Jupiter Medical Center Pavilion

National Labor Relations Board - Board Decisions

Mar 13, 2006

346 N.L.R.B. 650 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 61
650
Jupiter Medical Center Pavilion and Service Employ-
ees International Union, 1199 Florida.1 Cases
12–CA–22478, 12–CA–22560, and 12–CA–22705
March 13, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 22, 2003, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply brief.
The National Labor Relations Board has considered
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and con-
clusions to the extent consistent with this Decision and
Order.3
Background
The Respondent is a nursing care facility. The Union
unsuccessfully attempted to organize the Respondent’s
employees in 1999 and 2002.4 The Respondent engaged
in certain conduct during and after the 2002 campaign
that is alleged to be unlawful.
For the reasons stated by the judge, we agree with his
findings that the Respondent lawfully instructed certified
nursing assistant (CNA) Dieuseul Mirtil to take off his
union button while he was working with a patient. For
the reasons explained below, we also agree with the
judge’s finding that the Respondent lawfully disciplined
CNA Paula Thimot on a number of occasions, but we
reverse his finding that the Respondent did not impliedly
threaten Thimot with discharge.5
Instruction to Remove Union Button
On September 5, 2002, CNA Miritil reported to work.
As a CNA, Mirtil often must physically handle the eld-
erly patients at the facility. On the date in question, Mir-

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 Counsel for the General Counsel has excepted to the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard language and substitute a corresponding notice to
employees.
4 All dates refer to 2002, unless stated otherwise.
5 In the absence of exceptions, we affirm the violations found by the
judge.
til wore on his uniform a pin which read: “LOCAL 1199
FLORIDA, SEIU STRONGER.” The button was square,
with sides measuring approximately 2-1/4 inches each.
While providing care to one of the Respondent’s elderly
patients, Mirtil was approached by Director of Nursing
Linda Nelson, who asked Mirtil to remove the pin. The
judge credited Nelson’s testimony that she told Mirtil
that she was concerned that the squared edges of the pin
could possibly tear the fragile skin of an elderly patient.6
Citing NLRB v. Baptist Hospital, Inc., 442 U.S. 773
(1979), the judge reasoned that a health care facility may
prohibit solicitations in patient care areas. Because CNA
Mirtil was in a patient’s room providing care at the time
he was instructed to remove his button, the judge found
that the Respondent acted lawfully. Additionally, al-
though not “totally convinced” that the button could
cause injury to a patient, the judge concluded that it was
not implausible, and, in any case, on issues involving
patient safety, it was better “to err on the side of cau-
tion.” Accordingly, the judge dismissed the allegation
pertaining to removal of the union button.
We agree with the judge’s dismissal of this allegation.
In the health care industry, rules prohibiting the wearing
of buttons in patient care areas are presumptively valid,
and a health care facility may prohibit the wearing of
buttons in areas where patients are treated. Beth Israel
Hospital v. NLRB, 437 U.S. 483, 507 (1978). We agree
with the judge that, in such circumstances, the Respon-
dent lawfully chose to put a premium on patient safety.
There is no evidence that the Respondent had tolerated
the wearing of other kinds of pins or buttons in patient
care areas, where the wearing of such insignia carries the
risk of endangering patients. More particularly, the Gen-
eral Counsel has not shown that the other employees
were wearing their buttons while physically handling a
patient. We recognize that edges of the pin may not be
sharp enough to injure a patient, even in such close
physical proximity. However, this does not diminish the
Respondent’s concern that this could occur. Given the
need for extraordinary care in physically dealing with
elderly patients, we would not fault the Respondent for
erring on the side of caution. We therefore adopt the
judge’s dismissal of this allegation.
Implied Threat of Discharge
The judge dismissed the allegation that the Respondent
impliedly threatened to discharge employee Jermaine

