers “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section
157,” id. § 158(a)(1), or “to refuse to bargain collectively with
the representatives of [their] employees,” id. § 158(a)(5).
Tellingly, the Act defines the duty to bargain as “the
mutual obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of
employment.” 29 U.S.C. § 158(d). That obligation does not
compel either party to reach an agreement or make specific
concessions, but it does require that both parties approach the
bargaining process with a genuine intent to reach agreement.
See Teamsters Loc. Union No. 515 v. NLRB, 906 F.2d 719, 726
(D.C. Cir. 1990). In other words, “rigid adherence to
disadvantageous proposals may provide a basis for inferring
bad faith.” Id. (emphasis in original) (quoting NLRB v. Blevins
Popcorn Co., 659 F.2d 1173, 1187, 1188 (D.C. Cir. 1981)).
B.
Petitioners, District Hospital Partners, L.P., doing business
as The George Washington University Hospital, and Universal
Health Services, Inc. (UHS) (together, the Hospital), manage
and operate a full-service acute care facility in Washington,
D.C. For more than two decades, 1199SEIU United Healthcare
Workers East, MD/DC Region (the Union), an affiliate of the

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Service Employees International Union (SEIU), has
represented a bargaining unit of roughly 150 Hospital
employees providing essential services critical to operations.
Historically, the parties’ relationship reflected stability and
mutual cooperation. No strikes or picketing occurred, most
grievances were resolved short of arbitration, and the two prior
labor agreements were reached within a week without legal
counsel. That collaborative dynamic shifted markedly when
the parties began negotiating for a successor contract to their
2012–2016 collective-bargaining agreement.
Early on, the Hospital expressed its view that the existing
collective-bargaining agreement was antiquated and in need of
wholesale revision. Over the course of thirty bargaining
sessions held between November 2016 and October 2018, the
parties’ relationship became increasingly strained. At the
center of the dispute were three proposals that, in the Union’s
view, threatened to collectively strip workers of baseline rights
they possessed even without a contract: management rights,
no-strike protections, and the scope of grievance-and-
arbitration procedures.
At the second session in December 2016, the Hospital
advanced a proposal for an expanded management rights
clause. That proposal reserved the Hospital’s rights to: (1)
assign unrestricted amounts of bargaining-unit work to
supervisors, (2) subcontract personnel services without
restriction, (3) search employees without notice, (4) discipline
employees without cause, (5) change employee benefits at any
time, (6) determine what positions were part of the unit, (7)
determine the existence of bargaining-unit work, and (8)
determine the extent to which that work could be performed, if
at all. The Hospital also proposed a zipper clause, nullifying
all past practices not memorialized in the collective-bargaining
agreement and crystalizing its authority to “make, change and

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enforce rules, regulations and policies governing employment
and conduct of employees on the job.” J.A. 243.
With its attorney present at the next session, the Union
objected to the proposal, explaining that “[n]o hospital in this
city” permitted discharge without cause or authorized
offensive “[u]nfettered discretion” to search employees. J.A.
549–50. As a mitigation measure, on December 11, the Union
directed supervisors not to “review, discuss or sign any
petition, or anything that looks like a petition with anyone”
warning that “doing so w[ould] disrupt the integrity of the
process.” J.A. 141, 964.
Despite these concerns, the Union substantively engaged
with the Hospital’s management rights proposal. On February
1, 2017, it countered by accepting “22 of 26 subsections” in the
Hospital’s draft while seeking to preserve protections against
discretionary subcontracting of bargaining work, unilateral
changes to benefits, warrantless searches, and the assignment
of bargaining-unit work to non-unit personnel. J.A. 143. The
Hospital responded in late March 2017 by reinstating nearly all
its original language, modifying its proposal only to state that
it would consider “constructive suggestions” at its “sole
discretion.” J.A. 206.
Negotiations over dispute resolution followed a similar
pattern. On March 29, 2017, the Hospital introduced, for the
first time, a no-strike provision that would bar employees from
engaging in picketing or other concerted economic activity,
even if prompted by alleged violations of the collective-
bargaining agreement or federal law. That same day, the
Hospital also proposed a grievance procedure that would
eliminate binding arbitration entirely, permitting only
nonbinding mediation—including disputes involving

