Centro de Diagnostico y Tratamiento

National Labor Relations Board - Administrative Judge Opinions

Dec 7, 2005

24-CA-009999 (N.L.R.B. Dec. 7, 2005)

JD-83-05
Ponce, PR

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

CONSEJO DE SALUD DE LA COMUNIDAD
DE LA PLAYA DE PONCE, INC. d/b/a
CENTRO DE DIAGNOSTICO Y TRATAMIENTO
DE LA PLAYA-PONCE (CDT)

and Cases No. 24-CA-9999
24-CA-10059

UNITED STEELWORKERS OF AMERICA, AFL-CIO

Vanessa Garcia, Esq., for the General Counsel.
Harold Hopkins, Esq., for the Charging Party.
Agustin Diaz Garcia, Esq., for the Respondent.

DECISION

Statement of the Case

GEORGE ALEMÁN, Administrative Law Judge. This case was tried in Hato Rey, Puerto
Rico on June 21-23, 2005, pursuant to unfair labor practice charges filed by United
Steelworkers of America, AFL-CIO (the Union),1 and a complaint issued on May 31, 2005, by
the Regional Director for Region 24 of the National Labor Relations Board (the Board), alleging
that the Respondent, Consejo de Salud de la Playa de Ponce d/b/a Centro de Diagnostico y
Tratamiento de la Playa-Ponce (CDT) had violated Section 8(a)(1), (3) and (5) of the National
Labor Relations Act (the Act). By answer dated June 13, 2005, the Respondent denied
engaging in any of the above alleged unlawful conduct.

All parties were afforded a full and fair opportunity at the hearing to call and examine
witnesses, to present oral and written evidence, to argue orally on the record, and to file post-
hearing briefs. On the entire record, including my observation of the demeanor of the
witnesses, and after considering a posthearing brief filed by the General Counsel,2 I make the
following

Findings of Fact

I. Jurisdiction

1 The charge in Case No. 24-CA-9999 was filed on December 8, 2004, and amended on
February 25, 2005, and again on April 29, 2005. The charge in 24-CA-10059 was filed March
15, 2005, and amended on May 27, 2005.
2 The Respondent did not file a brief. The General Counsel also filed an unopposed motion
to correct certain inaccuracies in the record. The motion to correct is hereby granted. The
motion, with the requested corrections, is hereby made part of the record as General Counsel
Exhibit No. 28.
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The Respondent, a Puerto Rico corporation, maintains its principal office and main
facility in Ponce, Puerto Rico, where it is engaged in the operation of a non-profit primary health
care facility providing outpatient medical and related health care services. It also operates a
satellite facility elsewhere in the town of Ponce, known as “El Tuque,”3 as well as facilities in
Juana Diaz and Tallaboa, Puerto Rico, respectively referred to herein as the Juana Diaz (or
Singapur) and Tallaboa facilities. During the 12-month period preceding issuance of the
complaint, a representative period, the Respondent, in the course and conduct of its business
operations, purchased and received at its facilities goods valued in excess of $50,000 directly
from points and places outside the Commonwealth of Puerto Rico. The Respondent admits,
and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5)
of the Act.

II. Alleged Unfair Labor Practices

A. The allegations

The complaint alleges that the Respondent, through various supervisors and/or agents,
violated Section 8(a)(1) of the Act by threatening employees with discharge, loss of benefits,
physical harm, and other reprisals if they supported the Union; by soliciting employees to sign a
petition disavowing support for or membership in the Union; by unlawfully interrogating
employees about their Union activities, and by maintaining unlawful no solicitation and no
distribution provisions in its employee manual. The complaint further alleges that the
Respondent violated Section 8(a)(3) of the Act by issuing a written warning to employee Juan
Vargas and thereafter canceling his scheduled vacation because of his union activities,
transferring employee Felicita Diaz from its main facility to the Outpost or El Tuque facility, and
issuing written warnings to employees Norma Ramirez and Sylvia Sanchez,4 and thereafter
transferring employee Norma Ramirez from its main facility to its Tallaboa facility. Finally, the
complaint alleges that the Respondent violated Section 8(a)(5) of the Act by making unilateral
changes in its employees’ terms and conditions of employment without giving the Union prior
notice and an opportunity to bargain over said changes, by refusing to comply with the Union’s
request for certain relevant and necessary information, and by failing and refusing to bargain
with the Union.

B. Factual background

The record reflects that in late 2004, the Union sought to represent certain of the
Respondent’s employees. The organizational drive was initiated by X-ray technician Vargas,
when, in October 2004, he met with the Union’s representative at a restaurant in Ponce to
discuss organizing Respondent’s employees. After being advised as to the procedure that
needed to be followed, Vargas received blank authorization cards for distribution to other
employees. He testified that he and Diaz, a health care worker, distributed and obtained signed
authorization cards from other employees which he subsequently turned over to the Union at a
subsequent Union meeting.

On November 18, 2004, the Union filed representation petitions with the Board in Case
24-RC-8428 seeking to represent “All registered nurses employed by the employer at its
location in Ponce, PR (described in the complaint as Unit A), and in Case 24-RC-8430, seeking
3 The “El Tuque” facility was at times referred to at the hearing as the “Outpost.”
4 Sylvia Sanchez is mistakenly identified in the complaint as Sylvia Vazquez.
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representation among “All social workers, licensed practical nurses, medical technicians, X-Ray
technicians, laboratory technicians, and pharmacist assistants employed by the Employer at its
Ponce, PR facility” (described in the complaint as Unit B; See, GCX-2). Following an election
held on January 11, among employees in Units A and B, the Union, on January 21, was certified
by the Board as the exclusive collective-bargaining representative of the employees in said
bargaining units. Vargas served as the Union’s observer at that election.

1. The alleged Section 8(a)(1) conduct

a. The no-solicitation/no distribution rules5

The Respondent maintains an employee manual containing, inter alia, the following rules
on solicitation and distribution activity which the complaint alleges are unlawful:

PROHIBITED ACTIVITIES

Activities such as the following: solicitation of members for different
associations, cash payments, all types of sales and others are
prohibited to the personnel of the Center, unless they obtain a written
permit from the Administration. All activities of this nature will be
reported immediately to the Administration. (See GCX-4)

DISTRIBUTION OF PAMPLETS IN THE CENTER

No employee or visitor will be permitted to distribute pamphlets or place
announcements on the walls, sites, or grounds of the Center without
specific authorization from the Administration.” (see GCX-27)

Discussion

As stated, the complaint, as amended, alleges both rules to be overly broad and
unlawful. I find merit in the allegation. It is well-settled that employers may lawfully ban
solicitation by employees during working time, but may not prohibit employee solicitation during
their nonworking time, or their distribution of literature on their own free time in nonworking
areas without a showing that such restrictions are needed to maintain plant discipline or
production. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Stoddard-Quirk Mfg., 138
NLRB 615 (1962); Our Way, Inc., 268 NLRB 394 (1983); See also, Enloe Medical Center, 345
NLRB No. 54, slip op. at 2 (2005); Johnson Technology, Inc., 345 NLRB No. 47, slip op. at 15
(2005). In health care facilities, however, the Board, with court approval, has held that such
employers may limit or restrict employee solicitation during nonworking time in “immediate
patient care areas” such as patients’ rooms, operating rooms, and places where patients
receive treatment, such as X-ray and therapy areas. St. John’s Hospital, 222 NLRB 1150
(1976); Beth Israel Hospital v. NLRB, 437 U.S. 483 (1979), NLRB v. Baptist Hospital, Inc., 442
U.S. 773 (1979). Thus, a rule maintained by a health care employer banning solicitation and
distribution of literature in “patient care areas” is deemed by the Board to be presumptively valid.
Baptist Medical Center/Health Midwest, 338 NLRB 346, 357 (2002). Conversely, a rule
prohibiting nonworking time solicitation by employees in areas other than immediate patient
5 The complaint was amended at the hearing to include an allegation, denied by the
Respondent, that the Respondent’s promulgation and continued maintenance of a no-
distribution rule violated Section 8(a)(1) of the Act. (Tr. 307).
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care areas, or the distribution of literature by employees on their own time and in nonworking
areas, will be deemed to be presumptively invalid absent a showing by the health care employer
that the ban is needed to avoid a disruption of patient care. Id. Finally, employer rules requiring
that employees get approval before engaging in lawful solicitation or distribution activity are also
unlawful. Baptist Medical Center, supra; Teletech Holdings, Inc., 333 NLRB 794, 795 (2001);
Lake Holiday Manor, 325 NLRB 469, 478 (1998); Blossom Nursing Center, 299 NLRB 333, 338
(1990); Brunswick Corp., 282 NLRB 794 (1987).

As described above, the solicitation and distribution rules, on their face, prohibit
employees from engaging in such activity without the Respondent’s prior consent and approval.
The rules make patently clear, and the Respondent has not argued otherwise, that the “prior
approval” requirement applies whether or not employees wish to engage in such activities on
their own time and in the nonworking or “non-patient care” areas of the Respondent’s facilities.
Indeed, except for denying in its answers that the rules are unlawful, the Respondent has
offered no justification or explanation for requiring employees wishing to engage in lawful
solicitation and distribution of literature to first obtain its permission. As stated, the Board has
held that any rule that requires employees to secure permission from their employer as a
precondition to engaging in protected concerted activity on an employee’s free time and in
nonworking areas is unlawful. Id. Both of the Respondent’s challenged rules do precisely that,
rendering them facially invalid and unlawful under Section 8(a)(1) of the Act.6

b. The December 2004/January 2005 conduct

Sandra Cortes has been employed at the El Tuque facility as a dental hygienist and an
assistant for about eight months prior to the hearing. Before that, she worked at the
Respondent’s main facility in Ponce. Cortes testified that in early December 2004,7 Iris Miriam
Perez, whom she described as a “co-worker,” approached her and insisted that she sign a letter
disavowing any interest in the Union, and stating that she did not want any Union initiation or
monthly dues deducted from her paycheck. Cortes refused to sign the document, stating that
she needed to consult with an attorney before doing so. Perez purportedly remarked that she
and other employees who supported the Union were being ungrateful. (Tr. 57-59).

On or around January 24, Cortes was again approached, this time by Respondent’s
Assistant Director, Josefina Ramos (J. Ramos), an admitted supervisor and agent of the
Respondent under Section 2(11) and 2(13) of the Act, and asked to sign what Cortes claims
was the same letter Perez asked her to sign in December 2004. J. Ramos purportedly told her
the purpose of the letter was to prevent Union dues from being taken out of her salary.8 Cortes
Continued
6 The language in the no-solicitation rule requiring employees to report incidents of
solicitation by other employees is also invalid and unlawful. See, e.g., Baptist Medical Center,
supra at 383 and cases cited therein.
7 While Cortes was not specific in her testimony as to the date this incident occurred, the
complaint alleges this incident as having occurred on or around December 6 (see GCX-1[k],
para. 7[a]).
8 I find it unlikely that the letter J. Ramos asked Cortes to sign on January 24, and which the
latter signed on or around that date (see GCX-7), is the same letter she was asked by Perez to
sign in early December 2004, for GCX-7 makes reference to the election held on January 11,
which the Union won. The early December 2004 letter presented by Perez to Cortes could not
have made reference to the Board’s January 11, election as the election obviously had not yet
been held. Thus, it is implausible that the letter Cortes received from J. Ramos was the same
one presented to her by Perez. Still, given the testimony by Irizarry and Ramirez that they too
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testified that she felt uncomfortable and coerced by the request, but went ahead and signed the
letter. Cortes further recalls that during their meeting, J. Ramos commented that employees
were being ungrateful because Respondent’s Executive Director, Monserrate Salichs, had been
providing for them. J. Ramos went on to remark that employee Johnny Vargas was using the
Union to harm CDT, that this was a struggle between Vargas and Salichs, and that “they were
going to close it.” (Tr. 58) J. Ramos did not testify, leaving Cortes’ above testimony undisputed.
Accordingly, except for her testimony that the letters she was given to sign in early December
2004 and in January 2005 were the same, I credit Cortes’ account of what transpired with J.
Ramos on January 24.9

Employee Noel Irizarry had been employed by the Respondent as a “maintenance”
employee performing primarily janitorial services until terminated on May 20, for sleeping on the
job. He testified that in early December 2004, his immediate supervisor, Aida Ramos (A.
Ramos), an admitted Section 2(11) supervisor, approached him at the yard in front of the
Respondent’s Salina building, and handed him a document that read: “I am not interested in
belonging to any movement related to the Union of the employees of Centro Diagnostico y
Tratamiento de la Playa de Ponce.” (see GCX-5). A. Ramos told him to take it with him and
sign it. When Irizarry asked what the letter was all about, A. Ramos remarked, “Don’t you know
that Vargas is forming a Union?” Irizarry answered he did not, at which point A. Ramos
instructed him to read and sign the letter. Irizarry asked A. Ramos where the letter had come
from, and the latter replied that it had come from management. Irizarry, however, declined to do
so without first getting some advice on the matter, but did offer to sign the letter if A. Ramos
would allow him to keep a copy. A. Ramos then apologized, told Irizarry to have a good day,
and left with the unsigned letter. I credit Irizarry’s above account as to what A. Ramos said to
him since the latter was not called to refute Irizarry’s account, and as there is no other record
evidence to contradict Irizarry’s testimony in this regard.

