Hospital Pavia Perea

National Labor Relations Board - Administrative Judge Opinions

Apr 30, 2007

24-CA-010505 (N.L.R.B. Apr. 30, 2007)

JD(ATL)—10—07
Mayaguez, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
METRO MAYAGUEZ, INC., d/b/a
HOSPITAL PAVIA PEREA
and CASE 24-CA-10505
UNIDAD LABORAL DE ENFERMERAS
(OS) Y EMPLEADOS DE LA SALUD
Ayesha K. Villegas Estrada, Esq., Counsel
for General Counsel.1
Harold Hopkins, Jr., Esq., Counsel for the
Charging Party.2
Jose R. Gonzales-Nogueras, Esq., and
Kayra D. Montanez-Laboy,Esq., Counsel
for the Respondent.3
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This case involves alleged
unilateral charges in the terms and conditions of employment of employees in appropriate
bargaining units, without prior notice to the employees’ collective bargaining representative
and without affording the bargaining representative an opportunity to bargain with respect to
this conduct and the effect of this conduct. The case also involves an allegation of
interference with employees rights regarding the promulgation and maintaining of an overly
broad no solicitation and no distribution rule. This case originates from a charge filed on
October 31, and amended on December 21, 2006, by Unidad Laboral De Enfermeras (OS) Y
Empleados De La Salud (Union). The prosecution of this case was formalized on December
29, 2006, when the Regional Director for Region 24 of the National Labor Relations Board
(Board), acting in the name of the Board’s General Counsel, issued a Complaint and Notice of
Hearing (complaint) against Metro Mayaguez, Inc. d/b/a Hospital Pavia Perea (Hospital).

1 I shall refer to Counsel for General Counsel as Government Counsel and Government.
2 I shall refer to Counsel for Charging Party as Union Counsel and Union.
3 I shall refer to Counsel for the Respondent as Counsel for the Hospital and Hospital.
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Specifically it is alleged the Hospital is, and has been since August 11, 2006, the
successor to Pavia Health, Inc. d/b/a Hospital Pavia Perea (Pavia). It is alleged that from at
least August 12, 2003, until about August 11, 2006, the Union had been the exclusive
bargaining representative of employees in three appropriate bargaining units (Units) and had
been recognized as such by Pavia. It is also alleged this recognition has been embodied in
successive collective bargaining arguments, the most recent was by its terms effective from
August 12, 2003, to May 31, 2006. It is alleged that the Union, since about August 11, 2006,
has been the designated exclusive bargaining representative of the Units. It is alleged that
since on/or about August 11, 2006, the Hospital, promulgated and since that time has
maintained an overly broad no solicitation and no distribution rule. Finally it is alleged that
since about August 11, 2006, the Hospital made changes in the terms and conditions of
employment of its employees in the Units which changes are mandatory subjects of
bargaining and that the Hospital did so without prior notice to the Union and without
affording the Union an opportunity to bargain with the Hospital with respect to the changes
and the effects of such changes. The conditions of employment alleged to have been changed
relate to sick leave days, vacations, funeral leave, uniform incentives, college membership
payment, perfect assistance (attendance) bonus, salary, retirement plan and progressive
disciplinary proceedings. It is alleged the actions of the Hospital violate Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended, (Act).
The parties were given full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. I have studied the whole record,
considered the briefs, and the authorities therein.
As more fully explained hereinafter, I find the Hospital violated the Act essentially as
alleged in the complaint.
Findings of Fact
I. Jurisdiction, Successor Status, Labor
Organization Status and Supervisor/Agent Status
The Hospital is a Commonwealth of Puerto Rico corporation with an office and place
of business located in Mayaguez, Puerto Rico, where it is, and has been, engaged in the
operation of a hospital providing medical, surgical and related health care services to the
general public. Based on its operations starting about August 11, 2006, at which time it
commenced its operations, the Hospital in conducting its operations will annually purchase
and receive at its Mayaguez, Puerto Rico facility, goods valued in excess of $50,000 directly
from points outside the Commonwealth of Puerto Rico. The evidence establishes, the parties
admit, stipulate and I find, the Hospital is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act, and is, and has been, a health care institution
within the meaning of Section 2(14) of the Act.