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employee terminations. This represented a significant shift
from the Hospital’s earlier position.
In January 2017, the Hospital proposed eliminating
arbitration for “just cause” protections and removal of any
discipline short of discharge from arbitration, limiting
progressive discipline only “where appropriate,” excluding
incidents that the Hospital “deem[ed] as a major infraction of
employee conduct or work rules.” J.A. 142. On January 31,
2017, the Union submitted a written proposal providing for
arbitration of both final written warnings and discharges. The
Hospital rejected the proposal later that same day and reiterated
that arbitration would be limited to discharges.
On April 5, 2017, tensions between the parties continued
to build. In a pointed exchange, the Union relayed that it no
longer believed the Hospital was genuinely interested in
reaching agreement, though it would continue to bargain in
good faith. Afterward, negotiations resumed with the
Hospital’s discipline counterproposal, which added a
requirement to provide timely notice to employees but offered
no clarification on whether grievances would be subject to
arbitration or merely nonbinding mediation.
The Union responded by requesting that the parties
preserve the grievance-and-arbitration provisions from the
expired collective-bargaining agreement. It specifically
objected to the Hospital’s March 29 framework, which
eliminated arbitration altogether—even for terminations—and
proposed nonbinding mediation as the sole means of resolving
disputes. No agreement was reached at the time.
On May 16, 2017, the Union memorialized its growing
frustration in writing. It informed the Hospital that its
continued insistence on a trio of proposals—a nonbinding

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dispute-resolution process, a no-strike clause, and an expansive
management rights provision—reflected an intent not to reach
agreement, but to further undermine the bargaining process. In
response, the Hospital emailed the Union on May 25,
expressing that it was revising its earlier discipline proposal to
mirror its March 29 position for discharge grievances to
proceed only to mediation.
The Union’s opposition remained firm. At the July 31
session, the Union reiterated that it would never agree to a
successor agreement that did not “provide just cause for
disciplin[e] or provide for arbitration” in response to the
Hospital’s April 5 discipline counterproposal. J.A. 146.
Although the parties continued to meet in the months that
followed, the Hospital did not materially revise its position on
the disputed proposals. At that time, negotiations remained
deadlocked.
Nearly ten months later, on March 12, 2018, the Union
filed an unfair labor practice charge with the Board. It alleged
that the Hospital failed to bargain in good faith, engaging in
unlawful surface bargaining by maintaining a set of proposals
that, in combination, would have established a one-sided
grievance-and-arbitration framework, prohibited protected
strike activity, and conferred sweeping unilateral authority on
the Hospital.
On June 7, 2018, the Hospital withdrew its no-strike
proposal but reserved the right to reinstate it if the parties
reached agreement on arbitration. Later, on September 5,
2018, the Union submitted revised proposals on management
rights and grievance-and-arbitration procedures, drawing on
comparable language that the other hospitals had previously
accepted in agreements with the Union. Still, the parties did
not reach agreement.

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A unit employee first circulated a petition to decertify the
Union in March 2018. On October 25, 2018, the Hospital
received that petition signed by 81 of the 156 employees in the
bargaining unit. On October 26, the Hospital withdrew
recognition from the Union via email, canceled all scheduled
bargaining sessions, and informed employees that they would
now be part of a “non-union team.” It then implemented
several unilateral changes.
C.
1.
Prompted by the Union’s March 2018 filing, the Board’s
General Counsel issued a complaint alleging that the Hospital
violated Sections 8(a)(1) and 8(a) (5) of the NLRA. J.A. 137,
822–30. Following a hearing, an Administrative Law Judge
(ALJ) issued a detailed decision sustaining the complaint. J.A.
137–61.
The ALJ concluded, among other things, that “[t]he
Hospital ha[d] violated Section 8(a)(5) and (1) of the Act by
bargaining in bad faith during negotiations with no intention of
reaching a successor collective-bargaining agreement,” J.A.
159. Specifically, the ALJ found that the Hospital adhered to
proposals reducing employees’ rights below the statutory
baseline, including a restrictive grievance-arbitration
procedure lacking binding arbitration, a no-strike clause, and a
broad management rights clause. Id. The ALJ also found
evidence of regressive bargaining, noting that the Hospital
initially proposed discharges be subject to grievance-
arbitration and later replaced that with a procedure ending in
nonbinding mediation. Id.