Irizarry also testified that sometime in January, while he was on vacation, he had
occasion to go to Respondent’s facility to get the results of some lab work that had been done
on him. He contends that while there, he observed J. Ramos with a paper in hand, standing just
outside her office near the secretarial pool area, saying to A. Ramos and to Lucy Rivera, a
were asked to sign a similar document in early December, I find Cortes’ undisputed claim that
Perez asked to her sign a document disavowing the Union in early December to be credible,
and am convinced Cortes was simply mistaken in claiming that the December 2004 letter shown
to her by Perez, and the one J. Ramos gave to her and which she signed in late January, were
the same. I find it more likely than not that the document presented to her by Perez was similar
to, if not the same as, GCX-5, the one Irizarry was asked to sign.
9 The General Counsel offered, and I received into evidence over the Respondent’s
objections, a stack of letters sent to the Union anonymously sometime in February which,
except for the employee signature found on each letter, is identical to the one given to Cortes by
J. Ramos to sign on January 24. See, GCX-26. Union representative Maria Revelles recalls
receiving them, but admitted she did not know who sent them. The General Counsel, at the
hearing, suggested that the letters were prepared by the Respondent. While there is no direct
evidence to show who prepared the letters, it is not unreasonable to infer, given that the letters
contained in GCX-26 are identical to the one Cortes was asked by J. Ramos to sign on January
24, that the author of the GCX-26 letters is the same person who prepared the letter Cortes
signed. Further, as the letter signed by Cortes was given to her by J. Ramos, an admitted
supervisor, one may reasonably infer, as I do here, that Cortes’ letter, and those sent to the
Union anonymously sometime in February, were prepared by and circulated to employees for
their signature by Respondent’s management.
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secretary, who were standing nearby, that the document she had was from the Union, and that
she could “wipe her ass” with the document and with those who had voted for the Union.10 He
also testified that on another occasion, again in January, as he was walking by the secretarial
pool, he heard J. Ramos comment to a maintenance employee, whom he knew only by her first
name of “Milagros,” that “those who voted for the Union are playing with their wives’ and
children’s well-being.” (Tr. 75). Irizarry’s testimony regarding J. Ramos’ January comments are
uncontradicted and accepted as true.

Finally, Irizarry testified to having a conversation with J. Ramos near the guard’s booth
on Respondent’s premises on January 25 around 10:00 p.m., during which J. Ramos made
some derogatory and threatening remarks about Vargas. J. Ramos, he contends, was
complaining about federal agents who were at the facility conducting some sort of investigation,
and then complained to him that the Union, and those who voted for it, were responsible for the
agents being there. Irizarry claims that J. Ramos went on to say that if “this dirty black Johnny
Vargas, if he was in front of me right now, I would hit him in the chest, and if I had a firearm, I
would shoot him and kill him. And may God allow that when he leaves at 11:00, he crashes
against the post and is killed.” She then told Irizarry, “I know you’re going to tell him, so go tell
him.” (Tr. 77). The only other person nearby was the security guard, whom Irizarry could not
identify by name. Irizarry’s testimony regarding this incident is uncontradicted and credited.

Pharmacist Anasin Martinez (A. Martinez) has been employed by the Respondent for 30
years. She testified that in December 2004, just prior to Christmas, she was standing near the
timeclock and overheard J. Ramos tell a nurse, Carmelita Santos, to be careful of Vargas and
herself (A. Martinez) because they were the ones “bringing [authorization] cards in and trying to
get the Union into the center.” J. Ramos, according to A. Martinez, had her back turned to her
and apparently was unaware of the latter’s presence when she made her remark. A. Martinez’
above testimony is undisputed, and therefore credited, as neither J. Ramos nor Santos testified.

A. Martinez also testified, again without contradiction, that on January 12, she, along
with personnel director and admitted Section 2(11) supervisor Olga Mercado, pharmacist
Mendez, and Moises Franco, who is in charge of the pharmacy warehouse, were conversing
when she heard Mercado instruct Mendez to refer any employee who made pro-Union remarks
to the personnel department so that “measures” could be taken against the employee. (Tr. 41).
A. Martinez claims that, to her knowledge, no prohibition existed on the topics that could be
discussed by employees at the workplace. Although she appeared at the hearing momentarily
while A. Martinez was testifying, Mercado was not called as a witness to refute A. Martinez’
testimony, or to testify on any other matter Nor did Mendez or Franco testify. Accordingly, A.
Martinez’ testimony is credited.

A. Martinez also recalled that sometime in January, Perez presented her with, and asked
her to sign, a document stating that she was not interested in belonging to any union (GCX-5).
A. Martinez asked why she needed to sign the document, but Perez did not respond. A.
Martinez declined to sign the document.

Diaz is one of seven health care workers employed by Respondent. She testified that
10 Irizarry claims he was on vacation from December 13, 2004 to January 24, 2005. As the
Board election was held on January 11, and given J. Ramos’ alleged pejorative comment about
those employees who voted for the Union, it is reasonable to assume that the remark Irizarry
claims to have heard J. Ramos’ make occurred sometime after the January 11, election.
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Perez, whom she described an administrative official or, at least, a supervisor,11 also
approached her on December 6, 2004, and asked her to sign a statement, written on Company
stationary, disavowing any interest in belonging to the Union. While not produced at the
hearing, Diaz described the document’s wording as similar to that found on GCX-5, the
document Irizarry was asked to sign, except that it contained the Respondent’s letterhead.
When presented with the document, Diaz expressed surprise that the Respondent would be
asking her to sign such a letter, to which Perez replied that she was acting on her own,
presumably without the Respondent’s knowledge or consent. Diaz, however, expressed
skepticism at Perez’ remark and told Perez that she did not believe Perez was acting on her
own because the statement was prepared on Company stationary containing its letterhead.
Diaz declined to sign the statement and asked Perez if she could keep the letter, to which Perez
replied that she could not. I credit Diaz’ account of her encounter with Perez on December 6,
2004, as Perez did not testify, and as there is no other record evidence contradicting Diaz’
testimony.

Employee Ramirez, a registered nurse at the Tallaboa facility, testified she was
approached by Perez in early December 2004, and asked to sign a letter stating she did not
want and did not approve of the Union. Ramirez could not recall the exact wording of the letter,
but did recall that it was on Company stationary, and contained small squares on it, presumably
for use in checking off items. Ramirez refused to sign the letter.

Vargas testified that on December 24, 2004, he attended a mandatory employee
meeting at which Salichs, Mercado, and Respondent’s attorney, Diaz-Garcia, were present.
The purpose of this meeting, according to Vargas, was to convey to employees that their
support for the Union might have adverse consequences. He recalls, for example, Diaz-Garcia
mentioning that if the Union got in, employees might lose certain unspecified benefits, or have
certain benefits reduced, such as Christmas bonuses, vacation time, sick leave, and uniform
benefits. Vargas claims that at one point during the meeting, he tried to ask a question but was
told by Diaz-Garcia to wait until the meeting ended to ask questions. Frustrated at not being
able to ask his question, Vargas left the meeting early. He recalled, however, telling employees
not to be intimidated by what was being said because it was all untrue. (Tr. 123). The above
testimony by Vargas regarding this employee meeting and what was said is undisputed and
accepted as true.

Ramirez also testified that on January 7, Salichs came to Ramirez to have a blood
sample drawn. She contends that as she was performing the procedure on Salichs, the latter
remarked that Ramirez should not betray her. Ramirez replied that she would not betray
Salichs as she was one of hers. Salichs then remarked that she had heard that Ramirez was
one of the Union’s delegates, but Ramirez denied it, stating that she did not belong to the Union,
and could not attend any Union meetings because she lacked the time to do so and because
her mother was sick. Several days later, on January 13, Salichs again came to Ramirez to have
a blood sample drawn. Ramirez asked Salichs to wait a moment as she was discussing a
matter with a patient. When Ramirez finished with the patient, she returned to find that her co-
worker, Sanchez, had already taken care of Salichs. On seeing Ramirez, Salichs commented
that Ramirez had not wanted to take her blood sample, and that she would get even with
Ramirez by transferring her to the El Tuque facility. Ramirez replied, “Chunga, you cannot do
11 The Respondent offered no evidence to refute Diaz’ description and characterization of
Perez’ status. Accordingly, I find that Perez was, at all times material herein, a statutory
supervisor.
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that to me.”12 Thereafter, as both were leaving the lab, Salichs asked Ramirez if she had been
invited to the Union party being held at Vargas’ house. Ramirez responded that this was the
first she had heard of it, and that if Salichs knew about it, “to let me know so we could both go
together.” (Tr. 221).

Discussion

I find, as alleged in the complaint, that J. Ramos’ January remark to employee Milagros,
that employees who voted for the Union were playing with their wives’ and children’s well being,
was unlawful. There is no indication in Irizarry’s undisputed and credited account of what he
heard J. Ramos say to suggest that the latter explained what he meant by his remark. Absent
some legitimate explanation for the remark, Milagros, to whom the remark was directed, and
Irizarry, who overheard the remark, could reasonably have construed J. Ramos’ remark as a
threat that those who had voted for the Union were at risk of losing their jobs. As such, J.
Ramos’ remark would reasonably have had a coercive and chilling effect on Milagros’, Irizarry’s,
and other employees’ willingness to engage in Section 7 protected activity on behalf of the
Union. Accordingly, the remark, as previously stated, was unlawful and a violation of Section
8(a)(1) of the Act. Ferragon Corp., 318 NLRB 359, 367 (1995); Weather Tamer, Inc., 253 NLRB
293, 300 (1980).

I also find, as further alleged in the complaint, that Salichs' January 7, comment to
Ramirez, that she had heard that Ramirez was one of the Union’s delegates, constituted an
unlawful interrogation. As Executive Director, Salichs is the Respondent’s highest official.
Salichs' inquiry into Ramirez relationship with the Union, as noted, occurred in a workplace
setting, while Ramirez was working and about to draw blood from Salichs. Salichs gave
Ramirez no explanation for her comment. While declarative in nature, Salichs' comment about
hearing that Ramirez was a Union delegate was, I am convinced, designed to get Ramirez to
admit or deny the claim and, in this regard, was more in the nature of an interrogation. Salichs
gave Ramirez no explanation for why she needed to know whether or not Ramirez was a Union
delegate, and further gave Ramirez no assurance that she did not have to respond to the query
or that she would not be retaliated against if she did respond. Finally, there is no indication that
Ramirez was, in fact, a Union delegate or, for that matter, a Union supporter. In these
circumstances, I find that Salichs' query to Ramirez was indeed coercive and violated Section
8(a)(1) of the Act. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House, 269
NLRB 1176, 1177 (1984).

Mercado’s January 12, directive to pharmacist Mendez, to report any employee
overheard making pro-Union remarks so that measures could be taken against that employee
was also unlawful. Mercado’s instruction to Mendez, as noted, directed her to report on only
those employees who were heard making pro-Union remarks. She imposed no similar
restriction on employee discussion of other matters, or on the expression of anti-Union
sentiment by employees. A. Martinez, as noted, credibly testified that, to her knowledge, the
Respondent maintained no rule or restriction on what employees could or could not discuss at
the workplace. An employer violates the Act when it prohibits employees from talking about the
Union while permitting employees to discuss other nonwork related matters. Aladdin Gaming,
LLC, 345 NLRB No. 41, slip op. at 22 (2005); Kelly Brothers Sheet Metal, Inc., 342 NLRB No. 9
12 Ramirez claims that she has at times, but not frequently, referred to Salichs by the
nickname “Chunga”. She contends that she has known and worked with Salichs since 1971,
that it was Salichs who offered her employment, and that she felt sufficiently comfortable in
addressing Salichs as “Chunga.” As Salichs did not testify, I credit Ramirez’ testimony.
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(2004), Waste Management of Palm Beach, 329 NLRB 198, 201 (1999); Opryland Hotel, 323
NLRB 723, 728 (1997). Accordingly, Mercado’s directive to Mendez, that employees found to
be making pro-Union statements be reported to Respondent’s personnel department, and that
unspecified “measures” would be taken against said individuals, amounted to an unlawful
restriction on their section 7 rights, as well as unlawful threat of unspecified reprisals for
engaging in such conduct, and violated Section 8(a)(1) of the Act.

The Respondent, as alleged in the complaint, also violated Section 8(a)(1) when, during
the employee meeting conducted by Salichs, Mercado, and Respondent’s attorney Diaz-Garcia,
the latter told employees that if the Union got in, employees could lose, or face a reduction in,
certain benefits, such as their Christmas bonus, vacation time, sick leave, and uniform benefits.
Vargas’ assertion that Diaz-Garcia made the above remarks during the meeting was, as noted,
not challenged by the Respondent. Nor has any claim been made by the Respondent that
attorney Diaz-Garcia’s remark was intended to reflect what might likely occur as a result of good
faith bargaining with the Union. Without any such qualification, Diaz-Garcia’s remark could
reasonably have been construed by Vargas and other employees present at the meeting as a
threat that the potential loss or reduction in their benefits stemmed from their support for the
Union. The Board has long found such threats to be coercive and unlawful. See, e.g., The
Smithfield Packing Company, Inc., 344 NLRB No. 1 (2004); Oster Specialty Products, 315
NLRB 67, 75 (1994); Beverly Enterprises, 310 NLRB 222, 263 (1993); Heritage Nursing Homes,
Inc., 269 NLRB 230, 232 (1984).