The parties stipulated to the following facts regarding the successor employer status of
the Hospital. On August 11, 2006, the Hospital purchased the assets of Pavia and has since
August 12, 2006, operated the hospital and employed a majority of the employees who were
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previously employees of Pavia in the units set forth hereinafter. On August 12, 2003, Pavia
and the Union executed three collective bargaining agreements, one for each of the units set
forth hereinafter. All three of the agreements were effective from June 1, 2003, to May 31,
2006. There was, however, no collective bargaining agreement in effect between Pavia and
the Union on August 11, 2006. The Hospital assumed control and began operations of Pavia
on August 12, 2006. Before the Hospital assumed control and began operations on August
12, 2006, it did not inform employees of its intention to set initial terms and conditions of
employment. Also before the Hospital assumed control and began operations on August 12,
2006, employees of Pavia were not required to file a job application for the Hospital, nor were
they made an offer of employment or told they had to apply for employment with the
Hospital. They were not interviewed in order to be hired by the Hospital. On August 17,
2006, the Union requested in writing that the Hospital meet and bargain with the Union. The
Hospital for the first time responded to the Union, in writing, on August 29, 2006, in which it
recognized the Union as the exclusive bargaining representative of the employees in the units
hereinafter described but stated it did not agree to the terms of any prior collective-bargaining
agreements between the previous employer and the Union. The Hospital indicated in its
August 29, letter it would establish initial terms and conditions of employment for the
employees in the units described hereinafter.
The parties stipulated, and I find, the Hospital is a successor to Pavia; however, the
issue of whether the Hospital is a “perfectly clear” successor employer is addressed elsewhere
herein.
The parties stipulated, the evidence establishes, and I find, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Executive Director Jaime Maestre (Executive Director Maestre) and Human
Resources Director Joannie Hernandez (HR Director Hernandez) are supervisors and agents
of the Hospital within the meaning of Section 2(11) and (13) of the Act, and I so find.
II. The Appropriate Bargaining Units
It is admitted, and I find, that since about August 11, 2006, the Union has been the
designated exclusive bargaining representative of the Hospital employees in the units as
specifically described below.
A. Graduate (Registered) Nurses
The parties stipulated that the following employees of the Hospital, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act, and I so find:
INCLUDED: All licensed graduate nurses employed by the Employer at its
hospital located at Mayaguez, Puerto Rico.
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EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, accountants, guards, professional personnel, supervisors,
nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy
technicians, central supply technicians as defined in the Puerto Rico Labor
Relations Act.
B. Licensed Practical Nurses
The parties stipulated that the following employees of the Hospital, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act, and I so find:
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray
technicians, including respiratory technicians, operating room technicians,
laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries,
registered nurses, accountants, guards, professional personnel, and supervisors, as
defined in the Puerto Rico Labor Relations Act.
C. Laundry, Maintenance and Non-skilled Employees
The parties stipulated that the following employees of the Hospital, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act, and I so find:
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and
housekeeping employees, cooks, diet department employees, and non professional
employees, including plumber, mason, electrician, handyman and refrigeration
technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, graduated nurses, accountants, guards, professional
personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians,
respiratory therapy technicians, central supply technicians as defined in the Puerto
Rico Labor Relations Act.
III. Alleged Unfair Labor Practices
A. No Solicitation and No Distribution Policy
It is alleged at paragraph 9 of the complaint that since about August 11, 2006, the
Hospital, promulgated, and since then has maintained, an overly broad no solicitation and no
distribution rule.
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1. Facts
As noted elsewhere herein when the Hospital assumed control and began operations
on August 12, 2006, it did not inform employees of its intention to set initial terms and
conditions of employment. The Hospital in a Memorandum dated September 11, 2006,
notified all employees effective that day it had established a “No solicitation and No
Distribution” policy. A copy of the policy was attached to the Memorandum. The
Memorandum was the only notice the Hospital provided to either the Union or employees
regarding the policy.
The parties stipulated that Human Resources Director Hernandez would testify
regarding the Hospital’s no solicitation and no distribution policy in part as follows:
This policy was instituted to insure the best possible service to our patients and
visitors in an atmosphere of professionalism and seriousness without any
interruption to the Hospital’s operations. In addition, the policy seeks to eliminate
traffic of persons in areas where they could have access to confidential
information, which must be protected by the Hospital according to Federal and
Puerto Rico law. This policy has been enforced even handedly without any
discrimination whatsoever.
The Hospital’s policy follows:
POLICY OF NO SOLICITATION AND NO DISTRIBUTION
OF HOSPITAL PEREA
Purpose
It is the goal of the Hospital Perea to provide and maintain an atmosphere
leading to efficient work that promotes the continuous development of the skills
of their associates free of unnecessary distractions, at the same time that maintains
the highest standards in the quality of service to the patient. Furthermore, it is in
the interest of Hospital Perea to promote efficiency while order and security is
maintained to achieve providing the best work environment. For said reasons, the
following regulations apply to the solicitation and/or distribution of any kind in
the Hospital Perea facilities.
