Asociacion Hospital Del Maestro, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1984

272 N.L.R.B. 853 (N.L.R.B. 1984)

ASOCIACION HOSPITAL DEL MAESTRO 853
Asociacion Hospital del Maestro, Inc. and Union de
Tronquistas de Puerto Rico, Local 901, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 24-CA-4642
19 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 March 1983 Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified.
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(1) by threatening
employees with discharge or cessation of the die-
tary department operations, if they did not discon-
tinue their support for the Teamsters and with his
failure to find certain other alleged violations of
Section 8(a)(1). We also agree with his finding that
the Respondent subcontracted its dietary oper-
ations for economic reasons and did not violate
Section 8(a)(3). We disagree with his finding that
the Respondent did not unlawfully interrogate em-
ployee Feliciano Roman Melendez.
Roman visited head dietician Herrero's office
where Diaz, another dietician and admitted super-
visor, also worked. Diaz said, "Hey, Mr. Feliciano,
I did not know that you belonged to the Tronquis-
tas' [Teamsters] union." The General Counsel con-
tends that this comment was an unlawful interroga-
tion and created the impression of surveillance of
employees' union activity in violation of Section
8(a)(1). The judge found the comment too nebulous
to constitute an unlawful interrogation and further
' The General Counsel has excepted to some of the Judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law Judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 We agree with the Judge that the Respondent did not violate Sec
8(a)(3) and (I) of the Act by subcontracting its dietary department oper-
ations We find that, although the General Counsel made a prima facie
showing of discrimination, the Respondent proved that, absent any un-
lawful motive, It would have subcontracted the dietary department for
economic reasons Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d
899 (1st Car 1981)
found that, because the Teamsters campaign and
the employees' support of it were well known to
the Respondent, the comment did not create the
impression of surveillance.
We agree that Diaz' comment did not create the
impression of surveillance. We do find, however,
that it was an unlawful interrogation. The remark,
considered in context, was clearly an inquiry that
called for (and obtained) a response. We note that
Diaz made the remark in the office in which she
and the head dietician worked. Thus, under all cir-
cumstances, we find that Diaz' comment was an
unlawful interrogation of Roman about his union
activity and violated Section 8(a)(1) of the Act.
Rossmore House, 269 NLRB 1176 (1984).3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Asociacion Hospital Del Maestro, Inc.,
Hato Rey, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(b) and re-
letter the present paragraph 1(b).
"(b) Interrogating our employees with respect to
their support of the Teamsters."
2. Substitute the attached notice for that of the
administrative law judge.
3 Chairman Dotson agrees with the Judge that this conversation is not
violative of the Act
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with discharge or
cessation of our dietary operations or of any other
272 NLRB No. 132
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department if you continue your support for the
Teamsters, or if you do not withdraw your support
of the Teamsters
WE WILL NOT coercively question you about
your union support or activities
WE WILL NOT in any like or related manner
interfere with, restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
ASOCIACION HOSPITAL DEL MAESTRO, INC
DECISION
STATEMENT OF THE CASE
BRUCE C NASDOR Administrative Law Judge This
case was tried at Hato Rey Puerto Rico on September
15 16 and 17 1982 The complaint alleges several in
stances of independent violations of Section 8(a)(1) of the
National Labor Relations Act (the Act) and a violation
of Section 8(a)(3) of the Act by the subcontracting of
Respondent s dietary department resulting in the dis
charge of the employees who were employed in this de
partment
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs 1 I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material herein Respondent has main
tamed its principal office and place of business at Aven
ida Domenech Final Hato Rey in the city of San Juan
and Commonwealth of Puerto Rico where it is and has
been at all times material herein engaged as a health
care institution in the operation of the hospital providing
hospital medical and related health care services
