Hospital Cristo Redentor, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 722 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 65
722
Hospital Cristo Redentor, Inc. d/b/a Hospital Cristo
Redentor and Unidad Laboral De Enfer-
meras(os) y Empleados De La Salud. Case 24–
CA–9069
July 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 24, 2003, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed briefs in support of
the judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act by interrogating em-
ployee Carlos Garcia Santiago (Garcia) regarding his
union activities, and by threatening Garcia through sug-
gestions that his union activities would impede his pros-
pects for a promotion or would result in disciplinary ac-
tion. We further adopt the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
Garcia as a result of his union activities.
In addition, we agree with the judge, for the reasons
expressed in his decision and as further set forth below,
that the Respondent earlier had violated Section 8(a)(3)
and (1) by suspending Garcia because of his union activi-
ties. Contrary to our colleague’s partial dissent, we find
that the Respondent has failed to meet its burden to es-
tablish that it would have suspended Garcia even in the
absence of his union activities.
I. FACTS
In 1995, Garcia began working as a registered nurse in
the emergency room of the Guayama Area Hospital, the
public predecessor to the Respondent. In June 1998, the
Respondent purchased and assumed operation of the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
hospital. Upon the Respondent’s assumption of opera-
tions, Garcia retained his position as an ER nurse.2
Shortly after the Respondent’s assumption of opera-
tions, and following a Board-conducted election, the Un-
ion was certified as the bargaining representative for,
among others, a unit of registered nurses employed by
the Respondent. In November 1998, the Union and the
Respondent commenced negotiations for a collective-
bargaining agreement.
In January 1999, Garcia became the union delegate for
the approximately 20 to 24 unit employees working in
the Respondent’s emergency room. Shortly after Garcia
assumed that position, he received his first ever written
disciplinary warning from his supervisor, Osvaldo Rivera
David (Rivera).3 The written warning urged Garcia to
maintain a positive attitude toward his coworkers and to
avoid “comments or negative criticism.”4 Several
months later, on April 27, Garcia received from Rivera a
second formal written warning, which indicated that,
although there had been some improvement in Garcia’s
attitude, “incidents related to the comments or attitudes”
had continued. The warning accordingly urged Garcia to
avoid “that type of personal attitude or activity among
his coworkers.”
Over the course of the next 15 months, the Union filed
a series of unfair labor practice charges against the Re-
spondent, upon which the General Counsel issued a
complaint and subsequent amended complaints.5 During
the same period of time, Garcia received a series of addi-
tional disciplinary warnings from his supervisor.6 In
addition, on July 27, 2000, Human Resources Director
Lacot gave Garcia a written disciplinary warning reiterat-
ing some of the same purported attitude problems de-
scribed in the earlier disciplinary warnings issued by
Rivera.7

2 Similarly, following the Respondent’s acquisition of the hospital,
Ivette Lacot Ramos (Lacot) retained her position as the director of
human resources, a position she had held since 1995.
3 It is unclear from the record whether Garcia had ever previously
received any disciplinary warning. Rivera indicated that he could not
recall having given Garcia any disciplinary warnings, written or oral,
prior to his becoming a union delegate.
4 When asked at trial to explain those “attitude” problems, Rivera
stated that Garcia had expressed dissatisfaction with some of the work-
ing conditions and policies at the hospital—including inequitable shift
allotments and favoritism by management personnel—and had engaged
in general gossip.
5 The complaints alleged, inter alia, that the Respondent violated
Sec. 8(a)(5) and (1) by making various unilateral changes in unit em-
ployees’ terms and conditions of employment, refusing to provide
requested information, and failing to bargain with the Union in good
faith.
6 These warnings, none of which were submitted into evidence, are
described by the judge in Sec. II,A of his decision.
7 The warning states, in pertinent part:
HOSPITAL CRISTO REDENTOR 723
In February 2001,8 Garcia attended a collective-
bargaining session in his capacity as a union delegate.
Approximately 2 weeks later, Supervisor Rivera issued
another written disciplinary warning to Garcia, for failing
to follow proper procedures in documenting the altera-
tion of a medical notation in a patient’s records. Subse-
quently, on March 29, the Respondent convened a disci-
plinary meeting with Garcia to discuss the medical
documentation error and his “attitude problem,” as de-
scribed by Rivera in a disciplinary warning issued to
Garcia approximately 1 week earlier.9 Also on March
29, the Respondent convened a second meeting with
Garcia, for the purpose of discussing his alleged posses-
sion of sexually inappropriate materials, including a pho-
tograph of Garcia (taken in a nonwork, social setting)
exposing his underwear.10 Thereafter, on April 11, Lacot
gave Garcia a written “formal admonishment,” which
ostensibly served to memorialize the disciplinary meet-
ings of March 29.11

On July 7, 2000, we met with you because you were referred to our at-
tention because of your attitude problems that have affected the nor-
mal operations of your department and the normal operations of the
Institution.
Your problem consists in discussing and making comments about the
Institution matters, your department and your fellow workers in front
of patients and visitors. These remarks concern the work shifts, the
days off, the apparent favoritism of the Supervisor toward some of
your coworker [sic], tasks incorrectly carried out, and lack of compli-
ance of duties of your coworkers.
In said interview, the importance of confidentiality and of maintaining
an appropriate work environment was emphasized for the benefit of
your coworkers, the patients and visitors and for the normal operations
of the Institution. You frequently act as a “leader” of the group and
you do not report the situation that arises with your coworkers and ex-
press it openly, where there are other persons, when it is important that
you meet with your supervisor and share with him these situations.
The warning further characterizes Garcia’s conduct as “disruptive of the
peace and work” performed in work areas, as well as violative of the Re-
spondent’s “confidentiality rule.”
8 Unless otherwise indicated, all dates hereafter are in 2001.
9 This warning does not appear in the record, and there was no testi-
mony adduced regarding the conduct that triggered it.
10 Garcia denied that he owned the materials or that he had brought
them to the hospital premises, and there is no record evidence contra-
dicting his denials.
Lacot testified that the Respondent took no further action with re-
spect to this matter, as it concerned a personal matter that had no bear-
ing on Garcia’s work performance.
11 As described more fully in the judge’s decision, the April 11 ad-
monishment includes a reference to the medical notation error and a
detailed description of Garcia’s alleged possession of sexually inappro-
priate materials in the workplace (including the fact that Garcia was
told that the situation should not be repeated), notwithstanding Lacot’s
testimony that no action was taken against Garcia for this “personal
matter” that had no bearing on his work. In addition, the document
refers to an allegation that Garcia had made intimidating remarks,
including one to the effect that he wished that a shooting would occur
in the emergency room. However, as the document additionally notes,
On May 11, just 1 month after the Respondent’s issu-
ance of the formal admonishment to Garcia, Lacot noti-
fied Garcia that the Respondent was suspending him for
10 days.12 According to the formal suspension letter
provided to Garcia, the Respondent deemed such disci-
plinary sanction warranted as a result of Garcia’s further
demonstration of an attitude problem and his “dis-
rupt[ion] [of] the peace and work” being done in the
emergency room.13 Specifically, the letter proceeded to
describe several incidents that occurred on April 23,
when Garcia was serving as a shift leader in the emer-
gency room. On the occasion at issue, the emergency
room was short-staffed; instead of the usual complement
of seven nurses, only four nurses were on duty,14 three of
whom were assigned to the triage and vital signs patient-
care areas.15 In addition, the lab escort—the individual
responsible for the prompt transportation of patient sam-
ples to the laboratory for analysis—was on leave. As a
consequence of these staffing irregularities, when it be-
came necessary to transmit patient samples to the lab,
Garcia himself performed this task. Garcia, as the shift
leader, was also responsible for the key that provided
access to the locked narcotics cabinet in the emergency
room.
During two occasions on which Garcia left the emer-
gency room to take patient samples to the lab, an attend-
ing physician prescribed a narcotic for an emergency
room patient who began to experience convulsions; as
Garcia retained possession of the key to the narcotics

Garcia denied making any such remarks. As the judge noted, the re-
cord contains no evidence regarding the alleged remarks.
In large part, however, the April 11 document emphasizes Garcia’s
inappropriate “attitudes.” In this regard, the admonishment references
the July 27, 2000 warning issued to Garcia and indicates that the Re-
spondent is formally admonishing Garcia “for disrupting the peace and
the work being carried out in the work area . . . due to [his] ill-
intentioned comments and inappropriate attitudes in [his] work area.”
12 Garcia was advised of this disciplinary action at a meeting con-
vened by Lacot and attended by Lacot, Rivera, and a union delegate.
Contrary to Lacot’s generalized testimony that, when meting out disci-
pline, she always provides employees with an opportunity to explain
their version of events, Garcia testified that he was not given any such
opportunity.
13 In this regard, the letter enumerates several instances of prior con-
duct that served as the basis for the Respondent’s earlier “intervention
with” (i.e., discipline of) Garcia, including the conduct described in the
July 27, 2000 warning and the April 11, 2001 formal admonishment.
14 The record reveals that, in addition to Garcia, registered nurses
Mariam Cedeno Torres (Cedeno) and Antonio Reyes Pillot (Reyes),
and an unidentified licensed practical nurse, worked in the emergency
room during the April 23 shift at issue.
15 Garcia’s uncontradicted testimony reveals that supervisor Rivera
had instructed Garcia that personnel working in these critical patient-
care areas were not to be assigned the task of transporting samples to
the laboratory (i.e., they were not to be taken away from their duties in
the emergency room).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD724
cabinet when he went to the laboratory,16 however, the
administration of the prescribed medication was tempo-
rarily delayed until Garcia could be located in the labora-
tory.17
Later during the same shift, Garcia used the loud-
speaker to request assistance from his coworkers in the
emergency room. The precise nature of Garcia’s loud-
speaker remarks remains unclear. Although the suspen-
sion letter alleged that Garcia went to the loudspeaker
and stated “that there is a lot of work, that you were the
only one working and nobody was helping you,” the let-
ter also noted that Garcia specifically denied making
such remarks. At the hearing, Garcia testified that, be-
cause nurse Reyes was absent from his work area at a
time at which a patient required medical attention, he
merely used the loudspeaker to make the following re-
quest: “Mr. Reyes, please pass by your area. You have a
patient.” The suspension letter also alleged that two of
Garcia’s coworkers complained about his loudspeaker
remarks; the record, however, does not substantiate that
claim.18

16 The record does not support our dissenting colleague’s contention
that Garcia’s conduct in leaving the emergency room with the narcotics
key was “in direct contravention of hospital policy.” Although Garcia
testified—in response to counsel for the General Counsel’s question as
to the “policy” regarding the narcotics key—that the persons responsi-
ble for the narcotics key on a given shift should not leave the emer-
gency room, there is no record evidence concerning any official hospi-
tal policy in this regard. Indeed, it is uncontroverted that at least one
other nurse left the emergency room with the narcotics key without
being disciplined.
Presumably, any nurse in possession of the key is “expected” to re-
main in the emergency room during the shift. Contrary to our dissent-
ing colleague, however, and in light of the evidence taken as a whole,
we cannot say that this common-sense expectation amounts to a policy.
Nor does this “expectation” address the situation with which Garcia
was confronted as a result of the Respondent’s failure to adequately
staff the emergency room—the decision whether to remain in the emer-
gency room or to perform the other important task of timely delivering
patient test samples to the laboratory.
17 Contrary to our dissenting colleague’s representation, the record
does not establish that Garcia did not tell any of his coworkers where
he was going; nurse Cedeno simply testified that she did not remember
whether Garcia had told anyone where he was going on either occasion.
In any event, Cedeno clearly testified that, at least with respect to the
first occasion, she knew that Garcia had gone to the laboratory, as she
had seen him leaving the emergency room with the box that is utilized
for transporting patient samples to the lab.
18 The record contains only one employee report concerning the
events of April 23. That report, written by nurse Cedeno, makes no
mention of any loudspeaker remarks by Garcia but, rather, describes
only Garcia’s absence from the emergency room with the narcotics key.
Further, neither nurse Cedeno nor nurse Reyes—the two coworkers
known to have worked with Garcia on the April 23 shift in question—
contradicted Garcia’s account of his loudspeaker remarks or otherwise
testified in support of any alternative account, despite the fact that both
employees testified regarding the events of that day.
II. JUDGE’S DECISION
On the basis of the foregoing facts, the judge con-
cluded that the Respondent violated Section 8(a)(3) and
(1) by suspending Garcia because of his union sympa-
thies and activities. The judge first concluded that the
General Counsel met his Wright Line19 burden to estab-
lish that the Respondent had knowledge of Garcia’s un-
ion activities and that those activities were a motivating
factor in the Respondent’s decision to suspend him.
Specifically, the judge found that Garcia was an active
union supporter: he attended union meetings, urged his
coworkers to support the Union, served as the union
delegate for the emergency room employees, and partici-
pated in two union-organized protests and a work stop-
page. The judge further found that the testimony of Re-
spondent witnesses Lacot and Rivera, as well as certain
documentary evidence, established that the Respondent
had knowledge of Garcia’s union activities. Finally, re-
lying on both direct and circumstantial evidence, the
judge found that Garcia’s union activities were a moti-
vating factor in the Respondent’s decision to suspend
him. As to direct evidence, the judge relied on Supervi-
sor Ausberto Felix Ortiz’ unlawful interrogation of, and
threatening remarks directed to, Garcia regarding his
union activities, as well as Lacot’s comments to a union
representative that Garcia’s attitude problems would not
be tolerated and could result in his discharge, especially
in light of his role as the union delegate. The judge fur-
ther found that circumstantial evidence—including the
timing of the Respondent’s disciplinary actions against
Garcia, the Respondent’s repeated exaggeration of Gar-
cia’s purported misconduct, and the gaps in documenta-
tion of the Respondent’s purported disciplinary actions
against Garcia—served to establish that Garcia’s union
activities were a motivating factor in the Respondent’s
decisions to suspend him. Having concluded that the
General Counsel met his initial burden under Wright
Line, the judge then considered whether the Respondent
met its consequent burden to demonstrate that it would
have suspended Garcia even in the absence of his union
activity.
Upon examination of the suspension letter, the judge
determined that, from the Respondent’s perspective, the
“gravamen of [the] offense” warranting Garcia’s suspen-
sion was his use of the loudspeaker on April 23. Al-
though the judge noted that the suspension letter addi-
tionally referred to Garcia’s absence from the emergency
room with the narcotics key, he concluded—based on
both the letter’s cursory mention of the incident and La-

19 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
HOSPITAL CRISTO REDENTOR 725
cot’s testimony that Garcia’s conduct in that regard rep-
resented a “minor offense”—that the narcotics key inci-
dent did not figure prominently in the Respondent’s sus-
pension decision.20 With respect to Garcia’s use of the
loudspeaker, the judge observed that, because the emer-
gency room was “severely understaffed,” Garcia “felt
frustrated” and “may have chosen an undiplomatic means
of seeking more staffing assistance.” Nevertheless, the
judge found that there was no evidence that Garcia used
obscene or threatening language or that his use of the
loudspeaker interfered with the work of his colleagues or
the operation of the hospital. The judge ultimately con-
cluded that, at most, Garcia had engaged in a “brief out-
burst.” Considering both of the purported offenses set
forth in the suspension letter—the narcotics key incident
and the use of the loudspeaker—the judge concluded that
the Respondent had failed to establish that it would have
suspended Garcia in the absence of his union activity.
III. ANALYSIS
The Respondent does not challenge the judge’s deter-
mination that Garcia’s union activity was a motivating
factor in the Respondent’s decision to suspend him, i.e.,
that the General Counsel satisfied his Wright Line bur-
den. For the reasons that follow, we agree with the
judge’s further determination, which the Respondent
does challenge, that the Respondent failed to demonstrate
that it would have suspended Garcia even in the absence
of his union activity.
The Respondent primarily relies on the two alleged of-
fenses that it set forth in the suspension letter that it is-
sued to Garcia: his absence from the emergency room
with the narcotics key, and his use of the loudspeaker.
We find that neither of those alleged offenses, taken
separately or together, was the true reason for the Re-
spondent’s conduct.21
As to Garcia’s absence from the emergency room with
the narcotics key, the Respondent effectively has con-
ceded that the incident was not the true reason for Gar-
cia’s suspension. Human Resources Director Lacot—the
official who prepared Garcia’s suspension letter and ad-
vised him of his suspension—specifically identified Gar-
cia’s conduct with respect to the narcotics key as a “mi-
nor offense.”22 Indeed, Lacot further testified that she