J. Ramos’ January 25, remarks to Irizarry, wherein she threatened Vargas with physical
injury and blamed the Union for an investigation being conducted at its facility by federal agents,
were also unlawful. As noted, on January 25, J. Ramos denigrated Vargas in front of Irizarry by
referring to him as a “dirty black” individual, and threatened that, had Vargas been present at
that moment, she would have punched Vargas in the chest and, more seriously, would have
shot and killed him if she had had a firearm. J. Ramos further expressed her morbid wish to
Irizarry that, on leaving work that evening, Vargas would crash into a pole and be killed. J.
Ramos’ threatening remark about what she would do to Vargas was clearly coercive. The
coercive nature of such a threat derives from the ability of the speaker or party to carry out the
threat. Smithfield Packing Company, Inc., 344 NLRB No. 1 (2004); Sears, Roebuck And Co.,
305 NLRB 193 (1991). There is nothing in Irizarry’s account of what J. Ramos said to him to
suggest that the latter was simply joking or did not intend for her remarks to be taken seriously.
J. Ramos, as noted was not called to refute or explain her comments. The evidence,
particularly J. Ramos’ racial denigration of Vargas as a “dirty black,” and her rather defiant
attitude, reflected in her further comment that Irizarry could inform Vargas of her (J. Ramos’)
remarks, leads me to believe that not only was J. Ramos speaking seriously when she made
her threatening remarks, but that she may very well have been capable of carrying out her
threat had Vargas been present at the time. Accordingly, I find J. Ramos’ threat to physically
harm Vargas to have been coercive and a violation of Section 8(a)(1).

J. Ramos’ further remark about the Union being responsible for the investigation the
Respondent was being subjected to by federal agents, was likewise unlawful. There is no
evidence to indicate that whatever investigation was being conducted of the Respondent when
J. Ramos made his remark had been prompted or instigated by the Union. J. Ramos’ attempt to
blame the Union for this particular problem it was having could reasonably have led Irizarry and
others to believe that the Respondent viewed the Union and its supporters as the cause of its
troubles. As such, employees might very well refrain from lending support to the Union for fear
that they may be held responsible for the Respondent’s misfortunes and be subjected to
retaliation or reprisals. The circumstances in which J. Ramos’ comment was made, to wit, in
conjunction with the threat to physically harm Vargas, the Union’s leading adherent, renders the
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remark coercive and a violation of Section 8(a)(1) of the Act. Perth Amboy General Hospital,
279 NLRB 52 (1986).

The complaint alleges, and I agree, that the Respondent’s attempts in early December
2004, by supervisors J. Ramos, A. Ramos, and Perez to get employees Cortes, Irizarry, Diaz,
and Ramirez to sign statements expressing their opposition to the Union, and its solicitation of
signed letters from employees in late January, after the Union was certified by the Board, stating
that they had no interest in being part of the bargaining unit or in belonging to any union, and did
not authorize deductions of fees and dues from their salary, were unlawful.

Section 8(c) affords an employer the right to express its view of unionization to its
employees, to advise employees of their Section 7 rights, e.g., to join or not join a union,
unions, their right not to sign or to revoke union authorization cards, etc., provided it does so in
an atmosphere free of coercion or intimidation. See, Cintas Corporation, 344 NLRB No. 118
(2005); Airporter Inn Hotel, 215 NLRB 824 (1974). An employer, however, may not coercively
initiate or solicit a petition or letter opposing unionization. Dentech Corp., 294 NLRB 924
(1989); see also, Progressive Electric, Inc., 344 NLRB No. 52 (2005), citing Dentech, supra;
Indiana Cabinet Company, Inc., 275 NLRB 1209 (1985); Eastern States Optical Co., 275 NLRB
371, 372 (1985); Mariposa Press, 273 NLRB 528, 529-530 (1984); Compare, Progressive
Electric, Inc., 344 NLRB No. 52 (2005). The undisputed facts here make patently clear that the
Respondent did just that when it prepared and had its supervisors distribute to Cortes, Irizarry,
Diaz, and Ramirez, and possibly other employees, letters to sign expressing their opposition to
the Union. There is no evidence to suggest, nor for that matter does the Respondent contend,
that it was responding to any inquiries or requests from employees when it prepared and
circulated the letter. In late January, following the Union’s certification, the Respondent again
circulated, and asked employees to sign, letters stating that, despite the Union’s success in the
Board election, they wanted nothing to do with the Union nor wished to pay any Union fees and
dues. Again, there is no evidence that the Respondent was responding to employee requests
when it prepared and circulated this particular letter to employees. Accordingly, by preparing
and circulating in December 2004 and in late January 2005, letters for employees to sign
expressing their rejection of the Union and stating their unwillingness to pay Union fees and
dues, the Respondent violated Section 8(a)(1) of the Act.

2. The alleged Section 8(a)(3) conduct

(a) Vargas’ warning and vacation cancellation

Vargas has worked for the Respondent for 32 years as an X-ray technician. J. Ramos is
his current supervisor. As previously pointed out, Vargas was the Union’s leading adherent at
the Respondent’s facility, and was the one most responsible for the Union’s arrival on the
scene. On or around December 3, 2004, Vargas was summoned by Mercado to the latter’s
office and handed an envelope containing a written warning, prepared and signed by Mercado,
for using his cell phone during working hours. The warning accused Vargas of “constantly
abandoning [his] work area to use [his] cell phone during [his] work schedule.” It further stated
that “[o]n several occasions, your supervisor has pointed out that using the cell phone during
working hours is prohibited,” and that Vargas had “ignored this.” Finally, the warning cautioned
that the Respondent would be forced to take disciplinary action against Vargas if he continued
with this practice. (See GCX-10). After reading the warning, Vargas complained that he was
being persecuted for his Union activity.

Vargas claims that other than a posted sign at the X-ray department prohibiting the use
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of cell phones in that particular area, he was never told of any prohibition on the use of cell
phones elsewhere in the facility, and, prior to the December 3, 2004, warning, had never been
spoken to or cautioned by any supervisor for using his cell phone during working hours. He
admitted using his cell phone during working hours, but testified that he always did so outside of
the building, not in the X-ray department, and claimed to have seen other employees using their
cell phones in the same general area as he, as well as inside the Respondent’s facility, during
their working hours.

A few days after receiving the warning, Vargas was called by Nursing Director, Maria
Teresa Martinez (Martinez), an admitted Section 2(11) supervisor, to her office where she
discussed the use of cell phones with him, and also told him that Mercado had prepared a
report of the cell phone incident that purportedly led to the warning. Vargas admits telling
Martinez at this meeting that he had used his cell phone during work hours, but complained to
her that, in his view, he was being retaliated against for his Union activities. He further asked
Martinez why he was being singled out for using his cell phone when approximately 70% of the
employees used their cell phone during working hours. Martinez, he contends, denied seeing
others engaging in such conduct or knowing anything about the cell phone use by other
employees. Vargas claims he then asked Martinez why those employees who supported him in
his Union activities were being transferred to other locations. Martinez did not respond to his
question and simply took notes of what Vargas was saying. As to his cell phone use, Martinez
simply instructed him not to use his cell phone again.

Regarding the warning, Martinez testified that it was Mercado alone who made the
decision, but that Mercado did discuss the incident with her. She claims that Mercado called
her to complain about seeing Vargas using his cell phone during working hours, and asked her
to speak to Vargas about it. Martinez contends she discussed the matter with Vargas later that
same day. She admits that she had, in the past, seen Vargas using his cell phone during his
regular work hours away from his work area, but had taken no action or discussed the matter
with him prior to receiving the phone call from Mercado.13 Except for Martinez’ vague reference
on cross-examination that she provided Vargas with a “report” on the use of cell phones, no
evidence was produced to show that the Respondent maintained a rule or policy prohibiting the
use of cell phones by employees during working hours or away from their work station. Nor was
any evidence produced to show that employees were ever told that such a practice was
prohibited by the Respondent.

Martinez’ ambiguous and somewhat contradictory claim that she showed Vargas a
“report” regarding the use of cell phones, before the latter received his warning, is rejected as
not credible. Rather, I credit Vargas and find that, prior to receiving the warning from Mercado,
he was never told that the use of cell phones at the facility was prohibited or contravened some
Company rule or policy. Nor do I believe that, as suggested by Martinez, the Respondent had
any such rule for, if it had, the Respondent, I am certain, would have produced it. I find instead,
as testified to by Vargas credibly and without contradiction, that the use of cell phones by
employees during working hours was a common and accepted practice at the facility. Finally, I
13 Her testimony on whether she had previously spoken to Vargas about his cell phone use
is somewhat contradictory. Thus, while stating on direct examination that she had not, prior to
being asked to do so by Mercado, spoken to Vargas about his cell phone use, on cross-
examination Martinez stated that she had shown Vargas a report on the use of cell phones at
the facility, and spoken to him about it, before Vargas received his warning. She claims that
during that pre-warning conversation, Vargas admitted using his cell phone during working
hours and insisted he would continue doing so because other employees were doing it.
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credit Vargas’ undisputed version of his meeting with Mercado as the latter was not called to
testify. Thus, I find that Mercado never gave Vargas a clear explanation for the warning, e.g.,
when and where the alleged violation of the purported cell phone policy occurred, but simply
handed him the warning, asked Vargas to sign it and, when the latter declined, terminated the
meeting.

Vargas also testified that in December 2004, he spoke with and reminded Martinez that
he was scheduled to go on vacation on December 13, 2004. Vargas claims that his December
13, vacation start date had already been discussed and confirmed with Mercado months earlier.
Martinez told Vargas that she was aware of his upcoming vacation because she too was
scheduled to begin her vacation at the same time. According to Vargas, one week prior to
December 13, he went to Mercado’s office to remind her of his upcoming vacation and, as she
was not there at the moment, left a message with Mercado’s secretary, Margaret Cintron.
Cintron told Vargas to come back a week later to sign his vacation papers. (Tr. 98-99).

Vargas claims that soon after his conversation with Cintron, Martinez called him into her
office and informed him that his upcoming December 13, 2004, vacation had been cancelled for
economic reasons, and that his vacation would be rescheduled for sometime in January.
Vargas protested that he had already made plans to travel with his family to Massachusetts, and
insisted on a further explanation as to why his vacation was cancelled. Vargas expressed his
belief that his vacation had been cancelled because of his organizational activities on behalf of
the Union, and that he was being retaliated against for said activities. (Tr. 99). Vargas received
no further explanation for the cancellation of his December 13, 2004, vacation from Martinez or
anyone else in management.

Martinez, who was responsible for preparing the monthly work and vacation schedules
for those in her department, including Vargas and the per diem X-ray technicians, testified that
Vargas initially requested and was approved to take his vacation beginning December 24, 2004,
but that he subsequently asked for, and received her permission to change his vacation start
date to December 13, 2004. As to the decision to cancel Vargas’ vacation, Martinez denied
involvement in that decision, and testified that Mercado alone made the decision. She claims
Mercado called her sometime in December 2004, precisely when she could not recall, and
informed her that Vargas’ scheduled December 13, vacation was being cancelled. Martinez’
testimony on whether Mercado gave her a reason for the cancellation was confusing. Thus,
when asked to cite the reason given by Mercado, Martinez claims Mercado “mentioned that per
diem and police were not available, and I don’t recall if she mentioned it [was] for economic
reasons.” Mercado, she contends, explained that “some adjustments needed to be made in
order to cover appointments patients had for mammograms.” She further contends that
Mercado did not explain her comment that the “per diems were not available.” Asked again if
Mercado raised “the financial factor” as a reason for the decision, Martinez answered, “I’m not
certain. I’m not certain if I was notified of the economic factors. I was told only that Mr. Vargas
was not going to enjoy his vacation for now, the reason being the need to cover.” In short,
Martinez contends that Mercado told her only that Vargas’ vacation had been cancelled
because “the per diems were not available.” (Tr. 183).

Martinez admits not knowing, purportedly until told by Mercado, that the per diem X-ray
technicians would not be available to work during the month of December. Clearly, as the
person having direct supervision over the per diem employees and responsibility for preparing
their monthly work schedules, including the December 2004, work schedule, Martinez, one
might reasonably expect, would have been privy to such information. Martinez, however,
insisted that, as far as she knew, only one of the per diems who was on workers’ compensation
might not be available to work that month. Nothing in her testimony suggests that the absence
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of this one per diem employee would have created such a staffing shortage as to have
warranted the cancellation of Vargas’ December vacation.

I give no weight to Martinez’ above testimony as to what Mercado may have told her
about the cancellation of Vargas’ vacation. As Mercado did not testify, Martinez’ account of
what Mercado purportedly cited as the reason for canceling Vargas’ vacation cannot be
corroborated or confirmed. Further, no evidence was produced to show that all three per diem
employees were unavailable to work during the month of December, as Martinez claims she
was told by Mercado, so as to have possibly warranted the cancellation of Vargas’ scheduled
vacation. Thus, even if I were to believe, as claimed by Martinez, that Mercado told her that
Vargas’ vacation had to be cancelled because all three per diem employees would be
unavailable during December, there is simply no way of ascertaining, absent corroborating and
credible testimony from Mercado or the per diem employees in question, if what Mercado
allegedly told Martinez was, in fact, true. Indeed, the evidence of record, particularly Martinez’
admission that she did not know of the per diems’ unavailability, and the work schedule for
December 2004 showing that all three per diems were scheduled to work, 14 casts doubt on the
reason allegedly cited by Mercado to Martinez for canceling Vargas’ December vacation.
Accordingly, I reject as unreliable hearsay, and give no weight to, Martinez’ testimony as to what
Mercado may have told her was the reason for canceling Vargas’ vacation.

Martinez testified that after being notified by Mercado of her decision to cancel Vargas’
vacation, she in turn told Vargas of the cancellation without giving him an explanation, and
simply told Vargas that if he had any questions he should address them to Mercado. According
to Martinez, while Vargas’ scheduled December 13, 2004, vacation start date had been
cancelled, she nevertheless presumed that Vargas would be allowed to take his vacation on
December 24, 2004, the date he had initially signed up for. She testified, however, that at some
point, Mercado told her that Vargas would not be able to take his vacation on December 24,
2004, either. (Tr. 186).