6 We do not rely on the judge’s secondary finding that Nelson’s re-
quest that Mirtil remove his button was justified under the Respon-
dent’s ban on “advertising.” Rather, we agree with the judge that Nel-
son’s primary concern was preventing injury to patients.
JUPITER MEDICAL CENTER PAVILION 651
(Paula) Thimot during a meeting with employees in late
September. We disagree.
The record establishes that Thimot was hired as a CNA
at the facility in February and became active in the Un-
ion’s second organizing campaign there. The Respon-
dent’s administrator, Jay Mikosch, and Director of Nurs-
ing Linda Nelson conducted a number of meetings with
employees for the purpose of presenting arguments
against union representation. After one such presentation
at a meeting held on September 26, Thimot commented
that the Respondent spent a lot of time and money trying
to find out who started the Union instead of figuring out
the problems. When Mikosch asked Thimot what the
problem was, she answered that the Respondent treated
employees “like shit.” Nelson replied that Thimot
“seem[ed] unhappy here,” and Thimot responded that
Nelson would be unhappy, too, if she had to work under
the same conditions. Thereafter, Nelson asked each of
the employees at the meeting how long they had worked
for the Respondent. After learning that Thimot was rela-
tively new, Nelson told Thimot, “Maybe this isn’t the
place for you . . . there are a lot of jobs out there.” Thi-
mot questioned whether that was the solution, and Nel-
son answered, “If you are unhappy here, and you seem to
be unhappy, then yes.” The judge found that the sugges-
tion that Thimot find other employment was ambiguous,
and dismissed the allegation.
The Board has long found that comparable statements
made either to union advocates or in the context of dis-
cussions about the union violate Section 8(a)(1) because
they imply that support for the union is incompatible
with continued employment. Rolligon Corp., 254 NLRB
22 (1981). Suggestions that employees who are dissatis-
fied with working conditions should leave rather than
engage in union activity in the hope of rectifying matters
coercively imply that employees who engage in such
activity risk being discharged.
Consistent with this precedent, we find that Nelson
impliedly threatened Thimot with discharge by suggest-
ing that she leave rather than engage in union activity.
Thimot was a vocal union supporter, and her complaints
about the treatment that employees received were raised
in a meeting of employees that the Respondent had
called, in part, to campaign against the Union. They fol-
lowed Thimot’s comment that management spent more
time and money on trying to find out who started the
organizing effort than on resolving employees concerns
that led to the effort. Nelson’s retort that the Respon-
dent’s facility may not be the place for Thimot and that
“there are a lot of jobs out there” suggested that disgrun-
tled employees should leave the Respondent’s employ
rather than bring in a union. The message was made
abundantly clear after Thimot asked if “that” (i.e., quit-
ting) was the answer and Nelson reiterated that it was if
Thimot was unhappy.
Thus, we do not agree with our dissenting colleague
that Nelson’s comments were unrelated to union activity.
The meeting itself was to discuss the union campaign,
and Thimot’s comments involved working conditions
which, in her opinion, motivated employees to seek un-
ion representation. Furthermore, we would not find that
other, more severe, unfair labor practices are required to
find a violation in this instance. In any event, the Re-
spondent has committed a number of other unfair labor
practices.7 Further, the fact that the Respondent may
have tolerated other discussions of the Union does not
legitimize the Respondent’s reactions to Nelson’s pro-
tected remark here. Under Board law, it is unlawful to
suggest that such remarks are inconsistent with continued
employment. Finally, Nelson made the remark in the
presence of a number of employees, thereby broadening
its impact. Accordingly, we find that the Respondent
violated Section 8(a)(1) by impliedly threatening to dis-
charge Thimot.
October 15 Discipline
We agree with the judge that the Respondent lawfully
disciplined Thimot on three occasions. Our reasons for
upholding the discipline imposed on October 15, how-
ever, differ from those of the judge.
Nelson issued Thimot an oral warning on September
26 for changing shifts without notifying a supervisor.
Nelson memorialized the oral warning on October 4, the
same day she issued Thimot a written warning for,
among other things, failing to turn bedridden patients and
leaving them in urine-soaked undergarments. On Octo-
ber 15, Nelson issued another written warning to Thi-
mot—this one for her part in confrontations with two
coworkers on October 6.
The judge found, and we agree, that Thimot was law-
fully disciplined for changing shifts without permission
and for deficient patient care. However, the judge mis-
takenly found that the warning for changing shifts was
given on October 4 and that for deficient care on October
15, rather than on September 26 and October 4, respec-
tively. The judge did not analyze the actual October 15
warning for the October 6 confrontations or discuss in
detail the conduct that led to that warning. Nonetheless,
we find, on the basis of the record evidence and the