20 Elsewhere in his decision, the judge surmised that Lacot’s charac-
terization of the narcotics key incident as a “minor offense” reflected
the Respondent’s recognition that Garcia was confronted with a di-
lemma as a result of the understaffing of the emergency room, which
was a matter beyond Garcia’s control.
21 We note that the General Counsel did not allege that Garcia’s use
of the loudspeaker constituted protected activity.
22 Our dissenting colleague suggests that the judge failed to examine
Lacot’s testimony in this regard in its proper context. It is clear, how-
ever, that Lacot explicitly identified “problems with the narcotics key”
never disciplined Garcia for leaving the emergency room
with the key.23
The judge suggested that Lacot’s characterization of
the narcotics key incident as a “minor offense” may re-
flect the Respondent’s recognition that Garcia had been
confronted with a Hobson’s choice. That is, he was con-
fronted with the understaffing of the emergency room (a
matter over which he had no control) and the absence of
the employee responsible for the transportation of patient
samples to the lab. On the other hand, there was Super-
visor Rivera’s instruction to Garcia that personnel work-
ing in triage and critical patient-care areas were not to be
removed from their duties. Because there was no hospital
policy or protocol providing guidance as to the appropri-
ate course of conduct under such circumstances, Garcia
was compelled to choose a course of action from among
several undesirable alternatives. Thus, it was reasonable
for the Respondent to view his conduct as, at most, a
minor transgression because it was the result of a
Hobson’s choice created by the Respondent itself. In
addition, it was viewed as “minor offense” in the sense
that the Respondent had declined to discipline other em-
ployees who had engaged in similar conduct in the past.24

as an example of a minor offense committed by Garcia specifically.
Although we acknowledge that Lacot did not expressly identify Gar-
cia’s April 23 departure from the emergency room with the narcotics
key as the “problem” to which she was referring, there is no record
evidence concerning any other event or incident involving Garcia and
the narcotics key.
23 Support for the conclusion that Lacot did not in fact suspend Gar-
cia based on the key incident, despite the inclusion of a description of
the key incident in Garcia’s suspension letter, is found in other record
evidence pertaining to an unrelated matter: Notwithstanding the fact
that more than a full page of Garcia’s termination letter was devoted to
a description of Garcia’s alleged abandonment of his work on October
6, 2001, Lacot repeatedly testified that she did not consider or rely on
that event in terminating Garcia. When asked why she included a de-
scription of that event in the termination letter if she did not rely on it,
Lacot simply responded that she included it because it was a recent
example of Garcia’s “lack of discipline” (i.e., misconduct). As noted,
below, other nurses have not been disciplined, even though they left the
emergency room with the narcotics key. However, contrary to the dis-
sent, we do not rely primarily on this disparate treatment to show that
Garcia’s similar conduct was a “minor offense.” Rather, we rely pri-
marily on Lacot’s own characterization of Garcia’s conduct as a “minor
offense.”
24 There was uncontradicted testimony that other nurses occasionally
had left the emergency room with the narcotics key, causing similar
difficulties, yet there is no evidence in the record that any other nurse
was ever disciplined for that conduct.
Garcia testified that both nurse Fajardo and nurse Reyes had, on ear-
lier occasions, left the emergency room with the narcotics key and that,
on both occasions, other employees had to be sent to locate them be-
cause narcotic medications were needed for patients (one of whom was
convulsing, and one of whom was experiencing chest pains). Garcia
further testified that he notified supervisor Rivera about those incidents,
and that Rivera said that he would speak to the employees involved.
Although Rivera testified at the hearing, he did not address this issue or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD726
In these circumstances, it is not surprising that the Re-
spondent deemed the narcotics key incident a minor of-
fense. For this reason, we are satisfied that Garcia’s
absence from the emergency room with the narcotics key
would not have resulted in his suspension, absent his
protected activity.25
Having concluded that Garcia’s absence from the
emergency department with the narcotics key was not the
true reason for which the Respondent suspended him,
we must determine whether the Respondent’s remaining
justification—Garcia’s use of the loudspeaker on April
23—demonstrates that it would have suspended him
even absent his union activity. As an initial matter, we
emphasize that it is not clear whether Garcia in fact made
the remarks attributed to him in the suspension letter
(i.e., that he was the only one working and that no one
was helping him). As discussed above, the letter itself
indicates that Garcia denied making the remarks. Fur-
ther, at the hearing, Garcia testified that he merely used
the loudspeaker to request that nurse Reyes report to his
workstation to attend to a patient. Significantly, notwith-
standing the fact that both nurse Cedeno and nurse
Reyes—the two coworkers who were present at the time
of Garcia’s comments, and who were still employed by
the Respondent at the time of the hearing—testified at
the hearing, neither employee contradicted Garcia’s ver-
sion of events nor otherwise testified in support of any
alternate version.

in any way dispute Garcia’s account, as would reasonably be expected
if, as our dissenting colleague contends, Garcia’s testimony was simply
false or “self-serving.” As stated above, there is no evidence that the
Respondent ever disciplined either of those employees, or that it even
investigated Garcia’s allegations.
Nurse Fajardo did not testify at the hearing. Although nurse Reyes
did testify, his testimony was unclear. In one instance, he stated that he
has left the emergency room when he has had the narcotics key; at
another point, however, he stated that if he needs to transport samples
to the lab, he leaves the key with another registered nurse.
Nurse Cedeno’s testimony on this point was similarly ambiguous.
She testified, generally, that the person responsible for the narcotics key
should keep his or her coworkers apprised of his or her location. Al-
though she did not expressly state that she has ever left the emergency
room with the key, her relevant testimony—quoted by our dissenting
colleague—nevertheless implies that she or others have done so.
25 Similarly, it is not our place to determine whether the Respondent
would have been justified in imposing a more stringent disciplinary
sanction had it chosen to do so, nor is it relevant whether we agree with
the Respondent’s characterization of the incident as a minor offense. It
is not appropriate for the Board to substitute its judgment for that of an
employer. See Detroit Paneling Systems, 330 NLRB 1170, 1171 fn. 6
(2000). In our view, our dissenting colleague does precisely that. Em-
phasizing the serious potential consequences that could have resulted
from Garcia’s absence from the emergency room with the narcotics
key, our colleague concludes that Garcia’s conduct served as adequate
justification for his suspension.
Nevertheless, even assuming arguendo that the suspen-
sion letter accurately reflects the remarks made by Garcia
over the loudspeaker, we conclude that the Respondent
has not satisfied its burden under Wright Line. As the
record demonstrates, it was not the loudspeaker remarks
per se which caused the discipline. Rather, according to
the Respondent’s own letter, the Respondent saw those
remarks as following other activity by Garcia. Unfortu-
nately for the Respondent, that other activity was pro-
tected. That is, the Respondent characterizes Garcia’s
loudspeaker remarks as yet another example of his “atti-
tude” problem and his propensity to “disturb the peace
and the work being done” in the emergency room,
thereby justifying imposition of the next level in the Re-
spondent’s progressive discipline process.26 Indeed, the
suspension letter explicitly enumerates the prior in-
stances of conduct that ostensibly served as the basis for
Garcia’s progression through the initial stages of the dis-
ciplinary process. Specifically, the letter references (1)
the July 27, 2000 warning described in footnote 7, su-
pra;27 (2) the April 11, 2001 formal admonishment is-
sued to Garcia; and (3) an April 29, 1999 warning issued
to Garcia for absenteeism. As we discuss in further de-
tail below, however, nearly all of the instances of prior
conduct cited by the Respondent in the suspension letter
involved protected union activity by Garcia. Conse-
quently, the Respondent’s reliance on that prior conduct,
and its characterization of Garcia’s loudspeaker remarks
as further conduct of the same nature, cast significant
doubt on the Respondent’s claim that it suspended Garcia
because of the loudspeaker remarks alone.28
Indeed, the loudspeaker incident is a pretext for the
Respondent’s true reason for suspending Garcia. First,
with respect to the July 27, 2000 warning issued to Gar-
cia, the warning itself reveals that the Respondent essen-
tially reprimanded Garcia for engaging in protected con-
certed activities while serving as the union steward for
the emergency department. Specifically, the warning
letter indicates that Garcia has an “attitude problem.” The

26 With respect to the Respondent’s progressive discipline process,
Lacot testified that, upon an employee’s referral to the human resources
department (i.e., after the employee has received verbal and/or written
warnings from his or her supervisor), the employee ordinarily will be
subjected to the following series of progressive disciplinary action: (1)
exhortation (either verbal or written); (2) written formal admonishment;
and (3) suspension (generally for a period of 5–10 days).
27 Although the suspension letter actually cites a warning dated June
27, 2000, the letter’s description of the incident resulting in discipline
suggests that the Respondent intended to refer to the July 27, 2000
written warning, which appears in the record.
28 We recognize that the complaint in this case does not allege that
any of these warnings were unlawful, and we do not make any findings
in this regard. We cite this evidence not to show a violation but, rather,
to rebut a defense offered by the Respondent.
HOSPITAL CRISTO REDENTOR 727
letter explains that Garcia spoke up about supervisor fa-
voritism, the allocation of work shifts, and other issues
relating to the employees’ terms and conditions of em-
ployment. In a similar vein, as discussed in detail in sec-
tion I of this decision, the April 11, 2001 formal admon-
ishment focuses primarily on Garcia’s “ill-intentioned
comments and inappropriate attitudes.” Indeed, the ad-
monishment specifically relies, in part, on the July 27,
2000 warning previously issued to Garcia.29 Notably, the
admonishment additionally includes a summary of Gar-
cia’s complaints that the Respondent “was persecuting”
him and had singled him out for discipline as a result of
his status as a union steward, as well as a concomitant
denial of such allegations by the Respondent. Consider-
ing the formal admonishment as a whole, it appears that,
as with the July 27, 2000 warning, the actual impetus for
the Respondent’s imposition of that disciplinary sanction
was Garcia’s protected activity.
Further, the record evidence plainly reveals that—
pursuant to the Respondent’s own policies—the Respon-
dent was not justified in relying on the April 29, 1999
absenteeism warning as a basis for Garcia’s suspension.
In this regard, Lacot specifically testified that “if a year
[goes] by, and the employee does not incur . . . this same
error, we do not consider it” in determining the appropri-
ate punishment for further infractions. Thus, as more
than one year had elapsed between Garcia’s receipt of the
absenteeism warning and his subsequent suspension, the
Respondent—according to its own policy—should not
have considered Garcia’s earlier episode of absenteeism.
In sum, the prior instances of discipline, on which the
Respondent purports to rely as justification for the invo-
cation of the latter stages of the progressive discipline
process, were motivated by Garcia’s union activities. In
light of this, the Respondent is hard-pressed to contend
that it would have suspended Garcia in the absence of his
union activities. Further, the Respondent’s inclusion in
the suspension letter of references to conduct or situa-
tions that, by the Respondent’s own admission or poli-
cies, should not serve as the basis for further disciplinary
action (e.g., the absenteeism warning and the allegations
relating to Garcia’s possession of sexually inappropriate

29 In addition, the admonishment reprimands Garcia for allegedly
making intimidating remarks, including one to the effect that he wished
that a shooting would occur in the emergency room. As discussed
above, however, the admonishment itself notes that Garcia denied
making the remarks attributed to him, and there is no record evidence
establishing that Garcia in fact made any such remarks.
Although the admonishment also references allegations that Garcia
had brought sexually inappropriate materials into the workplace, Lacot
specifically testified that the Respondent declined to take any discipli-
nary action against Garcia on that basis, as it constituted a “personal
matter” that “had nothing to do with his work.”
materials) suggests an effort by the Respondent to mag-
nify the quantity or gravity of Garcia’s alleged miscon-
duct.30 Accordingly, in light of these circumstances, and
for all the foregoing reasons, we conclude that the Re-
spondent has failed to demonstrate that it would have
suspended Garcia in the absence of his union activity.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hospital Cristo Redentor,
Inc. d/b/a Hospital Cristo Redentor, Guayama, Puerto
Rico, its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except that the at-
tached notice is substituted for that of the administrative
law judge.
MEMBER SCHAUMBER, dissenting in part.
I join my colleagues in adopting the judge’s findings
that Respondent violated Section 8(a)(1) by interrogating
and threatening employee Carlos Garcia, and violated
Section 8(a)(3) and (1) by subsequently discharging
him.1 However, contrary to my colleagues, I would re-
verse the judge’s finding that Respondent violated the
Act when it suspended Garcia for leaving his emergency
room workstation with the only key to the narcotics
cabinet not once, but twice, during the same shift, pre-
venting the administration of medication to a convulsing
patient on each occasion.
Facts
On April 23, 2001,2 Garcia was the shift leader in the
emergency room. In that capacity, he was responsible
for the key to the narcotics cabinet. Because he was the
only employee authorized to dispense narcotics during
the shift, hospital policy dictated that he remain in the
emergency room.3 In direct contravention of this policy,

30 Indeed, the Respondent appears to engage in similar exaggeration
with respect to Garcia’s alleged April 23 loudspeaker remarks. The
suspension letter prepared by the Respondent states that two of Garcia’s
coworkers filed written reports complaining about his loudspeaker
commentary. However, the record contains only one employee report
concerning the events of April 23, and that report—written by nurse
Cedeno—makes no mention of any loudspeaker remarks by Garcia but,
rather, describes only Garcia’s absence from the emergency room with
the narcotics key.
1 In adopting the judge’s finding that the Respondent’s discharge of
employee Garcia violated Sec. 8(a)(3), I do not rely, for evidence of
animus, on either Respondent’s failure to produce documents to support
Ivette Lacot Ramos’ testimony that Garcia was issued numerous disci-
plinary warnings or on the adverse inference drawn by the judge as a
result of the failure to call Executive Director Jose Cora Izquierdo to
testify.
2 All dates are in 2001, unless otherwise noted.
3 Although the record does not establish whether this policy was
written, the judge found, contrary to my colleagues’ contention, that
such a policy existed, explaining that “[a]s the only person authorized
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD728
Garcia left the emergency room with the narcotics key to
take patient blood and urine samples to the laboratory for
analysis. There is no evidence that Garcia told his co-
workers where he was going,4 but he was seen leaving
his duty station on this occasion with blood samples,
which are often take to the hospital laboratory. Garcia
was away from the emergency room for at least 5 min-
utes during this first absence, and while he was gone a
patient went into convulsions. An attending physician
prescribed valium to control the seizure, but the other
nurses were unable to obtain the medication from the
locked narcotics cabinet. Another nurse on duty, Ms.
Cedeno, reported in a statement prepared shortly after the
incident that she had to repeatedly page Garcia over the
public address system and question several employees as
to his whereabouts before Garcia could be located and
the medication administered.
Despite this incident, the potential consequences of
which were severe,5 Garcia left his duty station a second
time later that same evening. He again told no one where
he was going, and again took the narcotics key with him.
The patient whose convulsions precipitated the earlier
crisis had a second round of seizures, triggering yet an-
other frantic search for Garcia. Garcia did not respond to
repeated pages over the public address system, and Nurse
Cedeno dispatched a maintenance worker to track him
down. He was again found in the laboratory. Notwith-
standing that fact that he had personally caused two seri-
ous crises for his coworkers, Garcia later announced over
the emergency room loudspeaker that he was the only
person working and that nobody was helping him. Nurse
Cedeno filed a written complaint regarding Garcia’s un-
professional conduct.6
The following day, Garcia attended a disciplinary
meeting with his supervisor Osvaldo Rivera David, Hu-
man Resource Director Ivette Lacot Ramos, and a union
representative. Garcia testified that Lacot informed him
that he was being suspended for 10 days for “having put
the work in the emergency room at risk” and for his of-