During the past year which period is representative of
its annual operations generally Respondent in the
course and conduct of its hospital operations derived
gross revenues in excess of $250 000 and during the
same period of time purchased and caused to be shipped
and delivered to its place of business directly to points
and places located outside the Commonwealth of Puerto
Rico materials and supplies valued in excess of $50 000
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act and a
health care institution within the meaning of Section
2(14) of the Act
' On December 6 1982 Respondent filed a reply brief On December
7 1982 the General Counsel filed a motion to strike Respondent s reply
brief The General Counsel contends that Sec 102 42 of the Board s
Rules and Regulations does not allow for the filing of reply briefs to the
administrative law judge On December 10 1982 Respondent filed a
motion in opposition to motion to strike Respondent s reply brief I have
carefully reviewed the record in this case and therefore am aware of any
inaccuracies in the initial briefs or statements therein not supported by
the record Accordingly the General Counsel s motion is granted
Ii THE LABOR ORGANIZATION
Union de Tranquistas de Puerto Rico Local 901 a/w
International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpeis of 'Amenca 2 (the Union) is
a labor organization within the meaning of Section 2(5)
of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
For the past 20 years the incumbent Union (Confeder
acion) has represented Respondent s employees in the di
etary cleaning maintenance laundry and storeroom de
partments The last collective bargaining agreement was
to expire on March 2 1982 3 In November 1981 the
Teamsters commenced an organizational campaign
among Respondent s dietary employees
For many years Respondent s other rank and file em
ployees were represented by three other unions in seven
units with seven separate collective bargaining agree
ments The parties stipulated that Gladys Cintron de
Herrero head dietitian and Carmen Diaz de Campos di
etitian were supervisors of Respondent within the mean
ing of the Act
Moises Colon an assistant cook testified that in the
beginning of January when he was in the dietary depart
ment office checking menus Herrero told him Well
don t continue on that because you are going to be fired
from the job According to Colon s testimony Herrero
did not say what that was On another occasion
Colon testified that while he was checking menus Her
rero told him they are bomb placers and nothing else
was said Similarly on another occasion Herrero told
Colon not to continue on that because due to their fault
they were all going to be fired from the job
Colon also testified that on six occasions in January in
the dietary department Diaz told him those men from
the Tronquistas 4 are bomb placers and destructors Ac
cording to Colon Diaz' went on to say for us to be
careful for what we were doing that in due time things
have a remedy
Feliciano Roman Melendez testified that he visited
Herrero s office to pick up menus when Diaz said
Hey Mr Feliciano I did not know that you belonged
to the Tronquistas union Roman allegedly answered
that he did belong to the Tronquistas union because he
had to be with his coworkers Earlier in his testimony
Roman testified to which she [Diaz] responded that
that was going to cost us our job Later when asked to
quote eactly what was said by Diaz and himself this por
tion was eliminated from his testimony
Witnesses called by the General Counsel testified that
around the end of January or the beginning of February
Herrero called a meeting at approximately 12 30 p m of
the diet department employees which was held in the
kitchen area It was attended by Herrero Diaz and an
other supervisor Lucy Marengo Approximately 12 to
15 employees were present at the meeting
2 The Union s name appears as amended by severance of cases
3 All dates are in 1982 unless otherwise indicated
4 Teamsters
ASOCIACION HOSPITAL DEL MAESTRO 855
The following is a composite of the testimony by wit
nesses in attendance at this what appears to be an ex
temporaneous meeting Herrero commenced the meeting
by stating that its purpose was to speak to the employees
about problems in the dietary department She stated that
the administration was not too happy with the dietary
employees because they had been collecting signatures
for the Tronguistas union and the administration did not
want that union in the hospital According to the testi
mony she stated additionally that the Tronguistas union
was a bad union the union placed bombs burned down
businesses and had closed down innumerable factories in
Puerto Rico Employee Patnlla asked Herrero how was
