Asociacion Hospital Del Maestro, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1987

283 N.L.R.B. 419 (N.L.R.B. 1987)

ASOCIACION HOSPITAL DEL MAESTRO 419
Asociacion Hospital del Maestro, Inc. and Juan
David Rosario and Heibert Rojas Hernandez.
Cases 24-CA-5245 and 24-CA-5276
30 March 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 27 October 1986 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting 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 and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Asociacion
Hospital del Maestro, Inc., San Juan, Puerto Rico,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
i The General Counsel seeks a visitatorial clause authorizing the
Board, for compliance purposes , to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order. Under the'cir-
cumstances of this case, we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel 's request.
2 We grant the General Counsel's request that the notice marked "Ap-
pendix B" be posted in Spanish as well as English.
Raymond E. Morales, Esq., for the General Counsel.
Roberto Vega-Pacheco, Esq. (Cancio, Nadal & Rivera), of
San Juan, Puerto Rico, for the Respondent.
DECISION
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard on four occasions on and between 26
February and 1 April 1986, in San Juan, Puerto Rico, on
the General Counsel's consolidated amended complaint,'
i The underlying unfair labor practice charge, filed by Juan David Ro-
sario on 15 October 1985 (Case 24-CA-5245), was served on 16 October
1985. His amended charge was filed and served on 20 November 1985.
Complaint and notice of hearing were issued and served on 26 November
1985. The underlying charge in Case 24-CA-5276, filed by Herbert Rojas
Hernandez on 29 November 1985, was served on 2 December 1985. The
General Counsel's order consolidating cases, the consolidated amended
complaint, and notice of hearing were issued and served on 16 January
1986. Respondent's timely answer to the consolidated amended complaint
is dated 27 January 1986. Its amended answer is dated 14 February 1986.
as further amended at the hearing, alleging, in substance,
that Asociacion Hospital Del Maestro, Inc. (Respond-
ent), violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), by promulgating and
maintaining an unlawful rule prohibiting employees from
wearing union insignia and buttons on their uniforms,
threatening employees with discipline if they did not
remove insignia from their uniforms, indefinitely sus-
pending employees for wearing insignia on uniforms,
conditioning their return to work on the removal of such
insignia from the uniforms, and, on 26 November 1985,
discharging its employee, Heibert Rojas Hernandez, and
thereafter failing and refusing to reinstate him, because of
his union activities.
At the hearing, all parties were represented by coun-
sel, were given full opportunity to call and examine wit-
nesses, submit oral and written evidence, and to argue
orally on the record. At the close of the hearing, the par-
ties waived final argument and elected to file posthearing
briefs which have been carefully considered.2
On the entire record, including the briefs, and from
my observation of the demeanor of the witnesses as they
testified, I make the following
FINDINGS OF FACT
1. RESPONDENT AS STATUTORY EMPLOYER
The consolidated amended complaint alleges, Re-
spondent admits, and I find that Asociacion Hospital del
Maestro, Inc., a corporation existing under the laws of
the Commonwealth of Puerto Rico, has maintained its
principal office and place of business in Hato Rey, San
Juan, Commonwealth of Puerto Rico, where it has con-
tinuously engaged in the operation of a health care insti-
tution, an acute hospital, providing medical and related
services. During the year ending January 1986, a repre-
sentative period of its annual operations, Respondent, in
the course and conduct of its hospital operations, derived
gross revenues in excess of $250,000 and, during the
same period, purchased and caused to be shipped and de-
livered to, its aforesaid place of business from points lo-
cated outside the Commonwealth of Puerto Rico materi-
als and supplies valued in excess of $50,000. Respondent,
as it admits, at all material times, has been and is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and is a health care in-
stitution within the meaning of Section 2(14) of the Act.
II. THE UNIONS AS STATUTORY LABOR
ORGANIZATIONS
The consolidated amended complaint alleges, Re-
spondent in its amended answer admits, and I find that at
all material times Union Local No. 2 de Enfermeras y
Enfermeros Auxiliares Practicos Licenciadoes y Escoltos
del Hospital del Maestro, affiliated with Confederacion
Obrera Puertoriquena (Local 2) is, and has been at all
2 Along with her brief, the General Counsel submitted it motion to
correct the transcript of evidence in various respects. That motion, dated
22 July 1986, has been unopposed and is granted.
283 NLRB No. 71
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
material times, a labor organization within the meaning
of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES4
A. Background
Respondent 's hospital in Hato Rey employs 700 em-
ployees .in 7 bargaining units each with its own local
s Respondent also admitted that the following employees of the hospi-
tal were Respondent 's supervisors within the meaning of Sec. 2 (11) and
Respondent's agents within the meaning of Sec. 2 (13) of the Act: Jesse
Pou Rivera, industrial relations and personnel director; Maria T. Rivera,
nursing director, and Juana Maldonado Ortiz, general supervisor. There
was also no dispute that Charging Party Juan David Rosario, at all mate-
rial times, has been president of Local 2; and that Charging Party Herbert
Rojas Hernandez, a member of Local 2, a nurses aide ' and therefore a
member of the unit represented by Local 2, a former vice president of
Local 2, was discharged on 26 November 1985. Lastly there is no dispute
that Frank Ruiz , at all material times was president of Local 2 's parent,
the Confederation Obrera Puertoriquena (the Confederation), also a
labor organization.
4 In its answer ; at the hearing, and again in its brief, Respondent plead-
ed as a defense that the instant alleged unfair labor practices be deferred
to arbitration . The parties stipulated that a collective -bargammg agree-
ment between the Confederation and Local 2 and Respondent expired on
8 April 1985. There is no current agreement . While Respondent desires
to proceed to arbitration , the General Counsel , Local 2, and the individ-
ual Charging Parties herein oppose. Respondent has stated a willingness
to waive all procedural defenses as well as the issues of substantive arbi-
trabihty of the,controversy and the timeliness of filing the arbitration re-
quest The General Counsel defends principally with the argument that
under Board rules, although allegations involving violations of Section
8(aXl) and (3) are ordinarily deferrable to arbitration , United -Technologies
Corp, 268 NLRB 557 (1984), they should not be deferred when the inter-
ests of the Union which , might be expected to represent the employees
are adverse to those of the employee , United Technologies Corp., 268
NLRB at 560 . In the instant case, there is evidence of "friction " between
Local 2 and the Confederacion. This ill feeling was known by Respond-
ent at all material times . Local 2, on this record, has sought to disaffiliate
from the Confederacion and has-sought to affiliate with another labor or-
ganization, Local 1199 of the Hospital Workers Union . Moreover, there
was evidence on this record of antagonism on the part of Confederacion
President Frank Ruiz against the members of Local 2 whose interest the
Confederation might be called on to defend in an arbitration proceeding.
Respondent notes that, the expiration of the contract is no defense to its
continued vitality as a vehicle , permitting arbitration, Nolde Bros v.
