Asociacion Hospital Del Maestro, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 198 (N.L.R.B. 1988)

198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Asociacion Hospital Del Maestro , Inc and Jose Es
quthn Pinto Cases 24-CA-5412 and 24-CA-
5477
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 17 1988 Administrative Law Judge
Irwin Kaplan issued the attached decision The Re
spondent filed exceptions and a supporting bnef
and the General Counsel filed a limited cross ex
ception' and a brief in support of the judge s deci
lion
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 2 and
conclusions and to adopt the recommended Order
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
1 We grant the General Counsels request that the notice marked Ap
pendix be posted in Spanish as well as English
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
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 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Virginia Milan Giol and Raymond E Morales Esqs for
the General Counsel
Roberto E Vega Pacheco and Jaime R Nadal Esgs.
(Cancio Nadal & Rivera) of San Juan Puerto Rico
for the Respondent
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN Administrative Law Judge These
consolidated cases were heard on August 31 through
September 4 1987 in San Juan Puerto Rico The under
lying charges in Cases 24-CA-5412 and 24-CA-5477
were filed on July 26 1986 and November 14 1986 re
spectively These charges gave rise to an order consoh
dating cases consolidated amended complaint and
amended notice of hearing dated June 26 1987 which
document was amended further at the hearing
In essence it is alleged that Asociacion Hospital Del
Maestro Inc (Respondent) violated Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act) by
first suspending from employment its employee Jose Es
quilin Pinto (Charging Party or Esquilin) from July 15
1986 to August 15 1986 and then discharging said Es
quilin on October 21 1986 because of his support and
activities on behalf of Union Nacional de Trabajadores
de la Salud 1199 affiliated to National Union of Hospi
tal and Health Care Employees RWDSU/AFL-CIO
(Local 1199) Further it is alleged that Respondent inde
pendently violated Section 8(a)(1) of the Act by interro
gating employees about their union activities creating
the impression of surveillance informing employees that
they would be denied medical benefits because of their
union activities and threatening them with discharge be
cause of their union activities
The Respondent filed an answer conceding inter alia
jurisdictional facts and the supervisory and agency status
of certain individuals but denying that it committed any
unfair labor practices i
Based on the entire record including my observation
of the demeanor of witnesses as they testified and after
careful consideration of the posttnal briefs I make the
following
FINDINGS OF FACT
I JURISDICTION
The Respondent Asociacion Hospital del Maestro
Inc is a corporation existing under the laws of the Com
monwealth of Puerto Rico and has been engaged in the
operation of a hospital providing medical and related
health care services at Hato Rey San Juan Puerto Rico
In connection with the aforestated business operations
Respondent annually derives gross revenues in excess of
$250 000 and annually purchases and receives goods and
products valued in excess of $50 000 directly from sup
pliers located outside the Commonwealth of Puerto
Rico It is admitted the record supports and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2) (6) and (7) of the Act
The parties stipulated and I find that Union Nacional
de Trabajadores de la Salud 1199 affiliated to National
i On August 31 1987 at the outset of the hearing counsel for the Re
spondent for the first time objected to the consolidation of Case 24-CA-
5412 (alleging Esgmlm s unlawful suspension ) with Case 24-CA-5477 (al
leging Esquilin s unlawful discharge) The cases had been consolidated by
Order dated June 26 1987 (G C Exh 1(k)) Counsel for Respondent
moved for dismissal of Case 24-CA-5412 as untimely and the Charging
Party had failed to notify the attorney of record of his appeal in said
case from the Regional Director s refusal to issue a complaint (R Br 13)
Counsel for the General Counsel represented at the hearing without con
tradiction that by letter dated October 14 1986 the General Counsels
Office of Appeals notified counsel for Respondent of receipt of the
Charging Party s appeal Counsel for the Respondent produced no docu
ments nor did he recite any dates in support of his oral motion I reject
Respondents unsubstantiated and belated motion It is also noted that
while Section 102 19(a) of the Board s Rules and Regulations states that
any person taking an appeal from the Regional Director s refusal to issue
a complaint should notify all other parties it also states that any fail
ure to give such notice shall not affect the validity of the appeal The
consideration of an appeal untimely filed is within the discretion of the Gen
eral Counsel upon good cause shown (Emphasis added )
291 NLRB No 28
ASOCIACION HOSPITAL DEL MAESTRO 199
Union of Hospital and Health Care Employees
RWDSU/AFL-CIO is and has been at all times maten
al a labor organization within the meaning of Section
2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background and Sequence of Events
The x ray technicians and clericals at Respondents
hospital have long been represented by the Gastronome
cal Workers Union Local 610 (Local 610) At the time
of the instant hearing the Respondent and Local 610 had
not yet arrived at a new collective bargaining agreement
the last agreement had terminated in 1984 (G C Exh 4)
The Charging Party Jose Esquilm Pinto (Esquilm)
served the bargaining unit as general steward from 1974
to 1980 and was a member of Local 610 s negotiating
committee which negotiated the 1982-1984 agreement
Around April 1986 2 Esquilin having become frustrated
because of the absence of a new collective bargaining
agreement began to explore alternative union representa
tion with officials of Union Nacional de Trabajadores de
la Salud 1199 (Local 1199) In May or June 1986 Esqui
lin distributed leaflets on behalf of Local 1199 s organiz
ing efforts at the main entrance to Respondents hospital
(G C Exh 5(b)) According to Esquilin s uncontroverted
testimony he was observed distributing Local 1199 leaf
lets by various management officials including Assistant
Vice President Vincente Castro Antonio Rivera then
chief of security and Supervisor Lorenzo Pardo 3 Fur