to dispense narcotics during the shift, Garcia was expected to remain in
the emergency room.” Indeed, Garcia acknowledged that the “[narcot-
ics] key should not leave the department.” Further, two other nurses
testified to the existence of this policy.
4 The record does, however, reflect that Garcia’s coworkers had to
track him down by repeatedly paging him over the loudspeaker and
sending someone out to search for him. Obviously, his coworkers
could not have known from the fact that he left with laboratory samples
where within the hospital he might have been at a given moment.
5 Nurse Reyes, who was working the shift with Garcia and Nurse
Cedeno, testified that a delay in administering medication to a convuls-
ing patient could result in brain damage.
6 A second written complaint apparently was filed by another nurse
on duty that shift, but was not introduced into evidence. However, both
nurse Reyes and nurse Cedeno testified at the hearing.
fensive remarks over the loudspeaker. She also delivered
a written suspension letter that specifically identified the
narcotics key incidents and loudspeaker comments as the
basis for the suspension. During the hearing, Lacot testi-
fied that the hospital considered any conduct “that would
put a patient’s health or . . . life in danger” to be a “major
offense.”
Judge’s Decision
In concluding that Garcia’s 10-day suspension was
unlawful, the judge found that the General Counsel had
established a prima facie case under Wright Line, and
that Respondent failed to prove that it would have taken
the same disciplinary action against Garcia regardless of
his protected, concerted activities. With respect to Re-
spondent’s affirmative defense, the judge reasoned—
despite Garcia’s being told the suspension was for leav-
ing his workstation with the narcotics key and insulting
his coworkers over the loudspeaker, and despite the fact
that the suspension letter expressly references both in-
stances of unprofessional conduct—that “the gravaman
of Garcia’s offense” was misusing the loudspeaker. He
then posited, though no one had so testified, that the
loudspeaker incident fit within a prohibition in Respon-
dent’s employee handbook against “disorderly conduct,”
conduct the manual describes as “disturb[ing] the peace”
or “the duties that are being carried out on the job.” The
judge concluded, based on his own definition of disturb-
ing the peace, that the loudspeaker incident did not con-
stitute such a disturbance because Garcia had not em-
ployed obscene or threatening language and the incident
had not incited violence or disrupted the work of the
staff. In any event, the judge found, the employee hand-
book did not authorize a suspension for such conduct,
which he characterized as an understandable, though
“undiplomatic,” outburst caused by Respondent’s failure
to adequately staff the emergency room.
Analysis
I accept, for purposes of this analysis, that the General
Counsel made out a prima facie case under Wright Line.
However, contrary to my colleagues and the judge, I be-
lieve that the Respondent met its rebuttal defense by
proving that it would have suspended Garcia absent his
protected activity.7
Specifically, the Respondent showed, both through tes-
timony (Garcia’s and Lacot’s) and contemporaneous
documentation (the suspension letter), that the reason for
Garcia’s suspension was his misconduct on April 23;

7 For a complete explication of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), and my views on the burdens in Wright Line, see Shearer’s
Foods, 340 NLRB 1093, 1094 at fn. 4 (2003).
HOSPITAL CRISTO REDENTOR 729
namely leaving his workstation with the narcotics key
twice and publicly airing his personal complaints over
the emergency room loudspeaker. With respect to the
narcotics key incident, the testimony reflects, and the
judge acknowledged, that Garcia’s unannounced depar-
ture from his workstation caused a delay in administering
medication to a convulsing patient, and that the delay
placed the patient’s health, if not life, in jeopardy. Not-
withstanding the foregoing, the judge found, and my col-
leagues agree, that the suspension was really for the loud
speaker incident alone.8 The judge reached this conclu-
sion based not on credibility determinations, to which the
Board typically defers, but rather inferences and interpre-
tations of record facts, which do not bind us at all.
First, the judge interpreted the suspension letter to be
directed primarily towards the loudspeaker incident, ap-
parently because the letter describes that incident in more
detail than the convulsing patient situation. However,
Garcia did not contest that he left his workstation with
the narcotics key, but did deny having said anything de-
rogatory over the loudspeaker. Consequently, the letter
not surprisingly recounts both what Garcia’s coworkers
reported to management and the version of the story re-
lated by Garcia at his disciplinary interview. While the
suspension letter devotes more words to Garcia’s broad-
cast over the loudspeaker, nothing in it suggests that the
hospital deemed the broadcast, and not the abandonment
of his workstation, to be the basis for the suspension.9

8 The suspension letter identified the specific loudspeaker remarks
that Garcia’s coworkers reported to management, and indicated that
those remarks were discussed with Garcia, who denied he had made
them. My colleagues therefore err in asserting that Garcia was not
provided an opportunity to explain his version of the events. They also
err in asserting that the record does not substantiate that coworkers
complained to management about Garcia’s behavior—the suspension
letter obviously does so, as does nurse Cedeno’s written complaint,
which references Garcia’s attitude towards his coworkers. Neither
nurse Cedeno, nor nurse Reyes were asked by the General Counsel if
they denied making the reports attributed to them by management in
the suspension letter; thus there is no evidence contradicting manage-
ment’s receipt of the reports. Even the judge accepted that Garcia
likely made inappropriate comments, which he justified as an under-
standable “brief outburst by a worker on a shift that was short-staffed
who felt frustrated at the quality of work and the lack of assistance,”
conduct the judge determined did not warrant a suspension.
9 The judge relied on language in the suspension letter stating that
“Once again we have to intervene with you due to your attitude and for
disrupting the peace and the work that is being done at the Emergency
Room” in support of his utterly speculative contention that the Respon-
dent principally relied on the loudspeaker incident to justify Garcia’s
suspension. Sifting through the language of the suspension letter like
an amateur cryptographer, the judge places far too much weight on
inferences drawn from inexact translations, problems with which ap-
peared throughout the hearing, as the record amply reflects. Indeed, the
written complaint filed by Nurse Cedeno, which the judge found made
no reference whatsoever to the loudspeaker incident, states that Garcia
needs to “assume another attitude towards his fellow workers and the
Second, the judge and my colleagues rely on isolated
portions of Lacot’s testimony to conclude that the hospi-
tal viewed the convulsing patient incident as a “minor
offense.” During the course of her testimony, Lacot tes-
tified that Garcia had been counseled on numerous occa-
sions about various violations. At one point, she was
asked if she could recall any minor offenses, and she
responded, through an interpreter: “It could be one of
talking too much, about gossiping. It could be problems
with the narcotics key.” From this, the judge inferred
that the hospital did not consider the delay in responding
to the seizure patient significant. That snippet of Lacot’s
testimony, however, does not support the weight the
judge places on it. Apart from the fact that it does not
reference the “problems” to which Lacot was referring,
as my colleagues acknowledge, Lacot made clear else-
where in her testimony that the hospital considered any
conduct that placed a patient’s health in jeopardy to be a
“serious offense”—and there is no dispute that Garcia’s
conduct did just that. Moreover, the hospital certainly
acted as if the offense was serious because it promptly
investigated the incident and suspended Garcia for it.
The judge identified no similar misconduct that had ever
gone unpunished.10

patients.” (emphasis added). I do not understand how the judge can
insist that Nurse Cedeno’s use of the word “attitude” relates solely to
the narcotics key incident, while the Hospital’s use of the same word in
the suspension letter relates primarily to Garcia’s comments over the
loudspeaker.
The entire analysis of whether the loudspeaker incident standing
alone constituted a “disturbance of the peace” sufficient to warrant a
suspension strikes me as an unnecessary exercise in speculation that
improperly interjects the Board into disciplinary decision-making.
10 My colleagues are quick to credit Garcia’s testimony in virtually
every other respect, but ignore the fact that in addition to the reference
in the suspension letter to the narcotics key incident, Garcia admitted in
his testimony that Lacot told him that the basis for his suspension was
having placed the emergency room at risk by his actions, and for his
offensive remarks over the loudspeaker. In finding that this concededly
life-threatening misconduct played no role in his discipline, they rely
instead on Lacot’s one word response to the following question:
Q. is it not true that Mr. Garcia has never been disciplined for
having the narcotics key out of the work area?
. . .
A. For having the key? No.
Given the double negatives in the question, the answer “no” would
appear to mean Garcia had been disciplined (i.e. “no, it is not true that
Garcia has never been disciplined”). In any event, that ambiguous
single response does not negate the other record evidence demonstrat-
ing that the Respondent promptly investigated and responded to the
reported narcotics key incident and disciplined Garcia for it.
My colleagues also state that Lacot’s testimony that she included
Garcia’s alleged abandonment of work on October 6, 2001 in his termi-
nation letter as a recent example of his misconduct, but did not rely on
this incident in terminating him supports their finding that Lacot never
disciplined Garcia for the narcotics key incident, even though the inci-
dent was referenced in his suspension letter. That assertion is belied by
Garcia’s own admission that he was told by Lacot that he was being
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD730
Finally, the majority contends that the fact that the Re-
spondent did not discipline other nurses who left the
emergency room with the narcotics key supports its find-
ing that the Respondent viewed the convulsing patient
incident as a minor offense. Other than Garcia’s self-
serving testimony that nurse Fajardo previously had left
the emergency room while in possession of the narcotics
key, the majority provides no support for this assertion.
Indeed, it is telling that the judge referred to this testi-
mony but made no credibility finding with respect to it.
Further, nurse Cedeno’s testimony does not in any way
suggest that she may have left the department while in
possession of the narcotics key.11 Nurse Cedeno testified
that she was assigned to the emergency room triage area
and was attending to the convulsing patient when Garcia
could not be found. She was asked the following series
of questions:
Q. But, you were assigned to triage, where the
patient first goes?
A. Yes, I came to help.
Q. And while this is going on Mr. Garcia, the du-
ties assigned to him such as taking the labora-
tory’s [sic] up to the laboratory correct, do you
have them taken to the laboratory to be process
[sic], isn’t that correct?
A. Yes, take them to the laboratory in order for
them to be processed.
Q. And you have done that before haven’t you?
A. It has been done, but one turns around very
quickly. Not a prolonged amount of time to do
it, in which you leave your work area by it’s [sic]
self.

Thus, the question to which Ms. Cedeno testified “It has
been done,” was not whether she had left her workstation
with the narcotics key, but rather whether she had left her
workstation to deliver samples to the laboratory. More-
over, Nurse Cedeno specifically denied that anyone had
ever needed to look for her away from the emergency room
while she was in charge of the narcotics key, and specifi-
cally denied knowledge of any other instance during the 3
years she had worked at the hospital in which a person,

suspended for the narcotics key incident and for his offensive remarks
over the loudspeaker.
The majority also goes into considerable detail in explaining why
Garcia’s prior instances of misconduct cited in the suspension letter
further support a finding that the suspension was unlawful. It is unclear
how, on the one hand, my colleagues can find that Respondent did not
assert that the narcotics key incident, cited in the suspension’s letter,
was part of its decision to suspend Garcia, yet on the other hand, place
great weight on the letter’s reference to these prior instances of mis-
conduct.
11 The judge stated that Nurse Cedeno “conceded” that she had en-
gaged in conduct similar to Garcia’s.
other than Garcia, had to be tracked down outside the emer-
gency room while in charge of the narcotics key. As to how
to conduct oneself while in charge of the key, Nurse Cedeno
testified:
At all times when you have the key to the narcot-
ics, you have to let everybody know where you are,
if you go to the bathroom you have to let the rest of
your coworkers know that you went to the bathroom,
so that if there is an emergency they will know
where to locate you. We are working in an emer-
gency room, which said it all [sic], emergencies,
which can occur in a minute or less than a minute.
Nurse Cedeno’s testimony not only does not support the
judge’s finding, it directly contradicts it.
The record also does not show that Nurse Reyes had
left the emergency room while in charge of the narcotics
key. The judge’s characterization of Nurse Reyes’ testi-
mony on this issue is inaccurate.
Nurse Reyes testified as follows:
Q. In a given number [sic] have you been in
charge of the narcotics key?
A. Yes.
Q. What are you supposed to do by having [sic]
the narcotics key?
A. I remain in the area and if I am going to go
out of the area, away from the counter. And I am
going to be absent from the area for a pretty rea-
sonable amount of time, I hand the key to another
register nurse, because in the emergency room at
any moment a patient can come in convulsing or
with any other condition and narcotics may be
needed.
Thus, Nurse Reyes never testified that he had left the emer-
gency room with the narcotics key. In fact, he specifically
states later in his testimony that it takes time to transport
samples to the laboratory, each of which has to be sepa-
rately logged in with the laboratory technicians. According
to Nurse Reyes’ testimony, it would be improper to be away
from one’s work area with the narcotics key for “more than
one minute,”12 and for that reason “if I have the narcotics
key, I leave the key with a register [sic] nurse if I am going
to go out to take samples to the laboratory.” Nurse Reyes
also testified, as did Nurse Cedeno, that the incident on
April 23 was the only time he was aware of that an emer-

12 Q. Mr. Reyes, when talking about the narcotics key, you men-
tioned that if a person has to leave the area for a reasonable time, it [sic]
should notify another person. A. That is true. Q. What would you say
is reasonable—strike that—how much would you say that a reasonable
[sic] is? A. More than one minute.
HOSPITAL CRISTO REDENTOR 731
gency room patient could not be medicated because a nurse
had left the unit with the narcotics key.13
The testimony of neither Nurse Cedeno nor Nurse
Reyes supports the judge’s factual findings. Nor does
the isolated excerpt from Ms. Lacot’s testimony or the
wording of the suspension letter establish that the hospi-
tal viewed the seizure incident as trivial. To the contrary,
both the testimony of the witnesses and the hospital’s
behavior reflect, consistent with common sense, that the
hospital considered Garcia’s conduct, which jeopardized
the health of a patient, to be a very serious matter and
suspended him for it.14 There is no evidence of any simi-
larly situated nurse who received greater leniency. While
I recognize that Respondent took other disciplinary ac-
tion against Garcia because of his protected activities,
that does not render every incident of discipline a viola-
tion of the law. As to this particular discipline, for this
particular conduct, I believe that the Respondent has car-
ried its burden of establishing that it would have taken
the same action against Garcia regardless of his protected
activities. I would dismiss this complaint allegation.
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 vio-
lated 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

13 Cedeno and Reyes specifically denied that they had left the emer-
gency room while in possession of the narcotics key, and the judge did
not discredit that testimony.
14 My colleagues say that Garcia had been confronted with a
“Hobson’s choice,” when he left the emergency room with the narcot-
ics key. Like the judge, they simply assume that there was no one else
available in the entire hospital who could have taken the blood samples
to the laboratory, and therefore blame management for the incident.
However, even if management was at fault for confronting Garcia with
a “Hobson’s choice,” the fact that the Respondent disciplined him for
choosing a Hobson’s alternative it viewed as creating a greater risk,
does not render the discipline unlawful. The Board’s role is not to
assess the wisdom or appropriate severity of disciplinary actions. Our
sole role is to determine whether the discipline was imposed for the
misconduct—leaving the emergency room with the only key to the
narcotics cabinet and airing frustrations over a public address system—
or for protected concerted activity. Here, the General Counsel has not
proved the latter.
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten you with loss of promotional
opportunity or with disciplinary action because of your
union support or activities.
WE WILL NOT suspend or discharge you because of
your union support or activities.
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 National Labor Rela-
tions Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Carlos Garcia full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Carlos Garcia whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Carlos Garcia, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discharge
will not be used against him in any way.
HOSPITAL CRISTO REDENTOR, INC.
Vanessa Garcia, Esq., and José Ortiz, Esq., for the General
Counsel.
José Oliveras González, Esq., of Rio Piedras, Puerto Rico, for
the Respondent.
Harold Hopkins, Jr., Esq., of San Juan, Puerto Rico, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in San Juan, Puerto Rico, on September 30 and October 1–
4, 2001. The charge was filed October 22, 2001, and the com-
plaint was issued May 20, 2002.1