Procedure
Non-Associates
Persons that are not associates of Hospital Perea cannot solicit or
distribute any literature for any purpose in the facilities of Hospital Perea,
including its parking areas. Without it being understood as a limitation, soliciting
money is specifically prohibited, sales that are not part of the services rendered by
Hospital Perea, solicit contributions or donations, take public opinion surveys,
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commercials or policies of any other nature, distribute leaflets, advertising or
promotional material of any kind, except when the administration of Hospital
Perea has given their written authorization for it and subject to the limitations that
are imposed.
Associates
1. No associate can solicit or distribute any literature for any purpose during
working hours. Working hours include any period during which the
associate that incurs the prohibited conduct is or should be in the facilities
of Hospital Perea performing their duties or (b) the associate to who said
conduct is directed, is or should be in the facilities of Hospital Perea
performing their duties. Lunch breaks are not working hours.
2. No associate can solicit or distribute any literature for any purpose in the
areas of the facilities of the Hospital Perea where they have or could have
access and/or there is traffic of patients, family members, visitors,
suppliers, contractors and/or the general public. The facilities of Hospital
Perea include and are not limited to parking, Hospital, warehouses, work
areas, clinic areas, reception, hallways, pharmacy and offices.
3. No associate can solicit or distribute any literature for the any purpose in
the work areas. Work areas include all those areas of work. Work areas
include all those areas in the facilities of the Hospital Perea where
associates perform their work. This policy does not apply to sales,
collections, solicitation or distribution of materials on behalf or through
Hospital Perea. Any doubt or question should be directed to Mrs. Joannie
Hernandez, Director of Human Resources.
2. Guiding Principles, Analysis and Conclusions
The Board’s rules and presumptions regarding limitations or restrictions by hospitals
on solicitation and distribution by its employees is different from that which the Board
generally applies to other types of employers. A unanimous Board in St. John’s Hospital and
School of Nursing, Inc., 222 NLRB 1150 (1876) concluded that special characteristics of
hospitals justify a rule different from that which it generally applies to other employers. The
justification, as stated by the Board, rests on the need by hospitals to avoid disrupting of
patient care and disturbance of patients in hospital settings. In St. John’s Hospital, supra, the
Board stated:
We recognize that the primary function of a hospital is patient care and
that a tranquil atmosphere is essential to the carrying out of that function. In order
to provide this atmosphere, hospitals may be justified in imposing somewhat more
stringent prohibitions on solicitation than are generally permitted. For example, a
hospital may be warranted in prohibiting solicitation even on nonworking time in
strictly patient care areas, such as the patients’ rooms, operating rooms, and
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places where patients receive treatment, such as x-ray and therapy areas.
Solicitation at any time in those areas might be unsettling to the patients-
particularly those who are seriously ill and thus need quiet and peace of mind.
Consequently, banning solicitation on nonworking time in such areas as described
above would seem justified in hospitals and to the extent that Respondent’s rule
prohibits such activity in those areas it is valid.
The Board’s holding that prohibiting solicitation in immediate patient-care areas was justified
but that prohibition in areas other than immediate care areas, absent a showing that disruption
to patient care would necessarily result if solicitation and distribution were permitted, was
unjustified and unlawful was upheld by the Supreme Court in Beth Israel Hospital v. NLRB
437 U.S. 483 (1978). The Supreme Court in Beth Israel Hospital, supra, inferred Congress
intended for the Board to appropriately balance the interests between hospital employees,
patients, and employers related to solicitation and distribution. The Supreme Court noted,
“The function of striking that balance to effectuate national labor policy is often a difficult
and delicate responsibility, which the Congress committed primarily to the National Labor
Relations Board, subject to limited judicial review” qoting NLRB v. Teamsters Local 449, 353
U.S. 87, 96 (1957). The Supreme Court in Beth Israel Hospital, supra, affirmed the Board’s
order requiring the hospital to rescind its prohibition against solicitation in the hospital’s
cafeteria and coffee shop because the hospital failed to justify the prohibitions as necessary to
avoid disruption of its operations or disturbance of its patients. In Beth Israel Hospital, supra,
the Supreme Court concluded;
We therefore hold that the Board’s general approach of requiring health-care
facilities to permit employee solicitation and distribution during nonworking time
in non-working areas, where the facility has not justified the prohibitions as
necessary to avoid disruption of healthcare operations or disturbance of patients,
is consistent with the Act. We hold further that, with respect to the application of
that principle to petitioner’s cafeteria, the Board was appropriately sensitive to the
importance of petitioner’s interest in maintaining a tranquil environment for
patients.