ther Esquilin distributed some 45 Local 1199 authonza
tion cards to hospital employees over a 2 week period
immediately prior to July 2 On that date (July 2) Local
1199 filed a representation petition for the office and
clerical employees unit represented by Local 610 (G C
Exh 2) Also on that date as described below Esquilin
was involved in two matters which led to his alleged des
criminatory 30 day suspension on July 15
On July 2 around 11 30 am Esquelen while on his
morning break and armed with some Local 1199 authon
zation cards visited Betzaida Negron a clerical employ
ee in her department This is an enclosed area with a
glass door "and window and dust outside was the waiting
room area to the emergency room There Negron was
given a union card which she filled out and signed and
returned to Esquilen The latter then left the area and
soon after punched out for lunch Over the lunch period
Esquilin dropped off signed union authorization cards
with Local 1199 Organizing Secretary Jose Perez who
later that day filed the aforenoted representation petition
In the meantime Negron had second thoughts about
the union card she had given to Esquilin and solicited
guidance from her supervisor Juana Villodas Negron
(Respondents witness) testified without contradiction
that she was told by Villodas During working hours
those things [union matters] could not be done Villodas
also directed Negron to [c]ontinue working with in
2 All dates refer to 1986 unless otherwise indicated
3 For reasons discussed below unless otherwise indicated the asserted
facts and version of events described in this section are set forth as cred
ited
structions that she (Villodas) [didn t] want any of those
problems to occur in our working area ,
According to Negron she took an abbreviated lunch
that day because she wanted to talk to Esquilin about
getting her card back and because she was concerned
about the patients who were waiting in the emergency
room 4 Negron s early return did not please Villodas
who gave her a verbal warning for not taking her full
lunch period At 2 p in Negron began a search at the
hospital for Esquilin to get her union card back asserted
ly with the permission of Villodas Negron enlisted the
help of Antonio Rivera then chief of security and also
had Esquilin paged At that time Esquilin was at a bank
on personal business outside the hospital with permis
sion from his supervisor Lourdes Haydee Rodriguez Es
cobar (Rodriguez) 5 Esquilin had punched out at 2 06
p m and back in at 3 03 p in (G C Exh 8) Within min
utes after Esquilin had punched back in he was ap
proached by Negron and she asked him to return her
union card Esquilin informed Negron that he had al
ready given her card to Jose Perez the Local 1199 orga
nizer
On July 7 in the afternoon Esquelen was summoned to
the office of Jesse Pou Rivera (Pou) then personnel and
industrial relations director and questioned about certain
of his activities on July 2 Pou asked Esquilin to identify
the bank he had gone to that day He also informed Es
quilin that he had heard that he was distributing union
cards close to the emergency room area and that he
(Pou) was conducting an investigation in that respect
Esquelen requested to have a union official present and he
was so accommodated by Pou who summoned Juanita
Santiago a Local 610 shop steward In Santiago s pres
ence Pou again asked Esquilin about the bank and 'its
activities around the emergency room area Esquilen told
Pou that he had been to Banco Popular and conceded
that he had given union cards to a fellow worker but
maintained that she was on her lunch breaks and that he
was on his morning break at that time Pou also wanted
to know the branch of Banco Popular but Esquilin re
fused to answer further pointing out that he had gone to
the bank with the permission of his supervisor Santiago
was unable to resolve the dispute and asked Pou to
notify the Union when he completed his investigation
Among those individuals Pou interviewed during his
investigation were Dr Pastrana a member of the midi
cal faculty at Respondents hospital Carlos Gonzalez
the comptroller Lourdes Rodriguez then Esquelen s im
4 I have largely discounted Negron s testimony as conclusionary incon
sistent implausible self serving and transparently biased against Esquilin
5 It is undisputed that Rodriguez authorized Esquilm to attend to such
business around 1 15 p in According to Respondent Esquihn had already
returned from the bank when he next spoke to Rodriguez 15 to 20 min
utes later Respondent denies that Esquihn was authorized to leave the
hospital at 2 p in In the circumstances of this case the Respondent s
denial is untenable Thus it is noted inter alia as testified by Rodriguez
that Esquthn never told her that he had actually been to the bank More
over Rodriguez acknowledged that she would not deem it unusual for
Esquihn to request to go to the bank but to delay his departure for 45
minutes to an hour
6 It appears that around the same time Esquilin had also given a union
card to clerical employee Rosa Manso and that it was the latter and not
Negron who was on her lunch break
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mediate supervisor employee Negron and Antonio
Rivera then chief of security Pastrana Gonzalez and
Rivera? did not testify Esquilin testified credibly and
without contradiction that he borrowed Dr Pastrana s
car on July 2 to go to the bank According to Rodn
guez Gonzalez asked her whether she had authorized
Esquilin to go to the bank on the day in question and she
responded in the affirmative
Juan Amador was Esquilin s regular immediate super
visor On July 2 in Amador s absence Rodriguez had
assumed Amador s supervisory functions Amador was
back at the hospital on July 15 when late that afternoon
Esquilin was summoned to Amador s office There
Amador gave Esquilin a 30 day suspension letter (G C
Exh 9(b)) The letter noted a host of faults on the part
of Esquilin including a long history of tardiness and ab
senses [sic] problems with his timecards and his recent
activities on July 2 Regarding those recent activities the
letter stated as follows
On July 2 1986 at around 11 30 you were at the
Emergency Room area having abandoned your
work station without having authorization and in
terrupting the work of the office employees in said
Department In the afternoon of that same day you
again abandoned your work area and left the Hospi
tal in order to carry out some business at a bank
also without proper authorization [Id par 1 ]
The letter concluded with a last chance warning that