1 The Union filed a variety of other charges against the Hospital.
The docket numbers of these charges are 24–CA–8303, 8459, 8478,
8480, 8607, and 8879. These charges were ultimately embodied in the
General Counsel’s fourth consolidated amended complaint filed August
30, 2002. (GC Exh. 1bbb.) The parties achieved a negotiated settle-
ment of all of the issues arising from these charges. (I have appended
the parties’ settlement agreement to the record as J. Exh. 5.) In light of
the settlement agreement, at the commencement of this trial, counsel
for the General Counsel withdrew the fourth consolidated amended
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD732
The complaint alleges that the Hospital, through a supervi-
sor, interrogated an employee, Carlos Garcia, about his union
membership, activities, and sympathies, and threatened him
with reprisals because of his union activities and sympathies.
The complaint further alleges that the Hospital suspended Gar-
cia from his employment for 10 days and ultimately discharged
him. The Hospital is alleged to have taken these measures
because Garcia engaged in union activities and with the pur-
pose of discouraging other employees from engaging in these
activities. The Hospital’s conduct is asserted to be in violation
of Section 8(a)(1) and (3) of the Act. The Hospital filed an
answer denying the material allegations of the complaint and
raising certain defenses.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party,3 and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a hospital providing
medical, surgical, and related health care services at its facility
in Guayama, Puerto Rico, where it annually derives gross reve-
nues there from in excess of $250,000 and annually purchases
and receives at its Guayama, Puerto Rico facility equipment,
goods, and materials valued in excess of $50,000 directly from
suppliers outside the Commonwealth of Puerto Rico. I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and a healthcare institution
within the meaning of Section 2(14) of the Act. The Charging
Party is a labor organization within the meaning of Section 2(5)
of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Guayama is a town located in the Southeastern quadrant of
Puerto Rico. Hospital services to its residents had been pro-
vided by the Health Department at a facility known variously as
the Guayama Area Hospital or the Dr. Alejandro Buitrago Hos-
pital. In a process of privatization, on June 16, 1998, the hospi-
tal was purchased by a corporation, Hospital Cristo Redentor,

complaint. (Tr. 6–7.) Remaining for adjudication are the allegations
set forth in the order consolidating cases, complaint and notice of hear-
ing filed on May 20, 2002. (GC Exh. 1vv.)
2 The record as prepared by the Reporter contains an error. A copy
of a photograph is included in the record as R. Exh. 1. Actually, I
denied counsel for the Respondent’s motion to admit this exhibit and
ordered that it be placed in a rejected exhibit file. (Tr. 145–146.) As a
result, I have removed this photograph from the record and placed it in
a rejected exhibit file. I have not considered any personal observation
of the contents of the photograph as part of the evidence in this case.
3 Counsel for the Union requests permission to submit an amend-
ment to the Union’s brief, adding an omitted footnote. The request is
unopposed and I grant it.
4 These jurisdictional findings and conclusions are not in dispute.
See: Answer to the fourth amended complaint of May 20, 2002. (GC
Exh. 1xx.)
Inc.5 Among employees who were retained by the new owner-
ship were two who figure prominently in this case. Ivette Lacot
Ramos6 had been the director of human resources since No-
vember 1995. She retained this position under the new man-
agement. Carlos Garcia Santiago began working as a registered
nurse in the emergency room of the Guayama Area Hospital in
February 1995. He also continued in his prior position under
the new regime.
After the purchase of the Hospital, the new management
provided a reorientation process to inform its employees about
the Hospital’s procedures. Several months later, in October
1998, the Hospital implemented a Conduct and Disciplinary
Measures Manual. (GC Exh. 5.) The manual provides that a
variety of disciplinary measures may be employed by the hu-
man resource department to correct employee misconduct.
Measures specifically authorized are verbal warnings, written
reprimands, employment and salary suspensions, and dismiss-
als or terminations. A detailed grid is set forth cataloguing the
types of infractions and providing a range of sanctions for first,
second, and third offenses. In addition to the enumerated of-
fenses, any improper employee action contrary to safety, order,
morale, or mutual respect is made subject to sanction as deter-
mined by the Hospital’s executive director. Testimony estab-
lished that in addition to the formal disciplinary process de-
scribed in the manual, lower-level supervisors could impose
informal discipline. In practice, use of the formal grid de-
scribed in the manual is reserved for situations where correction
of misconduct by imposition of informal discipline has already
been attempted.
During the transitional period after privatization, the Hospi-
tal’s employees were organized by the Unidad Laboral de En-
fermeras(os) y Empleados de la Salud.7 Subsequent to an elec-
tion, on August 25, 1998, the Board certified the Union as col-
lective-bargaining representative of, among others, all regis-
tered nurses employed by the Employer at its hospital in
Guayama, Puerto Rico. (J. Exh. 1.)8 In November 1998, the
parties began the process of collective bargaining. Once agree-
ment on noneconomic terms was reached, negotiations regard-
ing economic issues began. This occurred in January 1999.
Also in January 1999, Garcia became the union delegate for
the approximately 20 to 24 employees in the emergency room.
These employees were under the supervision of Osvaldo Rivera
David. Upon his selection as delegate, Garcia and another
union official met with Rivera and notified him of Garcia’s new
position with the Union. Garcia testified that, as of that time,

5 All parties’ pleadings refer to the corporation by this name; how-
ever, I note that the Hospital’s letterhead refers to the corporation as
Hospital Episcopal Cristo Redentor, Inc. (See for example C.P. Exh.
3a.) This translates as Episcopal Hospital of Christ the Redeemer, Inc.
6 I have followed Spanish Language usage in initially describing
each individual’s names by including the maternal surname. After the
initial reference, I will name each person by reference to his or her
paternal surname. Thus, Ivette Lacot Ramos will hereafter be referred
to as Lacot.
7 The Union’s name translates as Labor Union of Nurses and Health
Care Employees.
8 The parties submitted a number of joint exhibits. These will be re-
ferred to with the letter “J.”
HOSPITAL CRISTO REDENTOR 733
he had a good relationship with Rivera, and had never received
any written discipline from him.9 He also testified that his
relationship with his supervisor started to deteriorate “[t]owards
February of ‘99.” (Tr. 63.) There is documentary evidence to
support this assertion. On February 2, 1999, Rivera gave Gar-
cia a formal “Exhortation to Improve Conduct or Attitude.”
(GC Exh. 2b.) This urged Garcia to maintain a positive attitude
toward his coworkers and to avoid “comments or negative criti-
cism” and “negative situations.” It also informed Garcia that
Rivera would be observing him to assure that he avoided this
type of behavior. At trial, when Rivera was asked to explain
the attitude problems alluded to in the Exhortation, he de-
scribed a variety of comments made by Garcia to his cowork-
ers. Some of these would fall within the rubric of gossip.
Other comments that Rivera characterized as reflective of Gar-
cia’s attitude problems involved criticisms of the Hospital’s
management and programs.
Less than 3 months later, on April 27, 1999, Rivera gave
Garcia a second formal Exhortation. (GC Exh. 3b.) As with
the earlier such document, the Exhortation is notable for its
vagueness. It begins by observing that Rivera had noticed an
“improvement” in Garcia’s behavior since their February 2
interview. Nevertheless, Rivera reported that “incidents related
to comments or attitudes” continued to occur during work
shifts. Garcia was “urged” to avoid “that type of personal atti-
tude or activity.” He was warned that if his behavior pattern
continued, he would be referred to the human resource depart-
ment. Such a referral would be a serious matter, as it would
invoke the disciplinary provisions of the Conduct and Discipli-
nary Measures Manual. Garcia wrote a comment on the Exhor-
tation form noting that he did not totally agree with Rivera’s
assessment, but would “make an effort.”
While Rivera and Garcia were having these difficulties, the
Hospital and Union’s bargaining relationship was also experi-
encing problems. The Hospital’s offer regarding economic
issues did not include provision for any raises in compensation
during the first 2 years of a collective-bargaining agreement
and contemplated only a possibility of a bonus during the third
year. On April 29, 1999, the Union filed an unfair labor prac-
tice charge alleging that the Hospital was bargaining in bad
faith.10 (GC 1a.)
In August 1999, Rivera gave Garcia a written warning (de-
scribed by the parties as an “anecdotal”) regarding absences
from work without prior notification.11 Two days later, Lacot
spoke to Garcia about this subject. Garcia denied that the ab-
sences were unauthorized.
In October, the Union filed four new charges alleging a vari-
ety of unfair labor practices involving bargaining violations,
unilateral management actions, and threats made to a union
official. (GC Exhs. 1c, 1k, 1e, and 1i.) On October 29, the

9 Under cross-examination, Rivera essentially confirmed this. He
was also unable to recall having given Garcia any verbal discipline
prior to February 1999.
10 I express no opinion as to the merits of this charge. This and other
portions of the litigation history between the Hospital and the Union are
referenced solely to provide background and context for assessment of
the limited issues presented in this trial.
11 A copy of this document was not submitted into evidence.
General Counsel filed a complaint and notice of hearing as to
these allegations. (GC Exh. 1h.) An amended complaint fol-
lowed in January 2000. (GC Exh. 1q.) The Union filed
amended charges in February. (GC Exhs. 1r and 1t.) At the
end of the month, the General Counsel filed a second amended
complaint. (GC Exh. 1x.) This was followed by the Union’s
filing of another amended charge in March. (GC Exh. 1eee.)
On April 5, 2000, Rivera issued another “anecdotal” to Gar-
cia, regarding a breach of confidentiality rules.12 Two weeks
later, the Union filed yet another charge alleging bargaining
violations. (GC Exh. 1aa.) At this juncture, the tempo of dis-
ciplinary measures against Garcia escalated. On June 14,
Rivera gave him another “anecdotal” concerning what counsel
for the Hospital described as “some problem—adding to prob-
lems toward the work or towards the job.” (Tr. 129.)13 On July
7, Lacot met with Garcia concerning allegations that he was
making negative comments about the Hospital and talking
about the Union in the presence of patients and their families.
He was given a warning. Garcia responded by telling Lacot
that Rivera was using favoritism in supervising the emergency
room. He also complained that Rivera would not let him ar-
ticulate his own version of events prior to imposing discipline.
On July 24, the Union filed an unfair labor practice charge
concerning the Hospital’s no-solicitation rule. (GC Exh. 1dd.)
Three days later, Lacot wrote a warning letter to Garcia. As
this letter contains a more elaborate statement of the Hospital’s
position, it bears quotation in some detail:
Your problem consists in discussing and making
comments about the Institution[‘s] matters, your depart-
ment and your fellow workers in front of patients and visi-
tors. These remarks concern the work shifts, the days off,
the apparent favoritism of the Supervisor toward some of
your coworkers, tasks incorrectly carried out, and the lack
of compliance [to] duties of your coworkers.
. . . You frequently act as a ‘leader’ of the group and
you do not report the situation that arises with your co-
workers and express it openly, where there are other per-
sons, when it is important that you meet with your super-
visor and share with him these situations.
We informed you that we never doubted your compe-
tence as a professional but that you had to improve your
attitude because this situation prevented you from devel-
oping as a professional.
(J. Exh. 2b.) Lacot’s letter goes on to inform Garcia that his
behavior violates the confidentiality and disorderly conduct
sections of the Conduct and Disciplinary Measures Manual.
Three days later, the Union filed another charge alleging
bargaining violations. (GC Exh. 1ff.) On the same date, the
General Counsel filed its second amended consolidated com-
plaint, incorporating a variety of charges involving asserted
violations of Section 8(a)(1) and (5) of the Act. (GC Exh.
1hh.). The next 6 months were uneventful. However, on Feb-
ruary 3, 2001, Rivera issued another written anecdotal warning

12 A copy of this document was not submitted into evidence.
13 Once again, this document was not placed in evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD734
to Garcia for behavior that he testified involved turning over a
shift too early and manipulating a patient’s discharge process.14
Shortly thereafter, on February 27, 2001, Garcia’s involve-
ment with the Union became more visible as he attended a col-
lective-bargaining session for the first time. Lacot testified that
this was when she first realized that Garcia was a union dele-
gate.
Two weeks later, Rivera issued another written anecdotal
warning to Garcia concerning an incident involving a patient’s
medication.15 The patient was under the care of another nurse
who was in training. As that nurse was working with Garcia,
he bore ultimate responsibility. The patient had been pre-
scribed an intravenous medication, Versed. This should have
been administered at the rate of 5 cc’s per hour. Apparently, it
was actually administered at the rate of 100 cc’s per hour. The
patient’s medication chart showed the rate of administration of
the Versed as 100 cc’s. Garcia subsequently wrote over this
notation a rate of administration of 5 cc’s per hour.16 The Hos-
pital called the patient’s physician, José Anglero Ramos, M.D.,
to explain the significance of Rivera’s conduct. He testified
that the patient’s record showed “some alterations in the dosifi-
cations.” (Tr. 230.) The doctor testified that these alterations
should have been noted and initialed by their author.17
Two days after writing his disciplinary report regarding this
error in medical record documentation, Rivera met with Garcia
to orient him concerning the correct protocol for making
changes in patients’ medical records. Rivera testified that since
this orientation, Garcia has not made any errors in this regard.
Approximately a week later, on March 21, 2001, Rivera is-
sued another written anecdotal warning to Garcia for an attitude
problem.18 On March 29, a meeting was convened to address
both the medication documentation error and the attitude prob-
lem referenced by Rivera. In addition to Rivera and Garcia, the
meeting was attended by a number of management representa-
tives, including Lacot, Niurka Vélez, a general supervisor, and
Jovita Carrasquillo Guzmán, the nursing services director.
Various union representatives also attended this meeting. After
the meeting concluded, Lacot requested that another meeting
regarding Garcia be held on the same day. Garcia, Lacot,

14 As this document was not introduced into evidence, the only in-
formation regarding its content comes from Rivera’s testimony.
15 Counsel for the Hospital contends that there were two episodes in-
volving medication errors, one involving a medication known as Isordil
and another involving a medication called Versed. (R. Br. at 14–19.)
The evidence regarding whether there were one or two such incidents is
unclear. Dr. Anglero, the treating physician in both supposed cases,
was unable to testify as to the name of the patient or the date of the
incident involving Isordil. He also could not identify the medical re-
cords regarding this alleged event. Indeed, he testified that he “didn’t
bother” to examine any records in preparation for his testimony. (Tr.
260.)
16 Garcia originally denied making the alteration, but subsequently
admitted it.
17 It is apparent from examination of the record in question (R. Exh.
4) that the failure to note and initial the change was not intended to hide
the change. I reach this conclusion since the emendation is simply
written over the original note and does not conceal its existence.
18 As this anecdotal warning was not admitted into evidence, it is
impossible to determine the nature of this attitude problem.
Carrasquillo, and a union representative attended this second
meeting. The subject of the second meeting was Garcia’s al-
leged possession of sexually inappropriate materials on Hospi-
tal premises, including a photograph of him. Garcia was shown
the photograph and printed materials. He denied any knowl-
edge of the printed materials, but agreed that the photograph
depicted him and had been taken at an employee Christmas
party held after work hours and at a location away from the
Hospital. He denied ownership of the photo and denied having
brought the photo to the Hospital.
As discussed earlier (in fn. 2), I declined to admit a copy of
the photograph due to lack of an evidentiary foundation for
admission. In any event, admission of the photo is not neces-
sary since both Garcia and Lacot were in agreement as to what
it depicted. Garcia testified that it showed his left side in a rear
view and that his underpants were visible, but his buttocks were
not. Lacot described it as a photo “in which Mr. Garcia dis-
played his underwear.” (Tr. 510.)
Although the presentation of the photograph to Garcia was
the subject of a meeting attended by various persons, Lacot
testified that she took no other action regarding the photo since
“we understood that that had to do with his personal life.” (Tr.
510.) Actually, Lacot did take additional action against Garcia
regarding the photo. On April 11, 2001, she addressed a docu-
ment to Garcia entitled a “FORMAL ADMONISHMENT.”
(Emphasis in the original.) The letter began by referencing the
medication documentation error, noting that Rivera had met
with Garcia and given him “appropriate recommendations.”
Lacot then reported that allegations had been made that Garcia
had made comments “such as that you would like that a shoot-
ing would take place at the emergency room and that four (4)
people would be killed.” She noted that Garcia denied having
made such remarks. Although the precise disposition of this
serious allegation is not made clear in her letter, Lacot did
“formally admonish” Garcia for “your ill-intentioned comments
and inappropriate attitudes in your work area.”19 (R. Exh. 2b.)
After addressing Garcia’s alleged comments and attitudes,
Lacot went on to provide a detailed description of the meeting
regarding the sexual materials and photograph. Although
agreeing that no action would be taken against him regarding
these items since they “had no bearing with your work respon-
sibility,” she nevertheless informed Garcia that this conduct
was “unacceptable and that this situation must not be repeated.”
I note that this formal warning was reduced to writing and
placed in Garcia’s personnel file. The document included a
detailed description of the alleged misconduct regarding the
sexually explicit materials and the photo. It certainly consti-
tuted an adverse action. As such, Lacot’s decision to include
this discussion in the document directly contradicts her trial