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2.
The Board’s review of this case unfolded in three phases.
In its initial decision, a divided Board reversed the ALJ’s
finding of surface bargaining, holding that the General Counsel
had not established the Hospital’s subjective intent to frustrate
agreement, concluding instead that the Hospital engaged in
lawful hard bargaining. See Dist. Hosp. Partners, L.P. (DHP
I), 370 NLRB No. 118, at 1–2, 6–10 (Apr. 30, 2021). The
majority emphasized the protracted nature of the negotiations,
the Union’s acceptance of many management rights
provisions, and the volume of proposals exchanged, suggesting
these facts were inconsistent with bad faith. Id. at 6–10.
Shortly after issuing DHP I, the Board learned that then-
Member William J. Emanuel, who joined the majority, owned
shares in a healthcare mutual fund that included UHS, the
Hospital’s parent company. See Dist. Hosp. Partners, L.P.
(DHP II), 372 NLRB No. 109, at 1 (July 25, 2023). The
Board’s Designated Agency Ethics Official (DAEO)
determined that Member Emanuel should have been
disqualified because his “participation violated a criminal
statute, 18 U.S.C. § 208(a), and its implementing regulations,
5 C.F.R. § 2640.201(b)(2)(i).” DHP II, 372 NLRB No. 109, at
1. As a result, the Board vacated DHP I and ordered the case
to be reheard by a reconstituted panel. Id.
The reconstituted panel included Member David M.
Prouty. He confirmed that his past work for a different SEIU
affiliate did not create a conflict with this case. J.A. 62 n.1.
After consulting the Board’s DAEO, Member Prouty
determined that his participation would neither raise the
appearance of bias nor violate ethics rules. J.A. 62–65. The
Board likewise noted that Member Prouty’s previous union
affiliation was in a different locale and bore no direct

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connection to the dispute at hand. See DHP II, 372 NLRB No.
109, at 1 n.3, 7 n.22.
On final review, the reconstituted Board adopted the
ALJ’s findings and conclusions,1 determining that the
Hospital’s conduct constituted bad faith bargaining under
settled precedent. See Dist. Hosp. Partners, L.P. (DHP III),
373 NLRB No. 55, at 1, 6–7 (2024). The Board ordered the
Hospital to recognize and bargain with the Union, rescind the
unilateral changes implemented after withdrawing recognition,
compensate affected employees, post a remedial notice, and
submit periodic reports on bargaining progress—modifying the
ALJ’s recommended remedy to clarify the Hospital’s
bargaining obligations and ensure compliance. Id. at 12, 14.
The Hospital timely petitioned for review, and the Board
filed its cross-application for enforcement thereafter.
II.
We have jurisdiction to review the Board’s decision. 29
U.S.C. § 160(e), (f). While our review of the Board’s “unfair
labor practice determinations is quite narrow,” Troutbrook Co.
v. NLRB, 107 F.4th 994, 1000 (D.C. Cir. 2024) (quoting
Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92, 99 (D.C.
Cir. 2000)), it is not “merely [a] rubber-stamp,” Erie Brush &
Mfg. Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012) (quoting
1 The parties also disputed several other provisions in the Hospital’s
proposals during bargaining, including disciplinary procedures,
union-security clauses, and wages. The Board found that these
proposals provided additional indicia of bad faith. DHP III, 373
NLRB No. 55, at 8. While those provisions may further support the
Board’s finding of bad faith in violation of the Act, we confine our
review to the Board’s assessment of the Hospital’s core proposals.

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Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991).
“We must uphold the judgment of the Board unless, upon
reviewing the record as a whole, we conclude that the Board’s
findings are not supported by substantial evidence, or that the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” 2 Troutbrook Co., 107
F.4th at 1000 (quoting Wayneview Care Ctr. v. NLRB, 664 F.3d
341, 348 (D.C. Cir. 2011)).
“Substantial evidence requires enough ‘relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.’” Id. at 1000 (quoting Micro Pac. Dev., Inc. v.
NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999)). We will not
“displace the Board’s choice between two fairly conflicting
views” when evaluating findings of fact, “even though [we]
would justifiably have made a different choice had the matter
been before [us] de novo.” Regal Cinemas, Inc. v. NLRB, 317
F.3d 300, 306–07 (D.C. Cir. 2003) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
“We review the Board’s procedural rulings for an abuse of
discretion.” Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39
(D.C. Cir. 2020). That includes our review of “an agency
member’s decision not to recuse himself from a proceeding[.]”
Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154,
2 In light of the Supreme Court’s decision in Loper Bright Enters. v.
Raimondo, 603 U.S. 369 (2024), the Hospital urges us to “avoid any
inclination to defer to the Board’s construction of the duty to bargain
in ‘good-faith’ imposed by the NLRA.” Pet’rs’ Opening Br. 31 n.15.
That argument is waived. “We need not consider cursory arguments
made only in a footnote,” Iowaska Church of Healing v. Werfel, 105
F.4th 402, 414 (D.C. Cir. 2024) (citation modified) (quoting
Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir.
1999) (en banc)), and the Hospital raises this point only vaguely.