if such faults are repeated a more disciplinary
measure will be applied which may include discharge
This was the first time Esquilin had been suspended
Pou testified without contradiction 8 that approximately
1 week prior to Esquilin s asserted misbehavior on July
2 he (Pou) was notified by the personnel office that Es
quilin had a chronic problem of absenteeism over the
past 3 years (R Exh 6) According to Pou the person
nel office was engaged in attendance studies of the vari
ous departments in the hospital at that time The record
disclosed that Esquilin had never received a written
warning regarding his attendance and is unclear whether
he ever received a verbal warning Pou merely testified
that I think it had been talked about (emphasis added)
his [Esquilin s] attendance at work
The problem with timecards noted in the suspension
letter posed something of a mystery because from time
to time Esquilin s timecards had disappeared and he had
in writing asked for managements help to investigate
(G C Exhs 10(b) 11(b)) This problem was subsequently
acknowledged (after the suspension) in a memorandum
from Pou to Esquilin dated September 29 1986 in which
Pou wrote inter alia
In regard to the disappearance of your timecards a
problem which you have had for a long time I repeat
r The record disclosed personal ties between Negron and Rivera out
side the employment relationship
8 In certain critical areas Pou s assertions were not corroborated by
testimony or probative documentary evidence As will be discussed more
fully infra I did not find Pou to be a reliable witness
it is difficult for us to locate same [Emphasis added
G C Exh 12(b) ]
On or about October 2 Esquilin met with Hospital
Administrator Filberto Garcia and asked for hospital
coverage for his (Esquilin s) mother under a federally
funded medical indigent program Esquilin testified that
Garcia told him that he would not grant his request be
cause he was a problematic employee and because he
had sued the hospital (This is the essence of the 8(a)(1)
allegation) Garcia denied that service under the medical
indigent program for Esquilin s mother turned on union
considerations According to Garcia he told Esquilin
that he had not made a formal request On cross exams
nation Esquilin acknowledged that he had not made a
written request either to the social worker or to Garcia
According to Garcia he pointed out to Esquilin that
under the program the funds provided the hospital for
the indigent community were limited and also reminded
him (Esquilin) that the hospital had serviced his mother
as an indigent person in the past
Esquilin testified that on October 9 at approximately
10 30 a in while he was moving some files in the hall
way of the hospital he met in passing Osvaldo Torres
material and supplies manager There they had a brief
conversation in which Esquilin inquired about the health
of his father in law Huberto Alcover Bauza (Alcover) a
patient at the hospital since September 17 According to
Esquilin he asked Torres for Alcover s room number to
pay him a visit and Torres told him that he was on the
fourth floor Torres testified that he also provided the
room and phone number of his father in law as requested
by Esquilin
Esquilin testified with corroboration from employee
Raul Segarra Valentin (Segarra) that the same morning
(October 9) around 11 30 a m while in the accounts de
partment he asked Lorenzo Pardo Rodriguez (Pardo)
the supervisor in that department for permission and
permission was granted to copy the phone extension
from Alcover s file (Torres father in law) According to
Esquilin he did this because he suddenly realized that his
workload was such that he would be unable to then drop
in on Alcover and contemplated phoning him instead
While it is undisputed that Pardo observed Esquilin
take note of Alcover s file Pardo denied that he gave
permission to Esquilin to do so Also in dispute is wheth
er Esquilin merely noted Alcover s phone extension or
as contended by Respondent that he actually examined
the contents of Alcover s file As testified by Pardo at
the time in question Pardo was seated next to employee
Segarra when Esquilin came into their department greet
ed them and quickly moved to the rear of the office
where the patients files are arranged There Esquilin as
sertedly lifted Alcover s file read its contents placed the
file back in order and left the department approximately
1 minute after he had arrived According to Pardo Es
quilin acted so quickly that he Pardo was caught by
surprise and therefore did not question Esquilin regard
mg his actions
Torres also testified that he observed Esquilin examine
a file at the time in question and merely suspected that
he was looking at the file of his father in law According
ASOCIACION HOSPITAL DEL MAESTRO
to Torres he thought it strange for Esquiltn to inquire
about his father in law because Esquilin did not know
him Thus he purposely followed Esquilin to the ac
counts department where he observed the latter outside
the partially windowed door (Jt Exh 2(a)) Further
after Esqutlin left that department Torres attempted
without success to reach his (Torres) immediate boss
and therefore immediately proceeded to complain to
Pardo s supervisor Carlos Gonzalez because I wanted
to know if Mr Esquihn had been observing my father in
law s record Gonzalez summoned Pardo to his office
and the latter confirmed that Esquiltn had looked at Al
covers file According to Pardo it was easy to discern
Alcover s from other files because it was the only one
which contained a red label on the outside signifying
that the patient was not covered by insurance Pardo
told Gonzalez I saw [Esqutltn] take out [Alcover s]
record but it was something so fast I did not have time
to react According to Pardo Gonzalez reprimanded
him for failing to act appropriately as a supervisor and
stated that he would place a report to that effect in his
file 9
That afternoon Esquilin was summoned to Pou s
office and questioned by Pou regarding Torres father in
law s record Esquilin denied that he had examined
Torres father in law s record and explained that he had
merely obtained the telephone extension for which he
had Pardo s permission When Pou pressed Esquilin fur
ther on this subject the latter refused to answer in the
absence of a union representative and he left Pou s
office
According to Esquilin s uncontroverted testimony
soon after he left Pou s office he had a brief friendly ex
change with Pardo as they passed one another Pardo
told Esquiltn I in sorry Joe but they cornered me