7 In addition to the finding that the Respondent unlawfully threat-
ened employee Thimot for speaking out at an employee meeting, dis-
cussed below, the judge also found that the Respondent maintained an
unlawful no-solicitation rule and unlawfully prohibited employees from
discussing wage rates with employees other than their supervisor.
There were no exceptions to these latter findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
judge’s credibility determinations, that the October 15
warning did not violate Section 8(a)(1).
The October 6 confrontations took place 2 days after
the Union lost the October 4 election. The record estab-
lishes that during the evening shift, on a residential hall-
way of the facility, CNA Jean Edouard approached Thi-
mot and asked if she’d brought him something back from
her recent trip to New York. She answered, “No, just
like you voted in the election.” By her own admission,
Thimot told Edouard he was less than a man. The two
began yelling at each other. Edouard reported the inci-
dent to Nelson, and LPN Kathy Kainbach and Thimot
also submitted written reports of the incident to Nelson.
That same evening, according to the testimony of CNA
Margareth Torres, Thimot approached Torres and began
yelling at her about the election, threatening to spit in her
face for voting against the Union. Torres reported this
incident to Nelson, saying she feared Thimot. After in-
vestigating the two incidents, Nelson issued Thimot a
written warning on October 15 for threatening fellow
employees and using abusive language.
We recognize that there are conflicting versions of the
incident involving Thimot and Edouard and the incident
involving Thimot and Torres. However, both Edouard
and Torres reported their versions of the incidents to
Nelson, the director of nursing. It is clear that the Re-
spondent on October 15 was motivated by those reports.8
Since the reported activity was unprotected, the disci-
pline was lawful.
That the two October 6 confrontations occurred is not
in dispute. There is a dispute over who instigated the
confrontations and whether Thimot verbally abused and
threatened the other employees. Thimot denied doing so.
Based on his observations of Thimot’s testimony, how-
ever, the judge concluded that she was not a reliable wit-
ness. The judge stated, “[F]or example, while testifying
about an encounter she had with another employee, Thi-
mot depicted herself as calm and not raising her voice.
However, even during her testimony, when she described
this particular incident her voice became louder and more
strident.” Significantly, the judge was describing Thi-
mot’s demeanor when testifying about one of the Octo-
ber 6 confrontations. The judge further stated that in
other respects Thimot’s demeanor did not inspire confi-
dence in her testimony and, “to the extent it conflicts
with that of other witnesses, [he did] not credit it.”
We accept the judge’s finding, implicit in his discus-
sion of Thimot’s demeanor and credibility, that Thimot’s
version of the October 6 confrontations was not believ-

8 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir, 1981), cert. denied 455 U.S. 989 (1982).
able. As noted above, the judge found Thimot to be an
unreliable witness generally, and specifically with regard
to the October 6 confrontations. We, therefore, conclude
that, consistent with Torres’ testimony and contrary to
Thimot’s denials, Thimot verbally abused Edouard and
Torres and threatened Torres.
The dissent says that Thimot’s account of her confron-
tation with Edouard was uncontradicted by other testi-
mony. But that does not mean that it was credible. As
discussed, the judge found Thimot to be incredible. The
dissent also says that Thimot’s account of who started
the confrontation was corroborated by LPN Patrick
Leary. But even crediting Leary in this regard does not
undercut the testimony that Thimot verbally abused
Edouard and Torres and threatened Torres.
The issue, then, is whether the Respondent violated
Section 8(a)(3) by issuing a written warning to Thimot
based on that conduct.
We assume, from the Respondent’s knowledge of
Thimot’s union advocacy and its implied threat to dis-
charge her, that the General Counsel established that
animus toward Thimot’s union activities was a motivat-
ing factor in the Respondent’s decision to issue her a
written warning for her role in the October 6 confronta-
tions.9 We nevertheless find that the Respondent demon-
strated that it would have imposed the same discipline
even absent Thimot’s union activities.10
Nelson testified that she investigated the two confron-
tations and that she issued the warning because she con-
cluded that Thimot was the antagonist in each incident.
That conclusion is consistent with the judge’s explicit
discrediting of Thimot’s testimony that she did not raise
her voice during her encounter with Edouard. It is also
consistent with Torres’ testimony concerning her con-
frontation with Thimot. The record does not indicate
(and the General Counsel does not contend) that the Re-
spondent ever imposed less serious discipline, or no dis-
cipline, on any employee who had verbally abused or
threatened another employee. Thus, the credible evi-
dence establishes that Nelson had a valid reason to issue
Thimot a written warning, and we find that Nelson would
have done so irrespective of Thimot’s union advocacy.
Accordingly, we find that the Respondent did not violate
Section 8(a)(3) by issuing a written warning to Thimot
on October 15.