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1164 (D.C. Cir. 1995) (citing Air Line Pilots Ass’n, Int’l v. U.S.
Dep’t of Transp., 899 F.2d 1230, 1232 (D.C. Cir. 1990)).
III.
The Hospital contends that the Board erred in concluding
that its conduct amounted to bad faith surface bargaining in
violation of Sections 8(a)(1) and 8(a)(5) of the NLRA.
According to the Hospital, it merely tested its leverage through
a combination of proposals, seeking substantial, sincere, and
justified concessions, while remaining open to discuss
positions and entertain counterproposals. It further argues that
the Board’s findings are unsupported by substantial evidence
and conflict with settled precedent. Finally, the Hospital raises
two procedural objections: first, to the Board’s vacatur of DHP
I due to Member Emanuel’s financial conflict of interest, and
second in reseating a Member Prouty in DHP III.
We conclude that the Board’s findings are fully supported
by substantial evidence and that its application of settled law is
sound. The record as a whole demonstrates that the Hospital’s
conduct reflected a broader failure to bargain in good faith
under the NLRA. Additionally, the Board did not abuse its
discretion by vacating DHP I upon discovering Member
Emanuel’s financial conflict of interest or by seating Member
Prouty on the panel in DHP III. We address each in turn.3
3 Under the presumption that its conduct was lawful hard bargaining,
the Hospital contends that it likewise lawfully withdrew recognition
from the Union and therefore had no obligation to continue
bargaining. Because we sustain the Board’s finding of bad faith
bargaining, we also uphold the Board’s conclusion that the Hospital
unlawfully withdrew recognition and unilaterally changed the terms
of employment.

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A.
The Board applied its well-established framework,4 which
evaluates “the totality of the employer’s conduct.” See
Teamsters Loc. Union No. 515, 906 F.2d at 726 (citations
omitted). Total conduct includes “previous relations of the
parties, antecedent events explaining behavior at the
bargaining table, and the course of negotiations [that]
constitute the raw facts for reaching such a determination.’”
Loc. 833, Int’l Union, United Auto., Aircraft & Agr. Implement
Workers of Am. v. NLRB, 300 F.2d 699, 706 (D.C. Cir. 1962)
(quoting NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154 (1956)
(Frankfurter, J., concurring)). That inquiry distinguishes
lawful hard bargaining from surface bargaining—conduct
designed “to frustrate the possibility of arriving at any
agreement,” Altura Commc’n. Sols., LLC, 369 NLRB No. 85,
slip op. at 1, or aimed at “sabotaging the negotiations to
manufacture an impasse while making a show of negotiating in
good faith.” ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1444
(D.C. Cir. 1997).
Although the Board does not compel particular substantive
concessions, it may evaluate whether the nature and
persistence of a package of bargaining demands reflect an
absence of good-faith intent, as measured by objective indicia.
See Reichhold Chems., 288 NLRB at 69; United Steelworkers
of Am. v. NLRB, 441 F.2d 1005, 1010 (D.C. Cir. 1970), cert.
4 See, e.g., NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 508
(1960); Reichhold Chems., 288 NLRB 69, 69 (1988), enforced sub
nom. Teamsters Loc. Union No. 515, 906 F.2d at 719, cert. denied
sub nom. Reichhold Chems. Inc. v. Teamsters Loc. Union No. 515,
498 U.S. 1053 (1991); Pub. Serv. Co. of Okla. (PSO), 334 NLRB
487, 487–88 (2001), enforced, 318 F.3d 1173 (10th Cir. 2003);
Altura Commc’n. Sols., LLC, 369 NLRB No. 85, slip op. at 1 (May
21, 2020), enforced mem., 848 Fed. Appx. 344 (9th Cir. 2021).