Esquilin in turn told Pardo that s nothing shook
hands and continued on his way Still that same after
noon Esquilin also had a chance encounter with Jose
Eligio Velez chairman of the board of directors at Re
spondent s hospital Esquiltn complained to Velez about
his unjustified suspension back in July and about the
most recent accusations As testified by Esquilin without
contradiction Velez responded go home and to analyze
and think if I was doing anything wrong at the hospital
and to decide if I would stay or leave the hospital
(Velez statement is alleged to be a threat of discrimina
tory discharge) Esquilin told Velez that he would think
about it and the conversation ended
The following day (October 10) a company union
meeting was held in Pou s office concerning Esquilin s
conduct in dealing with Torres father in law s file In at
tendance were Pou and Esquilin and Local 610 Repre
sentatives Reuben Davila and Jenny Santiago There Es
9 Pardo asserted that such a report must be in my file but he has not
seen it nor was such a report produced at the hearing In the 13 1/2
years that Pardo has been employed by the Respondent he had not pre
viously received a written reprimand Gonzalez did not testify nor was
any reason advanced for the failure to call him as a witness I found
Pardo unresponsive implausible inconsistent and unreliable where his tes
timony is in conflict with Esquilin s Similarly I was unimpressed with
Torres and found his testimony largely conclusionary implausible and un
reliable As noted previously my credibility resolutions will be treated
more fully infra
201
quilin traced the events of the previous day starting with
his brief conversation with Torres about his father in law
and Esquiltn s followup steps (with Pardo s permission)
to obtain Torres father in law s phone number Davila
expressed doubt as to any Esquilin impropriety pointing
out that Supervisor Pardo had knowledge of Esquilin s
actions but made no effort to intercede Pou did not re
spond to Davila s observation The latter noted that
other witnesses would have to be questioned and he
asked Pou to summon Pardo and Segarra Pou refused
stating that he was under no such obligation Davila of
fered to carry on his own investigation in the accounts
department without interrupting the work of employ
ees Again Pou refused and gave no explanation
On October 21 soon after Esquilin arrived at work
Pou handed him a termination letter (G C Exh 13(b))
The letter recounted Esquihn s activities dealing with
Torres father in law s file leading to the following of
fences
1 Unduly intruding by checking some records as
to which you had no bearing
2 Abandonment of place of work in order to
carry out a personal errand during working hours
without authorization for same
3 Interrupting the work of other fellow workers
The letter also cited his earlier suspension back in July
for similar offenses as well as his overall background
at Respondents hospital and concluded that We are
doing without your services effective immediately
Another company union meeting took place at the
hospital on October 30 when efforts were made to re
construct Esquiltn s disputed actions of October 9 This
time Pardo and Segarra were present when Esquilin de
scribed what he had done with Torres father in law s
file and once again (without contradiction) he noted that
he had Pardo s permission Davila asked Segarra wheth
er he heard Pardo grant such permission and Segarra an
swered in the affirmative Pou was then asked by Davila
whether he had interviewed Segarra as part of his inves
tigation but Pou did not respond and the meeting ended
The charges alleging a discriminatory discharge were
filed 2 weeks later
B Discussion and Conclusions
1 Credibility
For the most part the material facts are not in dispute
For example it is not disputed that on July 2 around
1 15 p in Esquilin requested and was granted permission
from his supervisor to go to the bank for personal rea
sons What is in dispute is whether Esquilin later aban
doned his work area without proper authorization as
contended by Respondent by absenting himself from the
hospital for approximately 1 hour between 2 and 3 p in
(rather than at 1 15 p m) I find that resolving this dis
pute turns more on an assessment as to what is reason
ably plausible rather than straight credibility Here (as
will be discussed more fully below) as in virtually all
other such areas in dispute I reject the Respondents po
sitions as pretextual Insofar as there are direct credibility
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conflicts I find in favor of the General Counsels wit
nesses (except in the few instances specifically noted oth
erwise)
The principal credibility conflict is whether Esquilm
had been given permission by Supervisor Pardo to note
or copy the phone extension from Alcover s record
(Torres father in law s file) According to Respondent
the unauthorized liberties taken by Esquilin to examine
Alcover s file was the main reason for his discharge I
find however that Esquilin testified credibly with cor
roboration from employee Segarra that Pardo granted
Esquilin access to Alcover s file to obtain the phone ex
tension
In crediting Esquilin over Pardo it is noted inter alia
that the latter admittedly observed Esquilin pull out and
look at Alcover s file but took no steps to intercept Fur
ther as acknowledged by Pardo Esquilin reached for
Alcover s file in Pardo s line of vision and made no
effort to conceal what he was doing I find highly im
probable and reject Pardo s explanation that he failed to
react or question Esquilin because the latter acted too
quickly and caught him by surprise Pardo s account
hardly squares with his other testimony that Esquilin not
only reached for Alcover s file but lifted it read it and
placed it again in place [Emphasis added] Thus it ap
pears to me that if Esquilin had time to read Alcover s
chart then Pardo had time to ask Esquilin what he was
doing with that file Rather I find that Pardo did not
intercept Esquilin because he had already granted him
access to Alcover s file Esquilin credibly testified that
Torres had only given him the floor location not Al
covers room number As the phone extension (which
corresponds to the room number) appears with the pa
tient s name on a plastic tape at the very top of the
chart Esquilin could easily satisfy his purpose of extract
ing Alcover s phone number without ever opening up
the file or examining its contents
While Esquilin did not know or barely knew Alcover
(a patient at the hospital) it appears that he merely