Bakery Workers Local 358, 430 U.S. 243 (1977); American Sink Top Ca,
242 NLRB 408 (1979). The deferrability of a discharge allegedly in viola-
tion of the Act under United Technologies, when the discharge occurs
well after contract expiration and is not linked with, any element of the
expired contract, appears to be a matter raising doubts on the applicabil-
ity of Nolde Bros. See Teamsters Local 238v. CRS. T, 795 F.2d 1400 (8th
Cit. 1986) Furthermore, the Board ' appears to be not entirely satisfied
with its American Sink Top decision Southwest Security Equipment Corp.,
262 NLRB 665 (1982) See also Emery Air Freight Corp. v. Teamsters
Local 295, 786 F.2d 93 (2d Cr. 1986). (1Volde requires, inter alia , that the
grievance be raised within a reasonable time after contract expiration).
Here, the grievances arose 6 months after contract expiration.
However, in resolving Respondent 's deferral defense it is unnecessary
to reach or decide the Nolde Bros. issue or the General Counsel 's argu-
ment of union hostility . For whatever reason, the parties have failed to
submit in evidence the expired contract , or even its terms, if any, relating
to arbitration, including the binding nature thereof, or what issues the ar-
bitrator might consider . There is nothing on this record other than a stip-
ulation that a contract binding the parties, expired in April 1985. Nor was
the contract or its arbitration provisions , if any, introduced in evidence or
described in a companion case (Case 24-CA-5293) involving some of the
same parties , certain issues in which ' apparently were submitted to arbitra-
tion. Because the Board rule is settled that a precondition to deferral is
the existence of a contract which an arbitrator may interpret , Teamsters
Local 287 (Reed & Graham), 272 NLRB 348 (1984), and because there is
insufficient evidence of the existence, scope, or binding nature of an
agreement to arbitrate any dispute, I must necessarily recommend to the
Board that Respondent's request for deferral under the doctrine of Col-
union. They are designated Locals ' 1 through 7, Locals 1,
2, 5, and 6 being affiliated with the Confederation: Local
2 represents a unit of 180 LPNs , nurses aides, and "es-
corts." 5 All collective-bargaining agreements represent-
ing these labor organizations expired in 1985 and there
are no collective-bargaining agreements in effect between
the Respondent and any of its employees through the
time of the hearing,
On 9 September 1985, Juan Rosario, president of
Local 2, requested a meeting with Respondent regarding
rumors of an impending layoff of ' the licensed practical
nurses (LPNs) and their replacement by registered nurses
(RNs). Respondent and representatives of Local- 2 met
on 9 September and Respondent, by Supervisor Jesse
Pou Rivera , told the Local 2 representatives that they
had heard only rumors and if there was any decision, the
hospital would -notify the Union. Within a short time
thereafter, however, Respondent decided to terminate all
the practical nurses and, in a meeting of 16 September
1985, notified Confederation President " Frank Ruiz that it
intended to replace all the practical nurses with regis-
tered nurses and that 'it was willing to negotiate and dis-
cuss this decision . Pou told Ruiz that the reasons for this
decision included the hospital's desire to upgrade the
quality of its services, that fewer registered nurses could
provide the same services ' as the LPNs, and that the use
of registered nurses would shorten the hospital stay of
patients through the upgrading of services.
While no LPNs were actually laid off until 5 Octo-
ber,6 commencing on or about 30 September, 90 of the
180 Local 2 unit employees started ' wearing black rib-
bons on their uniforms . The black ribbons measured
about 4 inches in length and consisted of a folded-over
piece of cloth creating two "wings ," each of which was
about 4 inches long. At or about the same time that' the
black ribbons appeared, a handbill was distributed at the
hospital on the letterhead of Local 1199 of the Hospital
Workers Union . It is uncontested that Local 2 was seek-
ing to affiliate with Local 1199 and that sometime in July
1985, Local 1199 filed a petition for certification as statu-
tory representative of the employees ' represented by
Local 2 . The handbill protested the threat of discharge
of the LPNs and criticized Confederation President
Frank Ruiz for taking a position giving'the employer any
advantage in ridding itself of the LPNs . The -handbill
also stated that the purpose of the wearing of black rib-
bons was to show unity and solidarity among all the
members of the unit (G.C. Exh. 7(a)).
The black ribbons were worn commencing on or
about Tuesday, 3 October 1985 , and were worn, for
about 7 days thereafter ending on or about 9 October.
Commencing on or about Monday , 7 October 1985,
lyer Insulated lIire, 192 NLRB 837 (1971), and United- Technologies Corp.,
268 NLRB 557 (1984), be denied. See Arizona Portland Cement Co, 281
NLRB 304 fn. 2 (1986).
5 Local 1 represents warehouse, maintenance , and laundry employees;
Local 3 represents clerical workers; Local 4 represents X-ray technicians;
Local 5 represents operating room technicians ; Local 6 represents practi-
cal nurses in the clinics only; and Local 7 represents registered nurses
8 More than 20 L'PNs were laid off on 15 October, with a further
group in excess of 20 laid off on 29 November. Thirty-five registered
nurses were hired to replace them.
ASOCIACION HOSPITAL DEL MAESTRO
some of the employees ceased wearing black ribbons and
wore only a round union button , while others wore the
black ribbon and the union button . Whereas the black
ribbon (G . C. Exh . 6) measures about 4 inches long in
each wing, the union button (G.C. Exh . 12) is 2-1/2
inches in diameter and is white with black letters and
yellow markings showing affiliation with Local 1199
(Union Nacional de Trabajadores de la Salud).
This was not Respondent's first experience when black
ribbons were worn by its personnel . In August 1981,
eight of its emergency room employees wore black rib-
bons with the word "protest" on the ribbon . The admin-
istrator of the hospital at that time (Jose Antonio Brull)
contacted Confederacion President Frank Ruiz and told
him that the wearing of the ribbons in the hospital was
illegal. Ruiz answered that if the hospital withheld disci-
plinary action, he would try to get them to remove the
ribbons. The ribbons were removed after a few days and
the hospital took no action ' against the employees. The
parties did not take the matter to arbitration or seek to
further specify in the succeeding collective-bargaining
agreement, or otherwise, what prohibitions, if any, on
wearing items on uniforms , existed.
Commencing about Wednesday , 9 October 1985, more
than 90 unit employees ceased wearing the black ribbons
and commenced wearing 6 -inch long red ribbons (G.C.
Exh. 8), the red ribbons consisting of a single wing ap-
proximately 7-1/4 inches long and bearing, in parallel
lines along its length, the words "Protesta por Despido"
("protest for discharge"). The employees wore the red
ribbons on their uniforms inside the hospital from around
10 October to 15 October . At that time no black ribbons
were worn. Some employees wore Local 1199 union but-
tons with the red ribbons.
Many unit employees are employed in the nursing de-
partment (total of 286 employees) under the direction of
Nursing Director Maria T . Rivera. ' In four to six meet-
ings (9 to 14 October) of nursing department personnel,7
many of whom were wearing union buttons and , ribbons
in various colors , Nursing Director Rivera told the em-
ployees that wearing the"ribbons and buttons violated a
hospital rule and that they had to remove the ribbons
and union buttons from their uniforms or face "severe
disciplinary measures" very few employees removed the
ribbons. These meetings were a result of 9 and 10 Octo-
ber meetings of hospital supervisors called by Pou. Pou
told' his supervisors that the red ribbon could not be
worn anywhere or at any time in the hospital . There is
no dispute that both the black and red ribbons were
worn pursuant to Local 2's protest against the replace-
ment of LPNs by registered nurses.,
As a result of Pou's meeting with hospital supervisors,
Respondent invoked its "uniform code" and instructed
its supervisors to direct the employees to remove the rib-
bons and any other object on the uniform other than'em-
ployee nametag and the name of the school in which the
employee trained . It might be noted that Rivera told the
employees under her control in 'the nursing department,
'T While Supervisor Rivera testified that the meetings started in the
week of 3 October, Pou testified that they started around 9 October. I
credit Pou's recollection.