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denied sub nom. Fla. Mach. & Foundry Co. v. NLRB, 409 U.S.
846, (1971) (observing that a party’s insistence upon “a
particularly disadvantageous proposal” may infer “some
degree of bad-faith”). Such an inference may be warranted
where “the employer’s proposals, taken as a whole, would
leave employees with substantially fewer rights and less
protection” than they would enjoy under the Act in the absence
of a contract. PSO, 334 NLRB at 487–88 & n.4 (collecting
cases). In those circumstances, the union may be effectively
excluded from meaningful participation in the bargaining
process, thereby undermining its statutory role and “stripping
it of any meaningful method of representing its members in
decisions affecting important conditions of employment and
exposing the employer’s bad-faith.” Id. at 488 (citing A-1 King
Size Sandwiches, Inc., 265 NLRB 850, 859 n.4 (1982)).
Here, the Board examined a trio of proposals pressed by
the Hospital and determined that their cumulative effect would
strip the Union’s representational role to such a degree as to
nearly nullify it. DHP III, 373 NLRB No. 55 at 4–5. In the
Board’s view, even if certain of the individual proposals could
be advanced in good-faith as part of the give and take of the
bargaining process, the combination of the measures could not
reasonably be expected to produce agreement and was in fact
“designed to frustrate the collective-bargaining process.” Id. at
5. Below, we address each of the Hospital’s three proposals
before turning to their cumulative impact, which was the basis
of the Board’s ruling. We find that the Board’s findings are
supported by substantial evidence and well-settled law.
1.
We begin with the Board’s finding that the Hospital’s
management rights proposal would have granted it sweeping
unilateral control over key terms and conditions of

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employment, absent bargaining or proper notice to the Union.
That proposal authorized the Hospital to reassign work,
subcontract without limit, search employees without notice,
impose discipline without cause, alter benefits, and redefine or
eliminate bargaining-unit work. DHP III, 373 NLRB No. 55,
at 4. The inclusion of a zipper clause further broadened that
authority by nullifying past practices not expressly included in
the agreement. The Board found that these provisions together
afforded the Hospital “unfettered discretion to change virtually
all aspects of bargaining unit operations[.]” Id.
The record supports the Board’s view that this
combination signaled intent to marginalize the Union.
Indisputably, the Union engaged with the proposal, accepted
most subsections while preserving key protections, and
submitted counteroffers. Id. at 3. Yet, after four months
without bargaining, in late March 2017, the Hospital reverted
to its initial language and simply stated it would consider the
Union’s suggestions “at its sole discretion.” Id. The Board
reasonably inferred that the Hospital’s management rights
proposal would have stripped the Union of its statutory right to
bargain, without offering anything in return for such a
concession. Id. at 6.
That inference aligns with Board precedent and our own.
This Court has long made clear that “the allocation of work to
a bargaining unit is a term and condition of employment,” and
that “an employer may not unilaterally attempt to divert work
away from a bargaining unit without fulfilling its statutory duty
to bargain.” Regal Cinemas, Inc., 317 F.3d at 311 (quoting Rd.
Sprinkler Fitters Loc. Union No. 669 v. NLRB, 676 F.2d 826,
831 (D.C. Cir. 1982)). Board precedent echoes that principle,
repeatedly condemning proposals that would permit employers
“unrestrained license to . . . effectively dissipate unit work”
absent input from the union. Liquor Indus. Bargaining Grp.,

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333 NLRB 1219, 1221 (2001), enforced, 50 F. App’x 444
(D.C. Cir. 2002).
Moreover, even a partially revised proposal may support a
finding of bad faith if it preserves broad employer discretion
and forecloses meaningful union participation. See Altura
Commc’n. Sols., LLC, 369 NLRB No. 85, slip op. at 5
(explaining that proposals leaving “no avenue to challenge any
of the [employer’s] decisions” amount to surface bargaining).
That was true here. The Hospital’s assurance that it would
consider the Union’s suggestions as it saw fit preserved
unilateral control and reflected no genuine move toward
compromise.
The Hospital contends that the Board mischaracterized its
conduct as surface bargaining. It asserts that the management
rights proposal was lawful hard bargaining, offered as a
starting point for discussion rather than a final demand, and that
it made itself available to explain the proposal. Pet’rs’ Opening
Br. 35–36. The Hospital also cites its responses to the Union’s
counteroffers, revisions to its proposal, and eventual agreement
on provisions the Union accepted. Id. at 36.
But the Hospital misunderstands the standard. Mere
insistence on a management rights clause is not necessarily
unlawful. See Teamsters Loc. Union No. 515, 906 F.2d at 726
(“Adamant insistence on a bargaining position . . . is not in
itself a refusal to bargain in good faith.”). Nor is it improper
for a union to trade limitations for gains elsewhere. See
Hydrotherm, Inc., 302 NLRB 990, 994 (1991). But where, as
here, an employer presses for near-total control without
offering meaningful concessions, the Board may reasonably
infer an intent to frustrate agreement. See PSO, 334 NLRB
487, 487 (2001).