The Supreme Court in Baptist Hospital, Inc., 442 U.S. 773 (1979) noted the Board had
never published a more definite list of “immediate patient-care areas” than set forth in St.
John’s Hospital & School of Nursing, Inc. (supra) which included patients’ rooms, operating
rooms, and places where patients received treatment, such as x-ray and therapy areas. The
Supreme Court also noted in Baptist Hospital, Inc. that it appeared that the Board in that case
assumed the validity of prohibitions on solicitation only in those limited areas, treating any
broader ban as presumptively invalid. The Supreme Court noted that the Board’s
presumption did nothing more than place on the hospital therein the burden of proving, with
respect to areas to which it applies, that union solicitation may adversely affect patients. The
Supreme Court found the hospital met its burden with respect to its ban on solicitation and
distribution in the corridors and setting rooms adjoining or accessible to patients’ rooms and
treatment rooms. The Court noted that small public rooms or sitting areas on the patient-care
floors, as well as corridors themselves provide places for patients to visit family and friends,
as well as for doctors to confer with patient’s families often during crisis times. The Court
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noted there was nothing in the evidence for doubting the testimony of hospital officials that
union solicitation in the presence or within the hearing of patients may have adverse effects
on their recovery. The Court noted the importance of a hospital’s interest in protecting
patients from disturbance. The Supreme Court in Baptists Hospital, Inc.; however concluded,
notwithstanding the absence of any direct evidence contradicting the importance of a tranquil
hospital atmosphere to successful patient care, that a total ban on solicitation or distribution
was essential to patient case. Thus the Court affirmed the Board’s order insofar as it found a
ban on solicitation and literature distribution in the hospital’s first floor cafeteria, gift shop
and lobbies was unlawful.
The Board in Brockton Hospital, 333 NLRB 1367 (2001) found a violation of the Act
where the hospital therein prohibited the distribution of union literature in a vestibule adjacent
to its front lobby. The Board in Brockton Hospital noted:
We adhere to the Board’s established precedent. Under that precedent, a
hospital’s prohibition of solicitation or distribution of literature in immediate
patient care areas, even during employees’ nonworking time, is presumptively
lawful. Restrictions on solicitation, during non-working time, or distribution of
literature, during non-working time and in nonworking areas, however, are
presumptively unlawful even with respect to areas that may be accessible to
patients. The Supreme Court has upheld these presumptions as consistent with
the Act, and we find no support in the record of this case for departing from these
well-settled principles.
Although the Hospital’s rule herein speaks in terms of “working hours” the
descriptions provided thereafter, to include the notification that lunch breaks are not included,
appears to bring that term more closely in line with the more acceptable term “working time.”
It is also true, as asserted by the Hospital, that it can lawfully prohibit solicitation and
distribution on its premises without further justification so long as it is in immediate patient
care areas; however, such prohibition applies only to patient rooms, operating rooms and
places where patients receive treatment such as X-ray and therapy. The Hospital’s rule herein
far exceeds acceptable limitations. The rule, for example, forbids solicitation and distribution
in “the areas of the facilities” at the Hospital, as well as any place where patients, family
members, visitors, suppliers, contractors or the general public “could have access.” The
Hospital’s rule prohibits solicitation and distribution specifically in, but not limited to, its
parking facilities, warehouses, reception areas, hallways, pharmacy facilities and offices. The
Hospital’s justification for its far-reaching prohibitions, namely, that it was necessary to
insure the best possible service to its patients and visitors and to display an atmosphere of
professionalism, fails to rebut the Board’s presumption that essential patient care would
require such broad prohibitions. For example, the Hospital has failed to show any
justification for its prohibition on solicitation and/or distribution in its parking facilities,
warehouses, reception areas or in its pharmacy. Likewise, the Hospital’s blanket prohibition
regarding solicitation and distribution, without justification, in areas patients “could have
access to” constitutes an overly broad and unlawful policy. Simply stated the Hospital’s No
Solicitation and No Distribution policy is unlawfully broad.
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I reject the Hospital’s request that I reevaluate the Board’s policy of considering a ban
on places such as parking lots, warehouses, reception areas, pharmacies and offices as being
unlawful. Any request for such reevaluation should be directed to the Board as I am required
to follow and apply Board law.
B. Unilateral Changes to Terms and Conditions of Employment
It is alleged at paragraph 10 of the complaint that since August 11, 2006, the Hospital
made changes to the terms and conditions of employment of employees in the Units that are
mandatory subjects of collective bargaining without prior notice to the Union and without
affording the Union an opportunity to bargain with the Hospital about the conduct or the
effects of the conduct. The alleged changes include sick leave days, vacations, funeral leave,
uniform incentives, college membership payment, perfect assistance (attendance) bonus,
salary, retirement plan and progressive disciplinary proceeding.