421
at these four to six meetings , that they would have to
remove the black ribbons even before the appearance of
the red ribbons (Tr. 443); and that the employees also
had to remove the Local 1199 ' buttons (Tr. 443-444).
Rivera testified that, a great majority of the employees
wearing the ribbons were involved in direct care of pa-
tients (Tr. 445). She did not tell any of the employees,
whether involved in direct patient care or not, when or
where they could wear any of the ribbons or buttons. It
is uncontested , for instance, that the unit employees and
other employees eat in a cafeteria on hospital grounds
which is restricted to the employees of the hospital. No
others may eat there.
Pou convened the 9 October meeting of his supervi-
sors because of reports, discussed below , of dissention
among employees and harassment of patients with regard
to the wearing of the ribbons and buttons . It was on that
basis that - Pou directed his supervisors to direct the em-
ployees to remove ribbons and any other objects from
their uniforms.
On 11 October, Respondent issued the following letter
(G.C. Exh. 9(a)) to all employees wearing the red ribbon:
As you are aware , it is this Hospital's policy not
to allow its uniformed employees to wear insignias
or buttons not pertinent to same, other than the
identification , employee , name or other articles
which are part of your uniform or essential for your
work.
The reason for this policy is that the use of this
insignia, buttons or objects not pertinent to the uni-
form 'interferes with the rendering' of the health
services assigned to you , causes confusion and inse-
curity in our patients and provokes friction and dis-
cord between - visitors and employees.
We hereby urge you to comply with this policy.
If you fail to' act pursuant to same , we will be
forced to take more severe disciplinary action
which may include your suspension from work
without pay until same is complied with. Expecting
your usual cooperation, I remain,
Very truly yours,
/s/ Jesse Pou Rivera
Industrial Relations and Personnel Director
On the same morning ( 11 October) that the letters
were distributed , Local 2 President Rosario , wearing a
red button , met with Personnel Director Pou and asked
why the letters were being distributed . Pou said that
they had to remove the ribbons because the wearing of
the ribbons was against the hospital's "norms and regula-
tions" (Tr. 84). When Rosario asked Pou for the author-
ity in the hospital manual restricting the use of the red
ribbons on the uniforms , Pou did not show him any such
rule or regulation but told him that if he did not take off
the ribbon he would have to leave. Rosario told him he
would not leave without a letter of suspension and Ro-
sario returned to work without consequence . The em-
ployees continued to wear the red ribbons , through 14
October 1985.
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Respondent's Dress Code
At all material times, Respondent has maintained in its
nursing department employee manual a dress code (R.
Exh. 1(a)). The dress code appears in the manual but is
not otherwise distributed to employees at the time of
first hire or any other time. The manual is maintained in
the nursing department and applies only to nursing de-
partment employees:
STANDARDS FOR USE OF UNIFORMS
Purpose
To project adequate and correct image, both to
the patients, family members and visitors, as well as
to the other fellow employees in the hospital.
Standards
1., The nursing personnel at all levels will use the
complete and correct uniform in all shifts.
2. In the newborn, maternity and sterile supplies de-
partments, the nursing staff will arrive at their re-
spective departments with the completely white
uniforms as it corresponds to them. Afterward, he
or she will change to the proper clothing in these
departments.
3. The maternity ward, newborn ward, and sterile
supplies personnel will use their completely white
uniforms to go down to the dining room as well
as to go out to other areas of the Hospital. This
personnel will only be allowed to perform perti-
nent tasks in the light blue flowered robe or the
white robe over the light blue clothing used in
these departments.
4. It is an indispensable requirement as part of your
uniform the use of the Hospital identification pin.
Professional Nurses:
`Feminine: White uniform, with 3/4 length sleeve,
nursing cap, and school insignia, white stockings
and white shoes. You can wear a skirt or white
pants following the same indications.
Masculine: White pants, shirt, socks and shoes, as
well as school pin.
Escorts:
Feminine: White uniform with short sleeve,
brown socks and white shoes.
Masculine: Black pants, blue shirt (preferably
Guayabera), do not use sweaters.
Practical Nurses:
Feminine: White short sleeve uniforms, nursing
cap and school insignia, white socks and white
shoes. She can wear an ensemble of skirt or pants
following the same indications.
'Masculine: In the case of the male nurse he will
use white pants and shirts with the school insignia
as well as white shoes and white socks.
Hospital Aids:
Feminine: White short sleeve uniform, brown
socks, white shoes.
Masculine: White pants, shirts, socks and shoes.
Respondent does not suggest the existence of any
other rule with regard to the use of uniforms. With
regard to actual practice in the wearing of insignia, Gen-
eral Counsel's "witness Maria L. Badillo testified without
contradiction that at all times since her employment as a
registered nurse in June 1978 she has worn on her uni-
form, while dealing with patients , various insignias in-
cluding a yellow metal flower with leaves 2-1/2 inches
by I inch; and particularly in the period September 1985
through November 1985'a 1-1/2-inch turkey to celebrate
Thanksgiving, a 1-inch snowman, a 2-1/2-inch by 3/4-
inch orange cat and ribbon; a 1-1/2-inch round "purple
union button; a 1-inch white plastic owl; a 1-inch green
plastic elephant; a'2-inch enamel bird, a 1-1/2-inch by 2-
1/2-inch black bat and a 3- to 4-inch double red ribbon
holding a 1-inch figure of a doctor (this pin was distrib-
uted by the Hospital itself). General Counsel's witness
testified that she has continued to wear these pins, even
through the time of the hearing, and 'that she sees physi-
cians, nurses, and other personnel wear various types of
insignia and has not heard that they had been cautioned
or disciplined therefor.
C. Invocation of Respondent's Rule against Wearing
of Insignia
Jesse Pou testified that the reason he held the 9 and 10
October meetings with his supervisors which resulted in
Respondent issuing its 11 October letter (G.C. Exh. 9)
forbidding employees from wearing the red ribbon (as
well as the Local 1199 button) was that he had received
reports from Nursing Supervisor Rivera and from other
supervisors that patients were inquiring, why LPNs were
wearing ribbons, and red ribbons in particular; that there
was friction among unit employees in the unit with
regard to the wearing,of ribbons; and that there was fric-
tion between LPNs and RNs with regard to the wearing
of the ribbons; and that a patient had been discovered
with a red ribbon attached to his bedclothes. In addition,
he testified that the, president of Local 7, a registered
nurse, told him that she had been threatened by the
LPNs. This president of Local 7 was never produced
and the report of such a threat was never supported. In
any event, these reports led to the meetings of 9 and 10
October among Respondent's supervisors, attended by
Respondent's lawyer, where it was concluded that em-
ployee use of the red ribbon, in the light of all the cir-
cumstances, had to be curtailed for the best interest of
the hospital and that they would , have to invoke the
dress code (Tr. 611). Pou testified that Respondent noti-
fied all supervisors to tell the employees to, remove the
red ribbons and any other object that was not part of the
uniform. Respondent then issued its 11 October letter to
employees forbidding the wearing of insignia and buttons
(G.C. Exh. 9(a)).