hoped to convey some greeting or words of encourage
ment to a relative of a fellow employee Esquilin ex
plained as follows
[D]unng the morning when I was coming to work
I would meet with Mr Torres wife and I would
ask her about the [health] condition of her father
and I deemed that it was reasonable as a
fellow worker of Mr Torres to go and see his
father in law
Esquilin testified at length and I found him to be re
sponsive forthright and consistent with only a few
minor discrepancies It is also noted that his testimony in
some key areas was either uncontradicted or corroborat
ed by other credible witnesses As I was impressed with
Esquilin s overall demeanor and found him otherwise to
be a reliable witness I do not reject his professed interest
in the health of Alcover as implausible
I also credit the testimony of the General Counsel s
witnesses Segarra and Davila in material respects As
noted above Segarra corroborated Esquilin s testimony
that Pardo had granted him (Esquilin) permission to
obtain the phone extension from Alcover s file In assess
ing whether Segarra was forthright as a witness it is
noted inter alia that he candidly acknowledged on
cross examination that he has known Esquilin for 14
years and considers him a good friend Respondent
contends that Segarra harbored animus against the Re
spondent because he was suspended for 5 days without
pay in 1986 (which Segarra asserted related to his union
activities) On the other hand it is also noted that Se
garra had not been disciplined since and he was still em
ployed by Respondent at the time he testified a factor at
least ostensibly against his self interest and long recog
nized by the Board not to be lightly disregarded See
e g Federal Stainless Sink Div of Unarco 197 NLRB
489 491 (1972) Gateway Transportation Inc 193 NLRB
47 48 (1971) On balance including demeanor factors I
find Segarra to be a credible witness
In crediting Davila it is noted inter alia that his testi
mony was largely corroborated and uncontradicted Fur
ther in assessing Davila s overall reliability it is noted
that while he testified in support of the General Coun
sel s case his interests are not necessarily allied with Es
quilin s Thus Davila at all material times has represent
ed Local 610 the same union which Esquilm tried to dis
lodge by his organizing efforts on behalf of Local 1199
On the other hand with the exception of Garcia I
was unimpressed with the demeanor of Respondent s
witnesses and found them to be largely conclusionary
vague elusive implausible and unreliable The testimony
of Torres is a case in point According to Torres he sus
pected that Esquilin improperly examined his father in
law s file However it is undisputed that Esquilin acted
openly and in full view of Supervisor Pardo Yet Torres
unaccountably elected not to question Pardo and instead
complained to Gonzalez Pardo s supervisor In the ab
Bence of any cogent explanation as to why Torres a
manager himself bypassed Pardo I view his overall tes
timony as highly suspect As for Torres explanation for
his surveillance of Esquilin I find that it does not have
the ring of truth While Torres asserted that he thought
it strange for Esquilin to inquire of his father in law s
health it is noted that Torres did not hesitate to disclose
his father in law s condition to Esquilin as well as the lo
cation so that Esquilin could pay him a visit
Pou was Respondents principal witness While he was
no longer employed by Respondent at the time he testi
fled it is also noted that he sat at Respondent counsel s
table to assist throughout the entire hearing In addition
to the negative credibility factors noted above regarding
Respondent s witnesses generally Pou s testimony also
suffers because of the serious doubts raised by the un
precedented severity of the punishment given Esquilin
for his alleged offenses
It is noted that Esquilin an employee with 14 years of
service for Respondent was suspended for 30 days with
out ever having received a prior written warning for any
offense In contrast employee Negron with 4 years of
service for Respondent and a history of violating compa
ny rules had never been suspended and was still em
ployed at the time she testified Negron s supervisor ad
vised Pou in writing that Negron had an attitudinal prob
ASOCIACION HOSPITAL DEL MAESTRO
lem with patients in the emergency room and was also
disrespectful to the supervisor (G C Exh 19(b)) The
record also disclosed that Negron was severely criticized
in writing by the mother of an emergency patient for ne
glect insensitivity and verbal abuse without any appar
ent action taken by Respondent against Negron (G C
Exh 20(b))
Insofar as Esquilin was suspended for tardiness and
absences the record disclosed that other employees re
ceived written warnings before being suspended or dis
charged (See e g Tr 373-374) In this regard I reject
Pou s uncorroborated assertion that even prior to July 2
a study was undertaken by the personnel office regarding
Esquilin s tardiness and absenteeism over the past 3 years
and coincidentally (my word) it was brought to Pou s
attention during the week of the July 2 incident that Es
quilin had a chronic problem Rather I find that Pou
merely seized on Esquilin s attendance record as well as
his other alleged offenses merely as a pretext to take the
disputed disciplinary action In short I find that Pou was
not a credible or reliable witness Thus I credit the Gen
eral Counsels witnesses over Pou in all material areas
when the testimony is in conflict
2 The 8 (a)(3) allegations (suspension and discharge)
It is undisputed that shortly before Esquilin was sus
pended that he had actively and openly solicited employ
ee support for Local 1199 s organizational drive This ac
tivity included distributing Local 1199 leaflets at the
main entrance to Respondents hospital and passing out
and receiving union cards at work Over a 2 week period
to on or about July 2 Esquilm distributed to employees
approximately 45 union cards The July 2 date is critical
because Esquilin s organizing efforts in the emergency
room area that day admittedly led to an investigation by
Respondent and to Esquilin s subsequent suspension On
July 2 Local 1199 also filed its representation petition
According to Pou in connection with his investigation
he learned that Esquilin had also absented himself from
the hospital on July 2 for approximately 1 hour without
permission and this too contributed to Esquilin s suspen
sion
The record disclosed that on or about July 7 Pou