Government counsel, at the conclusion of the Government’s case, stated she had no
evidence to suggest any unilateral changes with respect to funeral leave, college membership
payment or salary.
Counsel for the Union presented a witness that gave testimony with regard to salary
changes.
1. Facts
(a) Funeral Leave and College Membership Payment
Inasmuch as no evidence was presented to suggest any unilateral changes with respect
to funeral leave or college membership payment, I dismiss those allegations.
(b) Salary
The Government called no witnesses or presented any evidence regarding unilateral
changes in salary; however, as noted earlier, the Union called one witness related to salary
changes.
Operating Room Graduate Nurse Ferdinand Velez testified that in the past, pursuant to
the collective bargaining agreement, the employees were given an annual pay increase at an
amount called for in the collective bargaining agreement. Velez said that between September
and October 2006, Operating Room Supervisor Angela Gau told him she had met with the
operating room employees and noted Velez had not been present. According to Velez,
Supervisor Gau approached and “she told me come, I’m going to orient you regarding the
new changes that are going to take place” adding “she wanted to orient me.” Velez testified
Operating Room Supervisor Gau told him employees would be given an employment
evaluation on their employment anniversary with the Hospital and that salary increases would
be made in accordance with the evaluation. Velez acknowledged he had not yet been
evaluated pursuant to the policy he was told about by Supervisor Gau.
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No evidence was presented to dispute Velez’s account regarding salary increases. I
credit his testimony and find that management through Operating Room Supervisor Gau
announced a change in the method by which salary increases would be determined.
(c) Sick Leave Days
The parties stipulated that Pavia allowed employees to accumulate a maximum of 240
hours of sick leave. As of August 12, 2006, the Hospital provided each employee with a
maximum of 96 hours of sick leave. Since August 12, 2006, Hospital policy allows
employees to accumulate a maximum of 96 hours of sick leave per year but allows employees
to carry 120 hours over from year to year pursuant to Puerto Rico Law. These changes are
undisputed.
(d) Vacations and Holidays
Pavia liquidated all accrued vacation hours and the Christmas Bonus as of August 11,
2006.
On October 26, 2006, the Hospital, in a Memorandum to Management, listed 15
employee holidays for 2007. The Hospital’s holiday schedule did not include January 9,
Eugenio Maria de Hostos Day; March 22, Abolition Day; November 19, Discovery of Puerto
Rico Day; and, December 31, New Year’s Eve, which days were part of Pavia’s holiday
schedule. The Hospital’s schedule did, however, include October 12, Discovery of America
Day; November 23, the day after Thanksgiving; and, December 24, Christmas Eve which
were not part of Pavia’s holiday schedule.
Since August 2006, the Hospital has paid employees who work a holiday at a rate
equal to twice their hourly rate. Pavia did not pay employees who worked a holiday at a
double rate, but instead paid regular wage rates but allowed employees to accumulate a day
off to be taken at a later time when coordinated with management.
The parties stipulated that in order for an employee to receive the Hospital’s double
pay for a holiday the employee, if scheduled, must work the day before and the day after the
holiday.
The Hospital contends that Pavia’s prior policy was unlawful under Commonwealth of
Puerto Rico Laws.
The above changes are undisputed and self explanatory.
(e) Uniform Incentives
It is stipulated that since August 2006, the Hospital provides three uniforms yearly to
all employees that require the use of uniforms rather than paying a clothing allowance to its
employees.
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Pavia on the other hand provided licensed graduate nurses and licensed practical
nurses with a $320 yearly allowance for uniforms. Pavia also provided pharmacy aides,
escorts, x-ray technicians, respiratory therapy technicians, central supply technicians, laundry,
maintenance, non-skill, warehouse, parking, and housekeeping employees, cooks, diet
department employees, and non-professional employees, including, plumbing, mason,
electrician, handyman and refrigeration technicians with a $200 yearly allowance for
uniforms.
The change from providing uniform allowances to providing actual uniforms is
undisputed and self explanatory.
(f) Perfect Assistance Bonus4
Under Pavia the perfect assistance (attendance) bonus consisted of $90 monthly with
all bargaining unit employees eligible for the bonus.