Pou also testified that, in a meeting of 11 October with
Confederacion President Frank Ruiz, he told Ruiz that
ASOCIACION HOSPITAL DEL MAESTRO
the wearing of the red ribbons violated a hospital rule
and that Ruiz agreed .8 At the time of his conversation
with Ruiz, Pou knew of friction between Local 2 and
the Confederacion and that Local 2 might affiliate with
Local 1199. When Pou asked Ruiz to speak to the unit
members and have them remove the red ribbons, as he
had done in 1981, Ruiz refused and said that any hospital
discipline over wearing the red ribbon was Local 2's
problem and not his problem (Tr. 631).
In support of Pou's testimony that the 11 October
warning letter to remove the red ribbon was occasioned
by reports of employee and patient friction, Respondent
produced' Supervisor Nilda Camora who testified that
commencing with the wearing of red ribbons , patients
told her that nurses had told them that the nurses were
to be fired and that no one would take care of them. She
told the patients that services would improve with regis-
tered nurses. These first conversations with patients oc-
curred when the LPNs began wearing ` red ribbons.
Indeed, she found one of the patients ' wearing a red
ribbon. She observed that of the 65 employees under her
supervision, 25 to 30 of the employees wore - the black
ribbon and even some registered nurses work black rib-
bons; and that perhaps 40 patients or family members ap-
proached her in the first 2 weeks, of October regarding
the ribbons and the layoffs which were going to occur
among the LPNs. She reported all of these incidents to
her nursing director_Maria T. Rivera. -
Nursing Director Rivera testified that her department
started to receive calls' from patients regarding the use of
black ribbons and wanted to know what it was all about.
In meetings which followed these reports regarding
black ribbons, she told employees that the insignia affect-
ed the patients negatively regardless of the reasons that
the insignias were, being worn and that the hospital did
not want to affect patient care. Rivera further testified
that the red ribbons were being worn from 1 to 2 days
before the 11 October warning letter went out. She ' ad-
mitted that the rules with regard to employee dress were
never distributed and appeared only in the manual. She
testified that in meetings in early October, she told em-
ployees that the wearing of ribbons was against the nurs-
ing department standard and told them to remove the
ribbons or face severe discipline. Lastly, Rivera testified
that the great majority of nursing department employees
are involved in patient care, but that the rule prohibiting
insignia of any kind applied to employees regardless of
where they wore them, even in the cafeteria (which is
restricted only to employees) and related to - nursing de-
partment employees whether or not they were involved
in direct patient care.
Irt' support of Jesse Pou's testimony, Respondent,ad-
duced testimony from employee Gladys Bermudez, who
testified that she refused the request of members of Local
2 to wear the black ribbon or the Local 1199 button and
thereafter her fellow employees did not talk to her. She
reported her co-employees' conduct to Nursing Director
Rivera. Furthermore, on 7 October, she received an
anon,yrnous note (R. Exh. 4) that stated that "squealers
>i Pou's lawyer sent Ruiz a letter memorializing the meeting and Ruiz'
agreement R. Exh . 2(a)). '
423
and brown nosers will be treated the same way as our
enemies." She told this to Director Rivera. Rivera re-
ported these facts to Pou prior to Pou's 9 October meet-
ing with supervisors.
D. Suspension of 96 Unit Employees for Wearing the
Red Ribbon
As above noted, after distribution of the 11 October
warning letter (G.C. Exh. 9), and after Local 2 President
Rosario and other employees refused to remove the red
ribbons, many unit employees reported to work in the
period 11 through 14 October wearing red ribbons in
spite of having received the 11 October warning letters.
On 14 October, the LPNs, aides, and escorts punched
in without ribbons but pinned on the red ribbons once
inside the hospital. Pou told his supervisors to tell the
employees to remove the ribbons and if they were not
removed to give them a "suspension letter" (G.C. Exh.
10(a)). Thereafter, commencing 14 October and ending
16 October, as the employees wearing red ribbons re-
ported for work and/or refused to remove them while at
work, each was handed a letter dated 14 October 1985 as
follows:
Dear Sir:
You have refused-to comply with the rule of not
wearing insignias or buttons not pertinent to the
uniform other than the identification, employee
name or other articles which are part of your uni-
form or essential for your work.
In view of your refusal, which constitutes an act
of insubordination, you are suspended from work
without pay.
Very truly yours,
M. T. Rivera RN MSN
Nursing Director
The parties agreed that pursuant to Respondent's
letter, Respondent suspended, 96 named employees (Ap-
pendix A) for wearing the red ribbon , over a 3-day
period, 14-16 October . The parties further agreed that
the suspensions were for an indefinite period until the
employees removed the ribbon . On 17 October, all the
employees who had been suspended returned to work at
the hospital but did not then or thereafter wear the red
ribbons.
E. Discharge of Heibert K. Rojas Hernandez
Herbert . Rojas Hernandez was discharged on 26 No-
vember for wearing a red ribbon in the hospital. He
punched in at 3 p.m. for his 3-11 p.m. shift and was told
by an employee that Respondent had discharged two
employees for chronic absenteeism and was going to ter-
minate the next group of LPNs on 30 November rather
than waiting until 15 December . Hernandez was con-
cerned that Respondent's termination procedure in dis-
charging these two employees was inconsistent with the
prior method of terminating employees: to have Confe-
deracion President Frank Ruiz `meet with Jesse Pou prior
to the actual terminations to discuss them. Hernandez
telephoned Union President Rosario, discussed the two
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharges and the impending early layoffs of the LPNs,
and told Rosario he was going to wear a red ribbon to
protest these Respondent actions.
Hernandez pinned on the ribbon about 5:30-p.m. At 6
o'clock, he was assisting a registered nurse in giving
emergency treatment to a patient. He left the patient area
and went to a nurses' counter to request an EKG ma-
chine when Supervisor- Wanda Maldanado came by and
noticed the red ribbon. She told him to remove the
ribbon or else he would have "problems." Hernandez
told her that he was wearing the ribbon in support of the
LPNs.
Personnel Director Pou was notified of this event and
paged Supervisor- Maldanado by telephone about 6:40
p.m. She told him that she had found Heibert Hernandez
wearing a red ribbon, told him to remove it, and that he
had refused. Pou told her that he was coming to the hos-
pital. Maldanado testified that at the time she spoke to
Hernandez, he was about 10 to 12 feet from the nearest
patient's room and that there were no visitors or patients
nearby.
When Pou found Hernandez in the hospital, he was
wearing a red ribbon and, with another employee, was
moving an oxygen tank to the store room. The record is
not clear whether there were any patients nearby or this
was a patient care area. Pou told Hernandez to remove
the red ribbon; Hernandez refused; Pou told him that he
was "forcing a situation," but Hernandez refused again.