9 As noted in his partial dissent, Member Schaumber does not join
the majority in finding that the Respondent impliedly threatened to
discharge Thimot. He therefore does not rely on this incident as evi-
dence of animus. However, even assuming that animus was present, he
joins the majority in finding that the Respondent has proved it would
have disciplined Thimot even in the absence of her union activities.
10 Wright Line, supra.
JUPITER MEDICAL CENTER PAVILION 653
Our colleague would remand this case for further fact-
finding and credibility determinations. Our colleague
argues that the judge failed to make explicit credibility
findings with regard to the incidents for which Thimot
was disciplined. We disagree and do not find that re-
mand is necessary in this case. The issue was fully liti-
gated and, as discussed above, the judge made all of the
necessary credibility findings to support his conclusion
that no violation had occurred. Our dissenting colleague
contends that part of Thimot’s account of the events was
corroborated by another witness as it relates to one of the
exchanges between Thimot and employee Edouard.
However, as shown, that does not support reversing the
judge’s credibility determinations or compel a different
conclusion. As noted above, we disagree that employee
Leary’s account corroborated Thimot’s in critical re-
spects. And, even if it did as to the issue of instigation,
that testimony would not support a finding of a violation,
as his testimony goes only to one aspect of one of the
altercations at issue, and not to whether Thimot engaged
in the abusive confrontations for which she was warned.
ORDER
The National Labor Relations Board orders that the
Respondent, Jupiter Medical Center Pavilion, Jupiter,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing any rule
that prohibits employees from wearing union buttons or
other insignia in nonpatient care areas of the Respon-
dent’s facility.
(b) Promulgating, maintaining, or enforcing any rule
that prohibits employees from espousing union member-
ship but does not prohibit espousing views against union
membership.
(c) Enforcing any no-solicitation rule in a manner that
restricts the expression of opinions about union represen-
tation or membership to a greater extent than it restricts
the expression of opinions about any other subject.
(d) Promulgating, maintaining, or enforcing any rule
that prohibits employees from discussing their wage rates
or other terms and conditions of employment with other
employees.
(e) Impliedly threatening employees with discharge
because they support the Union.
(f) 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 the unlawful no-solicitation/no-distribution
rule described in paragraphs 1(a) and (b) above and the
unlawful wage discussion rule described in paragraph
1(d) above.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the
unlawful rules have been rescinded, or (2) provide the
language of lawful rules; or publish and distribute re-
vised handbooks that (1) do not contain the unlawful
rules, or (2) provide the language of lawful rules.
(c) Within 14 days after service by the Region, post at
its facility in Jupiter, Florida, copies of the attached no-
tice marked “Appendix B.”11 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 5, 2002.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
The majority errs in finding that the Respondent law-
fully disciplined union supporter Paula Thimot for her
role in two confrontations with coworkers. Because the
judge made no factual findings or explicit credibility
determinations concerning those episodes and did not
analyze the evidence in light of relevant law, and because
the record evidence arguably would support finding a
violation, we should remand that issue.
I.
The majority finds that the Respondent lawfully disci-
plined CNA Paula Thimot on October 15 for her role in
earlier confrontations with two other employees, even
though the judge made no factual findings or explicit
credibility determinations concerning those episodes.
The majority bases its finding on credibility resolutions