summoned Esquilin to his office where he questioned
him regarding the distribution of union cards in the
emergency room area on July 2 and also about leaving
the hospital that same day without permission Esquilin
acknowledged to Pou that he had given union cards to
an employee around the emergency room area but as
serted that the employee was on her lunch break As for
absenting himself from the hospital without authonza
tion Esquilin told Pou that his supervisor had given him
permission to go to the bank When Pou pressed Esquilin
for more information regarding the name and branch of
the bank the latter requested that a union representative
be present
I find with regard to Esquilin s activities in the emer
gency room area contrary to Pou s uncorroborated as
sertion that there is no credible evidence tending to
show that Esquihn actually interrupted the work of the
people that [were] working in that area [Emphasis
added ] As for Esquilin absenting himself from the hospi
203
tal I credit his testimony with corroboration from Ro
driguez his supervisor at the time that she had, given
him permission
Pou testified without corroboration that Comptroller
Carlos Gonzalez had informed him that Esquilin absent
ed himself without authorization (Tr 397-398) Howev
er Rodriguez testified credibly that Gonzalez asked her
about Esquilin s absence and she informed him that she
had given him (Esquilin) permission to go to the bank
(Tr 39) In fact Respondent does not dispute that Rodn
guez gave Esquilin permission at 1 15 p in Rather Re
spondent contends that Esquilin did not have authority
to leave approximately 1 hour later In the circumstances
of this case I fail to discern any material difference
Thus Rodriguez acknowledged that it is not unusual for
an employee to request permission to leave the hospital
and not leave at that moment but an hour later Further
there is no showing that Esquilin neglected any of his re
sponsibilities or that the hospital suffered in any way by
his later departure On the basis of these factors and on
the entire state of the record I am convinced that any
reliance by the Respondent on the fact that Esquilin left
the hospital improperly at 2 06 p in instead of at ap
proximately 1 15 p in when he requested permission of
his supervisor is merely subterfuge
Similarly I find that Respondent wrongfully and un
lawfully seized on the incident involving Torres father
in law s file (Alcover s file) as a pretext for discharging
Esquihn Thus the credited testimony disclosed that Es
quilm with Supervisors Pardo s permission obtained the
phone number from Torres father in law s file (See sec
1 Credibility supra ) That Esquilin elected not to fol
lowup and actually phone Torres father in law to in
quire about his health is understandable given Pou s im
mediate investigation and questioning of Esquilin as as
serted by the latter
Counsel for the Respondent argues that the motivat
ing factor for Esquilin to examine Alcover s file was to
learn whether he had been granted charity while his
(Esquilin s) mother who had also been a patient was not
carried under the same program Respondents counsel
maintains that as such Esquilin acted outside the scope
of his duties and responsibilities as a clerk in the central
file area I find that the record disclosed a number of
impressive factors that tend to militate against Respond
ent counsels conclusion Thus I find it highly unlikely
that if Esquihn acted improperly that he would do so
openly and in full view of the departments supervisor
In any event for reasons stated previously Esquilm also
had the supervisors permission Moreover the record
disclosed that Esquilin worked 4 hours alone in that de
partment every Saturday and had he wanted any infor
matron from Alcover s file he had easy access to that
file
Under the Board s causation test as set forth in Wright
Line 251 NLRB 1083 1089 (1980) in all cases alleging
violations of Section 8(a)(3) as here the burden is on the
General Counsel to make a prima facie showing that the
union activity was a motivating factor in the employer s
disputed action Once accomplished the burden then
shifts to the employer to demonstrate that the same
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
action would have taken place notwithstanding the union
activity
Here the elements supporting a puma facie case are
strong and persuasive The record disclosed that Esqui
fin s widespread organizational efforts on behalf of Local
1199 were well known to Respondent Indeed on or
about July 7 Pou admittedly questioned Esquilin about
his actions in handing out union authorization cards to
employees approximately 5 days earlier Those activities
in large measure led to Esquilin s 30 day suspension Ap
proximately 2 months after Esquilin s suspension ended
he was terminated As noted above the reasons ad
vanced by Respondent for Esquilin s termination do not
stand scrutiny In the letter of termination the Respond
ent noted inter alia Your personnel file shows that in
July 1986 you were laid off [suspended] for similar of
fenses As such the termination letter clearly linked the
discharge to the earlier suspension which itself was
largely the outcome of Esquilin s actions in handing out
Local 1199 authorization cards
The record having clearly disclosed that the timing of
Respondents disputed action had come soon after Esqui
fin s intensive union activities and that the Company had
knowledge thereof I turn now to company animus the
remaining element necessary to satisfy a puma facie case
While I do not find that the Respondent independently
violated Section 8(a)(1) (see sec 3 8(a)(1) allegations
infra) or that it made any clear statements reflecting hos
tility toward Local 1199 I am convinced and I find on
the total state of this record that an inference of compa
ny animus against Local 1199 is justified 10 noting inter
alia that the various reasons assigned by Respondent for
its action have been rejected as pretextual See Murd In
dustries Inc 287 NLRB 864 870 (1987) Here I find
that Respondent accused Esquilin falsely and in bad faith
for taking certain unauthorized liberties when in fact he
acted only after he requested and was granted permission
by his supervisors As stated by the Board A pretextual
reason of course supports an inference of an unlawful
one Keller Manufacturing Co 237 NLRB 712 717
(1978) Further it is noted that the seventy of the disci
pline for the alleged offenses was unprecedented Thus
Esquilin a longtime employee was suspended for 30
days although unlike other employees he had never re