Hernandez told Pou that he was wearing the ribbon in
protest of his companions. Pou told him that if he did
not remove the ribbon it would be an act of insubordina-
tion. They went to the supervisor's office where Pou
asked ' him to remove the ribbon. Hernandez again re-
fused. Pou asked him to punch out and go home. When
Hernandez asked for a discharge letter, Pou told him
that he would send it later because he had no secretary
present at the time. Contrary to Hernandez' testimony,
Pou testified that Hernandez did not mention the issue of
employees terminated that day for chronic lateness but
said that he was wearing the red ribbon because of the
layoff of his "companions." It is unnecessary to resolve
this conflict. In any event, Heibert Rojas Hernandez left
that 'day and on or immediately after' 29 November 1985
received 'a' letter (G.C. Exh. 11(a)) signed by Jesse Pou
advising him that his services were terminated for his in-
subordination on' 26 November 1985 because of his wear-
ing of the red ribbon in violation of the rules of the hos-
pital; and that he was discharged because of "the most
recent incident of insubordination and [his] past record
which reveals a serious absenteeism problem, and other
behavior problems ever since . [he] started to work for the
hospital."
IV. DISCUSSION AND CONCLUSIONS
The facts show that Respondent, in early October
1985, was presented with sufficient circumstances of pa-
tient anxiety and employee friction regarding employees'
wearing red ribbons (a) to promulgate a rule restricting
the wearing of union insignia at certain times and places
in the hospital, but (b) violated Section 8(a)(1) of the Act
in promulgating, maintaining, and enforcing an overly
broad rule banning the wearing of all union insignia on
uniformed personnel everywhere and at all times in the
hospital. Such a rule would be invalid in its breadth even
if employees' wearing the red ribbons posed a threat to
patient care in immediate patient care areas. Mesa Vista
Hospital, 280 NLRB 298 (1986). Moreover, (c) although
there was some evidence of friction among employees
occasioned by the wearing or refusing to wear the rib-
bons, the evidence thereof did not rise to the level of
posing a threat to patient care or breaches of discipline
so as to ban the red ribbons, as Respondent did, every-
where and at all times in the hospital, Southwestern Bell
Telephone Co., 200 NLRB 667 (1972).
The General Counsel, in paragraph 5(a) of the consoli-
dated ' amended complaint, as further amended at the
hearing, alleges that, in violation of Section 8(a)(1) of the
Act, Respondent's 11 October 1985 letter to its employ-
ees promulgated and maintained an overly broad rule
prohibiting its uniformed employees from wearing insig-
nia and buttons on their uniforms in order to discourage
the employees from wearing the red ribbon (bearing the
legend "Protest for Discharge") and from engaging in
other concerted activities protected by the Act.
A. Promulgation
The initial question regarding unlawful "promulga-
tion" is whether Respondent already had a rule in exist-
ence which in any way prohibited the wearing of insig-
nia by its employees. Respondent argues that its nursing
department "Standards for Use of Uniforms" was and is
such a rule (R. Exh. 1). I find, consistent with the Gener-
al Counsel's argument, that the nursing department's
rules for uniforms amount essentially only to a style code
and do not amount to any proscription of what- may not
be worn on the uniform. Certainly the imposition of the
affirmative obligation to wear the employee's school in-
signia and name identification card, without more, does
not suggest the negative obligation to wear no other in-
signia. Moreover, as a matter of actual practice, the un-
contradicted and credited evidence is that at all material
times, employees, including LPNs, registered-nurses, and
even physicians, while administering patient care, wore
all sorts of idiosyncratic insignia on their working uni-
forms, including animals, political pins, and similar ele-
ments, even red ribbons and union buttons, without
evoking any disciplinary action or even verbal admoni-
tion from Respondent. The wearing of ribbons, buttons,
and pins was fully acceptable conduct.
The only prior evocation of 'any employer reaction to
the wearing of insignia was in 1981 when a group of em-
ployees wore black ribbons to protest taking orders from
a particular nurse (Tr: 558). The black ribbons contained
the word "protest" on them.
While it is true that Respondent's supervisor, in 1981,
spoke to Confederacion President Ruiz about disciplining
employees for wearing black ribbons (Tr. 561), the
matter was mooted because the employees discontinued
wearing the ribbon (there were about eight employees
who -wore the ribbon) (Tr. 562). Respondent's former of-
ficer who testified that the wearing of those black rib-
bons was against hospital rules was able only to point to
the Respondent's "Standards For Use of Uniforms" as
ASOCIACION HOSPITAL DEL MAESTRO 425
the source of his statement that it was against the hospi-
tal rules (Tr. 564-565). It was only his interpretation of
that document that led him to testify that the hospital
rules had been violated by the wearing of the black rib-
bons (T'r. 566).
In any event, I conclude that, on its face, there is
nothing in Respondent's "Standards for Use of Uni-
forms" that proscribes the use of insignia on uniforms.
The one instance in which employees ceased wearing
ribbons because the supervisor told Ruiz it was against
the rules does not establish union acquiescence in that in-
terpretation. To the contrary, as above noted, the prac-
tice of wearing all types of insignia, including red rib-
bons and union buttons, has brought and does not bring,
admonition or disciplinary action by Respondent.
Nor can Confederacion President Ruiz' apparent 11
October 1985 agreement (R. Exh. 2) that the' employees'
wearing of the ribbons and Local 1199 buttons violates
hospital rules constitute a waiver of Local 2's and em-
ployees' rights to support Local 2 and Local 1199. The
record is clear that by October 1985, Ruiz was aware of
Local 2's antagonism against the Confederacion and its
support of Local 1199. Under such conflicted circum-
stances, any Ruiz agreement with Respondent could not
limit employee support for another labor organization or
their disaffection for the Confederacion, NLRB v. Mag-
navox of Tennessee Co., 415 U.S. 322 (1974). I therefore
agree with the General Counsel that Respondent's
"Standards for Use of Uniforms" does not constitute a
proscription against insignia and that there was no rule
or practice in existence, in or about September through
November 1985, that proscribed these Local 1199 union
buttons or red ribbons. As I have found, the evidence of
practice was substantially to the contrary (Respondent
distributed a 4-inch red ribbon with the attached figure
of a doctor on one occasion).
I further conclude, consistent with the General Coun-
sel's argument, that the initiation of a rule proscribing
union buttons (never before banned) and insignias com-
menced with the issuance of Respondent's 11 October
letter (G.C. Exh. 9(a)) and that it was in response to and
retaliated particularly against the wearing of the red rib-
bons, Respondent does,not contest this latter fact. The
red ribbons, protesting LPN layoffs, were a concerted
and union activity, and so known to Respondent.
The Supreme Court has held that the display of union
insignia on wearing apparel proclaiming union support or
support for union activities is a right protected under
Section 7 of the National Labor Relations Act. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945).
This right to display union insignia and union slogans is
part of the employees' right to organize, to engage in ac-
tivities for mutual aid and protection, and to solicit sup-
port, among themselves toward that end. Republic Avia-
tion Corp. v. NLRB, supra; Midstate Telephone Corp. v.
NLRB, 706 F.2d 401, 403 (2d Cir. 1983). As the court
noted-in Midstate Telephone Corp. v. NLRB (at 403):
As a general rule, the balance must tip against
rules restricting employees' right to wear union-re-
lated insignia or attire, unless the employer demon-
strates "`special circumstances' showing that such
rule is necessary to maintain production and disci-
pline."