it that she could speak that way about the Union since
she did not know that union Herrero replied that she
had received the information Patnlla also stated that the
employees wanted to change unions because they were
discontented and wanted a new union
Herrero stated that if the employees persisted in bring
ing the Union into the hospital all the employees would
lose their jobs because they would all be fired Herrero
stated further that Respondent would accept any union
the employees chose to have except the Tronguistas
who would never enter Respondent s hospital Herrero
told the employees to stop following the lead of two or
three employees who were collecting cards that in doing
so they looked like mummies
Another employee Colon told Herrero that the em
ployees were of legal age and knew what they were
doing Herrero responded by stating to the employees
that they had good benefits and they should not be col
lecting signatures for the Union because the incumbent
union was a good union Employee Parnlla replied that
the employees had a right to choose another union That
concluded the meeting
No collective bargaining agreement had been reached
between Respondent and the incumbent the Confedera
cion on March 2 when the old agreement expired On
that date Respondent and the confederation entered into
a stipulation extending the agreement for approximately
30 days to expire at midnight on April 7
On March 4 the Tronquistas Union filed an RC peti
ton in Case 24-RC-6708
On March 19 the Acting Regional Director dismissed
the petition by concluding that the extension of the con
tract constituted a contract bar On March 31 the appli
cable Board law was changed by Crompton Co 260
NLRB 417 (1982) which held that an extension of a col
lective bargaining agreement for less than 90 days would
not bar a petition filed during the terms of the contract
Therefore the Acting Regional Director issued an order
revoking the order withdrawing the notice of hearing
and notification of dismissal of petition and order reshe
duling hearing On the following day April 1 Respond
ent terminated its dietary department personnel consist
mg of approximately 35 employees
In early March Diaz entered the area of the kitchen
near the dishwashers where several employees among
them Robles and Baez were waiting to begin their shift
They were discussing the Union with Ramos a kitchen
employee who was working at the time According to
the testimony of Robles Diaz saw them talking about
the Union and she told them to stop talking about the
Union that that union was a bomb placing union and
that if we were to insist upon that we could lose our
jobs Robles who furnished the Board with two sepa
rate sworn affidavits placed these alleged remarks by
Diaz to have occurred during November 1984 Both
statements were consistent in this regard
According to the testimony of Baez Diaz told the em
ployees Desist from the Tronguistas union She stated
further according to the testimony Those people
placed bombs and kicked supervisors You are adults al
ready don t let yourselves be led by two or three charla
tan s that are around According to Baez Diaz then
stated If you bring the Tronguistas union in here you
are all going to be left without jobs 5
In early March dietary department employees West
and Ruiz were eating lunch in the bathroom area Diaz
approached them and allegedly stated that the employees
were not thinking with their heads they were letting
themselves be led by the others and they should think it
over well
West testified that a few days later Diaz approached
them again while they were having lunch Diaz allegedly
repeated that they were not thinking well That the ad
ministration could lets say turn out the entire depart
ment—displace the entire department that they were
well organized they could replace the personnel
The Subcontracting of the Dietary Department
Jose Antonio Brull testified that during mid 1981 he
became administrator at the hospital According to
Brull s testimony his first task was to examine the eco
nomic posture of the hospital Because of the difficult
economic situation Brull established administrative con
trols in order to reduce hospital costs Measures were
taken in the personnel area which according to Brull
contributes a big volume of the total hospital budget Re
spondent s Exhibit 1 is a summary of the changes made
by Brull in higher and middle management since June
1981 One of Brull s first measures was to recruit new ex
ecutives at a lower salary than the individuals who they
replaced consolidating positions and eliminating manag
er s expense accounts These measures produced a
monthly savings of approximately $1000 Brull advised