ceived a prior written warning
Having found that the General Counsel made a prima
facie showing of unlawful motivation on the part of Re
spondent for its action against Esquilin as required under
Wright Line and having rejected Respondent s reasons as
unsubstantiated and pretextual I further find that Re
spondent 'ailed to meet its Wright Line burden by dem
onstrating that it would have taken the same action
io For purposes of animus in assessing the total surrounding circum
stances I have not relied on the Board s previous findings against the
same Respondent (Asociacion Hospital del Maestro Inc 283 NLRB 419
425 (1987)) There basically the findings were predicated on an overly
broad rule banning the wearing of all union insignia on uniformed per
sonnel everywhere and at all times in the hospital The judge (with
Board approval) noted that the Respondent was motivated by a genuine
fear that the Local 1199 insignia and especially red ribbons would have
an adverse affect on patients and patient care
against Esquilin absent his activities on behalf of Local
1199
In short I find that Respondent suspended and later
terminated Esquilin in violation of Section 8(a)(3) as al
leged
3 The 8(a)(1) allegations
It is alleged that Respondent independently violated
Section 8(a)(1) by (1) interrogating employees about
their union activities (2) creating the impression that the
employees union activities are under surveillance (3)
threatening employees with discharge because of their
union activities and (4) informing employees that they
would be denied medical benefits because of their union
activities
a Interrogation and creating the impression of
surveillance
As these two allegations involved remarks made by
Pou to Esquilin on the same occasion they are treated
together
The record disclosed that on or about July 7 Pou
summoned Esquilin to his office and questioned him re
garding two matters that had occurred on July 2 It is
undisputed that Pou told Esquilin that he had heard that
the latter had distributed union cards in or around the
emergency room area around 11 30 a in on July 2 and
questioned Esquilin about what he was doing at the time
and location in question Pou also questioned Esquilin re
garding certain details of a personal errand to the bank
on July 2
While the General Counsel correctly cites the totality
of circumstances test noted by the Board in Rossmore
House 269 NLRB 1176 (1984) I arrive at different con
clusions First regarding the alleged interrogation it is
noted inter alia that Esqutltn openly and actively solicit
ed employee support for Local 1199 both inside and out
side the Respondents hospital Esqutltn also distributed
Local 1199 leaflets at the main entrance to the hospital in
full view of managerial personnel before the meeting
with Pou Thus Pou unquestionably knew of Esquilin s
varied activities on behalf of Local 1199 Given such
knowledge I find it highly unlikely that Pou questioned
Esqutltn to learn more about his union activities Rather
I find that the focus of Pou s inquiry was on the enter
gency room area In these circumstances I cannot con
clude that Pou as personnel manager did not have a le
gitimate concern about Esquilin interfering with the
work of other employees or with patients in an obvious
ly sensitive area such as the emergency room The fact
that Esquilin did not actually interfere with anyone does
not mean that Pou improperly conducted an investiga
tion in the first instance
On the basis of the total circumstances I am unper
suaded and reject the notior that Pou coercively interro
gated Esquilm in violation of Section 8(a)(1) Similarly
given the total state of this record noting particularly
that Esquilin s union activities were open uninhibited
and widespread I find that Pou s statement to Esqutltn
that he had been informed that he (Pou) had given out
union cards around the emergency room area without
ASOCIACION HOSPITAL DEL MAESTRO
more falls short of conveying to him that his union ac
tivities are under surveillance Accordingly I shall rec
ommend that these allegations be dismissed
b Threat of discharge
This allegation is based on a brief chance verbal ex
change on October 9 between Esquilin and Jose Velez
chairman of the board at the hospital According to Es
quilin (Velez did not testify) on the occasion in question
while he was on route to his department he met Velez
and stopped to talk to him about his problems Earlier
that day Pou had questioned Esquilin about his actions
in looking at Torres father in law s file While Esquilin
and Velez had seen each other previously at the hospital
and knew each other s identity they did not otherwise
have any relationship Esquilin testified without contra
diction about their brief meeting as follows
I called [Velez] to talk to him I told him Mr
Velez in July I was suspended without just cause
and now I was given permission to look at a tele
phone extension and they are saying that I am look
mg into a record in a file
Mr Velez said for me to go home and to analyze
and think if I was doing anything wrong at the hos
pital and to decide if I would stay or leave the hos
pital
I find contrary to the General Counsel that Velez re
sponse falls far short of constitut [ing] a veiled threat
to abandon union activities if [Esquilin ] wanted to
stay at the hospital Neither Esquilin nor Velez men
tioned the Union and the remarks ascribed to Velez were
otherwise vague and ambiguous This was also a chance
meeting when Esquilm approached Velez and initiated
the brief discussion Given the casual or indifferent
nature of their employment and social relationship I
find without more no reason to read into Velez re
marks a meaning not expressly stated In this connection
it is noted that the record is devoid of evidence tending
to show that Velez played any role in labor management
relations In sum I find that the record does not support
the allegation that Velez remarks constituted a threat to
discharge Accordingly I shall recommend that this alle
gation be dismissed
c Informing employees that they would be denied
medical benefits because of their union activities
It is undisputed that on or about October 2 Esquilin
met with Hospital Administrator Garcia to discuss cov
erage for his mother then a patient at the hospital under
a federally funded program for medically indigent per
sons in the community Esquilin testified that Garcia told
him that he would not offer that service because he (Es
quilin) was a problematic employee and had sued the
company Garcia denied that he threatened Esquilin with