19 At trial, the Hospital presented no evidence regarding these al-
leged remarks about a shooting. As a result, apart from the general
issue of whether the remarks were actually made, I cannot determine if
any patient or family member was alleged to have heard such remarks.
There is also nothing in the record to indicate whether such remarks are
alleged to have been made with serious intent or in jest.
HOSPITAL CRISTO REDENTOR 735
testimony that she took no further action as to this matter since
it only involved Garcia’s personal life.20
Lacot’s letter of April 11 also contains significant remarks
regarding issues involved in this case. Lacot noted that Garcia
had reiterated that he was:
feeling persecuted because you were a Union Shop Steward
and we informed you that we were not in agreement with that
belief. . . .
We emphasize that the fact of being a Delegate of ULEES did
not exempt you from complying with the Institution’s rules
and procedures and if we had to intervene with you due to
lack of discipline, the pertinent procedure would be carried
out.
(R. Exh. 2b.) Finally, I note that this letter is consistent with
earlier disciplinary measures in citing alleged specific incidents
but placing greatest emphasis on asserted attitude problems.
Indeed, Lacot goes so far as to state that:
We remind you that on several occasions we have pointed out
to you that you are complying with your work, but that your
attitudes are affecting you. . . .
We request you to improve your attitude to maintain order
and peace in the processes of your department and the Institu-
tion.
(R. Exh. 2b.)
Shortly thereafter, management took a more serious discipli-
nary action against Garcia. Once again, this arose in the con-
text of a specific episode of asserted misconduct but actually
focused more on a general contention that Garcia had an atti-
tude problem. The specific episode occurred on April 23. On
that date, only four nurses, three fewer than normal, staffed the
emergency room. Garcia was the shift leader. In this position,
he was in charge of the key to the secure cabinet that contained
the narcotic medications. As the only person authorized to
dispense narcotics during the shift, Garcia was expected to
remain in the emergency room. Garcia testified that this posed
great difficulties due to the need to transport patient samples to
the lab for analysis. An escort usually performed this task.
Unfortunately, on this date the escort was on leave. The other
nurses were performing direct patient care duties that required
their presence in the emergency room. As a result, Garcia testi-
fied that he decided to take the samples to the lab, a decision
that took him away from the narcotics cabinet for a number of
minutes. While Garcia was away, a patient experienced a con-
vulsion. Her physician prescribed Valium, a narcotic medica-
tion. During the time that Garcia was away, the medication
could not be obtained from the locked cabinet. An identical
incident occurred later in the shift when the patient again con-

20 In fact, Lacot returned to this theme in another disciplinary letter
written on May 11, 2001. While imposing a suspension, she observed
that on a prior occasion “we gave you some copies of reading material
of a sexual content and your photograph in a pose of bad taste.” Disin-
genuously, she opined that “[w]e did not take disciplinary action about
this; we only advised you that this situation should not be repeated.” (J.
Exh. 3b.)
vulsed. Garcia had made a second trip to deliver laboratory
samples and his absence resulted in a delay in obtaining Valium
from the locked cabinet. As a result of these events, a nurse,
Marian Cedeño Torres, drafted a written complaint regarding
Garcia’s failure to remain available with the narcotics key. Her
letter acknowledged that Garcia had been in the laboratory on
each occasion. (R. Exh. 3b.)
There was considerable conflicting testimony regarding the
significance of this incident. Garcia testified that he had never
before left the emergency room when in charge of the narcotics
key. His decision to do so on this day was the result of his
perception that the lack of available staff required him to under-
take the delivery duty so that patient’s samples could be ana-
lyzed without undue delay. He also testified that other nurses
had engaged in similar conduct. Indeed, he reported that he had
complained to Rivera twice about nurses taking the narcotic
key with them to the cafeteria. Interestingly, Nurse Cedeño
conceded that she had taken samples to the lab under similar
circumstances. She noted that when this happens, “one turns
around very quickly.” (Tr. 349.) One of the other nurses on
duty that day, Antonio Reyes Pillot, also testified that he had
left the emergency room while in charge of the narcotics key.
However, he reported that if he has had to leave “for a pretty
reasonable amount of time,” he gives the narcotics key to an-
other nurse. (Tr. 364.) The record does not reveal whether the
shift leader is authorized to transfer possession of the narcotics
key. In any event, during her testimony, Lacot was asked to
describe minor offenses committed by Garcia. In response, she
said:
It could be one of talking too much, about gossiping. It could
be problems with the narcotics key.
(Tr. 627.) Although the potential consequences to the patient
could have been severe, it is unclear whether the cause of the
situation was Garcia’s decision to take samples to the lab while
in possession of the key or the lack of the usual complement of
staff in the emergency room. Lacot’s characterization of this
incident as involving only “minor” misconduct suggests recog-
nition of this reality.
After this episode, a disciplinary meeting was convened.
Garcia was present with Rivera, Lacot, and a union representa-
tive. Lacot informed Garcia that two employees had com-
plained in writing about his conduct regarding the narcotics
key.21 She informed Garcia that he was being sanctioned with
a 10-day suspension. She provided him with a written state-
ment of the reasons for this discipline. As in other such in-
stances, this is a curiously worded document. It begins by de-
scribing the April 23 incident as “improper conduct toward
your coworkers in front of patients and relatives.” Lacot then
provides a description of the narcotics key episodes. Oddly,
this description states that Garcia “alleged” that he was in the
laboratory. (J. Exh. 3b.) I find it troubling that Lacot never
indicates that this “allegation” was uncontroverted. In fact,
Cedeño’s letter of complaint regarding Garcia’s conduct clearly
states that, on each occasion, Garcia was located in the labora-

21 The record contains only one written complaint, that of Nurse
Cedeño.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD736
tory area. Thus, I conclude that Lacot’s choice of wording
reflects an intention to improperly magnify the seriousness of
Garcia’s absences from the emergency room.
After discussing the narcotics key episodes, the letter shifts
to a report indicating that later during the shift, Garcia had
taken the loudspeaker and complained that he was the only
person working and that nobody was helping him. This com-
ment was heard by patients and “bothered your coworkers,
thereby disrupting the normal operations of the Department and
the Institution.” (J. Exh. 3b.) Lacot’s letter notes that Garcia
denied making such comments. Although the Hospital called
Cedeño and Reyes as witnesses, no testimony was elicited re-
garding any remarks made by Garcia over the loudspeaker.
Lacot’s letter indicates that the disciplinary suspension was
being imposed for the asserted conduct over the loudspeaker,
not for any supposed impropriety regarding the narcotics key.
Specifically, the suspension is imposed “due to your attitude
and for disrupting the peace and the work that is being done at
the emergency room.” (J. Exh. 3b.) Lacot’s letter concludes
with a warning that “engaging in negative conduct again in the
future” would be cause for Garcia’s termination. (J. Exh. 3b.)
Several months later, the Union planned a protest activity.
Garcia described this as a “vigil” planned for August 6, 2001.
(Tr. 94.) On the day before the planned protest, Garcia was
transporting a patient for X-rays. Garcia was in the company of
Ausberto Felix Ortiz, the general supervisor of nursing ser-
vices. Garcia testified that Felix asked him if he was going to
participate in the protest scheduled for the following day. Gar-
cia indicated that he would participate. Felix told him that this
was the reason he would never become a supervisor and why he
was “always in trouble.” (Tr. 94.) Garcia testified that, after a
pause in their discussion, Felix asked him if he “belonged [to]
the satanic sects of Mr. Radamés Quiñones.” Quiñones is the
president of the Union. Garcia responded by observing that he
was a union member. Felix testified that no such conversation
occurred.
Garcia did participate in the union’s protest on August 6. He
also testified that he was involved in planning a work stoppage
that was scheduled for September but actually took place in
October. He characterized his role by noting that,
I organized all my co-workers from the emergency room so
that they would participate in the work stoppage.
[Tr. 95.]
In September, another disciplinary meeting was convened
regarding Garcia’s conduct. In addition to Garcia, Rivera, and
Lacot, Ingrid Vega Mendez attended as union representative.
The meeting concerned a written allegation by a patient, accus-
ing Garcia of having been disrespectful to her on a specified
date. Garcia contended that he was not on duty at the Hospital
on the day in question. Vega demanded that the attendance
records be produced. These revealed that Garcia was not at the
Hospital on the relevant date. As a result, the meeting was
terminated.
After the meeting, Vega and Lacot had a conversation. Vega
testified that Lacot told her that she had prepared Garcia’s dis-
missal letter. In light of the result of the meeting, Lacot ripped
up the letter. Vega also said that Lacot told her that Garcia was
a “gossipy person” who “intervened in matters that were really
none of his business.” (Tr. 50.) Vega testified that Lacot told
her that:
those attitudes of Mr. Garcia’s at the [H]ospital could not be
tolerated by the Hospital, and that that could bring about his
dismissal, and, even more so, when he was the delegate.
[Tr. 52]
Lacot also testified regarding some of these events. She ac-
cused Vega of “lying” about the ripping up of a dismissal letter.
(Tr. 483.) She denied possessing any such letter and denied
ripping up any letter in Vega’s presence. On cross-examination
by counsel for the Union, she testified that on another occasion
she had ripped up a disciplinary letter about a different em-
ployee in the presence of counsel for the Union. Significantly,
Lacot did not deny making the statements described by Vega
concerning her opinions about Garcia’s behavior and the possi-
ble disciplinary consequences.
The next important event involving Garcia took place on Oc-
tober 6. On that occasion, Garcia had driven his sister’s auto to
work. His sister resided alone with her two daughters in an
isolated area in the countryside. One of the daughters has a
chronic medical condition that can cause episodes of inflamma-
tion of the trachea resulting in difficulty in breathing. When
this happens, treatment by injection is required. Garcia re-
ported that his sister does not know how to administer this in-
jection. Garcia testified that while he was at work, he was noti-
fied that his niece was experiencing such difficulties. Nurse
Cedeño testified that he told her that he had “an emergency at
my sister’s house.” (Tr. 341.) Garcia gave Cedeño the narcot-
ics key and headed toward the supervisor’s office. Cedeno
opined that she imagined his purpose was “to ask permission
from the supervisor to go out.” (Tr. 341.) Garcia spoke with
Regina Santiago, the general supervisor. He testified that his
purpose was to “ask for permission to go to my sister’s house to
see my niece’s status.” (Tr. 97.) Santiago asked Garcia to
complete the authorization form that was utilized by the Hospi-
tal as documentation of such requests. Santiago testified that
Garcia was nervous, anxious, desperate, and crying. As she
was unable to readily locate the authorization form, she asked
him to use a blank piece of paper. He scrawled a brief note
referring to a “personal matter.” (GC Exh. 4b.)
Although the note is relatively incoherent, there is no doubt
that Garcia’s supervisor understood that he was seeking per-
mission to leave the Hospital to attend to a personal emergency.
Counsel for the Union engaged in the following discussion with
Santiago:
Q. And you took that [piece of paper prepared by Garcia] in
place of the official form and he was authorized to leave?
A. Yes, he signed the paper and he left . . .
Q. And then Carlos Garcia left after he signed the paper and
handed it to you, isn’t that correct?
A. Yes.
Q. At no moment did you tell Mr. Garcia that he couldn’t
leave, isn’t that correct?
HOSPITAL CRISTO REDENTOR 737
A. No, I did not say it to him, and he left. [Tr. 310, 311.)]
Garcia proceeded to drive to his sister’s home and ascertain
that his niece’s condition was not serious. He returned to the
Hospital after an absence of approximately 80 minutes. Garcia
testified that he had soiled his shoes in the mud around his sis-
ter’s house. Upon his return, he removed his shoes. He met
with Santiago, who noticed that he was wearing only dirty
socks. She procured some shoe covers for him to wear over his
socks. As a result of this incident, Rivera issued a written an-
ecdotal warning.22 A meeting to discuss the incident was held
on October 9. Garcia was informed that it was being referred to
the human resources department. Before management took any
further action, a final incident occurred.
On October 18, while Garcia was on duty, paramedics deliv-
ered a girl to the emergency room. Garcia spoke to the child’s
mother who indicated that the child had taken five Panadol PM
tablets and had fainted at school. The parent asked Garcia
about the medical procedures that would be applied to her
daughter. Garcia described those procedures, including the
protocol involving psychiatric hospitalization that is employed
in cases of attempted suicide.
Approximately 45 minutes after his conversation with the
child’s mother, Garcia was called to a meeting with Rivera,
Miriam Sierra, the head nurse, and Dr. Anglero, the child’s
treating physician. Anglero criticized Garcia for making a
medical diagnosis. Specifically, Anglero testified that Garcia’s
error consisted of discussing the possibility of a suicide attempt
with the child’s mother. Anglero opined that Garcia had “hur-
ried and [he] did things that were unnecessary—improper.”
There was no need to raise the issue of psychiatric care because
Anglero had determined that the child’s situation had resulted
from a too rigorous diet rather than a mental health problem.
The girl developed a headache from lack of food and took too
many tablets in response. This caused her fainting episode. On
cross-examination, Anglero conceded that Garcia told him that
he had not made any diagnosis and had specifically informed
the parent that the physician would make the diagnosis.
During this meeting, Rivera also accused Garcia of having
telephoned “911” about the child’s condition, thereby unneces-
sarily involving social services in the child’s situation. Rivera
told Garcia that such action was not within his purview and was
“impertinent.” (Tr. 118.) Garcia told Rivera that he had not
called “911.” He explained that the child’s school had called
“911” to request an ambulance and, since the school’s call in-
volved a minor child, it automatically activated a report to the
social services organization. Under cross-examination, Rivera
agreed that the school had telephoned “911” about the child’s
condition.23

22 Once again, the document was not introduced into evidence.
23 As in some other instances involving discipline of Garcia, the
Hospital’s contention that Garcia improperly contacted social services
regarding the child’s condition is hotly contested. Dr. Anglero testified
that he did not have knowledge of whether Garcia telephoned social
services. The Hospital did not present any evidence that Garcia did so.
I find Garcia’s explanation as to how social services became involved
to be credible. It is logical that the school’s emergency report would
trigger this process of child protection.
On the next day, Garcia reported to work. He was told to see
Lacot. She informed him that the incident of the preceding day
was “the last drop that spilled the cup.”24 (Tr. 123–124.) Gar-
cia was given a dismissal letter. He was not afforded an oppor-
tunity to explain his conduct. Lacot testified that the actual
decision to dismiss Garcia was made by the executive director
of the Hospital, José Cora Izquierdo. Indeed, she testified that
Cora makes the final decisions regarding all of the formal em-
ployee sanctions, including admonitions and suspensions. He
does this after receiving recommendations from other manage-
ment officials, including Lacot.
Although Cora made the termination decision, Lacot wrote
the dismissal letter. The letter makes passing reference to prior
disciplinary problems, including the 10-day suspension. It also
references the previous day’s incident involving the child’s
overdose of medication. Garcia was accused of having made
an unauthorized medical diagnosis. Lacot characterized the
nature of this asserted misconduct as “failing to comply with
the privacy and confidentiality of the information.”25 (J. Exh.
4b.)
While the dismissal letter makes reference to the past disci-
plinary history and the most recent incident, it concentrates on
an allegation that Garcia “abandoned” his duties on October 6
when he left the emergency room to check on his niece’s
health. The letter accuses Garcia of having “abandon[ed] your
work without previously notifying it [management] and without
authorization from the shift supervisor.” Lacot’s ultimate con-
clusion as to this conduct is as follows:
Assuming that what you stated as a reason to abandon your
work is true,26 the conduct incurred by you does not exempt
or excuse you from notifying the supervisory personnel before
leaving your work.
(J. Exh. 4b.) Garcia has not worked at the Hospital since his
termination on October 19, 2001.
On October 22, the Union filed an unfair labor practice
charge alleging that the Hospital’s treatment of Garcia violated
the Act. (GC Exh. 1oo.)
Five days after Garcia’s discharge, the Union engaged in a
work stoppage. Lacot testified that the Union had given her