Monserrate industrial relations director to freeze all va
cancies and salaries Vacancies could only be filled after
Brull s approval 6 In addition Brull canceled burden
some medical plans For example the Blue Cross Medi
cal plan was canceled because Blue Cross paid a cost
per patient per day $13 50 lower than what was paid the
hospital by a competitive plan
Respondent introduced into evidence various docu
ments representing Respondent s efforts to reduce ex
penses Respondent s Exhibits 5 through 15 cover a mul
titude of areas from using carbon paper to minimize
5 According to Robles second affidavit at no time during this conver
saw:in did Diaz tell them that if the Tronginstas Union got in they were
going to be fired In explaining this omission Robles stated that he was
nervous because he had already given a sworn statement
6 See R Exhs 5 and 8
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
using the photocopier to production measures energy
conservation and chemical purchases
Brull s unrefuted testimony is that Respondent lost
money from 1974 up to about 1978 accumulating an
overall loss of over $2 million During the years 1979
1980 and 1981 Respondent had a profit of $585 000 and
therefore had a loss of over $1 500 000 for the years 1974
through 1981 Furthermore Respondent expected an ad
ditional loss for the year 1981-1982 of close to $300 000
Respondent s Exhibit 18 is a summary from audited state
ments prepared by a certified public accounting firm for
the years 1974-1975 through 1980-1981 The purpose of
this document was the submission to the assistant secre
tary of Puerto Rico demonstrating the effect to Respond
ent if the use of 60 beds in the elderly home next to the
hospital were discontinued
Brull testified that during February Respondent re
ceived a 10 day notice that there was going to be a strike
by registered nurses A strike did ensue In view of this
Brull decided to make preparations to ensure that other
hospital services remained uninterrupted Moreover
there were rumors that the employees in the dietary de
partment were going to support the work stoppage so
he requested a firm Nutritional Food Services Inc to
evaluate costs if they were to take over the dietary de
partment After Brull received the proposal analysis and
figures from Nutritional Food he became interested in
the savings factors 7
The dietary department employees did not support the
registered nurses stnke but continued through their
union (the Confederacion) to negotiate a new contract
On March 2 the day the contract was to expire Frank
Ruiz president of the Confederacion held a meeting and
made an offer to the employees based on what had been
agreed to in other units Agreements had been recently
executed by Respondent in units of office employees
practical nurses and operating room technicians The di
etary employees rejected the offer and Brull therefore
instructed Respondent s negotiating committee to inform
the Confederacion s committee that if an agreement was
not reached the hospital would look for other alterna
byes including subcontracting of the department These
were Brull s instructions to Monserrate Later Monser
rate informed Brull that his Brull s instructions had
been carried out
After Monserrate conveyed Brull s position to Ruiz
and the negotiating committee Brull called ARA a food
service organization and requested a proposal from
them On March 10 11 and 15 ARA personnel came to
Respondent s premises and evaluated the dietary depart
ment including the hospital s kitchen during working
hours After they made their evaluation Brull requested
Luis Suarez who is also in the business of providing die
tary services to make his evaluation and submit a pro
posal General Counsel s Exhibits 10 and 11 reflect the
proposals submitted by both organizations
Brull then met with Gregorio Cotto Respondent s
comptroller on March 22 to discuss costs of the meals
served and what would be a reasonable sum per meal
7 G C Exh 9 IC the proposal from Nutritional Food to Respondent
dated February 26 1982
The comptroller determined that $2 90 per meal served
would be a cost favorable to Respondent 8 Brull then re
quested Cotto to evaluate the proposals from the three
food service organizations On March 26 Cotto sent
Brull a memorandum 9 wherein he evaluated economical
ly the three proposals It was determined that the pro
posal of Suarez was the most economical ARA pro
posed $8 77 per day or $2 925 per meal plus other costs
Nutritional Food proposed a cost of $9 per day or $3 per
meal and Suarez proposed $8 70 per day or $2 90 per
meal
Brull then met with the vice president of the board of
directors and told him that it would be beneficial to
accept Suarez proposal because it was the most econom