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Accordingly, substantial evidence and settled law supports
the Board’s conclusion that this proposal, and the surrounding
conduct contributed to a finding of bad faith bargaining.
2.
We next consider the Board’s finding that the Hospital’s
no-strike proposal reflected bad faith bargaining. Introduced
months into negotiations and paired with a sweeping
management rights clause, the proposal broadly prohibited
concerted economic activity. DHP III, 373 NLRB No. 55, at
5. The Board reasonably explained that this proposal sought
“unfettered unilateral rights . . . and the unconditional surrender
of the employee’s statutory right to strike, picket, or use
economic weapons to contest, change, or ameliorate the
[Hospital’s] conduct.” Id. Although the Hospital withdrew the
proposal after the Union filed an unfair labor practice charge,
it expressly reserved the right to reinstate it. Id. at 4. Viewed
in context, the Board reasonably inferred that the Hospital’s
timing and conditional nature of the withdrawal underscored a
lack of genuine bargaining intent.
The Hospital responds that the Board misunderstood the
scope of its proposal. It argues that the no-strike provision
simply carried forward the “no-strikes or lockouts” clause from
the prior agreement and did not overreach. The Hospital also
claims the clause imposed mutual restraints and that its
withdrawal in June 2018 reflected a good-faith effort to
compromise.
The Board’s reasoning accords with established law.
Longstanding precedent makes clear that a no-strike clause is
typically exchanged for a binding dispute-resolution
mechanism—a quid pro quo balancing employee rights and
employer interests. Id. at 6 (first citing Textile Workers v.

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Lincoln Mills, 353 U.S. 448, 455 (1957) (“[T]he agreement to
arbitrate grievance disputes is the quid pro quo for an
agreement not to strike”); and then United Steelworkers v. Am.
Mfg. Co., 363 U.S. 564, 567 (1960) (“[O]ne is the quid pro quo
for the other”)). The Hospital’s proposal upset that balance by
pairing a broad no-strike clause with the elimination of binding
arbitration. This grouping effectively insulated the Hospital
from meaningful challenges. As the Board reasonably found,
that combination would have left the Union with no viable
means of protest or enforcement, depriving it of a core statutory
function and rendering its role effectively illusory. See PSO,
334 NLRB, at 488.
Moreover, the negotiation context further supports the
Board’s conclusion. The Board reasonably explained that, by
pairing the no-strike proposal with the simultaneous
elimination of binding arbitration, the Hospital would have
“stripped the Union of its statutory right to strike and rejected
any commitment to arbitrate disputes.” DHP III, 373 NLRB
No. 55, at 6. Importantly, while the parties had previously
agreed to a no-strike clause as part of a balanced agreement that
included binding arbitration, here the Hospital proposed a no-
strike obligation while simultaneously eliminating that dispute-
resolution mechanism. The absence of such balance reflected
an intent to frustrate the possibility of agreement.
Viewed in this light, the Board’s factual findings were
supported by substantial evidence, and its error free legal
conclusions reflect a proper application of settled law.
3.
Next, we evaluate the Board’s finding that the Hospital’s
grievance-and-mediation proposal reflected bad faith
bargaining. The proposal eliminated binding arbitration and