24 This is an idiomatic expression roughly equivalent to “the straw
that broke the camel’s back.”
25 In contrast, during her testimony, Lacot characterized the nature of
this asserted misconduct as insubordination. To the extent that the
dismissal letter alludes to a confidentiality violation, I assume it refers
to the alleged call to “911.” I have already found that Garcia’s explana-
tion as to who made this call is credible. Since I find that Garcia did
not make the call, this cannot serve as a basis for a confidentiality vio-
lation.
26 Throughout this proceeding, management insinuated that Garcia’s
reason for leaving the Hospital was something other than he had de-
scribed. No evidence was presented to support this insinuation. To the
contrary, I find Garcia’s account to be strongly corroborated by
Cedeño’s testimony that at the time in question he told her he had to
leave the Hospital because he had an emergency at his sister’s house. It
will be recalled that Cedeño was hardly a friendly witness for Garcia.
She had written the formal letter of complaint against him arising from
the narcotic key episode.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD738
advance notice of this work stoppage.27 The work stoppage
lasted from October 24–26. Garcia testified that he participated
in the job action and that the emergency room employees had
the greatest number of participants of any department.
On October 26, Executive Director Cora sent letters to each
employee who did not participate in the work stoppage. These
letters characterized the employee’s conduct as “a demonstra-
tion of personal dedication and duty towards the patient.” It
noted that the nonstriking employees had received “threats,
screams, and insults carried out by persons with interests dif-
ferent from that of the patient’s welfare.” Cora specifically
informed the addressees:
In consideration of this high level of dedication and of profes-
sionalism, I am proceeding to file in your personnel file a
copy of the present communication as a reminder of your per-
formance.
(C.P. Exh. 3b.)28 Rivera testified that the letters of commenda-
tion were indeed placed in the personnel files of the employees
who did not participate in the work stoppage.
B. Analysis
1. The alleged interrogation and threats
The General Counsel alleges that Garcia was improperly in-
terrogated and threatened by a supervisor employed by the
Hospital. Specifically, Garcia testified that on August 5, 2001,
Felix, the general supervisor of nursing services, asked him if
he planned to participate in an upcoming protest sponsored by
the Union. When he answered affirmatively, Felix told him
that this was why he would never become a supervisor and why
he was “always in trouble.” Finally, Garcia testified that, after
a pause in the conversation, Felix asked him if he belonged to
“the satanic sects” of the Union’s president. (Tr. 94.)
In sharp contrast to Garcia, Felix testified that he never dis-
cussed union matters with Garcia, “[m]uch less” any issue of
religious preference. (Tr. 286.) I have carefully considered
whether Felix’s broad denials can be given credence. In so
doing, I find that it is vital to evaluate these denials in the con-
text of the remainder of Felix’s testimony regarding his degree
of interest in union activities at the Hospital.
On cross-examination, Felix conceded that one of his duties
as general supervisor of nursing services is to ensure adequate
nursing coverage for the patients. In this connection, he per-
forms follow up to the director of nursing’s efforts to provide
staffing during picketing.29 As part of this task, he visits each
department of the Hospital to determine that sufficient nursing
personnel are available. Somewhat reluctantly, he agreed with

27 Sec. 8(g) of the Act requires that a labor organization that is plan-
ning a strike or picketing at a health care institution must provide writ-
ten notice of such intention to the institution not less than 10 days prior
to any such action. Lacot testified that the Union provided advance
notice and the Hospital has not contended that the Union failed to pro-
vide such notice in timely fashion. This indicates that the notice was
provided no later than October 14.
28 This exhibit is a copy of the letter addressed to a specific em-
ployee. All of the letters were identical.
29 As required by the Act, the Union provides advance notice of such
activities to the management of the Hospital.
counsel for the Union’s assertion that he has undertaken the
responsibility to make the necessary preparations before each
of the Union’s strike activities.30
Although Felix testified that he carried significant responsi-
bility for providing adequate nursing staff during union picket-
ing, he expressed an almost regal indifference to the union ac-
tivities of his employees. For example, counsel for the Union
asked him if he observed union members picketing. He re-
sponded that he was “not in the mind frame of watching pickets
or anything like that.” (Tr. 288.) Counsel persisted by asking
if he had ever observed any picketing at the Hospital and he
responded negatively. When counsel pointed out that the pick-
ets are visible directly outside the Hospital, Felix agreed that he
has seen the pickets when driving onto the Hospital’s property.
Despite this, he claimed that he merely “enter[s] with my vehi-
cle and I do not stop or pass by to see who is in the line.” (Tr.
289.)
I find this virtually perfect indifference to the union sympa-
thies and activities of Felix’s employees to be highly improb-
able in light of Felix’s responsibilities in strike situations. His
asserted attitude is certainly at odds with the intense interest in
the union sympathies and activities of employees expressed by
Felix’s ultimate superior, Executive Director Cora. It will be
recalled that Cora took the trouble to ensure that every em-
ployee’s decision as to whether to participate in strike activity
was memorialized by documentation in his or her personnel
files.31 It also contrasts with Supervisor Rivera’s behavior.
Rivera testified that he observed Garcia’s participation in sev-
eral of the Union’s demonstrations, including picketing. I find
the overall tenor of Felix’s testimony to be incredible. Having
“gilded the lily” by claiming no interest in a subject that would
have reasonably been of a high degree of interest, I cannot give
any credence to his denial of Garcia’s account of their conver-
sation about this same subject.32 By contrast, as I will discuss
below, Garcia’s account is consistent with the pattern of activ-
ity by management in response to Garcia’s union activities.
Having found that Felix engaged in the conduct alleged, I
must assess its legal significance. The Board does not employ
a per se rule in evaluating interrogations of employees about
union activities or sympathies. Norton Healthcare, 338 NLRB
320, 321 (2002). In its leading case, Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel Employees, Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the Board established
a totality of the circumstances test in order to determine
whether an interrogation was conducted in a manner that rea-
sonably tended to restrain, coerce, or interfere with an em-
ployee’s rights under the Act. The factors to be considered
include the general background, nature of the questioning, iden-
tity and status of the questioner, place and method of interroga-
tion, whether a valid purpose for the questioning was commu-

30 In response to this question, he stated, “I imagine so.” (Tr. 293.)
When pressed further, he agreed that “[o]f course, I do.” (Tr. 294.)
31 Cora’s letter of commendation was placed in the files of nonstrik-
ing employees. Obviously, an employee who had been with the Hospi-
tal at the time of the strike and lacked such a letter in his or her file was
identified as a striking employee.
32 This conclusion was reinforced by observation of Felix’s haughty
demeanor on the witness stand.
HOSPITAL CRISTO REDENTOR 739
nicated to the employee, and whether the employee was given
assurances that there would be no reprisals. Bourne v. NLRB,
332 F.2d 47 (2d Cir. 1964). I will examine each of these fac-
tors.
The general background and context of the interrogation
support a finding of unlawfulness. At the time of the interroga-
tion, the Union was engaged in difficult collective-bargaining
negotiations with the Hospital and a variety of unfair labor
practice charges were pending resolution. More significantly,
Garcia had been given a disciplinary suspension less than 3
months prior to the interrogation. Finally, at the time of the
questioning, both Felix and Garcia were well aware that a union
protest activity was planned for the next day. For these rea-
sons, the context of the questioning contributed to its coercive-
ness.
By the same token, the identity of the questioner, the nature
of the questions, and the method of interrogation employed all
underscore the impropriety of the interrogation.33 A nursing
supervisor directly in Garcia’s chain of command asked the
questions. Garcia was asked the highly pointed question of
whether he planned to participate in the next day’s protest.
When he responded affirmatively, Felix immediately painted a
picture of the dire consequences of his answer—the preclusion
of his opportunity to attain a supervisory position and the as-
serted direct link between Garcia’s union activities and his
disciplinary problems. Finally, I note that Felix did not convey
any valid purpose for the questioning and certainly did not offer
any assurance of lack of reprisal. To the contrary, Felix essen-
tially indicated that there had been and would be adverse con-
sequences to Garcia’s union activities. It is difficult to imagine
a more coercive set of circumstances.34 I find that Felix’s inter-
rogation of Garcia violated Section 8(a)(1) of the Act. It is
equally clear that Felix’s assertions that Garcia’s participation
in union activities was the cause of his inability to become a
supervisor and the source his disciplinary problems constituted
unlawful threats designed to interfere with the rights guaranteed
to Garcia under Section 7 of the Act. These statements also
violated Section 8(a)(1) of the Act.
2. The alleged discriminatory suspension and discharge
of Garcia
The Hospital suspended Garcia on May 11 and discharged
him on October 19, 2001. The General Counsel contends that
these disciplinary measures were imposed due to Garcia’s par-
ticipation in union activities and that these sanctions were im-
posed with the intent to discourage such participation by other
employees in violation of Section 8(a)(1) and (3) of the Act. In

33 I find the location of the questioning to be innocuous.
34 I have not placed great weight on Felix’s comment characterizing
the Union as a satanic sect. I certainly do not believe that this was any
sort of serious theological comment, but was merely intended as a bit of
sarcasm. Although I find that this comment was not meant to be taken
literally, this does not vitiate the other serious threats made by Felix.
The situation is similar to that in Cox Fire Protection, Inc., 308 NLRB
793 (1992), where the Board found that although a supervisor’s “color-
ful figure of speech” was not meant literally, since his overall com-
ments clearly signaled a desire to retaliate against the employee, the
interrogation violated the Act.
order to evaluate these contentions, I must apply the Board’s
analytical framework set forth in Wright Line.35 This requires
that the General Counsel show that Garcia was engaged in pro-
tected activity, that the Hospital was aware of such activity, and
that the activity was a substantial or motivating factor for the
decisions to suspend and ultimately terminate him. If the Gen-
eral Counsel makes this showing, the burden shifts to the Hos-
pital to demonstrate that it would have taken these same actions
against Garcia even in the absence of his protected conduct. I
will address each factor in turn.
There is no doubt that Garcia participated in a variety of pro-
tected, concerted activities. He testified that, after the Union
asked him for his support, he became active in this cause, going
to meetings, taking information to his coworkers, providing
those coworkers with the Union’s newspaper, urging them to
support the Union, and participating in two protests and one
work stoppage. In January 1999, Garcia was selected as the
Union’s delegate for the emergency room employees. Vega
described Garcia’s role as delegate as involving the duty:
to intervene in any controversy, any dispute, any problem that
could arise within his department. And the same had to be
discussed with the Hospital’s administration . . . .
(Tr. 36.) Vega characterized Garcia’s participation in union
affairs as “very active.” (Tr. 37.) Garcia, himself, reported that
he “organized all my coworkers from the emergency room so
that they could participate in the work stoppage [in October
2001].” (Tr. 95.) He noted that the emergency room had more
participants in the strike than any other department.
The record also clearly establishes that the Hospital’s man-
agement was thoroughly acquainted with the nature and extent
of Garcia’s union activities. Upon his selection as union dele-
gate, Garcia and another union functionary met with Rivera to
inform him of Garcia’s new position with the Union. Rivera
testified that he knew Garcia was the union delegate for the
emergency room. As Rivera put it, Garcia was “a key person
of the Union in the emergency room.” (Tr. 455.) Rivera also
testified that he observed Garcia’s participation in “various
manifestations or picket lines of the Union.” (Tr. 433.) He
reported that he knew that Garcia discussed working conditions
at the Hospital with his coworkers and had urged his colleagues
to participate in the October 2001 strike. He agreed that Garcia
was “active in the Union.” (Tr. 450.)
Garcia’s involvement in union activities reached a higher
degree of visibility on February 27, 2001, when he attended his
first collective-bargaining session. Lacot testified that it was at
this point that she became aware that he was a union delegate.
Shortly thereafter, in a warning letter to Garcia, Lacot acknowl-
edged that Garcia felt persecuted by management “because you
were a Union Shop Steward.” (R. Exh. 2b.) Finally, I note that
when Felix interrogated Garcia, he acknowledged both his un-
ion membership and his intent to participate in an upcoming
union protest. I readily find that the Hospital was aware of the