Although told by Martinez that he could take his vacation in January, Vargas received no
further instructions as to when in January he might be able to do so and, consequently, did not
take vacation in January. Vargas eventually went on vacation sometime in February.

Discussion

The complaint alleges, and the General Counsel contends, that the December 3, 2004,
warning issued to Vargas for using his cell phone at the facility, as well as the cancellation of his
scheduled December 13, 2004, vacation, was in retaliation for his Union activity and, therefore,
unlawful. In determining whether an employer’s actions against an employee are
discriminatory, the Board applies the causation test set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983). Under Wright Line, the
14 The work schedule for the month of December 2004, prepared by Martinez was entered
into evidence as GCX-8. GCX-8 shows the per diem X-ray technicians were scheduled to work
on weekends during the month of December 2004. It is unclear, however, how this particular
schedule for December 2004, differed from that prepared for the preceding months, as the
monthly reports for those prior months were not produced or discussed at the hearing. It might
very well be that the work schedule for the per diem employees set forth in the December
schedule did not vary much from those of the prior months, and that the per diem employees
were generally used for weekend work only.
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General Counsel, as part of his burden of proof, must make an initial prima facie showing that
the action taken against the employee was motivated, at least in part, by his involvement in
union or other protected activity. The General Counsel makes out a prima facie case by
showing that the employee involved had engaged in union or other protected activity, that the
employer knew or was aware of such activity, that it harbored antiunion animus, and that said
animus was a motivating factor in the decision taken. If the General Counsel succeeds in
making out a prima facie case, the burden shifts to the employer to demonstrate that it would
have taken the same action against the employee even if the employee had not engaged in any
union or protected activity.

The General Counsel, I find, has made a strong prima facie showing that the actions
taken by the Respondent against Vargas, to wit, issuing him the December 3, 2004 warning,
allegedly for using his cell phone during working hours, and canceling his December 13, 2004
vacation, were motivated, if not wholly at least in part, by his union activity. The record makes
clear that Vargas was the one primarily responsible for bringing in the Union, for it was he who
first contacted the Union for assistance in organizing Respondent’s employees and who, with
assistance from Diaz, solicited signed authorization cards from other employees which he
collected and delivered to the Union. Vargas also signed an authorization card for the Union,
attended Union meetings, and served as the Union’s observer during the January 11, election.
The evidence further shows, and the Respondent does not deny, that it was fully aware of
Vargas’ involvement with the Union in early December 2004, when it issued him the warning
and cancelled his vacation. In this regard, Irizarry testified, credibly and without contradiction, to
being told by supervisor A. Ramos in early December 2004 that Vargas was forming a union,
and to overhearing J. Ramos tell nurse Santos in December 2004 that Vargas was the one
responsible for distributing authorization cards and trying to bring in the Union. Further, Vargas
disclosed his own involvement with the Union to the Respondent when, shortly after receiving
the December 3, 2004 warning, he asked supervisor Martinez why employees who had
supported him in his union efforts were being transferred to other locations. Finally, undisputed
record evidence, including Respondent’s unlawful early December 2004 and late January 2005,
attempts to have employees sign statements disavowing or rejecting the Union, J. Ramos’
derogatory remark about “wiping her ass” with a document sent to her by the Union, her
unlawful remark that employees who voted for the Union were jeopardizing their family’s well-
being, the rather callous and threatening remarks J. Ramos made to Irizarry about Vargas on
January 25, along with the other Section 8(a)(1) violations it is found to have engaged in, amply
reveals the Respondent’s animosity towards the Union and its supporters.

The Respondent, for its part, has offered no credible evidence to rebut the General
Counsel’s prima facie case regarding the December 3, 2004, warning issued to Vargas, and its
cancellation of Vargas’ December 13, 2004, vacation. As to the December 3, written warning,
there are sound reasons for questioning its reliability. The warning, as noted, was issued by
Mercado to Vargas allegedly for using his cell phone during working hours. Vargas admits that
he regularly used his cell phone while at work, but testified, credibly and without contradiction,
that he generally did so outside the facility, and that he was never told or warned not to do so, or
that the use of cell phones inside or outside of the Respondent’s facility contravened any rule or
policy. Martinez corroborated Vargas in this regard by admitting that, while she had seen
Vargas using his cell phone in the facility during working hours, she never spoke to, or
admonished, Vargas about it. Vargas also testified, again without contradiction and with
corroboration from Martinez, that employees regularly used cell phones during working hours at
the facility. No evidence of prior warnings having been issued to other employees for engaging
in such conduct was produced by the Respondent. Nor was any documentary evidence
produced to show the existence of any such prohibition at the Respondent’s facility. I am
convinced that none was produced because the Respondent, at least as of December 3, 2004,
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maintained no such rule or policy banning the use of cell phones in its facility during working
hours, or prohibiting employees from leaving their work stations to make cell phone calls.

In short, the assertion in Mercado’s December 3, 2004, warning letter, that Vargas was
constantly abandoning his work station to make phone calls and had repeatedly been warned
against using his cell phone during working hours, is squarely contradicted by Vargas and, to
some extent, by Martinez. As noted, the decision to issue the warning was made by Mercado
alone. Thus, Mercado, not Martinez, was in the best position to clarify this obvious discrepancy,
and to explain why Vargas received a warning for conduct he and other employees had
previously engaged in without suffering any adverse consequence. The Respondent, however,
chose not to have Mercado testify despite the fact that Mercado did make an appearance at the
hearing. Its failure to do so leads me to conclude that Mercado was not called for fear that her
testimony would not have supported the Respondent’s explanation for issuing Vargas the
warning. GATX Logistics, 323 NLRB 328, 335 (1997). I am convinced that the reason cited by
Mercado in the warning is nothing more than a pretext. When an employer advances a
pretextual reason for alleged unlawful conduct, it fails to meet its burden under Wright Line of
rebutting the General Counsel’s prima facie case. See, e.g., Aljoma Lumber, Inc., 345 NLRB
No. 19 (2005); McGaw Of Puerto Rico, Inc., 322 NLRB 438, 449 (1996); Aero Metal Forms, 310
NLRB 397, 399 (1993); Bardaville Electric, 309 NLRB 337 at fn. 3 (1992). Having failed to
rebut the General Counsel’s prima face case, the Respondent, I find, violated Section 8(a)(3)
and (1) of the Act when it issued Vargas the warning on December 3, 2004.

Regarding the cancellation of Vargas’ vacation, that decision, according to Martinez, was
made solely by Mercado. Mercado, as previously noted, did not testify, and the only evidence
as to the reason for Mercado’s decision came in the form of unreliable hearsay testimony by
Martinez. The only explanation proffered by the Respondent for canceling Vargas’ December
vacation is that said cancellation was necessitated by the per diem employees unavailability to
work that month. As found above, however, no evidence, other than Martinez’ unsubstantiated
claim of what Mercado said to her, was produced to show that the per diem employees were in
fact unavailable to work during the month of December 2004. Nor was Martinez’ description of
her conversation with Mercado regarding the cancellation of Vargas’ vacation trustworthy or
reliable. Martinez, as noted, initially claimed that Mercado mentioned “economic reasons” as
the basis for the cancellation, but subsequently vacillated in her testimony by stating that she
was not quite sure if Mercado mentioned “economic reasons” as a factor in that decision.
Further, Martinez, as noted, admits that she never told Vargas why his vacation had been
cancelled, and simply instructed Vargas to ask Mercado for the reason. If Vargas’ vacation had,
in fact, been cancelled due to the unavailability of the per diem employees, arguably a legitimate
reason if shown to be true, Martinez would have had no reason to conceal that fact from Vargas
and would, I am convinced, have mentioned this to Vargas. Her refusal to disclose to Vargas
the reason for the cancellation of his vacation, as purportedly told to her by Mercado, leads me
to believe that Martinez either did not believe Mercado’s explanation for her decision, or that the
reason purportedly cited to her by Mercado for canceling Vargas’ vacation was something other
than the unavailability of the per diem employees, which Martinez did not feel comfortable
disclosing to Vargas. Martinez’ failure to give Vargas the explanation or reason purportedly
mentioned to her by Mercado for canceling his vacation, to wit, the unavailability of the per diem
employees, supports a finding that the latter reason is nothing more than a pretext, and that the
true reason is an unlawful one which the Respondent seeks to hide.

Having rejected as unsubstantiated Martinez’ explanation for the cancellation of Vargas’
December vacation, and as the explanation recounted by Martinez appears, in any event, to be
nothing more than a pretext, I find that the Respondent has not rebutted the General Counsel’s
prima facie case. Having failed to do so, I find that Mercado’s decision to cancel Vargas’
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December 13, 2004, vacation was, as alleged in the complaint and contended by the General
Counsel, unlawfully motivated by anti-Union considerations, and a violation of Section 8(a)(3)
and (1) of the Act.

(b) Diaz’ December 13, 2004 transfer

Felicita Diaz has been employed by the Respondent as a family health worker for almost
31 years, most of which were spent at the main Playa de Ponce facility. Her duties consist of
examining patients, assisting doctors in preparing pertinent reports, and organizing the work
area. She generally worked days from 8:00 a.m. to 4:30 p.m. She testified that on December
10, 2004, she received a message from her immediate supervisor, Cruz, that Martinez wanted
to see her. Diaz went to see Martinez at her office a short while later. During that conversation,
Martinez told Diaz that some changes were going to take place and that she, Diaz, was being
transferred to the Singapur facility. Diaz expressed surprise and asked Martinez not to transfer
her, as she did not drive and had no means of getting to Singapur which was far away. Diaz
contends that Martinez simply reminded her that she, Martinez, was a supervisor. Diaz then
asked who else was being transferred, hoping that her seniority might be useful in avoiding the
transfer. Martinez replied that her decision was already made. When Diaz asked if the transfer
was the result of employee complaints about her, Martinez assured her that that was not the
case. Diaz then asked Martinez whether she or Salichs had made the decision, to which
Martinez replied, “Don’t say that to me.” When Diaz asked if it had anything to do with the
Union, Martinez gave the same response. Diaz then began crying, explaining that she was her
family’s sole support, and that she had been working for the Respondent for many years.
Martinez told Diaz that the transfer was immediate and that she would have to report to the
Singapur facility on Monday, December 13, 2004. Diaz, in fact, reported to the Singapur facility
on December 14. Her commute to Singapur on public transportation took approximately one
and one-half hour. Her commute to work prior to the transfer was only 10-12 minutes.

Martinez testified that the decision to transfer Diaz was made by her alone sometime in
December 2004. She could not recall when in December she made the decision, but contends
it occurred after her unsuccessful attempt to persuade Mercado to hire additional personnel.
Martinez explained that she chose to transfer Diaz because the latter was a “speedy and
competent” employee. After Salichs denied her request for additional staff, Martinez notified
Diaz sometime in December of her transfer. She contends that she then notified Mercado of the
transfer, explaining that Diaz’ transfer was needed to cover other areas. On cross-examination,
Martinez drew a distinction between the “rotation” and “transfer” of an individual, the former
consisting of a temporary movement of an employee from one location to another, the latter
being a permanent move to another location. She contends that Diaz was rotated, not
transferred, to the Singapur facility, and that Diaz was told at a meeting that she was simply
being rotated. Martinez admitted, however, that Diaz had never before been rotated to another
facility or location. As of the date of the hearing, Diaz was still working at the Singapur facility,
more than six months after being “rotated” in December 2004, notwithstanding Martinez’
suggestion in her testimony that rotations of employees are generally of short duration designed
to fill in for employees who are out sick or on vacation. (Tr. 205).

As between Diaz and Martinez, I credit Diaz and find that Martinez never gave Diaz a
reason for the transfer. Rather, I am convinced that, as testified to by Diaz, the decision to
transfer her occurred abruptly, without prior notice, and that despite attempts by Diaz to
ascertain why she was being transferred, Martinez simply told her that the decision had been
made. I further find that Martinez declined to give Diaz a straight answer when the latter asked
if Mercado took part in the decision, or whether her union activity had anything to do with her
transfer. Martinez’ version was too ambiguous to be credible. Martinez, who took responsibility
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for the decision, could not remember when she made the decision. Nor did she produce any
evidence to support her claim of having discussed the need for additional staff with Salichs, the
alleged reason cited by her for transferring Diaz, or to show that Diaz’ transfer was prompted by
a shortage of personnel. Salichs, who could have bolstered Martinez’ claim in this regard, did
not testify, leaving Martinez’ claim unsubstantiated. Further, despite initially referring to her
decision to move Diaz to the Singapur facility as a “transfer,” Martinez abruptly changed her
tune on cross-examination by Respondent’s counsel by insisting that Diaz had actually been
“rotated,” not “transferred,” to Singapur. Martinez’ assertion that Diaz was only “rotated” and not
“transferred” is undermined by her own further testimony that “rotations” are of short duration
and generally used to fill in for employees who might be absent or on vacation. Diaz, as noted,
was still at the Singapur facility more than six months after the alleged “rotation.” Given her
rather ambiguous and self-contradictory testimony regarding what I am convinced was a
permanent “transfer,” I place no credence in Martinez’ testimony regarding what was discussed
and said between her and Diaz on this issue.

Discussion

The record shows that Diaz was an active Union supporter who signed a Union
authorization card, solicited signed authorization cards from at least ten other employees, and
attended Union meetings. While there is no direct evidence to show that the Respondent knew
of her activities, the absence of such direct evidence is not dispositive, for the Board may infer
knowledge based on circumstantial evidence such as the timing of the alleged discriminatory
action, an employer’s general knowledge of its employees union activities, its animus against
the union, the pretextual nature of the reason given for the adverse action, and the small size of
the work force. La Gloria Oil & Gas Co., 337 NLRB 1120, 1123, (2002), also Mays Electric Co.
Inc., 343 NLRB No. 20 (2004).