Since about August 2006, the Hospital implemented a quarterly perfect assistance
(attendance) bonus that pays $225 for perfect assistance (attendance) during a three-month
period. Since August 2006, operating room technicians, radiology technicians, respiratory
therapy technicians, licensed graduate nurses and licensed practical nurses have been the only
employees eligible to participate in the perfect assistance (attendance) bonus.
Under Pavia, for the purposes of the perfect attendance bonus, an employee was
considered tardy if he/she arrived ten minutes past the hour of arrival. Since August 2006, for
purposes of the perfect attendance bonus, an employee is considered tardy if he/she arrives
seven minutes past the hour of arrival.
The Hospital announced, in a Memorandum dated January 29, 2007, that the quarterly
perfect assistance (attendance) bonus applied to all regular employees and at a rate of $270.
The undisputed changes show that the bonus of $90 determined on a monthly basis
was changed initially to $225 (later to $270) determined on a quarterly basis. The attendance
bonus was initially changed to apply only to certain select employees rather than all
employees and paid every three months rather than every month. The time for tardiness was
reduced by three minutes.
(g) Retirement Plan
Pavia’s 401(k) plan provided for a matching contribution of .50 cents for every dollar
that the employee designated under the plan up to a maximum of .03 percent of the
employees’ salary.

4 While the written stipulation of facts and complaint allegations make reference to “perfect assistance
bonus” it appears the parties use that term interchangeably with “perfect attendance.”
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Since about August 2006, the Hospital implemented a 401(k) plan which provides a
matching contribution of .25 for every dollar the employee designates under the plan up to
maximum of .06 percent of the employees’ salary.
These changes are undisputed.
(h) Progressive Disciplinary Proceedings5
On August 23, 2006, the Hospital in a written Memorandum “To All Personnel” from
HR Director Hernandez stated:
REGULATION OF PROGRESSIVE DISCIPLINE
Attached is the Progressive Disciplinary Regulation that will apply to all of our
employees from now on. You must sign the acknowledgement of receipt and
return it to your supervisor immediately.
It will be your responsibility to read this regulation and if you have any doubt,
you should consult with your supervisor immediately.
Thank you for your accustomed cooperation.
The twenty-two page Progressive Disciplinary Regulation attached to the August 23,
2006, Memorandum, indicated the regulations were necessary to establish a pattern of
conduct for the employees. The Hospital noted it did not desire to apply disciplinary
sanctions but it was enumerating offenses and sanctions that would result from violations of
its regulations. The Hospital noted; “[t]he violation on behalf of an associate [employee], of
any of the regulations contained in this Manual, will be a justified cause for disciplinary
action on behalf of the Hospital, including in some cases the suspension or discharge of the
associate.” The Hospital listed 78 “infractions” of its regulations and the specific discipline
for each infraction with some infractions resulting in discharge.
It is admitted the Hospital established these regulations on August 23, 2006.
2. Guiding Principles, Analysis and Conclusions
The Act, specifically Section 8(a)(5), requires an employer to bargain with its
employees’ collective bargaining representative in good faith regarding wages, hours and
other terms and conditions of employment. An employer must notify and bargain with its
employees’ collective bargaining representative before imposing changes in its employees
wages, hours, and other terms and conditions of employment. However, a successor
employer is ordinarily free to set initial terms on which it will hire the employees of a
predecessor. NLRB v. Burns Security Services, 406 U.S. 272 (1972). The Supreme Court in

5 It is alleged in the Complaint and Stipulation of Facts as “Progressive Disciplinary Proceedings or
Action” but it is captioned in the document as “Progressive Disciplinary Regulation” or “Regulation of
Progressive Discipline.
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Burns, supra, set forth an exception to the general rule that a successor employer may set
initial terms and conditions of employment unilaterally. The Supreme Court stated:
Although a successor employer is ordinarily free to set initial terms on
which it will hire the employees of a predecessor, there will be instances in which
it is perfectly clear that the new employer plans to retain all of the employees in
the unit and in which it will be appropriate to have him initially consult with the
employees’ bargaining representative before he fixes terms.
This exception is referred to as the “perfectly clear” Burns caveat. The Board interpreted the
“perfectly clear” language in Burns in Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd.
per curium, 529 F.2d 516 (4th Cir. 1975) where it stated:
We believe the caveat in Burns, therefore, should be restricted to circumstances in
which the new employer has either actively or, by tacit inference, misled
employees into believing they would all be retained without change in their
wages, hours, or conditions of employment, or at least to circumstances where the
new employer, unlike the Respondent here, has failed to clearly announce its
intent to establish a new set of conditions prior to inviting former employees to
accept employment.