With particular regard to health care facilities, the
Board has recently ruled, in Mesa Vista Hospital, 280
NLRB 298 (1986), that:
In health care facilities, rules that contain restric-
tions of nonworking time solicitation outside imme-
diate patient care areas are presumptively invalid.
NLRB v Baptist Hospital, 422 U.S. 773, 781 (1979).
The presumption is also applicable to rules restrict-
ing the wearing of insignia outside immediate pa-
tient care areas . George J. London Memorial Hospi-
tal, 238 NLRB 704, 708 (1978). . . . An employer
may rebut the presumption by demonstrating that
the rule is "necessary to avoid disruption of health-
care operations or disturbance of patients." [Citing
Beth Israel Hospital v. NLRB, 437 U.S. 483, 507
(1978)]. The Supreme Court has observed that the
Board's presumption "does no more than place on
the hospital the burden of proving, with respect to
areas to which it applies, that union solicitation, may
adversely affect patients." [Emphasis added]
In view of my findings above that Respondent had no
rules or established practice restricting the use of union
insignia on uniforms, or indeed any insignia on uniforms,
prior to the issuance of its 11 October letter; and because
the 11 October letter was specifically designed to pre-
vent the wearing of union insignia on uniforms while the
employees were any place in the hospital„ I find that Re-
spondent's promulgation, as a prima facie matter, was de-
signed for the purpose of interfering with and preventing
the wearing of union insignia on hospital uniforms and
therefore its promulgation was presumptively unlawful
and a violation of Section 8(a)(1) of the Act. Rich Plan of
Weather Reserve v. NLRB, 796 F.2d 864 (6th Cir. 1986);
Harry M. Stevens Services, 277 NLRB 276 (1985); Wood-
view Rehabilitation Center, 265 NLRB 838 (1982).
My observation of Respondent's witnesses and review
of the record indicates a genuine fear by Respondent that
the wearing of the red ribbons and attached slogans,
indeed the wearing of any ribbons and even the Local
1199 union insignia, but especially the red ribbons, would
have an adverse affect on patients and patient care. The
uncontradicted evidence shows, through Nursing Direc-
tor Rivera's testimony, that patients told her that they
were apprehensive because LPNs reported that they
might be fired, thus leaving the patients in a stale of ap-
prehension over future care in the hospital. In addition,
there is uncontradicted evidence that unit employee Ber-
mudez received an anonymous : note accusing her of
"brown nosing" and being an "enemy." This was a
threat from the employees wearing the ribbons because
of employee Bermudez' refusal to wear the ribbon or
union button. I conclude that Jesse Pou was, in fact, con-
cerned whether employees wearing the red ribbons
might and did cause dissention among employees on the
basis of the reports to him of the Bermudez incident,
supra; and on the basis of reports from Supervisor Rivera
that patient care was being affected because patients told
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her of being uneasy concerning their future treatment if
the LPNs were fired (as the LPNs reported to the pa-
tients).
As the Board noted in Southwestern Bell Telephone Co.,
200 NLRB 667 (1972), the employer there had a right, as
a reasonable precaution against discord and bitterness
among employees , to, prevent wearing of an otherwise
protected union 'I'-shirt bearing an obscene slogan. More
important, as the Board noted in Southwestern Bell Tele-
phone 'Co., 200 NLRB at 671, the employer was under no
compulsion to wait until employee and supervisor resent-
ment piled 'up and physical violence occurred before it
could suppress the wearing of the T-shirt as a method to
enforce employee discipline. In this regard , it must be
noted that employee Bermudez threatened to go "else-
where" if there was a repetition of the threatening
anonymous note to her.
Taking this tincontradicted evidence into account with
regard to patient anxiety and this evidence of an employ-
ee threat, I nevertheless conclude that Respondent has
failed to prove as a defense the presence of special cir-
cumstances sufficient to rebut and overcome its promul-
gating a rule overly broad in its scope . In short, as the
Board recently held in'Mesa Vista Hospital, supra:
Even if we again assume that the wearing of the
- union insignia poses a threat to patient care, the Re-
spondent cannot rely -on this alone as a "special cir-
cumstance" to restrict the wearing of union insignia
at all times when employees are working. [Empha-
sis added.]
Under the Mesa Vista rule, above, Respondent may not
ban the wearing of union insignia at all places and at all
times as it has done in its 11 October letter to all unit
employees. Read literally, the newly promulgated rule
applies to uniform personnel even outside the hospital.
Thus, even in the presence of evidence of widespread pa-
tient anxiety due to the, wearing of the red ribbons, Re-
spondent may, not promulgate such an overly broad rule
as a response . Nor is the single threat to employee Ber-
mudez nor co-employee ostracizing her of such signifi-
cance, as to permit Respondent to promulgate such an
overly broad rule which applies everywhere and at all
times . The; Bermudez incidents do not suggest the immi-
nence of riot or widespread employee friction so as to
bring the facts within the rule of Southwestern Bell Tele-
phone Co., 200 NLRB 667 (1972), in which a total ban
was permitted to avoid widespread discord and perhaps
violence.
B. Maintenance and Enforcement of the Rule Against
Wearing Union Insignia on Uniforms
1. Maintenance
As above noted, in Mesa Vista Hospital, 280 NLRB 298
(1986), the Board has recently held that in health care fa-
cilities, rules that contain restrictions of nonworking time
solicitation outside immediate patient care areas are pre-
sumptively invalid (NLRB v. Baptist Hospital, 422 U.S.
773, 781 (1979)); and the presumption is also applicable
to rules restricting the wearing of insignia outside imme-
diate patient care areas (George J London Memorial Hos-
pital, 238 NLRB 704, 708 (1978); St. Vincent's Hospital,
265 NLRB 38 (1982). The maintenance of an-unlawfully
broad rule restricting union solicitation is presumptively
unlawful regardless of its enforcement. St Vincent's Hos-
pital, 265 NLRB 38, 41-42.
As the present rule shows on its face, and as Respond-
ent's counsel at the hearing conceded , the rule makes no
distinction relating to immediate patient care areas, other
patient care areas , and nonpatient care areas . In terms of
enforcement, it would be enforced even in Respondent's
employee cafeteria which is restricted to use only by em-
ployees. There was no showing that any patients even
used the cafeteria where employees only were permitted;
nor does the rule permit employees. to wear their ribbons
and buttons in any hospital nonwork area. It therefore
follows, under the authorities cited in Mesa Vista Hospi-
tal, supra, Respondent is ,then obliged to rebut the pre-
sumption of invalidity since the rule applies outside im-
mediate patient care, areas by showing that the rule is
"necessary to avoid disruption of health-care, operations
or the disturbance of-patients" everywhere in the hospi-
tal and at all times. Respondent has failed to do so. The
mere maintenance of the rule therefore violates Section
8(A)(1) of the Act as alleged. St. Vincent's Hospital,
supra. As discussed above, the evidence does not support
the special circumstances defense of Respondent's 'total
ban -of insignia.