11 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
that it thinks the judge would have made if he had ana-
lyzed the testimony. A remand is more appropriate.
Thimot was hired in February 2002 and became an
outspoken union advocate. On September 26, at an em-
ployee meeting conducted by the Respondent as part of
its campaign against the Union, Director of Nursing
(DON) Linda Nelson impliedly threatened Thimot with
discharge for her union support, in violation of Section
8(a)(1).
Beginning later that day, and over the next several
days, Nelson lawfully disciplined Thimot for switching
shifts with another CNA without notifying a supervisor,
for serious deficiencies in patient care, and for tardiness.
On October 15, Nelson issued a written warning to Thi-
mot for her involvement in October 6 confrontations with
two antiunion CNAs, Jean Edouard and Margareth Tor-
res, about the Union. Thimot was the only employee
who was disciplined for the incidents.
The judge confused the dates of the various discipli-
nary actions and failed to address Thimot’s October 6
conduct, or the discipline resulting from it, at all. Thus,
he did not summarize the evidence concerning the Octo-
ber 6 confrontations, or analyze or make findings about
the October 15 discipline that ensued. He did find that
Thimot was not a generally believable witness and de-
clined to credit her testimony where it conflicted with
that of other witnesses.
II.
The majority seizes on the judge’s credibility determi-
nation to find, in effect, that whatever Thimot said, the
judge would have found the opposite to be true. It, there-
fore, finds that the Respondent lawfully warned Thimot
for verbally abusing the other two employees and threat-
ening Torres. But the judge’s credibility determination
cannot bear the weight assigned to it by the majority.
Even granting that Thimot may not have been a totally
reliable witness, the record here should prevent the ma-
jority from assuming that, had the judge properly exam-
ined the evidence, he would still have found no violation.
The evidence here at least arguably supports finding a
violation. Although the judge discredited Thimot’s tes-
timony where it conflicted with that of other witnesses,
Thimot’s account of her confrontation with Edouard is
uncontradicted by any other testimony. Moreover, it is
substantially corroborated by the evidence of LPN Pat-
rick Leary, who indicated that Edouard was the instigator
and that both employees were loud and angry.1 Further,
resolution of the issues presented here turns (or should
turn) in part on the credibility of Nelson and other wit-

1 Edouard did not testify, so Thimot’s testimony that Edouard used
abusive language toward her in unrebutted.
nesses to the October 6 events. Depending on his credi-
bility determinations, the judge might have found signifi-
cance in the Respondent’s having asked Torres—but not
Thimot—to provide a description of their confrontation,
or in the fact that of the three CNAs involved in the al-
tercations, the only one disciplined was Thimot, the sole
union supporter.
III.
The majority acknowledges “that there are conflicting
versions” of the incidents for which Thimot was disci-
plined, but asserts that “[i]t is clear that the Respondent
was motivated by [the] reports” received from Thimot’s
coworkers and that “the reported activity was unpro-
tected.” Thus, on the majority’s view, “the discipline
was lawful.”2 Given the unlawful threat directed against
Thimot herself, the Respondent’s unfair labor practices
demonstrating antiunion animus, the Respondent’s fail-
ure to seek Thimot’s version of the incident with Torres,
and the fact that only Thimot, the sole union supporter
involved in the altercations, was disciplined, I cannot say
that Respondent’s motive was so “clear” that further fact-
finding is unnecessary.
Accordingly, I would remand the case to the judge to
fully consider the facts, evidence, and law with respect to
Thimot’s October 15 discipline.
MEMBER SCHAUMBER, dissenting in part.
Contrary to my colleagues, I would adopt the judge’s
finding that the Respondent did not threaten to discharge
Paula Thimot at an employee meeting in late September,
2002. I agree with the judge that Director of Nursing
Linda Nelson’s comments were at best ambiguous, and,
given the surrounding circumstances, not violative of the
Act. I do not share my colleagues’ view that the purpose
of the meeting at which the remarks were made deter-
mines the meaning of the remarks. Rather, we must ex-
amine the immediate context surrounding the statements.
Nelson’s statement that “maybe this isn’t the place for
you” was not in direct response to Thimot’s prounion
statements, but rather, occurred after Nelson had inquired
how long Thimot had worked for the Respondent, and
compared her tenure to that of other, presumably happier,
employees.
While it is true that the Board has found some similar
statements to be violative, in those cases the statements
directly referenced union activity and occurred in a con-
text of other severe unfair labor practices, a situation not
present here. See, e.g., Equipment Trucking Co., 336
NLRB 277, 283 (2001).