35 251 NLRB 1083, 1089 (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. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD740
nature and extent of Garcia’s participation in protected, con-
certed activities.
I must now determine whether Garcia’s union activities were
a substantial or motivating reason for the Hospital’s decisions
to suspend and terminate him. In so doing, it is appropriate to
evaluate both direct and circumstantial evidence of motivation.
Metro Networks, Inc., 336 NLRB 63, 65 (2001), citing FPC
Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). It is
also appropriate to consider relevant evidence beyond the strict
confines of the charged conduct. Meritor Automotive, Inc., 328
NLRB 813 (1999) (“well settled that conduct that exhibits ani-
mus but that is not independently alleged or found to violate the
Act may be used to shed light on the motive for other conduct
that is alleged to be unlawful.”) I find that there is persuasive
direct and circumstantial evidence leading to the conclusion
that antiunion animus was a substantial and motivating reason
for the decisions to suspend and terminate Garcia.
As to direct evidence, there can be nothing clearer than
Felix’s observation to Garcia that his participation in union
activities was the reason that he was “always in trouble.” (Tr.
94.) Here one of Garcia’s supervisors has drawn a direct link
between the protected, concerted activity and the Hospital’s
imposition of disciplinary sanctions. Similarly, I find that there
is direct evidence establishing that the Hospital’s management
intended to impose disparate treatment upon Garcia because of
his position with the Union. It will be recalled that Garcia had
been incorrectly accused of behaving disrespectfully toward a
patient. A meeting attended by a number of interested parties
including Lacot and Vega resulted in Garcia’s exoneration.
Vega testified that immediately thereafter she had a conversa-
tion with Lacot. At that time, Lacot told Vega that:
those attitudes of Mr. Garcia’s at the [H]ospital could not be
tolerated by the Hospital, and that that could bring about his
dismissal, and, even more so, when he was the delegate.
(Tr. 52.) Vega also testified that during this conversation, La-
cot displayed a letter terminating Garcia. In light of his exon-
eration, she proceeded to tear up this letter in Vega’s presence.
The Hospital adduced extensive testimony from Lacot. She
was asked about the incident with Vega. Lacot denied tearing
up a letter in Vega’s presence. She opined that Vega was “ly-
ing” about this. (Tr. 483.) Strikingly, she did not give any
testimony regarding Vega’s assertion that Garcia’s attitudes
could not be tolerated, particularly given his role as union dele-
gate. As another administrative law judge has observed,
When a party calls as part of its case-in-chief a witness with
particular knowledge of important facts, who does not testify
as to those facts, an adverse inference is warranted that the
witness’ testimony would not have supported the party’s posi-
tion.
World SS, Inc., 335 NLRB 1203, 1216 (2001). Beyond reliance
upon such an inference, I also credit Vega’s testimony because
her description of Lacot’s attitude is consistent with other sub-
stantial evidence of Lacot’s animus toward Garcia and her de-
sire to magnify the extent of any alleged misconduct by him.
For example, despite her repeated acknowledgement that the
photo of Garcia was a personal matter that should not result in
imposition of discipline, she twice made detailed reference to it
in written disciplinary accounts that became part of Garcia’s
personnel record. The same mindset is illustrated by Lacot’s
characterization of Garcia’s conduct regarding his niece’s ill-
ness. Lacot persistently claimed that Garcia’s departure from
the Hospital to attend to this situation was an abandonment of
his workstation without authorization. This charge of very
serious misconduct is asserted in the face of clear evidence
establishing that Garcia had sought permission from Supervisor
Santiago and, at Santiago’s request, had even reduced his re-
quest for permission to a rudimentary written form. I find
Vega’s uncontroverted description of Lacot’s comments to be
credible as it is consistent with other evidence regarding La-
cot’s attitude toward Garcia.
Finally, I find that there is direct and virtually contempora-
neous evidence of antiunion animus on the part of the official
who made the final decision to terminate Garcia. It will be
recalled that a week after Executive Director Cora terminated
Garcia, he wrote a letter to each employee who had not partici-
pated in the work stoppage of October 24–26. His letter con-
trasts the “personal dedication and duty towards the patient” of
nonstriking workers with the negative behavior of “persons
with interests different from that of the patient’s welfare.” The
obvious reference is to the striking employees. More impor-
tantly, Cora placed a copy of this letter in the personnel file of
each nonstriking employee. Taken together, the views ex-
pressed in the letter and the decision to memorialize the role of
nonstriking employees in their personnel records are reflective
of antiunion animus on the part of the same official who de-
cided to terminate Garcia just a week earlier.
In reaching a decision to accord probative value to Cora’s
letter, I have been mindful that use of opinions expressed in
employer’s letters as evidence of antiunion animus has pro-
voked recent comment by Board Members. In Norton Health-
care, 338 NLRB 320 (2002), the Board affirmed an administra-
tive law judge’s finding of antiunion animus on the part of the
employer. In a separate opinion, Member Cowan stated that he
would not use an employer’s statements opposing the union as
evidence of animus “in any circumstance.” He observed that
statements that do not contain threats or promises are protected
by Section 8(c) of the Act. Supra at 3, fn. 3. Member Bartlett
noted that he did not rely upon the employer’s “general state-
ments expressing opposition to the Union as evidence of ani-
mus.” Supra at fn. 1. However, he acknowledged that Board
precedents permitted reliance on such statements for this pur-
pose. Member Liebman agreed with this analysis, commenting
that under Board precedent, “such statements may properly be
considered as background evidence of animus.” Supra at fn. 1.
I note that a relatively recent example of such usage occurred in
Metro Networks, 336 NLRB 63 (2001), where, in a discharge
case, the Board held that “[m]otive and antiunion animus are
demonstrated” where an employer wrote a letter to his employ-
ees expressing disappointment that they had voted for union
representation. Id. at 65.
While Board precedents permit consideration of Cora’s atti-
tudes as expressed in his letter, I acknowledge the concerns
discussed above. In my view, these concerns are not directly
implicated in this case. Cora’s behavior went beyond the mere
HOSPITAL CRISTO REDENTOR 741
exercise of free speech or expression of opinion. When Cora
decided to place a copy of each letter in the nonstriking em-
ployees’ personnel records, his behavior became a form of
conduct. As I have previously indicated, this conduct, consist-
ing of the placing of letters in personnel files, created a perma-
nent record of each employee’s decision to participate or with-
hold participation in protected, concerted activities. Indeed,
Cora explicitly said he was putting the letters in the personnel
files “as a reminder of your performance.” (C.P. Exh. 3b.)
Thus, by memorializing a commendation of nonstriking em-
ployees in contrast to striking employees, Cora engaged in
conduct that may properly be considered as convincing evi-
dence of antiunion animus.
Beyond the direct evidence of antiunion animus as a motivat-
ing factor in the suspension and discharge of Garcia, I find a
variety of circumstantial evidence supporting the same conclu-
sion. First is the evidence of timing. I note that the Board has
recently reiterated that timing is evidence of such probative
worth that, even standing alone, it may demonstrate antiunion
animus as motivation for an employer’s actions. Sears, Roe-
buck & Co., 337 NLRB 443 (2002), citing Masland Industries,
311 NLRB 184, 187 (1993), and NLRB v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984). The evidence of timing in this
case is compelling.
Garcia began working at the Hospital as an emergency room
nurse in February 1995. The Respondent took over operation
of the Hospital in June 1998. The Union was certified as the
employees’ representative in August 1998. Garcia became
emergency room delegate in January 1999. Rivera imposed
written discipline against Garcia on February 2, 1999. Rivera
testified that Garcia had never had any prior written discipline.
Indeed, Rivera was unable to recall even one episode in which
he had subjected Garcia to verbal criticism. Thus, although
Garcia had been employed in his position for almost 4 years,
his first disciplinary citation was imposed immediately after his
selection as union delegate.
Just as Garcia’s disciplinary problems commenced as he in-
creased his union activities, so his disciplinary problems culmi-
nated during a similar period of heightened union activity.
Garcia testified that a work stoppage was planned for October
2001. He took an active role in the preparations, urging his
emergency room colleagues to participate. The record also
indicates that his role was effective, as the emergency room
employees had the highest level of involvement in the work
stoppage. The evidence further shows that management knew
of the planned work stoppage, having been notified by the Un-
ion over a week before Garcia’s termination. In addition, man-
agement was specifically aware of Garcia’s activities in con-
nection with this upcoming work stoppage. Rivera testified
that he knew that Garcia favored the planned strike and was
enlisting other employees to support it. It is precisely during
Garcia’s active participation in this period of heightened union
activity that he was terminated.
In addition to the evidence of timing, I find circumstantial
evidence of antiunion motivation in the Hospital’s repeated
exaggeration of Garcia’s purported misconduct and in the exis-
tence of substantial gaps in the evidence that one would rea-
sonably have expected the Hospital to present. In evaluating
whether the Hospital has presented a rational and consistent
account of its conduct, I begin by observing that a disturbing
pattern of seemingly intentional exaggeration of Garcia’s as-
serted misconduct is present. A particularly significant exam-
ple of this behavior concerns the photograph of Garcia display-
ing a portion of his underwear. This photo was taken outside of
the work premises while Garcia was off-duty. There is no evi-
dence that he owned the copy of the photo that came into La-
cot’s possession on the Hospital’s premises. Lacot has agreed
that this incident was not worthy of discipline as it was a pri-
vate matter. Nevertheless, she chose to raise it at a meeting and
repeatedly documented it in written descriptions placed in Gar-
cia’s personnel file. This was particularly damaging as the
incident is presented as involving an aura of sexual impropri-
ety. Indeed, in his opening statement during this trial, counsel
for the Hospital made this innuendo even more explicit. He
characterized Garcia as, “[a] guy that leaves photos of sexual
nature in his work place, exposing himself . . . .” (Tr. 32.) I
must reiterate that there is no evidence that Garcia left even one
photo of a sexual nature at his workplace. And, there is cer-
tainly no evidence that he exposed himself, unless one is so
prudish as to consider a view of a portion of the rear of an un-
dergarment as indecent.36 The intentional and repeated exag-
geration of allegations hinting at some sort of sexual miscon-
duct strongly suggests an underlying animus against Garcia.
The same inference of animus arises in connection with the
Hospital’s contention that Garcia abandoned his workplace.
This is a grave allegation when it is directed at a medical pro-
fessional, particularly an emergency room nurse. The evidence
clearly establishes that it is an entirely misleading characteriza-
tion of Garcia’s conduct on the night in question. There is no
doubt that he sought and obtained authorization from his supe-
rior before he left his duty station to attend to a family emer-
gency. Beyond this, the Hospital also attempted to exaggerate
other aspects of this incident to cast Garcia in a bad light. The
suggestion is raised in Lacot’s disciplinary letter that Garcia’s
actual reason for leaving his shift was something other than his
stated reason. Counsel for the Hospital also raised this during
cross-examination of Garcia by suggesting that Garcia had
gone to visit his lover. There is absolutely no evidence that
Garcia’s stated reason for leaving the Hospital that night was
false. To the contrary, I find that there is highly credible evi-
dence that it was true. I am referring to the testimony of Nurse
Cedeño, hardly one of Garcia’s partisans. She testified that,
while in a highly disturbed state, Garcia told her that he had to
leave to attend to an emergency at his sister’s home.
The pattern of exaggeration regarding this incident went fur-
ther. In his opening statement, counsel for the Hospital prom-
ised to present evidence showing that on his return to the Hos-
pital, Garcia resumed his nursing duties while walking around
barefoot. In fact, the evidence shows that he had soiled his
shoes and, in order to avoid contamination, removed them.
When his supervisor observed him in his socks, she helpfully
provided shoe covers for him to wear. Thus, in proper context,
this conduct hardly matches the dramatic image of a nurse who

36 By this standard, in carrying ads for underwear, virtually every
newspaper in America would qualify as indecent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD742
goes to work barefoot. These intentional distortions indicate
animus.
The gaps in the Hospital’s documentation of its actions are
also probative. Lacot testified that during the 2-year discipli-
nary process involving Garcia, there were:
between 20 and 25 informal meetings. And about 25 or more
formal meetings. And when I speak of formal meetings, I
speak of meetings that have been written down, in a narrative
manner.
(Tr. 505.) Where are these 25 or more written narratives re-
garding the disciplinary process? No more than a handful of
written disciplinary documents were submitted by the Hospi-
tal.37 Furthermore, the official who made the actual decisions
to suspend and terminate Garcia, Executive Director Cora, was
never called to testify regarding his reasoning for reaching
these determinations. The failure to present such documentary
evidence and testimony is also evidence of motivation. The
Board has referred to the adverse inference that may be drawn
when a party fails to call a witness who may reasonably be
presumed to be favorably disposed to its position as a “settled”
doctrine. Daikichi Corp., 335 NLRB 622 (2001). This type of
inference is properly applied to these significant gaps in the
Hospital’s evidence.
Persuasive direct and circumstantial evidence demonstrates
that a substantial and motivating reason for the decisions to
suspend and terminate Garcia was antiunion animus directed
toward Garcia’s active and effective participation in protected,
concerted activities. As a result, the burden now shifts to the
Hospital to demonstrate that it would have taken the same dis-
ciplinary actions against Garcia regardless of his participation
in protected, concerted activities. The Hospital contends that
Garcia’s suspension and discharge were merely the result of the
impartial operation of its system of progressive discipline.38
In order to assess the Hospital’s defense, I have first exam-
ined the evidence adduced regarding discipline of other em-
ployees. Rivera and Lacot, two supervisors who made key
decisions concerning Garcia, testified as to their imposition of
discipline on other employees. Rivera testified that he disci-
plined five other nurses during the period involved in this case.
Virtually all the disciplinary problems with these employees
concerned absenteeism.39 Discipline consisted of verbal warn-

37 I recognize that it is possible that Lacot’s claim as to the existence
of many purported disciplinary write-ups that were not admitted into
evidence is merely another exaggeration of the case against Garcia.
38 The Hospital raised other defenses. Without presenting evidence
or argument in support, it contended that the Religious Freedom Resto-
ration Act of 1993, 42 U.S.C. §2000bb-1, precluded the Board’s exer-
cise of jurisdiction over it. I note that the Board rejected a similar
contention in Ukiah Adventist Hospital, 332 NLRB 602 (2000). Coun-
sel for the Hospital also cited provisions of local law governing dis-
charge of employees. However, he correctly noted that these are
merely “supplementary,” since the “controlling legislation is the [Na-
tional Labor Relations] Act.” (R. Br. at 4.)
39 Rivera testified that one employee also had failed to maintain her
professional credentials and another employee had unspecified “situa-
tions in the department.” (Tr. 390.) Garcia had no problems with
credentials and the testimony about unspecified situations is too vague
to be useful.
ings, anecdotal warnings, and referrals to human resources.
Neither Rivera nor Lacot testified regarding the precise disci-
pline imposed by the human resources department upon such
referrals. I do note that on August 25, 1999, Rivera issued
Garcia an anecdotal report regarding absences without proper
notification. Lacot testified that after this episode, Garcia cor-
rected his problem with absenteeism.40 Lacot also testified that
the impact of an anecdotal terminates after one year of good
conduct. Thus, she reported that if an employee receives an
anecdotal warning for absenteeism, and he or she avoids further
absenteeism for the period of 1 year, the anecdotal expires. As
she put it,
If a year has gone by, and the employee does not incur in this
same error, we do not consider it.
(Tr. 594.) More than a year of good behavior concerning ab-
senteeism had elapsed prior to Garcia’s suspension and termi-
nation. As the Hospital does not contend that Garcia was sus-
pended or discharged, in whole or in part, for absenteeism, the
evidence does not permit me to compare Rivera’s discipline of
other employees with his steps taken against Garcia.
Lacot also described her disciplinary decisions regarding
other employees during the relevant period. She testified that
she fired two clerical employees for insubordination. She also
fired one unnamed nurse for “tacit absenteeism.”41 (Tr. 490.)
This offense consisted of being absent from work for 3 days
without providing any notice to the employer.
Lacot testified that Garcia’s conduct regarding the girl who
had fainted after taking too much medication violated the pro-
visions of the disciplinary manual covering insubordination.
This is difficult to credit. The manual defines insubordination
as the refusal to comply with “specific orders” from a supervi-
sor. It also includes “lack of respect to a supervisor.” (GC
Exh. 5, at 7.) Garcia did not fail to comply with any order. If
he conveyed a diagnosis to the patient’s parent as alleged, then
he may well have engaged in some form of misconduct, but I
do not see how it can be characterized as a lack of respect to a
supervisor. Significantly, while this incident is discussed in the
letter terminating Garcia, it is not described as an offense of
insubordination. Instead, it is described as a failure to “comply
with the privacy and confidentiality of the information.” (J.
Exh. 4b.) In any event, Lacot did not testify as to the nature of
the insubordination leading to the discharge of the two clerical
employees. As a result, I cannot compare Garcia’s purported
discipline for this type of alleged misconduct with discipline
imposed on others for insubordination offenses. As previously
discussed, the termination of another nurse for failure to attend
work for 3 days without notice bears no relation to any alleged
misconduct by Garcia. For these reasons, the evidence is not
sufficient to permit meaningful comparison of Lacot or
Rivera’s discipline of Garcia to that of other employees during
the relevant period.