2. Enforcement of the rule
I agree with General. Counsel that when Nursing Di-
rector Rivera told employees during department meet-
ings in early October that, because of hospital policy,
they would meet severe discipline if they did not remove
their black -ribbons,, union buttons, and red ribbons, Re-
spondent violated Section 8(a)(1) of the Act. This-threat
is unlawful enforcement of an unlawful rule . The Board
has held in St. Vincent's Hospital, supra, 265 NLRB at 42,
that formal disciplinary action is not a prerequisite to
finding that an overly broad rule has been unlawfully en-
forced. In St. Vincent's Hospital, the supervisor merely
told an employee to remove a union pin which she was
wearing in a patient care area . The Board there held that
Respondent violated Section 8(a)(1) of the ACt where
the supervisor told the employee to remove her union
pin pursuant to an unlawful rule notwithstanding that
there was no supervisor threat and 'notwithstanding that
it was in a patient care area. Here, Director Rivera
threatened employees with discipline. I therefore con-
clude, consistent with the allegation of the complaint, as
amended at the hearing (the newly added subparagraph
6(d)), that Nursing Director Maria T. Rivera, in' viola-
tion of Section 8(a)(1) of the Act unlawfully threatened
employees with severe disciplinary measures if they
failed to remove from their uniforms the red and black
ribbons and the union button. I further conclude that
Jesse Pou's 11 October letter itself, threatening discipline
for the wearing of buttons or insignia on uniforms at any
ASOCIACION HOSPITAL DEL MAESTRO
time or at any place,9 similarly violated Section 8(a)(1)
of the Act under the above-cited authorities, as alleged
in paragraph 6(a) of the consolidated amended com-
plaint.
a. Suspension of employees for wearing union insignia
With regard to the suspension of 96 employees com-
mencing 14 October 1985, the uncontradicted evidence is
that they were suspended solely for wearing red ribbons.
Respondent did not even adduce evidence that they
were wearing red ribbons in patient care areas; but re-
gardless of that fact, under Board rule, absent "special
circumstances," as here, the indefinite suspension of the
96 employees for wearing the red ribbons pursuant to an
unlawful rule violates Section 8(a)(1) and (3) of the Act
as alleged. St. Vincent's Hospital, supra, 265 NLRB at 42.
b. Discharge of Heibert Rojas Hernandez -
Lastly, the November 26 discharge of Heibert Rojas
Hernandez indicated that he was discharged for wearing
the red ribbon 10 pursuant to Respondent's rule . The dis-
charge, based on the enforcement of the hospital's un-
lawful rule, appears on'the face of Respondent's 29 No-
vember 1985 discharge letter to Hernandez (G.C: Exh.
11(a)). There is no mention therein that he was engaged
in patient care or was in a patient care area. But assum-
ing that for at least part of the time he was engaged in
patient care or certainly in a patient care area (he was
wearing the red ribbon within 15 feet' of a patient's room
while at the nurses' station desk seeking an EKG ma-
chine but the precipitating act of "insubordination" oc-
curred when, alone with Pou in a supervisor's office, he
refused to remove the red ribbon) his discharge never-
theless violates Section 8(a)(1) and (3) of the Act because
the discharge was solely based on enforcement of an un-
lawful rule. As in the case of the layoff of the 96 em-
ployees for wearing' the red ribbon, the discharge of Hei-
bert'Rojas Hernandez similarly violates the Act, St. 67n-
cent's Hospital,' supra. I further find, as alleged, violation
of Section 8(a)(1) and (3) of the Act in Jesse Pou's condi-
tioning the 96 employees' return to work on their not
wearing the red ribbon. This was also pursuant to Re-
spondent's unlawful rule. `
Finally, I find that, Jesse Pou Rivera unlawfully threat-
ened Heibert Rojas Hernandez with discharge for failing
to remove his ' ribbon from his uniform on or about 26
November as alleged in the complaint in violation of
Section 8(a)(l) of, the Act.
While it is true that families,, as well as patients, need a
restful, uncluttered, relaxing, and healthful atmosphere in
hospitals, rather than one remindful of the tensions of the
8 Cases such as Evergreen Nursing, Home, 198 NLRB 775 (1972), cited
in Mesa Vista, supra, are not in point . In Evergreen, the Board upheld a
dress code rule requiring no adornments on white uniforms . In the instant
case, as a matter of actual practice,Respondent has long tolerated, and
continues to tolerate , all kinds of ribbons and buttons on its uniformed
personnel.
'o To the extent that Respondent's discharge letter to Rojas Hernandez
alludes to misconduct ' other than thei "insubordinate" wearing of the red
ribbon as-a basis for the discharge , such other alleged misconduct is re-
jected as unproven . NLRB v. Transportation Management Corp., 462 U.S
393 (1983).
427
market place, Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978), the means of achieving this desirable end in hos-
pitals do not include the promulgation, maintenance, and
enforcement of prohibitions of employee statutory rights
to such a degree that the prohibitions apply even in areas
far removed from patient care areas. Mesa Vista Hospital,
supra. In short, the answer is for Respondent to draft,
maintain, and enforce a lawful insignia rule.""
CONCLUSIONS OF LAW
1. Asociacion Hospital del Maestro, Inc. is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) and is a health care institution within the
meaning of Section 2(14) of the Act.
2. Union Local No. 2 de Enfermeas y Enfermeos
Auxiliares Practicos Licenciados 'y Escoltos del Hospital
del Maestro, affiliated with Confederation Obrera Puer-
toriquena, Confederation Obrera Peurtoriquena, and
Local 1199, Union Nacional de Trabajadores de la Salud,
are, and have been at all material times, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a rule
prohibiting its employees' wearing union insignia on their
uniforms, not limited to immediate patient care areas or
other specifically identified areas where the wearing of
union insignia would adversely affect patient care, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By threatening employees, pursuant to the rule in
paragraph 3, above, with disciplinc, for wearing ribbons
or other union insignia on behalf of Local 1199, Local 2,
or any other labor organization, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By suspending those 96 employees listed in Appen-
dix A, on or about 14 October 1985, pursuant to the
above-described rule, for wearing or failing to remove
union insignia, Respondent is engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
6. By conditioning the recall of the 96 employees listed
in Appendix A on their not wearing red ribbons, desig-
nating union activity, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
7. By discharging and refusing or failing to recall Hei-
bert Rojas Hernandez, Respondent's employee, com-
mencing about 26 November 1985, because he wore
union insignia while at work, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discriminating against
such employee thereby discouraging membership in a
labor organization.
ii Respondent engaged in the very conduct proscribed in Beth Israel
Hospital v. NLRB, 437 U.S. 483, 500-501: in banning insignia without
regard to 'impact on patient care under its assessment of the , need to
ensure patient care and avoid employee friction , "[ii is not surprising
that [the hospital's] assessment of the need for a particular practice might
overcompensate its goals, and give too little weight to employee organi-
zational interests." Cf. Hudgens v. NLRB, 424 U S. 507 (1976). In Beth
Israel, supra, the Supreme Court found unlawful the hospital's ban on
union solicitation in the hospital cafeteria used by employees , patients,
and visitors.