Here, the Respondent’s unexplained December 10, 2004, decision to transfer Diaz from
its main facility in Ponce, where she had worked for some 30 years without any prior transfers,
to the Singapur facility, a one and one-half hour longer commute for Diaz, occurred just four
days after Perez questioned Diaz about the Union, and unlawfully asked Diaz to signed a
Company-sponsored letter disavowing any interest in the Union. Diaz credibly described Perez
as being surprised and taken aback by her strong response and opposition to the Respondent’s
conduct in trying to get her and other employees to sign the antiunion letters. Although Perez,
as noted, sought to disassociate the Respondent from any involvement in the preparation and
circulation of the antiunion letter, Diaz made clear to Perez that she did not believe the latter’s
assertion. Diaz’ conduct in refusing to sign the letter, in questioning the propriety of the
Respondent’s and Perez’ actions regarding the letter, and in challenging Perez’ assertion
regarding the Respondent’s involvement in the preparation and circulation of the antiunion
letter, would, I am convinced, have led Perez to suspect, if not believe, that Diaz was, at a
minimum, a Union sympathizer or, at most, a Union activist.

Further, no evidence was produced, other than Martinez’ unsupported claim to the
contrary, to show that Diaz’ transfer to the Singapur facility was precipitated by a shortage of
personnel. As noted, Salichs, who might have corroborated Martinez’ claim that she sought and
was denied additional staff by Salichs, did not testify, warranting an adverse inference that had
she done so, her testimony would not have benefited the Respondent’s case. The Respondent
likewise produced no documentary evidence, such as staffing records or other documents
showing the Respondent was having difficulty providing services at the Singapur facility
because of a staffing shortage, to demonstrate that its immediate transfer of Diaz, without
explanation and on short notice, from the main facility in Ponce, where Diaz had worked for
almost thirty years without any prior transfer, to the more remote Singapur facility, was
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prompted by economic or business necessity. The lack of such evidence, coupled with
Martinez’ failure to give Diaz a reason for the transfer, and her false attempt to portray the
transfer as simply a temporary “rotation” when the record clearly suggests otherwise, convinces
me that the “shortage of personnel” explanation proffered by Martinez for Diaz’ transfer is
nothing more than a pretext, and that the real reason is one which she seeks to hide. The
pretextual reason given for Diaz’ transfer, made without explanation to Diaz just four days after
she dared to challenge and question Perez’ conduct in asking her to sign a letter disavowing the
Union, and the obvious hostility and animus, as demonstrated by the various unfair labor
practices it is found to have committed, leads me to believe that the Respondent knew or
suspected, when it transferred Diaz, that the latter sympathized with or supported the Union.
Thus, I find that the General Counsel has made a prima facie showing that Diaz’ December 13,
2004, transfer to the Singapur facility was retaliatory in nature and motivated by antiunion
considerations.

The Respondent has presented no credible evidence to refute the General Counsel’s
prima facie case. Thus, it presented no evidence, other than Martinez’ rejected testimony, that
Diaz was transferred for legitimate, non-discriminatory reasons. Martinez’ unsubstantiated
explanation for the transfer, that she made the decision after Salichs refused to grant her
request for additional personnel, finds no support in the record, and as discussed above,
amounts to nothing more than a pretext. Martinez’ bare claim, without proof, that her decision to
transfer Diaz was prompted by Salichs' response to her request, is simply not sufficient for the
Respondent to meet its burden under Wright Line, supra. Hospital Espanol Auxilio Mutuo De
Puerto Rico, Inc., 342 NLRB No. 40, slip op. at 19 (2004). Accordingly, the Respondent’s
transfer of Diaz on December 10, 2004, to the Singapur facility was, as alleged in the complaint,
unlawful and a violation of Section 8(a)(3) and (1) of the Act.

(c) The Ramirez and Sanchez warnings
and transfer of Ramirez

Ramirez had worked a fixed day shift (7:00 a.m.-3:30 p.m.) as a registered nurse for the
Respondent at its main Ponce facility for some 23 years, until transferred to the Tallaboa facility
on January 31. She testified that in all her 23 years with the Respondent, she had never before
been transferred to another facility. As previously discussed, on January 13, an incident
occurred during which Salichs told Ramirez that she would get even with Ramirez by
transferring her to the El Tuque facility because Ramirez had failed to perform a lab procedure,
e.g., drawing a blood sample, on Salichs. At around 9:00 a.m. the following morning, January
14, Ramirez was summoned to the office of her immediate supervisor, Wanda Vasquez. At that
meeting, according to Ramirez, Vasquez notified her she was being transferred to the El Tuque
facility, and that Salichs had made the decision because she wanted to move the staff around.
Ramirez told Vasquez that Salichs had mentioned the transfer to her the day before, but that it
came about rather abruptly.
,
Ramirez testified that around noontime on January 14, Salichs called her into office and
told Ramirez that she should be addressing patients as “Usted,” the polite form of “You” in
Spanish, instead of using “tú”, the more familiar and less formal Spanish version of “You”.
Ramirez answered that, at times, it might be more beneficial to use the more familiar term “tú”
because it tended to create a greater sense of trust in the patient for the nurse, allowing the
patient to be more candid in disclosing his/her problems. Ramirez then asked Salichs why her
transfer had occurred so suddenly, and Salichs replied that Martinez was responsible for the
abrupt nature of transfer because the latter did not want nurses in the lab. (Tr. 223).

Ramirez claims that at a meeting with Martinez in the afternoon of January 14, Martinez
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told her that she was being transferred as part of Salichs' plan to reassign personnel. Ramirez
asked Martinez to be honest with her and tell her why she was being transferred, pointing out
that while Martinez claimed the decision was made by Salichs as part of an overall personnel
reassignment plan, Salichs told her it was Martinez who made the decision because she did not
want nurses in the lab. Martinez insisted that the decision was made by Salichs, not her, and
reiterated that the decision was part of Salichs' plan to move staff around. Ramirez claims that
at some point following her discussion with Martinez, she discussed the matter again with her
supervisor, Vasquez, who told Ramirez that she had discussed the transfer with Salichs,
Martinez, and the Respondent’s Medical Director, Dr. Garcia, but had no success in addressing
the matter. Vasquez, according to Ramirez, told her that her hands were tied because she
represented the administration while Ramirez was “a Union worker.” (Tr. 226). Neither Salichs
nor Vasquez testified. Accordingly, I credit Ramirez and find that Salichs told her the transfer
decision was made by Martinez. I also find that when notified by Vasquez of the transfer, the
latter told Ramirez that Salichs made the decision, and further find that, when she confronted
Martinez about the transfer and asked her to clarify who made the decision, Martinez insisted
that Salichs ordered the transfer. Finally, I credit Ramirez and find that Vasquez told her that
because Ramirez was a “union worker,” she could not help her.

Ramirez testified that in addition to being notified on January 14, of her transfer, she also
received a written warning from Mercado that day for “attending to a Union representative” who
was in the area handing out flyers.15 (see GCX-15). The warning accused Ramirez of violating
“the policies set forth by our Institution,” and warned that, if such behavior continued, the
Respondent would be forced to take disciplinary action. Ramirez described the incident as
follows. After drawing a blood sample from a patient, she went on a fifteen minute break.
During her break, she went to the waiting room to provide orientation to some patients and,
while there, observed a union agent handing out flyers announcing a party (Tr. 229, 232).
Ramirez took one of the flyers to show to Salichs, as she believed that the party described in
the flyer was the same one Salichs had alluded to during their January 7, discussion. Nothing in
Ramirez’ account of that incident suggests that Ramirez engaged in any discussion or
exchange with the Union representative distributing the flyers.16 Minutes later, Mercado entered
the waiting room and began screaming that she intended to issue warnings to all employees
who were “paying attention” to the Union agent handing out the literature. Only one other
employee, medical technician Sanchez, was present when Mercado made her statement.
Ramirez received her written warning at around 1:00 p.m. that day, and testified that Sanchez
also received a warning for the same reason. A copy of Sanchez’ warning, containing the exact
same language found in Ramirez’ warning, was received into evidence as GCX-16. Ramirez
explained that she was unaware of the “policies” referenced by Mercado in her warning letter,
but did recall being told verbally that the sale of items in the facility, including the waiting room,
was prohibited. I credit Ramirez’s account of this incident as Mercado did not testify.

The only explanation provided by the Respondent for transferring Ramirez came from
Martinez. Her testimony as to who made the transfer decision is inconsistent with Ramirez’
recollection of events. Thus, contrary to Ramirez’ assertion that Martinez and Vasquez both
pointed to Salichs as the one who made the decision because she wanted to move staff around,
15 The record does not make clear when on January 14, Ramirez received the warning.
16 It is unclear from the warning language just what Mercado meant by her assertion that
Ramirez had “attended” to a Union representative. As discussed infra, Ramirez gave no
indication in her credited testimony that she had conversed or interacted with the Union
representative. Ramirez, as noted, testified only to taking one of the flyers that the Union
representative was distributing at the facility.
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Martinez claims that she alone made the decision to transfer Ramirez, and that she did so
based on three complaints she received concerning Ramirez. (Tr. 159-161).

Martinez explained that all three complaints were brought to her attention by Salichs.
The first and second complaints involved incidents that occurred on or before December 8,
2004. As to the first complaint, Martinez contends that Salichs purportedly reported being told
by J. Ramos that Ramirez had ridiculed or made fun of an obese patient. Martinez claims that
she interviewed Ramirez, in the presence of supervisor Jacqueline Santiago, regarding the first
complaint, and that Ramirez denied the incident occurred. Martinez admits that she did not
investigate the incident, nor did she follow her practice of allowing an employee’s immediate
supervisor, in this case Vasquez, an opportunity to resolve the problem first with the employee
before proceeding further, or of meeting with the patient and the staff member involved. She
explained that her failure to investigate or to follow past practice came about because J. Ramos
did not identify the patient who allegedly made the complaint.

The second complaint, Martinez contends, was a two-fold one, involving alleged
mistreatment by Ramirez of a patient, and of the Respondent’s accountant, Francisco Bayanilla.
As to the incident involving Bayanilla, Martinez claims she discussed the incident with him and
learned that it had occurred “ a long time ago.” According to Martinez, Bayanilla could not be
any more precise than that, and she readily admits that she did not press Bayanilla to be more
specific as to when the incident might have occurred. (Tr. 167). As to the complaint involving
Ramirez’ alleged mistreatment of another patient, Martinez admits that she did not conduct an
investigation into what occurred because, like the first complaint against Ramirez, the patient
involved was never identified to her. It is unclear whether Martinez ever discussed the latter
complaint, or the Bayanilla incident, with Ramirez.17

The third complaint mentioned by Martinez as the cause for Ramirez’ transfer involved
the January 7, incident with Salichs. Salichs, Martinez contends, complained to her on January
20, that Ramirez had been disrespectful while drawing a blood sample from her on January 7,
by speaking to her in an informal manner Martinez admits that she never asked Salichs to
explain or clarify what specifically Ramirez had done wrong, or what may have been said by
Ramirez that was improper. (Tr. 172-173). Martinez had no first-hand knowledge of what
transpired between Salichs and Ramirez on January 7, as she was not present, and simply took
Salichs' word as to what occurred without interviewing Ramirez.

Martinez was unable to recall when she made the decision to transfer Ramirez.
However, when shown a January 20, report prepared by her entitled “Summary Record”
discussing the transfer (see GCX-13), Martinez testified that the transfer decision was made
that same day. The January 20, report contains Martinez’ reference to a phone call received
from Salichs complaining that Ramirez was disrespectful to her while drawing blood, reminding
Martinez of the Bayanilla incident, and recommending that Ramirez be “transferred to one of the
17 A “Summary Record” report, dated 12/8/04, was apparently prepared by Martinez on the
Bayanilla and the “obese” patient incidents. (see GCX-12). On its face, GCX-12, in its original
form, appears to consist of more than one page. For reasons unknown, only the first page of
that report was offered and received into evidence. A cursory reading of the report shows that
the second page, presumably containing an account of the Bayanilla incident, was left out of
GCX-12. Consequently, except for some vague reference to an incident involving Bayanilla
cited by Martinez at the hearing, it is not known precisely what, if anything, Bayanilla’s complaint
regarding Ramirez involved. Nor is there any indication that this alleged matter was ever
discussed with Ramirez.
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Satellite Centers as a result of the complaints from patients.” The January 20, report does not
indicate when Martinez received the call from Salichs which led her to prepare it. It appears
from the report that Ramirez was interviewed by Martinez on January 20, regarding the
allegation that she had been disrespectful to Salichs, and that, after denying the allegation,
Ramirez was told she was being transferred to one of the Satellite Centers, as proposed by
Salichs.

While I believe, from Ramirez’ undisputed testimony, that Salichs had already decided
by January 14, to transfer her to another facility, the selection of the Tallaboa facility as her new
work location appears to have been made at some point between January 20, and January 25,
for a “Summary Record” prepared by Martinez on January 25, shows that Martinez met with and
informed Ramirez that day that she was being transferred to the Tallaboa facility because of
complaints received from patients. (See GCX-14). Martinez purportedly advised her that she
would be sent to the Singapur facility once a position became available. Ramirez denied any
wrongdoing, insisted that the allegations purportedly lodged against her by patients were not
true, and asked that the patients be summoned. The report shows Martinez asserting that the
complaints were verbal in nature and not in writing. Martinez claims that following this meeting
with Ramirez, Salichs asked her what action she intended to take regarding Ramirez, and that
she told Salichs that Ramirez was being sent to the Tallaboa facility. As noted, Ramirez was, in
fact, transferred to Tallaboa on January 31.