40 This is consistent with her statement to the same effect in the May
11, 2001 letter informing Garcia of his suspension. (J. Exh. 3b.)
41 The disciplinary manual defines this offense as “service abandon-
ment.” (GC Exh. 5, at 4.) It is a separate offense from other forms of
less serious absenteeism.
HOSPITAL CRISTO REDENTOR 743
Although useful comparative data is lacking, I have given
careful consideration to the Hospital’s contention that Garcia’s
conduct justified his suspension and discharge regardless of his
participation in protected, concerted activities. I begin by not-
ing that virtually every supervisory employee called as a wit-
ness by the Hospital expressed an overall opinion of Garcia’s
professional competence as a nurse. The consistency of these
opinions from a variety of sources is impressive. The only
physician to testify was Dr. Anglero. He testified that his
working experiences with Garcia have been “good.” (Tr. 220.)
When asked if Garcia is a good nurse, he responded affirma-
tively.
Garcia’s immediate supervisor was Rivera. He testified that,
as to the clinical aspect of his work, Garcia “did not have any
problems.” (Tr. 396.) He underscored this by observing that:
His major problem was interpersonal relations, attitude to-
ward his coworkers. And that is all.
(Tr. 396.) Indeed, during another portion of his testimony,
Rivera opined that Garcia had the potential to become a super-
visor, but needed to change his negative attitude. (Tr. 466.)
Lacot testified that Garcia was a “good nurse from 1995 until
1999.” She added that, regarding the technical aspects of his
duties as a nurse, “he knows his work.” (Tr. 528.) These
views are also consistent with her comments to Garcia con-
tained in a disciplinary letter that she wrote on July 27, 2000.
At that time, she told Garcia that:
We informed you that we never doubted your competence as
a professional but that you had to improve your attitude . . . .
(J. Exh. 2b.)
Two other supervisory employees expressed similar views.
Felix, the general supervisor of nursing services, was asked
about his experiences with Garcia. He responded that, “It was a
normal experience of an employee who carries out his job.”
(Tr. 285.) Regina Santiago, the clinical coordinator of the de-
partment of medicine, testified that she supervised Garcia for 3
years. She was asked if he was a good nurse. She responded,
“Yes, he is a good nurse.” (Tr. 303–304.)
With this general background, I have turned to consideration
of the Hospital’s specific reasons for Garcia’s suspension and
discharge. The Hospital’s position as to Garcia’s suspension is
set forth in Lacot’s formal letter imposing the suspension. Its
position regarding Garcia’s discharge is set forth in Lacot’s
formal letter discharging him and the Hospital’s brief filed in
this case.
Lacot’s letter informing Garcia of the reasons for his suspen-
sion begins by noting that Garcia was interviewed regarding
events occurring on April 23, 2001. Lacot goes on to observe
that Garcia’s coworkers had needed to call him on the loud-
speaker on two occasions so that he could provide access to the
narcotics cabinet. Although this is mentioned, it is clear that
the gravamen of Garcia’s offense on that date consisted of his
using the loudspeaker to complain that there was a lot of work
and that he was the only one working and nobody was helping
him.42 Lacot notes that this conduct “bothered your coworkers,
thereby disrupting the normal operations” of the Emergency
Room and the Hospital. (J. Exh. 3b.) As a result, Lacot states
that discipline is being imposed “due to your attitude and for
disrupting the peace and the work that is being done at the
Emergency Room.” (J. Exh. 3b.)
Examination of the Conduct and Disciplinary Measures
Manual reveals that the disciplinary infraction described by
Lacot is the offense of “Disorderly Conduct.” This is described
as conduct that would:
Disturb the peace and order of the Institution or the duties that
are being carried out at the job.
(GC Exh. 5, at 7.) Lacot’s letter indicates that the suspension is
being imposed for this infraction.
In her letter, Lacot acknowledges that Garcia denied any in-
tent to insult his coworkers, but was merely seeking to have
them come to his assistance with the patients. It does appear
that two of Garcia’s colleagues filed written complaints about
his behavior on that date. Only one of these letters was admit-
ted into evidence. In that letter, Nurse Cedeño discusses the
problem with access to the narcotics key. She never mentions
any loudspeaker announcement by Garcia, but she does request
that Garcia “assume another attitude towards his fellow work-
ers and the patients.” (R. Exh. 3b.) There is no evidence re-
garding the nature of the second coworker’s written complaint.
Did Garcia’s conduct in using the loudspeaker constitute a
disturbance of the peace or an interference with the work being
carried out by the emergency room staff? It will be recalled
that during the shift in question, the emergency room was se-
verely understaffed. Instead of the usual complement of seven
nurses, there were only four. In addition, the escort who usu-
ally transported lab samples was not on duty. As a result, Gar-
cia felt compelled to make the deliveries to the lab himself.
There is no doubt that he felt frustrated and he may have cho-
sen an undiplomatic means of seeking more staffing assistance.
Having said this, it is difficult to understand how his conduct
could have consisted of a disturbance of the peace. There is no
evidence that he employed obscene or threatening language or
that any coworker, patient, or other person who heard the
comments was incited to any violent action or response. Like-
wise, there is no evidence that Garcia’s statement caused any
disruption in the work of the nursing staff or of the Hospital in
general. At most, what the evidence shows is a brief outburst
by a worker on a shift that was short-staffed who felt frustrated
at the quantity of work and the lack of assistance. I do not find
that the Conduct and Disciplinary Measures Manual authorizes
imposition of a 10-day suspension for this behavior for the
offense of disorderly conduct. Furthermore, I cannot find that
Garcia’s behavior on this occasion provided independent justi-
fication for his suspension apart from the animus directed
against him due to his protected activities.
Lacot’s letter explaining the rationale for Garcia’s discharge
refers to his abandonment of his work station without authori-
zation and his “failing to comply with the privacy and confi-

42 It will be recalled that in her testimony, Lacot described the nar-
cotics key problem as a minor offense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD744
dentiality of the information” involving the girl who fainted
after ingesting too much pain medication. (J. Exh. 4b.) These
events, coupled with Garcia’s prior disciplinary history, are
listed as the justifications for his termination.
In its brief, the Hospital provides a more extensive list of in-
fractions justifying the ultimate sanction of dismissal. It is
alleged that Garcia’s departure from the emergency room with
the narcotics key consisted of careless and negligent conduct in
violation of the Conduct and Disciplinary Measures Manual
Rule 4. (R. Br. at 7, 13.) His is charged with abandoning his
job by leaving the Emergency Room to attend to a family mat-
ter. (R. Br. at 13.) He is further charged with falsifying hospi-
tal records in violation of rule15 of the manual. (R. Br. at 15,
18.) He is also accused of misconduct involving the girl who
overdosed on pain medications. This is not alleged to have
violated any specific conduct rule in the manual, but is charac-
terized as “disobeying the medical confidentiality standard.”
(R. Br. at 24.) Lastly, it is alleged that Garcia “was also in-
volved in interpersonal attitudes which . . . affected the work
environment.” (R. Br. at p. 24.) (Emphasis in the original.) I
will examine each of these charges in turn.
The charge that Garcia engaged in careless and negligent
conduct by deciding to transport laboratory samples while in
possession of the narcotics key in unimpressive. On a shift
when the emergency room was seriously short-staffed, Garcia
was faced with a dilemma. He elected to take samples to the
laboratory to ensure that they were promptly analyzed in order
to obtain timely treatment for the patients. In so doing, he took
the risk that there would be delays in obtaining access to the
narcotics cabinet. Had he made the opposite decision, there
would have been delays in obtaining laboratory test results
needed for assessment of patient’s conditions. It was the lack
of staff that placed Garcia (and the patients) on the horns of this
dilemma. The evidence does not permit a conclusion that Gar-
cia’s choice constituted professionally careless or negligent
conduct. Indeed, it will be recalled that Lacot conceded that the
problems with the narcotics key were an example of a minor
offense committed by Garcia. If an offense at all, it was cer-
tainly not of a severity that, even in conjunction with other
offenses, would justify discharge of a nurse whose competence
was acknowledged by every supervisor who expressed an opin-
ion during the trial.
The charge that Garcia left his duty station without prior au-
thorization to attend to a family matter is certainly an example
of serious misconduct of a degree that would justify severe
sanction.43 Unfortunately, that charge is a canard. The evi-
dence overwhelmingly establishes that Garcia sought and ob-
tained prior authorization before leaving the Hospital for a pe-
riod of less than 2 hours to attend to a family member’s medical
condition. Any attempt by the Hospital to justify Garcia’s ter-

43 In this regard, I agree with counsel for the Hospital, who cited
NLRB v. Lowell Sun Pub. Co., 320 F.2d 835 (1st Cir. 1963), as a prece-
dent. In that case, the Court found that the employer’s motive for dis-
charging the employee was the employee’s conduct in having twice
absented himself from the job “without seeking or receiving permission
from his supervisors.” 320 F. 2d. at 841. By contrast, Garcia sought
and obtained such permission before taking his brief absence to attend
to his niece.
mination on this basis is simply more evidence of animus
against him by use of pretextual arguments to justify his fir-
ing.44
The employer next asserts that Garcia falsified hospital re-
cords in violation of rule 15 of the manual. Rule 15 imposes
sanctions on an employee who falsifies or “maliciously al-
ter[s]” documents of the Hospital. (GC Exh. 5 at 8.) The evi-
dence establishes that Garcia altered a hospital record. It does
not establish that he falsified the record or altered it mali-
ciously. Rather, the patient’s physician testified that Garcia’s
error in this instance was the failure to note and initial the
change in the patient’s documentation. Examination of the
record in question confirms that there was no intent to conceal
information. Garcia’s change of the documentation was readily
apparent. Rivera counseled Garcia on the proper procedures to
be used in the future. Rivera testified that Garcia had not had
any further problems in this regard. I do not find that this inci-
dent violated rule 15 or justified the Hospital’s conduct.
The next asserted justification for Garcia’s termination con-
cerned the incident of the girl who fainted after ingesting too
much pain medication. Counsel for the Hospital suggests that
Garcia’s behavior violated the standards of medical confidenti-
ality. His reference must be to the accusation that Garcia called
“911” without authorization. Since I have found that Garcia’s
explanation of how social services was automatically contacted
once the school telephoned for an ambulance was both logical
and unrebutted, a violation of standards of confidentiality can-
not be sustained.
Counsel for the Hospital’s last allegation was that Garcia’s
discipline resulted in part from his “interpersonal attitudes
which . . . affected the work environment.” (R. Br. at 24.)
(Emphasis in the original.) Counsel’s inclusion of this as being
among the Hospital’s purported justifications for Garcia’s dis-
charge is clearly supported by the evidence. In fact, the pre-
dominant management complaint about Garcia’s conduct from
February 1999 until his discharge was that he had attitude prob-
lems. I have no doubt that those attitude problems were a
paramount factor in the decisions to suspend and discharge
him. I cannot, however, exonerate the Hospital on the basis
that it relied upon such attitude problems as a proper justifica-
tion for Garcia’s discipline. To the contrary, such reliance on
purported attitude problems underscores the impermissible
nature of the Hospital’s decision-making process in this case.
In the first written discipline Garcia received, he was warned
to avoid “negative criticism.” (GC Exh. 2b.) The author of this
letter, Rivera, amplified his understanding of the nature of Gar-
cia’s attitude problem in his testimony. He testified that it in-
cluded “criticisms about the work program.” (Tr. 430.) In-
deed, Rivera testified that Garcia would “tell workers to com-
plain about the program . . .” (Tr. 431.)
Lacot also described the nature of Garcia’s attitude problem.
In a disciplinary letter, she told Garcia that his “problem” was

44 See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966) (where employer’s stated motive is found to be false, an
inference may be drawn that the employer is trying to conceal an
unlawful motive). The Board has characterized this doctrine as “well
settled.” Key Food, 336 NLRB 111, 114 (2001).
HOSPITAL CRISTO REDENTOR 745
that he made comments about “work shifts, the days off, the
apparent favoritism of the Supervisor toward some of your
coworkers . . .” She went on to tell Garcia that “[y]ou fre-
quently act as a ‘leader’ of the group . . .” The importance of
Garcia’s perceived attitude problem to the Hospital’s manage-
ment was underscored in Lacot’s letter when she acknowledged
that “you are complying with your work, but . . . your attitudes
are affecting you . . .” (J. Exh. 2b.)
The central importance of Garcia’s purported attitude prob-
lem was highlighted and explained by Lacot’s discussion with
Vega, wherein she informed Vega that:
those attitudes of Mr. Garcia’s at the [H]ospital could not be
tolerated by the Hospital, and, that that could bring about his
dismissal, and, even more so, when he was the delegate.
(Tr. 52.) It is apparent that Garcia’s attitude problem was the
key factor in his discharge. It is equally apparent that this atti-
tude problem consisted largely in articulating the concerns and
discharging the duties of union delegate.45
I find this case to be similar to a relatively recent case, Tubu-
lar Corp., 337 NLRB 99 (2001), where the Board upheld an
administrative law judge’s finding of discriminatory discharge
of an employee. The judge noted that the company attempted
to justify the discharge by alleging that the employee had re-
peatedly engaged in “disruptive” conduct.46 The judge ob-
served that this often meant that:
he talked to employees about things that they [management]
didn’t want the employees talking about.
337 NLRB at 105. The judge characterized management’s
concern as “a code word” for unhappiness with the employee’s
propensity to stir up other employees and get them interested in
union activity. The judge concluded that:
Assuming, without deciding, that the investigation did dis-
close that [the employee] had an overbearing personality, Re-
spondent tolerated that for three years and accorded no disci-
pline to [him] for it. It was, obviously, not the real reason for
his discharge. To the extent it was relied upon, Respondent
seized upon it as a pretext.
337 NLRB at 106. By the same token, and for the same rea-
sons, I find that the Hospital’s reliance on Garcia’s attitude
problem as justification for his suspension and discharge is
merely another way of saying that the Hospital’s conduct was
based upon an unlawful motivation, antiunion animus.
I have considered all of the reasons advanced by the Hospital
in support of Garcia’s suspension and discharge. I have also
evaluated these asserted reasons in the context of the evidence,

45 I recognize that management also disliked other aspects of Gar-
cia’s attitude. For example, he was described as a gossip. I note that
Lacot conceded that engaging in gossip was merely a “minor” offense.
(Tr. 627.) It is evident that Garcia’s main attitude problems were that
he complained about work-related issues and incited other employees
to do the same.
46 The Hospital did not employ this precise term in characterizing
Garcia’s “attitude problem.” However, counsel for the Hospital de-
scribed Garcia as having an “unruly work pattern.” (R. Br. at 4.) The
meaning is essentially identical.
including the consistent testimony of the Hospital’s managers
establishing that Garcia was an experienced and competent
emergency room nurse. The Hospital’s proposed justifications
for its disciplinary decisions, considered singly and in combina-
tion, do not serve to rebut the General Counsel’s contention that
a motivating and substantial factor in Garcia’s suspension and
discharge was his union activity. The Hospital has not met its
burden of showing that it would have suspended and discharged
Garcia apart from consideration of such union activity. For
these reasons, I conclude that Garcia’s suspension and dis-
charge constituted violations of Section 8(a) (1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. By interrogating Garcia regarding his union sympathies
and his protected, concerted activities the Respondent violated
Section 8(a)(1) of the Act.
2. By threatening Garcia with loss of opportunity for promo-
tion and with disciplinary sanctions due to his participation in
protected, concerted activities the Respondent violated Section
8(a)(1) of the Act.
3. By suspending Garcia due to his union sympathies and
his participation in protected, concerted activities the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
4. By discharging Garcia due to his union sympathies and
his participation in protected, concerted activities the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With regard to affirmative relief, the Respondent having dis-
criminatorily suspended its employee, it should be ordered to
make him whole for any loss of earnings and other benefits,
arising from his suspension, plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent having discriminatorily discharged its employee, it
should be ordered to offer him reinstatement and to make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of discharge to the date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, supra.
As part of the remedy in this case the General Counsel seeks
an order requiring Respondent to reimburse Garcia “for any
extra federal and/or state income taxes that would or may result
from a lump-sum backpay award.” (GC Exh. 1vv at 4.) The
General Counsel did not provide any supporting authorities for
this request. The Board has addressed identical requests in
recent cases, noting that granting such relief would require a
change in Board law, and declining to order such a change
absent full briefing of the issue by the affected parties. For
example, see: Ishikawa Gasket America, Inc., 337 NLRB 175
(2001). In light of the Board’s refusal to consider the proposed
change in law absent full briefing, I do not recommend this
proposed relief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD746
Both the General Counsel and the Union have requested that
the Hospital be ordered to post an appropriate notice in both
English and Spanish. Since all of the witnesses at trial indi-
cated that Spanish was their primary language, this is appropri-
ate and I recommend that it be done. See: Amber Foods, Inc.,
338 NLRB 712 at fn. 2 (2002).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
ORDER
The Respondent, Hospital Cristo Redentor, Inc., of
Guayama, Puerto Rico, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating Carlos Garcia or any other of its
employees regarding their union sympathies or participation in
protected, concerted activities.
(b) Threatening Carlos Garcia or any other of its employees
with loss of promotional opportunities or imposition of disci-
plinary sanctions for engaging in protected, concerted activities.
(c) Suspending or discharging Carlos Garcia or any other of
its employees due to their union sympathies or participation in
protected, concerted activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, offer Carlos
Garcia full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Carlos Garcia whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.

47 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge
of Carlos Garcia, and within 3 days thereafter notify Carlos
Garcia in writing that this has been done and that the suspen-
sion and discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, 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.
(e) Within 14 days after service by the Region, post in both
English and Spanish at its facility in Guayama, Puerto Rico
copies of the attached notices marked “Appendix.”48 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 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 con-
spicuous 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 employ-
ees employed by the Respondent at any time since May 11,
2001.
(f) 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.

48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”