It is undisputed and admitted that the Hospital is a successor employer to Pavia and, as
such, has a duty to recognize and bargain with the Union. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 42-46 (1987). Simply stated the Hospital purchased the assets of
Pavia on August 11, 2006, and starting on August 12, 2006, operated the same hospital at the
same location, with the same medical services and facilities without any hiatus in providing
its services to its customers with the same employees. Although the Hospital concedes it is a
successor employer and concedes (or at least does not dispute) that it made the changes in
question at the times indicated, but asserts it was free to do so because it was not a “perfectly
clear” successor within the meaning of Burns.
I am fully persuaded the undisputed facts in this case are sufficient to establish a
“perfectly clear” successorship pursuant to the Burns exception. The Hospital did not require
the employees of the predecessor to fill out job applications, nor were they offered
employment by the Hospital rather all they had to do was show, as usual, for work and they
continued to be employed without change to the terms and conditions of their employment.
The employees of the predecessor were not asked to apply for work nor were they even
interviewed before they continued their employment. Viewed from the employees’
perspective, it would seem to be perfectly clear that they were being employed without
change to the terms and conditions of their employment.
Likewise, the Hospital upon assuming control (August 11) of and beginning operation
(August 12) of the Hospital did not inform employees of any intentions on its part to set initial
terms and condition of employment. The Hospital announced no such intention until
approximately some 17 days later and its announcement even at that late time was vague.
JD(ATL)—10—07
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In summary, the facts herein are sufficient to establish that the incumbent employees
were actively led to believe, or at least misled by tacit inference into believing, that they
would be retained without change in their terms and conditions of employment.
Having found, as I do, that the Hospital is a “perfectly clear” successor I find the
changes it admittedly unilaterally made violated Section 8(a)(5) and (1) of the Act.
I specifically reject the Hospital’s contention that the Board’s traditional remedy of
restoring, upon request by the Union, pre-existing terms and conditions of employment
constitutes a punitive remedy. Any argument for change regarding established Board
remedies is best advanced to the Board.
Conclusions of Law
1. Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea, is a “perfectly clear”
successor to Pavia Health, Inc. d/b/a Hospital Pavia Perea.
2. Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea has been, and is, an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and
has been a health care institution within the meaning of Section 2(14) of the Act.
3. Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud is a labor
organization within the meaning of Section 2(5) of the Act.
4. The following units are appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
INCLUDED: All licensed graduate nurses employed by the Employer at its
hospital located at Mayaguez, Puerto Rico.
EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, accountants, guards, professional personnel, supervisors,
nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy
technicians, central supply technicians as defined in the Puerto Rico Labor
Relations Act.
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray
technicians, including respiratory technicians, operating room technicians,
laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries,
registered nurses, accountants, guards, professional personnel, and supervisors, as
defined in the Puerto Rico Labor Relations Act.
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and
housekeeping employees, cooks, diet department employees, and non professional
JD(ATL)—10—07
15
employees, including plumber, mason, electrician, handyman and refrigeration
technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, graduated nurses, accountants, guards, professional
personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians,
respiratory therapy technicians, central supply technicians as defined in the Puerto
Rico Labor Relations Act.
5. At all material times, the Union has been the exclusive representative of the
employees in the above-described appropriate units, for the purpose of collective bargaining
with respect to wages, rates of pay, hours of employment and other terms and conditions of
employment.
6. The Hospital violated Section 8(a)(1) of the Act by about August 2006,
promulgating and thereafter maintaining an overly broad no solicitation no distribution rule.
7. The Hospital violated Section 8(a)(5) and (1) of the Act by making changes to
the terms and conditions of employment of employees in the Units, described herein which
changes include sick leave days, vacations, uniform incentives, perfect assistance (attendance)
bonus, retirement plans and progressive disciplinary proceedings without prior notice to the
Union and without affording the Union an opportunity to bargain with the Hospital with
respect to this conduct and the effects of this conduct.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that the Hospital has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and take certain affirmative action designed to effectuate
the policies of the Act. Having found that the Hospital promulgated and maintained an
overly broad no solicitation and no distribution rule; I shall recommend the Hospital rescind
its no solicitation and no distribution policy and notify its unit employees in writing that it has
done so. Having found the Hospital unilaterally changed sick leave days, vacations, uniform
incentives, perfect assistance (attendance) bonus, salary, retirement plans and progressive
disciplinary proceedings of its unit employees, I shall recommend the Hospital cease and
desist from making unilateral changes in wages, hours, and other terms and conditions of
employment in the appropriate Units herein, and that the Hospital make whole said employees
for any loss of pay or other benefits they may have suffered as a result of the Hospital’s
unilateral changes. I shall also recommend that the Hospital, upon request of the Union,
rescind its unilateral changes including sick leave days, vacations, uniform incentives, perfect
assistance (attendance) bonus, salary, retirement plans and progressive disciplinary
procedures it put into effect on or about August 11, 2006, and continue in effect the terms and
conditions of employment in effect prior to August 2006, until such time as the Hospital
negotiates in good faith with the Union to an agreement or valid impasse.