Discussion

The warnings

The warnings issued to Ramirez and to employee Sanchez by Mercado on January 14,
were clearly unlawful. Initially, it is not clear precisely what Ramirez and Sanchez were
allegedly guilty of, for the warnings rather vaguely accused both of violating Respondent’s
“policies” by attending” to the Union representative. The warnings do not identify the “policies”
that were purportedly violated, or how Ramirez and Sanchez had “attended” to the
representative. As already noted, Mercado, who issued the warnings and who, consequently,
was in the best position to answer these questions, did not testify. The only two policies or rules
mentioned in the record are the above-described no-solicitation and no-distribution rules which,
as found above, are facially invalid and unlawful. However, Ramirez’ undisputed and credited
testimony reflects that her conduct consisted of nothing more than accepting a flyer from the
Union representative. Nothing in her testimony suggests that she engaged the representative in
conversation, or that she took part in soliciting other employees or in distributing literature.18
The Respondent produced no evidence to show that it had a policy prohibiting employees from
accepting non-work related material from others at the workplace. In fact, Ramirez testified that
she had in the past been handed non-work related literature, such as invitations, or
advertisements for grass cutting or catering services, at the facility, and that, after accepting the
literature and possibly chatting briefly with the individual distributing the item, she simply put the
literature away and left, and was never warned or disciplined for doing so. (Tr. 235, 243).

Nor would the Respondent have had any reason for issuing Ramirez a warning for
violating its no-solicitation and no-distribution policies, for as evident from her credited and
uncontradicted testimony, she engaged in no such conduct. More importantly, the Respondent
18 It is not known what, if any, conduct Sanchez engaged in as she, like Mercado, did not
testify, and as Ramirez was not asked what she may have observed Sanchez doing in their
encounter with the Union representative.
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could not lawfully have relied on the above solicitation and distribution rules to justify the
warning, for, as previously discussed and found, both rules are facially invalid and unlawful, and
any disciplinary action taken pursuant to an unlawful no-solicitation or no-distribution rule is
deemed unlawful. Double Eagle Hotel & Casino, 341 NLRB No. 117, at fn. 3 (2004); Opryland
Hotel, supra. In short, the record makes patently clear that Ramirez was engaged in protected
activity when, during her break time, she accepted the handout from the Union representative.

The Respondent’s disparate treatment of Ramirez, e.g., issuing her a warning for
accepting the Union representative’s handout when employees in the past had accepted
nonunion, non-work related literature from others in the facility without repercussion, also makes
clear that it was Ramirez’ contact with the Union representative, and her willingness to accept
the literature handed to her by the Union representative, which Mercado found objectionable,
and which led her to issue the warnings. The Respondent has offered no legitimate explanation
for the warning. Accordingly, I find that the warning issued to Ramirez was discriminatorily
motivated by anti-Union animus, and violated Section 8(a)(3) and (1) of the Act. I further find,
as alleged in the complaint, that the warning issued to Sanchez, which is identical to that issued
to Ramirez, was motivated by the same anti-Union considerations, and also violated Section
8(a)(3) and (1) of the Act.

Ramirez’ transfer

As to Ramirez’ January 31, transfer to the Tallaboa facility, I find that the General
Counsel has made a prima facie showing that the decision was unlawfully motivated by
antiunion considerations. Ramirez, as noted, admitted that she had not engaged in any union
activity at any time in 2004.19 There is, however, evidence to indicate that the Respondent
believed otherwise. Salichs' January 7, remarks to Ramirez about having heard that Ramirez
was a Union delegate, and that she did not want Ramirez to betray her, strongly suggests that
Salichs suspected Ramirez of having some involvement with the Union, possibly as one of its
representatives. Those suspicions, I am convinced, were enhanced when, one week later, on
January 14, Ramirez was seen accepting a leaflet from, and possibly speaking with, a Union
representative for which she was issued a warning. Finally, supervisor Vasquez’ remark to
Ramirez on January 14, that she was unable to help Ramirez with the transfer because Ramirez
was a Union worker, makes patently clear that the Respondent believed, rightly or wrongly, that
Ramirez was a Union supporter, and that it was that belief which prompted the Respondent to
transfer her.

In these circumstances, the fact that no evidence was produced to show that Ramirez
was involved with the Union prior to January 14, is not fatal to the General Counsel’s prima face
case, or precludes a finding that the transfer was unlawful, for the Board has held that an
employer’s adverse action against uncommitted, neutral, or inactive employees in order to
discourage employee support for a union violates Section 8(a)(3) of the Act. Wal-Mart Stores,
Inc., 340 NLRB 220, 221 (2003). Here, the Respondent’s suspicion or belief that Ramirez was
somehow involved with the Union, its animus and hostility to the Union as demonstrated by the
Section 8(a)(1) and other unfair labor practices it is found to have engaged in, and, as more fully
discussed below, the pretextual reason proffered by the Respondent for initiating the transfer,
warrants a finding that the transfer was indeed motivated by antiunion considerations and
intended to discourage employee support for the Union. Accordingly, I find that the General
Counsel has made a prima facie showing that the transfer was unlawful.

19 She was not, however, asked if her non-involvement in union activity extended into 2005.
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The Respondent, in turn, has presented no credible evidence to rebut the General
Counsel’s prima facie case. Thus, I am not convinced, as testified to by Martinez at the hearing,
that Ramirez was transferred to the Tallaboa facility on January 31, because of complaints
allegedly lodged against her by patients, and by Salichs and Bayanilla. Rather, the evidence, or
lack thereof, makes clear that this particular explanation is nothing more than a pretext. Several
factors lead me to so conclude. For example, while Martinez claimed to have transferred
Ramirez because of complaints filed against her by patients, and by Salichs and Bayanilla, the
January 25, “Summary Record” prepared in conjunction with the transfer states that the decision
was prompted only by patient complaints, and gives no indication that the Salichs and Bayanilla
complaints were taken into account. Martinez had an opportunity at the hearing to explain away
this apparent discrepancy between her testimony, and the statement in January 25, Summary
Record, but failed to do so. Her failure to explain this discrepancy convinces me that the
complaints by Salichs and Bayanilla played no role in the decision to transfer Ramirez, and that
Martinez, who offered no evidence with respect to the patient complaints she purportedly also
relied on, simply cited the Salichs and Bayanilla complaints at the hearing in an attempt to lend
some legitimacy to Ramirez’ suspect transfer. “Shifting reasons for discipline, in the presence
of a prima facie case, are evidence of, and support, a finding of an unlawful motive.” Scott Lee
Guttering Co., 295 NLRB 497, 507 (1989); also, Aljoma Lumber, Inc., 345 NLRB No. 15 (2005).

Further, Martinez, as noted, did not personally witness any of the incidents underlying
the patient complaints which she claims she relied on to transfer Ramirez. Rather, Martinez
purportedly learned of the patient complaints from Salichs. However, Martinez, by her own
admission, never bothered to investigate these alleged complaints from patients and
presumably took the action she did against Ramirez based solely on Salichs' word. Thus,
Ramirez was never told which patients had complained about her, what the nature of those
complaints were, or when they were alleged to have occurred. As a result, Ramirez never got
the opportunity, prior to being transferred, to adequately or properly dispute or challenge the
complaints purportedly lodged against her by patients. Martinez’ failure to investigate the
alleged patient complaints lodged against Ramirez, and her failure thereby to allow Ramirez an
opportunity to defend herself against said complaints, further support a finding of pretext.
Aljoma Lumber, Inc.,supra; Primo Electric, 345 NLRB No. 99 (2005); Washington Fruit And
Produce Company, 343 NLRB No. 125 (2004); Washington Nursing Home, Inc., 321 NLRB 355,
374(1996).

Finally, there is reason to doubt Martinez’ assertion that she alone made the decision to
transfer Ramirez. Ramirez, as noted, testified, without contradiction, that her supervisor,
Vasquez, told her that it was Salichs who had Ramirez transferred because Salichs wanted to
move staff around. Moreover, Ramirez further claims that Martinez also mentioned to her on
January 14, that Salichs was transferring her because she, Salichs, wanted to move personnel
around. I am inclined to believe that Salichs, and not Martinez, made the decision to transfer
Ramirez, and that Martinez simply carried out her instructions. Several factors, including
Salichs' January 13, threat to transfer Ramirez, Vasquez’ statement to Ramirez that Salichs had
decided to transfer Ramirez as part of a plan to move personnel around, and the January 20,
Summary Record showing that Salichs “recommended” that Ramirez be transferred to one of
the other facilities, clearly support such a finding. As Salichs was the Respondent’s highest
management official as well as Martinez’ superior, it is highly unlikely that Martinez would have
ignored or not followed through with Salichs' recommendation to transfer Ramirez. Rather, I
find it more likely than not that the actual decision to transfer Ramirez was made by Salichs, and
that Martinez simply performed the ministerial act of effectuating the transfer. Any doubts in this
regard could easily have been resolved by Salichs. However, as already noted, Salichs was not
called to testify, leading me to conclude that, had she done so, Salichs would not have
corroborated Martinez. Therefore, Martinez’ claim of responsibility for transferring Ramirez, like
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her claim of having relied on the Salichs and Bayanilla complaints to justify the transfer, is
rejected as not credible. Having failed to provide a credible, nondiscriminatory reason for
transferring Ramirez, the Respondent, I find, has not rebutted the General Counsel’s prima facie
case. Accordingly, I further find that Respondent, believing that Ramirez was somehow
involved with the Union, transferred her to the Tallaboa facility on January 31, in retaliation for
her alleged activities and to discourage others from supporting the Union. Ramirez’ transfer
was, therefore, unlawful and violated Section 8(a)(3) and (1) of the Act.

3. The alleged Section 8(a)(5) conduct

A. The unilateral changes in working conditions

The complaint further alleges, and the General Counsel contends, that the Respondent’s
decision to transfer Ramirez on January 31, to the Tallaboa facility also violated Section 8(a)(5)
and (1) of the Act, as it was made unilaterally and without affording the Union prior notice and
an opportunity to bargain over the decision. I agree.

An employer's obligation to bargain arises on the date that a majority of the appropriate
unit employees select the union as their representative. Southside Hospital, 344 NLRB No. 79
(2005); Gulf States Mfg., Inc., 261 NLRB 852, 863 (1982). Here, the Union achieved majority
status on January 11, as a result of the election conducted that day. Consequently, as of
January 11, the Respondent became statutorily obligated to bargain with the Union over the
employees’ terms and conditions of employment, and was not free to unilaterally change them
without first notifying the Union and giving it a chance to bargain over any proposed changes.

The transfer of Ramirez, a unit employee, from Respondent’s main facility to the
Tallaboa facility located in a different town, amounted to a change in her terms and conditions of
employment. Further, according to the undisputed and credited testimony of Union organizer
Maria Revelles, it occurred without prior notice to the Union. The transfer clearly had a material
and substantial impact on Ramirez’ working conditions as it resulted in Ramirez being moved
from the Respondent’s main facility in Ponce, where she had worked for more than 20 years, to
a more distant facility in another town presumably requiring a longer commute. In these
circumstances, the decision to transfer Ramirez was a mandatory subject of bargaining that
required the Respondent to notify and allow the Union an opportunity to bargain before
implementing the transfer. Venture Packaging, Inc., 294 NLRB 544, 556 (1989). The
Respondent has offered no explanation or justification for its failure to do so. Nor has it been
shown, or argued by the Respondent, that Ramirez’ transfer was consistent with an established
past practice which might have justified the unilateral action. Accordingly, I find that the
Respondent’s unilateral decision to transfer Ramirez to Tallaboa constituted a breach of its
bargaining obligation, and violated Section 8(a)(5) and (1) of the Act.

The General Counsel also contends, and I agree, that on March 11, the Respondent
further violated Section 8(a)(5) and (1) by changing Vargas’ work schedule and location without
notifying or bargaining with the Union. The record in this regard reflects that on March 11,
Mercado gave Vargas a letter explaining that, effective March 14, his new work hours would be
from 1-5 p.m., and from 6-9:30 p.m. It further explained that from 1-5 p.m., he would be working
at the X-Ray department, and that from 6-9:30 p.m., he would cover the Emergency Room.
(GCX-11). Vargas testified that for about eight years prior to the March 11, schedule change,
he worked in the “emergency area” in the main facility from 2:30 p.m.-11 p.m. As a result of the
change, Vargas was now required to report for work 1½ hours earlier, and to spend half of his
shift at another location in a different building. I find the change in Vargas’ work schedule and
location had a material and substantial effect the terms and conditions of his employment, and
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constituted a mandatory subject that required prior notice and bargaining with the Union before
being implemented. Indian River Memorial Hospital, Inc., 340 NLRB No. 58 (2003), Pepsi-Cola
Bottling Company Of Fayetteville, Inc., 330 NLRB 900, 902 (2000). Revelles, as noted,
testified, credibly and without contradiction, that no such notice or bargaining opportunity was
provided to the Union regarding this matter. Accordingly, by changing Vargas’ work schedule
and location without first notifying and bargaining with the Union, the Respondent breached its
bargaining obligation and violated Section 8(a)(5) and (1) of the Act.20

It is further alleged in the complaint, and argued by the General Counsel, that the
Respondent also violated Section 8(a)(5) and (1) when, on January 19, Mercado sent a memo
to employees notifying them that they were no longer allowed to leave the facility during working
hours, to arrive tardy to work, or to leave prior to the end of their shift because said practices
were affecting patient service. (See, GCX-5). The memo did not explain how patient services
were being affected, and Mercado was not called as a witness to further explain her reasons for
discontinuing these practices.