ical The vice president of the board of directors told
Brull it was his decision and he should proceed with it
Thereafter Brull met with Suarez and they agreed on a
contract for 3 years with a fixed cost per meal of $2 90
per meal served The agreement took effect beginnng the
second day of April On April 1 the dietary department
employees were notified that a contract was going to be
entered into with Suarez and if they wanted to continue
working for the subcontractor they should go to him and
apply for employment
During Respondent s comptroller s negotiations with
Suarez the comptroller prepared a comparative analysis
of cost in evidence as Respondent s Exhibit 20 which
reflects the savings Respondent would enjoy based on a
contract for meals served at a fixed rate of $2 90 Re
spondent s Exhibit 21 is a medicare health report docu
ment reflecting the cost per meal over a period of sever
al years from 1978 through 1981 The document was pre
pared and submitted for purposes of obtaining payment
from the medicare program These documents reflect a
consistent rise of costs for meals served During the last
year the cost per meal served rose 40 cents Respond
ent s Exhibit 19 is a statistical analysis reflecting the hos
pital s utilization and a decrease in the occupancy rate at
the hospital The figures reflected in these documents
particularly the decrease in occupancy rate for patient
days become pertinent because under the contract with
Suarez Respondent will pay $2 90 per meal served for
the next 3 years Brull testified that prior to subcontract
ing overall costs were fixed and accordingly if the hos
pital had a lower occupancy it would have to extend the
same amount of money to maintain a dietary department
resulting in a higher cost per meal served With the sub
contractor operating the dietary department if the Re
spondent s occupancy continues to decrease Respondent
still only pays for the meals actually served Prior to the
subcontract Respondent had to assume the same oper
ational payroll and other various and sundry expenses al
though the occupancy rate decreased
An analysis of these documents reflects a savings to
Respondent of over $17 000 for July and August 1982
compared to the same period in 1981
Moreover Brull testified that there were indirect eco
nomic advantages resulting in the subcontracting agree
8 See G C Exh 12
9 See G C Exh 13
/
ASOC1ACION HOSPITAL DEL MAESTRO 857
ment. For example, he testified Respondent no longer
has to process food purchase orders, it does not have to
wash uniforms of the employees or distribute them, and
it does not have to assign employees to the care of the
food or to process forms in the accounting department.
Furthermore, Respondent is dealing with a single suppli-
er, i.e., Suarez, rather than prior thereto, when there
were close to 30 suppliers providing food to the dietary
department.
He also testified that warehouse personnel are being
utilized for work in other departments because the
volume of work in the dietary department has decreased
and there is not sufficient full-time work for the ware-
house employees in the dietary department.
Respondent's Exhibit 4 reflects that at the time the
contract which Suarez was entered into there was ware-
house inventory amounting to almost $26,000, earmarked
for the dietary department Pursuant to the contract be-
tween Respondent and Suarez, Suarez bears the responsi-
bility of furnishing all materials, edibles, and other types
of supplies and materials. Therefore, he has his money
tied up in inventory, rather than Respondent. This be-
comes particularly important and relevant inasmuch as
Respondent has a cash flow problem.
The parties stipulated that Respondent and six other
hospitals in Puerto Rico subcontract their dietary depart-
ments They further stipulated that Respondent subcon-
tracts the following services: cleaning, which is done by
North Janitorial Services, Inc., Security, which is done
by Property Services, Inc ;" the visitors cafeteria,
which is done by Suarez, the subcontrator involved
herein; anesthesia and respiratory therapy, which is done
by Anesthesia Group; the laundry, which is done by Best
Industrial Cleaner; the maintenance of air conditioner,
which is done by Trane Western Hemisphere, and the
maintenance of elevators, which is done by Deja Eleva-
tors.
The General Counsel called Suarez as a witness who
corroborated Brull in all germane areas of Brull's testi-
mony
General Counsel's Exhibit 15, dated April 1, is a copy
of a letter that was handed to each employee stating that
they would cease to be employees of Respondent be-
cause the hospital decided to subcontract the dietary de-
partment The letter also states: "Mr. Humberto M.