JD(ATL)—10—07
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:
6
ORDER
The Respondent, Metro Mayaguez, inc., d/b/a Hospital Pavia Perea, it officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Maintaining an overly broad no solicitation and no distribution rule.
(b) Unilaterally, changing working conditions without prior notice to or
affording the Union an opportunity to bargain with respect to changes and the effects of such
changes specifically including changes to sick leave days, vacations, uniform incentives,
perfect assistance (attendance) bonus, salary, retirement plans and progressive disciplinary
proceedings.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Rescind its overly broad no solicitation and no distribution rule
established on September 11, 2006, and notify employees in the Units, in writing, that the
policy has been rescinded.
(b) Upon request of the Union, rescind the unilateral changes made to
terms and conditions of employment of employees in the units specifically with respect to
sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary,
retirement plans and progressive disciplinary proceedings and continue in effect the terms and
conditions of employment in effect prior to August 2006, until the Hospital negotiates in good
faith with the Union to agreement or valid impasse.
(c) Make whole the employees in the Units for any loss of pay or benefits
they may have suffered as a result of the above-described unilateral changes, in the manner
set forth in the Remedy section of this Decision.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)—10—07
17
by the Board or its agents, one copy of all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an electronic copy
of the 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 at its facility in
Mayaguez, Puerto Rico, copies of the attached notice marked “Appendix”7 in both English
and Spanish. Copies of the notice on forms provided by the Regional Director for Region 24
after being signed by the Hospital’s authorized representative, shall be posted by the Hospital
and maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the Hospital
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 Hospital has gone out of business or
closed the facility involved in these proceedings, the Hospital shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed
by the Hospital at any time since August 11, 2006.
(f) Within 21 days after service by the Region, file with the Regional
Director of Region 24, a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Hospital has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations not found.
Dated, Washington, D.C., April 30, 2007.
_________________________
William N. Cates
Associate Chief Judge

7 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read
"POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
JD(ATL)—10—07
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT unilaterally, without notice to or consultation with the Union, make
changes in the wages, hours, and other terms and conditions of employment, including
changes in sick leave days, vacations, uniform incentives, perfect assistance (attendance)
bonus, salary, retirement plans and progressive disciplinary proceedings for our employees in
the following Units:
INCLUDED: All licensed graduate nurses employed by the Employer at its
hospital located at Mayaguez, Puerto Rico.
EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, accountants, guards, professional personnel, supervisors,
nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy
technicians, central supply technicians as defined in the Puerto Rico Labor
Relations Act.
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray
technicians, including respiratory technicians, operating room technicians,
laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries,
registered nurses, accountants, guards, professional personnel, and supervisors, as
defined in the Puerto Rico Labor Relations Act.
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and
housekeeping employees, cooks, diet department employees, and non professional
employees, including plumber, mason, electrician, handyman and refrigeration
technicians employed by the Employer.
JD(ATL)—10—07
19
EXCLUDED: All other employees, including executives, executive secretaries,
licensed practical nurses, graduated nurses, accountants, guards, professional
personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians,
respiratory therapy technicians, central supply technicians as defined in the Puerto
Rico Labor Relations Act.
WE WILL NOT maintain an overly broad no solicitation and no distribution rule.
WE WILL rescind our no solicitation and no distribution rule promulgated on or
about September 11, 2006, and notify our employees in writing that we have done so.
WE WILL, upon request of the Union, rescind the unilateral changes in the terms and
conditions of employment we made on or about August 2006, in sick leave days, vacations,
uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans and
progressive disciplinary proceedings and WE WILL, upon request of the Union, restore the
terms and conditions of employment of our employees in the Units in effect prior to August
2006, until such time as we negotiate in good faith with the Union to agreement or to valid
impasse.
WE WILL make whole the employees in the Units for any loss of pay or other
benefits they may have suffered as a result of our unilateral changes outlined above.
METRO MAYAGUEZ, INC., D/B/A
HOSPITAL PAVIA PEREA
(Employer)
Dated: By:_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
525 F. D. Roosevelt Avenue, Suite 1002, San Juan, PR 00918-1002
(787) 766-5347, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (787) 766-5377
JD(ATL)—10—07
20