As to the practices themselves, A. Martinez testified, without contradiction, that prior to
the January 19, memo, employees were allowed to report to work five minutes after their
regularly scheduled start time and not be deemed tardy, and to leave work early in emergency
situations simply by notifying their supervisor. She was not questioned about, and consequently
did not explain, what the practice had been regarding employees being able to leave the facility
during working hours. It is reasonable to assume, however, from the directive in the memo
prohibiting employees from leaving the facility during working hours, that employees had, prior
to the memo, been allowed to leave the premises during working hours, including presumably
during their break and lunch periods. The restrictions in the memo make no exception for
employees wishing to take their break and lunch periods outside the facility to do so, nor is there
any exception made for employees who might arrive a few minutes late or who need to leave
before the end of their shift because of an emergency. Further, while Mercado’s letter does not
explain what, if anything, might occur if employees failed to comply with the new restrictions, it is
safe to assume that the Respondent, having notified employees that the above practices would
no longer be allowed, intended to enforce these new restrictions through disciplinary measures
if necessary.

The restrictions imposed by Mercado’s January 19, memo on the employees’ ability to
leave the facility during working hours, including during their break and lunch periods, and on
their ability to arrive a few minutes late or to leave early even in emergency situations, was a
clear departure from established past practices and, in my view, materially and substantially
affected their terms and conditions of employment, rendering the changes mandatory subjects
of bargaining. Vanguard Fire & Security Systems, 345 NLRB No. 77 (2005); Pepsi-Cola Bottling
20 There is insufficient evidence in the record to support the General Counsel’s further
assertion that the Respondent also violated Section 8(a)(5) and (1) by changing the work
schedule of X-ray technician, Alben Falche, from 8 a.m.-4:30 p.m., to 7 a.m.-3:30 p.m. The
evidence regarding this individual is scant, at best, and involves Vargas’ assertion that he
noticed that Falche’s work schedule had been changed when he happened to glance at the
work schedule that had arrived at the department. That Vargas may have seen certain entries
in the department work schedule does not necessarily mean that Falche’s work schedule had
actually been changed. It might have been a misprint, or a change requested by Falche himself
for that particular day, etc. Falche was not called to testify about this alleged change. In sum, a
case for finding that an unlawful unilateral change was made to Falche’s work schedule has
simply not been made.
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Company Of Fayetteville, Inc., supra; Blue Circle Cement Company, Inc., 319 NLRB 954, 958
(1995); Advertiser’s Mfg. Co., 280 NLRB 1185, 1192 (1986). The evidence, in particular,
Revelles uncontradicted and credited testimony, makes patently clear that the Respondent
never notified, or offered to bargain with, the Union before deciding to terminate these past
practices, and to impose new and obviously more stringent requirements on employees’ work
hours. The Respondent’s failure to do so constituted, I find, an abrogation of its bargaining
obligation and violated Section 8(a)(5) and (1) of the Act, as alleged.

B. The Union’s request for information
and refusal to bargain

On January 31, soon after the Union was certified by the Board, Revelles wrote to
Salichs asking that the Respondent provide the Union with certain specified information needed
to “effectively negotiate on behalf of our members.”21 The letter asked that the requested
information be provided by no later than February 15, and provided phone numbers the
Respondent could call if it had any doubts or questions about the information request.

On February 7, Revelles sent Salichs another letter requesting that bargaining
commence on February 23, and asking her to confirm by February 15, if the February 23, start
date was appropriate. That same day, according to Revelles, she received a letter from
Respondent’s attorney Diaz acknowledging receipt of her January 31, information request, and
stating that the Respondent was looking for the documents requested. The letter from
Respondent’s attorney, received into evidence as GCX-19, in fact states that Respondent’s
management had been asked to make the requested information available “in order to discuss it
afterwards.”

21 A copy of the Union’s January 31, information request was received into evidence as
GCX-17. A modified version of that January 31, request, excluding certain items which the
General Counsel conceded at the hearing were not relevant to the Union, was received into
evidence as an attachment to GCX-19(k), the complaint in the case. The information sought, as
per the revised request attached to the complaint, is grouped into three numbered items. Item
No. 1 asks for the “number of employees in the appropriate units divided by departments,
classification, and status. Item No. 2 asks that the following information, by department, be
provided for each employee in the bargaining units: (a) Name; (b) Telephone number and
address; (c) Salary per hour; (d) Hiring date; (e) employment status; (f) Position title,
description, functions and duties, work hours; (g) Date and amount of the last salary increase;
(h) Any other type of salary scale that is currently in effect; (i) Position description for every
classification; (j) Full and detailed description of the following benefits and costs for the
employee as well as for the employer, and specifically employees subscribed to the same for:
medical plan, dental plan, optical plan, retirement plan. Item 3 asks for “any personnel
regulation and/or employee manual or any other document that covers the following areas:” (a)
Vacations-holidays and the usage of the same; (b) the usage of sick leave, educational leave,
funeral leave, and personal leave, with or without pay; (c) Shifts differential; (d) Benefits due to
seniority; (e) Salary increases and of processes in order to determine the salaries and/or
increases; (f) Salary scale that includes all the employees of the center; (g) Employees’
evaluations; (h) Differentials or per diem; (i) Payment per shift, overtime payment; (j) Payment
for attending mandatory meetings; (k) Publications of positions, adjudications and litigation of
the same; (l) Layoff policy; (m) Policy and hiring procedure for each unit; (n) Breaks, rests, and
lunch time; (o) Process to resolve grievances; (p) Life or disability insurance; (q) Payment for
continuing education.
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On February 16, after receiving no response to her February 7, bargaining request, or
documents pursuant to her January 31, information request, Revelles again wrote to Salichs
reiterating the Union’s need for the requested information. Revelles further expressed her view
in the letter that the Respondent’s failure to respond to her recent letters requesting bargaining
dates and information suggested that it may not be acting in good faith, and again requested
that the information be provided. By letter dated February 16, attorney Diaz acknowledged
receipt of Revelles own letter of that day, and advised Revelles that “the information requested
is being processed within the current limitations of the institution, and a meeting seems
appropriate to us once the information requested is received.” (GCX-21). Revelles admits
receiving attorney Diaz’ February 16, letter, but testified that the letter felt short in meeting her
earlier demands in that it gave no date for the commencement of negotiations and provided
none of the information requested by the Union.

About a month later, on March 14, Revelles, not having heard from the Respondent,
wrote another letter reminding the Respondent that, while the Union had provided it with a date
for the start of negotiations, no response had been received from the Respondent regarding the
suggested date, nor had Respondent provided the Union with any of the requested information.
Revelles then asked that the Respondent provide it with the information sought by March 18,
and further proposed that negotiations begin on March 28. (GCX-22). Revelles received no
response to her March 14, letter.

Having received no response to her March 14, letter, Revelles, on March 28, again wrote
to Salichs pointing out that the Respondent had, to date, failed to provide the Union with any
document or information requested in its previous letters. Revelles renewed her demand for the
information, and proposed that the parties meet on April 15, to begin negotiations. According to
Revelles, it was not until sometime on or around June 3, that the Union received some, but not
all, of the information requested.

On June 13, attorney Rosalba Fourquet, who served as Diaz’ co-counsel at the hearing,
sent Revelles a letter questioning the inclusion in the bargaining unit of three individuals, and
responding to the information request. In the letter, Fourquet states that the Respondent does
not have a salary scale, and agreed to provide the Union, at a meeting scheduled for June 15,
with a full description of the Respondent’s medical plans, the life insurance provided by said
plans, shift differentials, and pay for overtime and shifts. He further explained that the
Respondent’s disability insurance plans were covered by the State Insurance Fund, Drivers’
Insurance and Workmen’s Compensation. (GCX-24). By letter dated the same day to Fourquet,
Revelles challenged Fourquet’s assertion regarding the status of the three employees
mentioned in her letter, and complained that no information had been provided regarding other
individuals (medical technologists, laboratory employees, operating room technicians, medical
assistants) who had been certified as being part of the bargaining units. Revelles further asked
Fourquet that the Respondent bring proposals to the June 15, meeting. (GCX-25).

On June 15, a meeting was in fact held at the Board’s regional office to discuss
settlement of the underlying unfair labor practice charges. Revelles admits that the Respondent
at this meeting provided the Union with more of the requested information. She testified that the
Union brought proposals and its bargaining committee to the meeting, in the hope that the
parties could begin negotiations. She admits knowing, however, that the meeting was called for
the purpose of discussing settlement of the unfair labor practices. Attorney Diaz, she contends,
made clear at the meeting that he lacked authority to engage in bargaining or to enter into a
settlement agreement without first consulting with the Respondent. Revelle’s above testimony
regarding the Union’s repeated request for information and bargaining was not contested by the
Respondent at the hearing. Nor has the Respondent offered any explanation or defense to its
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failure to comply with the Union’s information request, and the request to provide the Union with
bargaining dates.

Discussion

The complaint alleges, and I agree, that the Respondent’s refusal and/or delay in
complying with the Union’s request for information was unlawful. It is well settled that once a
bargaining obligation is created, as occurred here, an employer becomes statutorily obligated to
provide the bargaining representative with information that is both relevant and necessary for
the proper performance of its duties. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436
(1967); Crittenton Hospital, 342 NLRB No. 67 (2004), Detroit Newspaper Agency, 317 NLRB
1071 (1995). The standard for determining what information is "relevant and necessary" is
broadly construed to encompass information that will probably be relevant and of use to the
union in carrying out its statutory duties and responsibilities. Acme Industrial, supra at 437-438.
Where the information sought relates to the terms and conditions of employment of employees
represented by the union, such information is deemed to be presumptively relevant and
necessary, and must be produced, unless the employer can establish a lack of relevance.

The information sought here by the Union relates directly to the unit employees’ wages,
work hours, and other terms and conditions of employment, and is, therefore, presumptively
relevant to the Union for the purpose of formulating proposals and developing a bargaining
strategy. As such, the Respondent was obligated to provide the Union with the requested
information in a reasonably timely manner. Except for the few items that were provided almost
six months after the information request was first made, the Respondent, as of the date of the
hearing, had not yet fully complied with the information request, nor so much as offered an
explanation or a defense for its failure and refusal to do so. As to the information it did provide,
the Respondent has offered no explanation for waiting almost six months before providing it. As
noted, an employer has a legal obligation to provide relevant information in a reasonably prompt
manner. United States Postal Service, 345 NLRB No. 25, slip op. at 14 (2005); Teamsters
Local 122 (August A. Busch & Co.), 334 NLRB 1190, 1224 (2001). An unreasonable delay in
furnishing information is as much of a violation of Section 8(a)(5) as a refusal to furnish
information at all. Postal Service, 345 NLRB No. 25, slip op. at 14 (2005); DeVlieg-Sundstrand,
306 NLRB 867 (1992). As to the limited information the Respondent did provide, I find that the
submission of that information was not done in a reasonable and timely manner. Accordingly,
the Respondent’s delay and/ or failure and refusal to provide the Union with the requested
information constituted a breach of its bargaining obligation, and violated Section 8(a)(5) and (1)
of the Act.

I further find that the Respondent also violated Section 8(a)(5) and (1) by failing to
comply with its statutory obligation to meet and bargain with the Union as the exclusive
collective-bargaining representative of its employees. Following the Union’s attainment of
majority status on January 11, the Respondent became statutorily obligated under Section 8(d)
to meet and confer in good faith with the Union regarding the unit employees' wages, hours, and
other terms and conditions of employment. Viking Connectors Co., 297 NLRB 95, 102 (1989).
This “meet and confer” obligation requires that it be done at reasonable times and without any
unreasonable delay. Calex Corporation, 322 NLRB 977, 987 (1997). In assessing whether an
employer has engaged in good-faith bargaining, the Board examines the parties' overall conduct
during negotiations. In this regard, the Board has found conduct, such as delaying tactics,
unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining,
efforts to bypass a union, and a failure to designate an agent with sufficient bargaining authority,
to be indicative of a lack of good faith. Nursing Center at Vineland, 318 NLRB 901, 905 (1995).

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Here, the Respondent’s conduct following the Union’s certification demonstrates not only
a lack of good faith, but a dismissive attitude as well, towards the Union and the bargaining
process in general. As evident by the above findings, following the Union’s certification by the
Board, the Respondent, rather than acknowledging the Union’s majority status and its obligation
to meet and bargain with the Union, attempted instead to undermine the Union and to ignore its
bargaining obligation by trying to get employees to sign letters rejecting the Union, making
unilateral changes in the employees’ terms and conditions of employment, refusing to comply
with the Union’s repeated requests for information, and refusing to respond to the Union’s
repeated requests to begin bargaining on specific dates proffered by the Union, or to offer
alternative dates of its own. Indeed, at the only meeting held by the parties at the Board’s
Regional Office to discuss settlement, Respondent’s counsel conveyed to the Union that he
lacked authority to engage in bargaining without the Respondent’s consent. Although the
meeting was intended to discuss settlement of the charges in this case, and not to bargain, the
message conveyed to the Union by Respondent’s counsel was that, even if it had been a
bargaining session, he lacked the authority to negotiate on Respondent’s behalf. Thus, when
viewed in its totality, the Respondent’s conduct clearly demonstrated a lack of good faith and
interest in the bargaining process. The Respondent’s response, or lack thereof, to the Union’s
request for bargaining, when viewed in light of its overall conduct, was not one of inadvertence
or benign neglect, but rather one of deliberate and intentional avoidance designed to frustrate
the bargaining process from the outset. Accordingly, I find that by failing and refusing to meet
and bargain with the Union since it was first asked to do so on February 7, the Respondent has
violated Section 8(a)(5) and (1) of the Act.