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substituted nonbinding mediation for all disputes involving
terminations, marking a substantial retreat from the Hospital’s
earlier positions. DHP III, 373 NLRB No. 55, at 3. That
change left employees without a meaningful mechanism to
challenge adverse actions. Id. at 5.
After introducing the arbitration-eliminating proposal on
March 29, 2017, the Hospital revised its discipline proposal on
May 25 to align with a mediation-only model. Id. at 3–5.
Despite repeated objections from the Union, the Hospital
maintained that position through June 7, 2018. The Board
reasonably concluded that this sustained insistence supported
an inference of bad faith.
The Hospital responds that arbitration was not
categorically foreclosed. It claims the Union could have tested
its flexibility through counterproposals. It also points to its
January 2017 discipline proposal, which included arbitration
for discharges, as evidence of compromise.
The Board’s reasoning is consistent with established law.
As the Board has long recognized, regressive proposals—those
that materially reduce or retract previous offers—may
evidence bad faith where they are unjustified. See Mid-
Continent Concrete, 336 NLRB 258, 260 (2001) (“Where the
proponent of a regressive proposal fails to provide an
explanation for it . . . the Board may weigh that factor in
determining whether there has been bad faith bargaining.”),
enforced, 308 F.3d 859 (8th Cir. 2002). The Hospital’s shift to
nonbinding mediation fits that pattern. Its reliance on an earlier
proposal that included arbitration is unavailing given that it
later withdrew that offer and held firm to a mediation-only
stance for over a year. The Board properly focused on the
Hospital’s final positions and sustained conduct, rather than on
preliminary offers it later abandoned.

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Moreover, the Board reasonably declined to penalize the
Union for not making counterproposals on the grievance
proposal. The Union had already objected to the Hospital’s
position, and the ALJ credited testimony that further discussion
would have been futile. As this Court has explained, a union
“should not be compelled to continue the charade for more
sessions” where the employer has clearly signaled that further
bargaining would be fruitless. NLRB v. Wright Motors, Inc.,
603 F.2d 604, 608 (D.C. Cir. 1979).
Thus, the Board’s view that the Hospital’s proposal
precluded the employees and the Union from securing a
binding dispute-resolution mechanism for addressing alleged
violations of the agreement is both factually supported and
legally sound.
4.
Finally, we review the Board’s finding that the Hospital’s
maintenance of its trio of proposals over fourteen months
reflected bad faith bargaining. The record shows that the
Union regularly attended sessions, raised objections, and made
concessions, while the Hospital maintained largely unchanged
positions. The Board credited the Union’s May 2017 letter
expressing that the Hospital’s intransigence signaled an intent
to subvert bargaining. DHP III, 373 NLRB No. 55, at 5.
Viewed in light of the full bargaining history, the Board
reasonably inferred that this conduct constituted surface
bargaining.
The cumulative impact of these proposals supports the
Board’s inference of bad faith. The Union would have been
required “to cede substantially all of its representational
function,” destroying the Union’s “ability to function as the

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employees’ bargaining representative,” suggesting the
Hospital “could not seriously have expected meaningful
collective bargaining.” Id. at 7 n.14 (quoting PSO, 334 NLRB
at 489). The management rights clause conferred unfettered
discretion over bargaining-unit work, the no-strike clause
prohibited all protest activity, and the grievance procedure
offered no viable mechanism to challenge management
decisions. Together, these terms would have left employees
“with fewer rights than they would have without a contract”—
a hallmark of surface bargaining. See id.; Target Rock, 324
NLRB 373, 386 (1997), enforced, 172 F.3d 921 (D.C. Cir.
1998) (“An employer acts in bad faith when . . . it
simultaneously insists on a broad management rights clause, a
no-strike provision, and no effective grievance-and-arbitration
procedure.”).
The Board’s conclusion aligns with settled law. Courts
and the Board alike have found that simultaneous insistence on
these provisions, especially when maintained throughout the
bargaining period, signals bad faith. See PSO, 334 NLRB at
487–88; Wright Motors, Inc., 603 F.2d at 608. Although the
Hospital withdrew the no-strike clause in June 2018, that
retreat followed the Union’s unfair labor practice charge and
did not cure the pattern of obstruction. See DHP III, 373
NLRB No. 55, at 7. An employer cannot erase bad faith by
offering concessions only after legal intervention.
Thus, the Board’s view that the Hospital’s maintenance of
its triad of proposals amounted to surface bargaining is both
factually supported and legally sound.
****