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent is engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend to the Board that Respond-
ent cease and desist therefrom and take certain affirma-
tive actions designed to effectuate the policies of the
Act. Accordingly; I shall recommend to the Board that
Respondent make whole those 96 employees unlawfully
suspended commencing about 14 October 1985 for any
loss of earnings, including all contract benefits, they may
have suffered as a result of their unlawful suspensions
with interest to be computed in the manner described in
Florida Steel Corp., 231 NLRB 657 (1977); see Isis Plumb-
ing -Co., 138 NLRB 716 (1962). Similarly, I shall recom-
mend' to the .Board that Heibert Rojas Hernandez; dis-
charged because of his wearing the red ribbon, in viola-
tion of Section 8(a)(1) and (3) of the Act, be offered im-
mediate reinstatement to his old job, discharging if neces-
sary any replacement, and similarly make him whole for
any net loss of earnings he may have suffered because of
Respondent's discrimination against him, with interest,
pursuant to the above-noted Board rules. Backpay shall
be computed on a quarterly basis as prescribed in F. W
Woolworth Co., 90 NLRB 289 (1950).
On the foregoing findings of fact and conclusions of
law, and-on the entire record, I issue the following rec-
ommended- 12
ORDER
The Respondent, Asociacion Hospital -del Maestro,
Inc., San Juan, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, refusing to recall, or oth-
erwise discriminating against employees pursuant to an
unlawful rule governing their wearing of union insignia
on uniforms or for engaging in other union or concerted
activity, protected by Section 7 of the Act.
(b) Promulgating, maintaining, or enforcing any rule,
regulation, or other prohibition which forbids the wear-
ing of union insignia on employee uniforms, outside im-
mediate patient care areas, 'or outside other specifically
identified areas where the wearing of union insignia
would adversely affect patient care.
(c) Threatening employees with discipline, pursuant to
an overly broad rule governing the wearing of union in-
signia, or the wearing of insignia otherwise protected by
the provisions of Section 7 of the National Labor Rela-
tions Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights, guaranteed them by Section 7 of the Act.
12 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the followings affirmative action necessary to
effectuate the policies of the Act.'
(a) Offer to Heibert Rojas Hernandez 'immediate and
full reinstatement to his former job or, if such job no
longer exists, to substantially_ equivalent employment,
without prejudice to his seniority or other rights and
privileges, and make him, and those employees listed on
Appendix A, whole for any loss of earnings, including
contract benefits, they may have suffered by reason of
Respondent's discrimination against them in the manner
set forth in the remedy section of this decision.
(b) Rescind its 11 October 1985-rule governing the
wearing of insignia to,the extent that it prohibits employ-
ees from wearing union insignia on their uniforms, out-
side immediate patient care areas, or outside other specif-
ically identified areas where the wearing of union insig-
nia would adversely affect patient care.
(c) Remove from its files any reference to the unlawful
suspensions of any of the employees listed in the at-
tached Appendix A and of Heibert Rojas Hernandez,
and notify each of them, in writing, that this has been
done, and that evidence of the unlawful suspensions or
discharge will not be used as a basis for future personnel
actions concerning them.
(d) Preserve and,, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records,,social security payment records, timecards,
personnel records and reports, and all other- records nec-
essary to analyze the amount of backpay due under the
terms of this Order.. - -
(e) Post at its San Juan, Puerto Rico hospital facilities,
copies of the attached notice marked "Appendix B."13
Copies of the notice, on forms provided by the Regional
Director for Region 24, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices- to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(1) Notify the, Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
19 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX A
Onelia Gely
Margarita Planell
Carmen M. ,Rivera
Pagan
Esperanza Melendez
Zulma I. Colon
Maria L. Rivera
Leonarda Sanchez
Brenda Llanos
Maria D. Lozada
David Rosario
Heibert Rojas
Hernandez
Raquel Carrion
Elfrida Martinez
Luz M. Barreiro
Isabel Davila
Victoria Santos
ASOCIACION HOSPITAL DEL MAESTRO
Felicita Perez
Antonia Rolon
Maria Romero
Maria Cortex
Elizabeth Ortiz
Clara Diaz
Ada L. Faura
Carmen G. Pizarro
Milagros Frasqueri
Aria M. Lopez
Ramona Catala
Oneida Nieves
Angeles Cepeda
Vivian Merced
Carmen P. Hernandez
Margarita Madera
Elsa Hernandez Rivera
Juanita Encarnacion '
Ana M. Rivera
Maria Lopez Pacheco
Cruz Cruz Rodriguez
Gloria Esther Matos
Maria T. Trinidad Mojica
Carmen Judith Rosa Garcia
Petra Villegas
Hilda M. Medina
Felicita Ayala ' Muriel
Milagros Collazo Gonzalez
Aria R. Nieves Andrea Gonzalez
Carmen I. Rodgiguez Jacqueline Atiles
Josefina Aveles Angelita Torres
Carlos R. Zayas Norma Pacheco
Ruben Medina Dinelia Felix
Maria J. Walker-Mate Gloria I. Delgado
Confesor Muriel' Carlos Vallejo
Luis A. Vicente Luz E. Albaladejo
Eulalia Andino Maria Morales
Celia Gomez
Hernandez
Milagros Pastrana
Angela Cintron Ortiz
Carmen J. Acevedo
Esperanza Latimer
Migdalia Vega
Zoraida Casado
Luz Z. Raya
Margarita Febres
Rivera
Luis Torres
Tomas Garcia
Enmelinda Gonzalez
Martin Morales
Zoraida Collazo
Luis Bonilla
Nereida Delgado
Nicolasa Otero
Madeline Ortega Sanchez
Adelaida Diaz Delgado
Sylvia Diaz Delgado
Maria Quinones Fuentes
Gertrudis Pizarro
Jorge A. Torres
Olga Collazo
Julio Lopez
Mercedes Hernandez
Evelyn Freight
Alida G. Vega
Maria de los A.
Ramona Catala
Gladys Garcia
Virgen Vega
Julia Sota
De Jesus
Maria Isabel Delgado
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
429
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of our employees, pursuant to an
overly broad rule restricting employees' right to wear
union insignia, where the wearing thereof is lawful and
protected pursuant to the terms of the National Labor
Relations Act.
WE WILL NOT promulgate, maintain, or enforce any
rule, regulation, or other prohibition which forbids the
wearing of union insignia on employee uniforms, outside
immediate patient care areas, or outside other specifically
identified areas where the wearing of union insignia
would adversely affect patient care.
WE WILL NOT threaten employees to cease wearing
union insignia on pain of severe discipline pursuant to an
overly broad rule governing the wearing of insignia.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce `employees in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL rescind our rule, issued on 11 October 1985,
governing the wearing of insignia, to the extent that it
prohibits employees from wearing union insignia , outside
immediate patient care areas, or outside Other specifically
identified areas where the wearing of insignia would ad-
versely affect patient care.
WE WILL offer immediate and full reinstatement to our
employee Heibert Rojas Hernandez, to his old job or, if
that job no longer exists, to substantially equivalent em-
ployment, and WE WILL make him and the 96 employees
listed in Appendix A whole for any loss of pay they may
have suffered as a result of our unlawfiil 'discrimination
against such employees, plus interest.
WE WILL remove from our files any reference to the
unlawful discharge of Heibert Rojas Hernandez or sus-
pensions of any of our, employees listed in Appendix A
of the decision of the National Labor Relations Board,
and notify each of them, in writing, that this has been
done, and that evidence of these unlawful acts will not
be used as a basis for future personnel actions concerning
them.
ASOCIACION HOSPITAL DEL MAESTRO, ]INC.