a denial of such medical benefits for his mother because
of his union activities
According to Garcia he noted to Esquilin that he had
not submitted a formal written request This was ac
knowledged by Esquilm on cross examination (Tr 180)
205
Garcia explained that the initial request is made to the
social worker before and not after the patient is admitted
to the hospital in time for a socio economic study to de
termine whether the applicant is a candidate for the pro
gram He also pointed out to Esquilin that funds were
limited and reminded him that the hospital covered his
mother in the past
Garcia testified that Esquilin told him that he under
stood that the hospital would deny him such benefits be
cause of union considerations and noted that he had
always faced persecution from the hospital In crediting
Garcia s testimony it is noted inter alia that Esquilin
did not deny this account and it is somewhat similar to
his (Esquilin s) complaint to Velez 1 week later about
being mistreated by the hospital Further Garcia testified
without contradiction that Esquilin told him that he was
comfortable talking to Garcia because the latter was the
only one in the hospital administration who did not act
in bad faith
Given the limited testimony provided by Esquilin re
garding this meeting with Garcia that the remarks as
cribed to Garcia are vague and subject to a number of
interpretations that Garcia is not accused of otherwise
making coercive statements that Garcia s testimony in
some material areas is uncontradicted and as I found
Garcia overall to be responsive consistent and plausible
I am unpersuaded that the allegation is supported by the
record In sum I find that the General Counsel has failed
to establish that Garcia informed Esquilm that medical
benefits would be denied his mother because of his union
activities Accordingly I shall recommend that this alle
gation be dismissed
CONCLUSIONS OF LAW
1 Asociacion Hospital del Maestro Inc Respondent
is an employer engaged in commerce within the meaning
of Section 2(2) (6) and (7) of the Act
2 Union Nacional de Trabajadores de la Salud 1199
affiliated to National Union of Hospital and Health Care
Employees RWDSU/AFL-CIO Local 1199 is and has
been at all times material a labor organization within the
meaning of Section 2(5) of the Act
3 By suspending and subsequently discharging from
employment its employee Jose Esquilin Pinto (Esquilin)
because of his activities on behalf of Local 1199 Re
spondent violated Section 8(a)(3) and (1) of the Act
4 The General Counsel has not established that the
Respondent independently violated Section 8(a)(1) of the
Act
5 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 has engaged in cer
tarn unfair labor practices I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act
As I have found that Respondent unlawfully suspend
ed and later discharged Jose Esquilin Pinto (Esquilin) be
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause he engaged in union activities on behalf of Local
1199 I shall recommend that the Respondent be ordered
to offer said Esquilin immediate and full reinstatement to
his former position or if that position no longer exists to
a substantially equivalent job without prejudice to his
seniority and other rights and privileges and to make
him whole for any loss of earnings as a result of the dis
crimination against him with backpay to be computed in
the manner prescribed in F W Woolworth Co 90
NLRB 289 (1950) with interest to be computed in the
manner prescribed in New Horizons for the Retarded 11
I shall also recommend that any reference to Esquilin s
suspension and termination be expunged from his em
ployment record
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed1z
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) Suspending discharging or otherwise discnminat
ing against employees because of their activities on
behalf of Local 1199 or other union activities
(b) 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
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to Jose Esquilin Pinto immediate and full re
instatement to his former job or if such job no longer
exists to substantially equivalent employment without
prejudice to his seniority and other rights and privileges
and make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the
decision
(b) Remove from its files any reference to the unlawful
suspension and discharge of Jose Esquilin Pinto and
advise him in writing that this has been done and that
evidence of the unlawful suspension and discharge will
not be used as a basis for future personnel action con
cerning him
(c) 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
" In accordance with the Board s decision in New Horizons for the Re
Larded 283 NLRB 1173 (1987) interest on and after January 1 1987
shall be computed at the short term Federal rate for the underpayment
of taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621 ) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
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
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Hato Rey San Juan Puerto Rico hospi
tal facilities copies of the attached notice marked Ap
pendix 13 Copies of the notice on forms provided by
the Regional Director for Region 24 after being signed
by the Respondents 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 cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that those portions of
the complaint found to be without merit are hereby dis
missed
13 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
at 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
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 or
dered us to post and abide by this notice
WE WILL NOT suspend discharge or otherwise dis
criminate against our employees because of their active
ties on behalf of Local 1199 or other union activities
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL offer Jose Esquilin Pinto immediate and full
reinstatement to his forcer job or if such job no longer
exists to substantially equivalent employment without
prejudice to his seniority and other rights and privileges
and make him whole for any loss of earnings and other
benefits suffered as a result of our discrimination against
him
WE WILL expunge from our files any reference to the
suspension and discharge of Jose Esquilln Pinto and
advise him in writing that this has been done and that
evidence of such suspension and discharge will not be
used as a basis for personnel action concerning him
ASOCIACION HOSPITAL DEL MAESTRO INC