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Overall, we uphold the Board’s determinations that the
Hospital’s conduct amounted to bad faith surface bargaining in
violation of Sections 8(a)(1) and 8(a)(5) of the NLRA.
B.
1.
The Hospital contends that the Board erred by vacating its
2021 decision in DHP I, which reversed the ALJ’s finding of
surface bargaining. The Board vacated that decision after
discovering that then–Board Member Emanuel, who joined the
majority in DHP I, owned stock in UHS, the Hospital’s parent
company. The Hospital argues that vacatur was unnecessary
because there is no evidence that Member Emanuel was aware
of the conflict or that it influenced the outcome.
That argument misses the mark. Federal law categorically
bars government officials from participating in matters in
which they or their families hold a financial interest—
irrespective of actual bias or knowledge. See 18 U.S.C. §
208(a); see also 5 C.F.R. § 2635.402(a), (b)(1)(ii). The
Supreme Court has emphasized that the Due Process Clause
requires not only actual fairness in adjudication, but also the
appearance of fairness. See Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 883–84 (2009). In Caperton, the Court held that
due process is violated when an adjudicator’s financial interest
creates a “possible temptation” to rule for one party—even in
the absence of clear proof of bias. Id. at 886. Caperton teaches
that recusal is required where “the probability of actual bias on
the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Id. at 872 (citation omitted).
The same principle applies in administrative adjudication.
In Metro. Council of NAACP Branches v. FCC, we rejected a

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challenge to an agency’s decision based on allegations of bias,
explaining that recusal claims must rest on specific evidence of
actual bias, rather than generalized concerns about fairness. 46
F.3d 1154, 1164–65 (D.C. Cir. 1995). Nevertheless, Metro.
Council does not suggest that recusal is required only when
specific evidence of actual bias exists. Rather, as Caperton
makes clear, both statutory ethics rules and constitutional
standards demand recusal when a decisionmaker’s financial
interests create a risk of bias that is too high to be tolerated.
Here, the Board acted well within its discretion in vacating
DHP I. Once Member Emanuel’s conflict came to light, the
Board promptly vacated its decision to preserve the integrity of
its proceedings and demonstrate its commitment to fair
adjudication. See In re NLRB, 304 U.S. 486, 494 (1938); DHP
II, 372 NLRB No. 109, at 8. In doing so, the Board expressly
acknowledged ExxonMobil Rsch. & Eng’g Co., 371 NLRB No.
128 (2022), explaining that vacatur was necessary to uphold
public confidence in agency decision-making and to
demonstrate the Board’s integrity. DHP II, 372 NLRB No.
109, at 2–4.
Therefore, the Board acted within its discretion in vacating
DHP I, and complied with both statutory ethics requirements
and constitutional standards of due process.
2.
The Hospital also argues that Member David Prouty
should have been disqualified from participating in DHP III
because of his prior role as general counsel to SEIU Local
32BJ, an affiliate of the Union’s parent organization. It claims
that this history created an appearance of bias.

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This argument is unpersuasive. As the Board explained in
DHP II, Member Prouty’s former role with SEIU 32BJ
involved a different geographic region with no direct
involvement in this dispute. 372 NLRB No. 109, at 1–2 & n.3
(referencing Member Prouty’s opinion with the Notice to Show
Cause). Member Prouty himself clarified that his past
representation of a different union affiliate did not create a
conflict in this matter. J.A. 62 n.1. Moreover, after consulting
the Board’s DAEO, Member Prouty reasonably concluded that
his participation would not create an appearance of bias or
violate ethics standards. J.A. 62–65.
The Board’s conclusion that there was no actual conflict,
no personal interest, and no statutory or regulatory basis for
disqualification was well within its discretion. DHP II, 372
NLRB No. 109 at 7 n.22. That conclusion aligns with DAEO
guidance and the standards under 5 C.F.R. § 2635.502, which
provides that past employment alone does not automatically
create an appearance of bias; rather, the analysis depends on
whether the former employer is a party to the matter or
maintains a close personal relationship that could reasonably
raise questions about impartiality. The Hospital has not even
attempted to suggest that either circumstance is present here.
Further, the Board’s approach is consistent with general
principles of administrative law. See Napleton 1050, Inc., 976
F.3d at 39 (reviewing the agency’s “procedural rulings for an
abuse of discretion”). Here, a far cry from issuing a
perfunctory decision, the Board in DHP III undertook a
comprehensive reevaluation of the record. It adopted the
ALJ’s findings in full, reaffirmed the ALJ’s credibility
determinations, and carefully applied the legal standards set
forth in PSO and Altura Commc’n. Sols., LLC. See DHP III,
373 NLRB No. 55, at 2–8.

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In light of these facts, Member Prouty’s participation in
DHP III was lawful, appropriate, and did not impair the
fairness or validity of the Board’s decision.
IV.
We deny the Hospital’s petition for review and grant the
Board’s cross-application for enforcement.
So ordered.

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