Conclusions of Law

1. The Respondent, Consejo de Salud de la Playa de Ponce d/b/a Centro de
Diagnostico y Tratamiento de la Playa-Ponce, Ponce, Puerto Rico, is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. The Union, United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act and has, since January 21, been the duly certified
exclusive collective-bargaining representative of the Respondent’s employees in the following
two bargaining units:

Unit A

All registered nurses employed by the Employer at its location in Ponce, P.R.;
excluding all other employees, confidential employees, guards, and
supervisors as defined by the Act.

Unit B

All social workers, licensed practical nurses, medical technicians, X-ray
technicians, laboratory technicians, pharmacist assistants, family healthcare
workers, and mammography/sonogram technicians employed by the
Respondent at its Ponce, P.R. facility; but excluding all other employees,
doctors, confidential employees, guards, and supervisors as defined by the
Act.

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3. The Respondent has violated Section 8(a)(1) of the Act by:

(a) Implementing and maintaining rules that require employees to obtain permission
before engaging in lawful solicitation and distribution activity, and that require employees to
report on other employees engaged in solicitation.
(b) Preparing, distributing, and asking employees to sign letters rejecting or disavowing
any interest in the Union or the payment Union fees and dues.
(c) Interrogating employees about their involvement with the Union; threatening
employees with unspecified reprisals for talking about the Union; threatening employees who
voted for the Union with job loss, threatening employees with a loss of, or reduction, in benefits
if they supported the Union; seeking to coerce employees into refraining from supporting the
Union by threatening to physically harm the Union’s principal adherent, and accusing the Union
and its supporters of having it investigated by federal agents.

4.The Respondent has violated Section 8(a)(3) and (1) of the Act by issuing written
warnings to employees Vargas, Ramirez, and Sanchez, by canceling Vargas’ scheduled
vacation and changing his work schedule and location, and by transferring Ramirez and
employee Diaz because of their involvement with the Union, or to discourage employee support
for the Union.

5. The Respondent has violated Section 8(a)(5) and (1) of the Act by:

(a) Unilaterally, and without giving the Union prior notice and an opportunity bargain,
discontinuing its practice of allowing employees to leave the facility during working hours,
discontinuing its practice of allowing employees a five minute grace period to report for work
and its practice of allowing employees to leave work before the end of their shift in emergency
situations, transferring employee Ramirez to its Tallaboa facility, and changing Vargas’ work
schedule and location.

(b) Failing and refusing to provide, and providing in an untimely manner, information
requested by the Union which is necessary and relevant to perform its duties as the unit
employees’ exclusive bargaining representative.

(c) Failing and refusing, since February 7, to meet and bargain in good faith with the
Union.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent shall be required to rescind the rules found unlawful herein which
require employees to obtain permission before engaging in lawful solicitation and distribution
activity, and requires employees to report on the solicitation activities of other employees.

To remedy its discriminatory transfer of Diaz and Ramirez to other facilities, the
Respondent shall be required to, within 14 days from the date of the Order, offer employees
Diaz and Ramirez reinstatement to the positions held before they were unlawfully transferred to
other facilities, or, if those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed. The Respondent
shall also make Diaz and Ramirez whole for any losses they may have sustained as a result of
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their unlawful transfer to other facilities as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). As
to the unlawful cancellation of Vargas’ December 2004, vacation, the record reflects that
Vargas, in fact, took his vacation sometime in February 2005. Nevertheless, to the extent
Vargas sustained losses of any kind resulting from the cancellation of his vacation, or from the
unlawful change in his work schedule and location, the Respondent shall be ordered to make
him whole for such losses, with interest, as set forth in F. W. Woolworth Co., supra, and New
Horizons for the Retarded, supra.

Regarding the unlawful warnings issued to Vargas, Ramirez, and Sanchez, the
Respondent shall be required to, within 14 days from the date of the Order, rescind and remove
from its files the unlawful warnings issued to them, and, within 3 days, to notify them in writing
that it has done so.

The Respondent shall also be required, on request by the Union, to rescind the unilateral
changes made by Mercado in her January 19, 2005, memo to employees,22 to provide the
Union with the information requested to the extent it has not already done so,23 and to bargain,
on request and in good faith with the Union.

Finally, the Respondent shall be required to post a notice to employees in English and
Spanish.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24

ORDER

The Respondent, Consejo de Salud de la Playa de Ponce d/b/a Centro de Diagnostico y
Tratamiento de la Playa-Ponce, Ponce, Puerto Rico, its officers, agents, successors, and
assigns, shall

1. Cease and desist from

(a) Implementing and maintaining rules that require employees to obtain permission
before engaging in lawful solicitation and distribution activity, or requires them to report on the
solicitation activity of other employees.
22 The change in Vargas’ work schedule and location, as noted, was found to have been
discriminatorily motivated and unlawful under Section 8(a)(3), as well as an unlawful unilateral
change in his working conditions in violation of Section 8(a)(5). The reinstatement and make-
whole remedy for the Section 8(a)(3) violation makes a rescission remedy unnecessary in
Vargas’ case. As noted, however, the Respondent will be required to bargain in good faith with
the Union over any other changes it may wish to make in the employees’ terms and conditions
of employment, including any future changes it may wish to make in Vargas’ work schedule and
location.
23 The information to be provided is that set forth in paragraph 15(a) of the complaint and
described in fn. 21 of this decision.
24 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 purposes.
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(b) Interfering, restraining, or coercing employees in the exercise of their Section 7 rights
by preparing and circulating letters for employees to sign rejecting or disavowing any interest in
the Union or in the payment of Union fees and dues; prohibiting employees from talking about
the Union to others while allowing discussion of other non-union matters; coercively
interrogating employees about their Union activities; threatening employees with unspecified
reprisals for talking about the Union; threatening employees with a loss of jobs, benefits, or
reduction in benefits if they voted or otherwise supported the Union; threatening a Union
representative with physical harm, or blaming the Union and its supporters because it was being
investigated by federal agents.

(c) Issuing warnings to employees Vargas, Ramirez, and Sanchez, canceling Vargas’
vacation,and transferring employees Ramirez and Diaz, or any other employee, to other
facilities, because of their support for the Union, or to discourage other employees from
supporting the Union.

(d) Unilaterally changing Ramirez’ and Vargas’ terms and conditions of employment by
transferring Ramirez to another facility and changing Vargas’ work schedule and job location,
and unilaterally changing the terms and conditions of employment of bargaining unit employees
by discontinuing its practices of allowing them to leave the facility during working hours, of
allowing employees a five-minute grace period when reporting for work, and allowing them to
leave early before the end of their shift in emergency situations, without first notify the Union
and affording it an opportunity to bargain over said changes.

(e) Failing and refusing to bargain in good faith with the Union which is the exclusive
collective bargaining representative of its employees in the following appropriate bargaining
units:

Unit A

All registered nurses employed by the Employer at its location in Ponce, P.R.;
excluding all other employees, confidential employees, guards, and
supervisors as defined by the Act.

Unit B

All social workers, licensed practical nurses, medical technicians, X-ray
technicians, laboratory technicians, pharmacist assistants, family healthcare
workers, and mammography/sonogram technicians employed by the
Respondent at its Ponce, P.R. facility; but excluding all other employees,
doctors, confidential employees, guards, and supervisors as defined by the
Act.

(f) Failing and refusing to provide, or untimely providing, the Union with information that
is relevant and necessary for the performance of its duties as the unit employees exclusive
bargaining representative.

(g) In any like or related manner interfering with, restraining, 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.

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(a) Rescind its rules requiring employees to obtain permission before engaging in lawful
solicitation and distribution activity, and requiring employees to report on the solicitation
activities of other employees.

(b) Within 14 days from the date of the Order, offer employees Ramirez and Diaz
transfers to their former positions at its main Ponce facility, or, if those positions no longer exist,
to substantially equivalent positions at that facility, without prejudice to their seniority or any
other rights or privileges previously enjoyed.

(c) Make Ramirez and Diaz whole for any losses they may have suffered resulting from
the Respondent’s unlawful decision to transfer them to other facilities, and make Vargas whole
for any losses sustained due to the unlawful cancellation of his December vacation, and the
unlawful change made in his work schedule and work location, as set forth in the Remedy
section of this decision.

(d) Within 14 days from the date of the Board’s Order, offer Vargas reinstatement to the
job assignment he had before it was discriminatorily and unilaterally changed by the
Respondent without notifying or bargaining with the Union.

(e) Within 14 days from the date of the Order, rescind and remove from its files any
reference to the unlawful warnings issued to employees Vargas, Ramirez, and Sanchez, to the
unlawful transfers of Ramirez and Diaz to other facilities, and to the unlawful cancellation of
Vargas’ vacation and the change made in his work schedule and job location, and, within 3 days
thereafter, notify them in writing that it has done so.

(f) Rescind the unilateral changes made in Ramirez’ and Vargas’ terms and conditions of
employment by transferring Ramirez to the Tallaboa facility and by changing Vargas’ work
schedule and job location, and the January 19, unilateral changes it made in the unit
employees’ terms and conditions of employment by prohibiting them from leaving the facility
during working hours, eliminating the five-minute grace period previously allowed employees for
reporting for work, and eliminating the practice of allowing employees to leave work early in
emergency situations.

(g) Furnish the Union, to the extent it has not yet done so, with the information requested
described in fn. 21 of the decision.

(h) On request, bargain collectively and in good faith with the Union over the unit
employees’ wages, hours, and other terms and conditions of employment and, if an
understanding is reached, embody it in a written, signed agreement.

(i) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
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(j) Within 14 days after service by the Region, post at its facility in Ponce, Puerto Rico, in
English and Spanish, copies of the attached Notice marked APPENDIX.”25 Copies of the
notice, on forms provided by the Regional Director for Region 24, after being signed by the
Respondent’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
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 3, 2004.

(k) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. December 7, 2005

____________________
George Alemán
Administrative Law Judge
25 If this Order is enforced by judgment of a United States court of appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL 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.”
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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 Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT implement and maintain a solicitation or distribution rule that requires you to
obtain permission before engaging in lawful solicitation and distribution activity, or that requires
you to report on the solicitation activities of other employees.

WE WILL NOT interfere with, restrain, or coerce you in the exercise of your Section 7 rights by
preparing and asking you to sign letters rejecting or disavowing interest in the Union or in the
payment of Union fees and dues; prohibiting you from talking about the Union to others while
allowing discussion of other non-union matters; coercively interrogating you about your Union
activities; threatening you with unspecified reprisals for talking about the Union; threatening you
with loss jobs, benefits, or a reduction in benefits if you voted for, or otherwise supported, the
Union; threatening your Union representatives with physical harm, or placing the blame for an
investigation we were subjected to by federal agents on the Union and its supporters.

WE WILL NOT discriminate against you by issuing warnings to you, transferring you to another
facility, changing your work schedule and job location, or canceling your vacations because of
your support for the Union, or to discourage you from supporting the United Steelworkers of
America, AFL-CIO, or any other union.

WE WILL NOT unilaterally make changes in wages, hours, and other terms and conditions of
employment without first notifying and giving the Union, United Steelworkers of America, AFL-
CIO, which is your duly certified exclusive collective bargaining representative, an opportunity to
bargain over any such changes.

WE WILL NOT fail and refuse to provide, or provide in an untimely manner, the information that
the Union has requested pertaining to your wages, hours, and other terms and conditions of
employment, and WE WILL NOT refuse to meet and bargain with the Union as your exclusive
bargaining representative over the terms and conditions of your employment.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL rescind the solicitation and distribution rules in our employee manual that require you
to obtain permission to engage in such activities, and to inform us of the solicitation activities of
other employees.
JD-83-05

WE WILL, within 14 days of the Board’s order, rescind and remove from our files any reference
to the unlawful warnings issued to employees Vargas, Ramirez, and Sanchez, to the unlawful
transfers of Ramirez and Diaz, and to the unlawful cancellation of Vargas’ vacation and the
unlawful change in his work schedule and location, and shall notify them in writing, within 3 days
thereafter, that this has been done and that the unlawful actions taken against them will not be
used against them in any way.

WE WILL, within 14 days of the Board’s order, offer employees Ramirez and Diaz transfers to
their former positions at our main facility in Ponce, PR, and offer employee Vargas
reinstatement to his former work schedule and work location, or if those positions no longer
exist, to substantially equivalent positions, without prejudice to the seniority or any other rights
and privileges they previously enjoyed.

WE WILL make employees Ramirez, Diaz, and Vargas whole for any losses they have may
suffered due to our discriminatory actions against them, with interest.

WE WILL rescind the unilateral changes made to your terms and conditions of employment in
the memo circulated to you by supervisor Mercado in her January 19, 2005.

WE WILL provide the Union with the information requested, as described in the decision.

WE WILL, on request, meet and bargain in good faith with the Union over the unit employees’
wages, hours, and other terms and conditions of employment and, if an understanding is
reached, embody it in a written, signed agreement.

CONSEJO DE SALUD DE LA COMUNIDAD DE LA PLAYA
DE PONCE, INC. d/b/a CENTRO DE DIAGNOSTICO Y
TRATAMIENTO DE LA PLAYA-PONCE
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002
San Juan, Puerto Rico 00918-1002
Hours: 8:30 a.m. to 5 p.m.
787-766-5347
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 787-766-5377.