Monserrate, the Industrial Relations Director can give
orientation concerning this matter to those persons desir-
ing it
Record testimony reflects that some employees of Re-
spondent did fill out job applications at the office of the
subcontractor and some of them were hired by the sub-
contractor.
Documents reflecting actual and projected costs" in-
dicate that the cost per meal for the year 1982-1983
would, absent the subcontract, amount to $3.45; for
1983-1984, $3.65 and for 1984-1985, $3.86. This takes
into consideration the salary increases negotiated and ac-
cepted by other units at the hospital These same in-
" The employees of North Janitorial Services are represented by the
Teamsters
" See R Exhs 24 and 25
creases were offered to, and rejected by, the dietary em-
ployees.
Therefore the fixed cost for 3 years of $2 90 per meal
served saves Respondent 55 cents per meal for the first
year, 75 cents per meal for the second year, and 96 cents
per meal for the third year.
Another alleged independent violation of Section
8(a)(1) of the Act occurred on April 1, after the employ-
ees whose work shift ended at 1 p m had been terminat-
ed. Herrero allegedly stated to employees "due to the
fault of all of you after so many years I am left without a
job." Thereafter Herrero was hired by the subcontractor
apparently as a rank-and-file employee.
Conclusion and Analysis
I find that the remarks attributed to Herrero and Diaz
by Moises Colon are vague, ambiguous, and not violative
of Section 8(a)(1) of the Act. He appeared to testify in a
vacuum. There was no nexus between the word "that"
and any union activity. Furthermore, characterizing the
Teamsters as "bomb placers and destructors," does not
nse to the level of 8(a)(1) conduct
Accordingly, I will recommend that this allegation of
the complaint be dismissed.
The testimony of Feliciano Roman Melendez was simi-
larly nebulous. In my view it is neither unlawful interro-
gation nor does it (Herrero's remark) create the impres-
sion that Respondent was engaging in surveillance.
Record evidence amply demonstrates that the Teamsters
campaign and the employees' support of it were well
known to Respondent. Accordingly, I will recommend
that these allegations of the complaint be dismissed.
Although Herrero was not called as a witness, and she
may not have been conveying a message from Respond-
ent's higher authorities, she was a supervisor and in my
opinion she strayed beyond the bounds of legality at the
meeting occurring at the end of January or the beginning
of February. Notwithstanding the unrefuted evidence
that Brull was the sole authority in making the determi-
nation to subcontract, Herrero's statement that, if the
employees persisted in bringing the Union" into the
hospital they would lose their jobs because they would
all be fired, is a classic threat of reprisal and as such vio-
lates Section 8(a)(1) of the Act.
Robles and Daez both testified without contradiction
that Diaz' 3 threatened them with the loss of their jobs if
the Teamsters got into the hospital. It is true that one of
the affidavits furnished by Robles is inconsistent in this
regard, but I am constrained, based on the testimony of
Daez, West, and Ruiz, to find that Diaz threatened em-
ployees with discharge if they continued to support the
Teamsters. This is a clear violation of Section 8(a)(1) of
the Act.
Herrero's statement to employees, "due to the fault of
all of you after so many years I am left without a job,"
was in response to Ruben Robles' statement to her that,
"this will pass." The alternative of subcontracting
became apparent only after Respondent's contract pro-
" The Teamsters were the subject of discussion at this meeting
" Diaz was not called as a witness
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posal was rejected The rejection did result in her loss of
a job There is nothing in this statement to suggest retn
bution by Respondent because of a continuing campaign
by the Teamsters Such a conclusion would be conjec
ture Rather Herrero may have been alluding to the em
ployees act of rejecting Respondent s proposal commu
mewed to them by the president of the incumbent union
This offer was made after negotiations between the par
ties There is no allegation that Respondent refused to
bargain or bargained in bad faith Accordingly I do not
find that Herrero s ambiguous and enigmatic statement
was violative of the act
The Subcontracting of the Dietary Department
Record testimony and documentation reflect that sub
contracting was considered prior to March 31 the date
Respondent was notified that inter aim the representa
ton hearing was rescheduled 14 On March 2 the Confe
deracion was apprised of this prospect
Suarez corroborated Brull that he Suarez was re
quested to submit a proposal between March 15 and 22
Their testimony is unrefuted Moreover they both im
pressed me as reliable unerring witnesses and worthy
credence
There is no 8(a)(5) allegation nor is there any evidence
that the incumbent was precluded from negotiating the
subcontracting prospect In fact the subcontracting was
effectuated after Respondent and the Confederacion had
bargained and the Confederacion rejected Respondent s
wage offer
Although in some few instances I have concluded that
supervisors exceeded the bounds of legality I do not be
heve they were adopting a future cause of action es
poused by Respondent s higher authority I believe Brull
was the sole authority who implemented the decision to
subcontract
It is also noted that Respondent was willing to stipu
late to an election in a unit exluding those employees em
ployed by the subcontractor 15
The record reflects that Respondent subcontracts
many of its services As a matter of fact Suarez the sub
contractor involved herein has operated Respondent s
public cafeteria for several years provided television
rental services and operated Respondent s parking lot
I find that initially Respondent desired to avert an im
pending strike speading from another unit Thereafter
when the dietary employees who are in another unit re
jected Respondent s wage offer the feasibility of subcon
tracting became a reality
I am convinced by the preponderance of the evidence
both documentary and through testimony that Respond
ent s sole basis for subcontracting was a legitimate eco
nomic neccessity
, Accordingly I will recommend that the 8(a)(3) allega
lion in the complaint be dismissed
14 See G C Exh 6
15 See transcript of representation hearing dated April 20 1982 in evi
dence as R Exh 3
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act and a health care institution within the meaning of
Section 2(14) of the Act
2 The Union de Tronquistas de Puerto Rico Local
901 a/w International Brotherhood of Teamsters Chauf
feurs Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act
3 By threatening employees with discharge or cessa
tion of its dietary operations if they continued to support
the Teamsters or if they did not withdraw their support
Respondent has engaged in conduct in violation of Sec
tion 8(a)(1) of the Act
4 The allegations of the complaint that Respondent is
engaged in conduct violative of Section 8(a)(3) and other
conduct violative of Section 8(a)(1) independently of
the Act have not been supported by substantial evidence
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative ac
lions designed to effectuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed"
ORDER
The Respondent Asociacion Hospital del Maestro
Inc Hato Rey Puerto Rico its officers agents succes
sors and assigns shall
1 Cease and desist from
(a) Threatening employees with discharge or cessation
of dietary operations or any other departments if they
continue to support the Teamsters or if they do not
withdraw their support from the Teamsters
(b) In any like or related manner interfering with re
straining or coercing an employee in the exercise of the
rights guaranteed him by Section 7 of the National
Labor Relations Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its premises at Hato Rey Puerto Rico
copies of the notice in English and Spanish marked Ap
pendix 17 Copies of said notice on forms provided by
16 In the event no exceptions are tiled as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board the
findings conclusions and recommended Order herein shall as provided
in Sec 102 48 of the Rules and Regulations be adopted by the Board and
become its findings conclusions and Order and all objections thereto
shall be deemed waived for all purposes
" If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tonal Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
ASOCIACION HOSPITAL DEL MAESTRO 859
the Regional Director for Region 24, shall, after being
signed by Respondent's authorized representative, be
posted immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Respondent shall take reasonable steps to ensure
that said notices are not altered, defaced, or covered by
other material.
(b) Notify the Regional Director in writing with 20
days from the date of this Order what steps have been
taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as It alleges violations of the Act not spe-
cifically found herein.