2 The General Counsel does not contend that Thimot’s conduct was
protected. Thus, the issue of the protected, concerted nature of her
activity is not before the Board.
JUPITER MEDICAL CENTER PAVILION 655
Not only did Nelson’s remark not occur in a context of
other severe unfair labor practices; the evidence indicates
that the Respondent tolerated open and vigorous discus-
sion and support of the Union among its employees. For
example, Thimot herself was a vocal union advocate who
was permitted to freely express her views, including in
the very meeting at which Nelson’s allegedly violative
remarks occurred. Thimot never experienced retaliation
from the Respondent for her prounion views. Other em-
ployees were also freely permitted to express their views
on the Union, including prounion employee Mirtil.
Given the totality of the circumstances, I cannot find
that Nelson’s ambiguous statements could reasonably be
interpreted as threats. I, therefore, dissent and would
adopt the judge’s findings on this matter.
APPENDIX B
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOTpromulgate, maintain, or enforce any rule
that prohibits you from wearing union buttons or other
insignia in nonpatient care areas of our facility.
WE WILL NOT promulgate, maintain, or enforce any
rule that prohibits you from espousing union membership
but does not prohibit espousing views against union
membership.
WE WILL NOT enforce any no-solicitation rule in a
manner that restricts your expression of opinions about
union representation or membership to a greater extent
than it restricts your expression of opinions about any
other subject.
WE WILL NOT promulgate, maintain, or enforce any
rule that prohibits you from discussing your wage rates
or other terms and conditions of employment with other
employees.
WE WILL NOT impliedly threaten you with discharge
because you support the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful no-solicitation/no-
distribution rule and the unlawful rule prohibiting discus-
sions of wage rates and other terms and conditions of
employment contained in the employee handbook.
WE WILL supply all of you with inserts for the current
employee handbook that (1) advise you that the unlawful
no-solicitation/no-distribution rule and the unlawful rule
prohibiting discussions of wage rates and other terms and
conditions of employment have been rescinded or (2)
provide the language of lawful rules; or WE WILL publish
and distribute revised handbooks that (1) do not contain
the unlawful rules or (2) provide the language of lawful
rules.
JUPITER MEDICAL CENTER PAVILION
Shelley Plass, Esq. for the General Counsel.
Robert L. Norton, Esq. (Allen, Norton & Blue), of Coral Ga-
bles, Florida, for the Respondent.
Carnell Harrison, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on August 18 and 19, 2003, in Miami, Florida. On August
21, 2003, I heard oral argument, and also on August 21, 2003, I
issued a bench decision pursuant to Section 102.35(a)(1) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
as “Appendix A,” the portion of the transcript containing this
decision.1 The conclusions of law, remedy, Order, and notice
provisions are set forth below.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be ordered to cease and
desist engaging in such unfair labor practices and to take cer-
tain affirmative action designed to effectuate the policies of the
Act, including posting the notice to employees attached as Ap-
pendix B.
Additionally, Respondent should be ordered to rescind the
unlawful no-solicitation rule and the unlawful rule prohibiting

1 The bench decision appears in uncorrected form at pp. 454 through
470 of the transcript [omitted from publication]. The final version,
after correction of oral and transcriptional errors, is attached as app. A
to this certification. Corrections include a clarification of my finding
that Respondent’s no-solicitation rule violated Sec. 8(a)(1) of the Act.
Because the rule fails to distinguish between patient care areas and
nonpatient care areas, and because its literal wording would bar advo-
cating but not opposing unionization, I conclude that it is violative on
its face. Additionally, I conclude that Respondent applied the rule in a
discriminatory manner by allowing the wearing of buttons advocating
some causes but not the wearing of buttons supporting the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
employees from discussing their wages and to delete these
unlawful rules from its employee manual and any other an-
nouncements or summaries of its rules and policies which it
provides to employees.
CONCLUSIONS OF LAW
1. Respondent, Jupiter Medical Center Pavilion, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Thr Charging Party, Service Employees International Un-
ion, 1199 Florida, AFL–CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by prom-
ulgating and maintaining a no-solicitation rule that (a) prohib-
ited employees from advocating representation by or member-
ship in a labor organization but did not prohibit employees
from expressing opposition to union representation or member-
ship; and (b) effectively prohibited employees from wearing
buttons and other insignia expressing their views concerning
the Union in nonpatient care areas of the facility.
4. Respondent violated Section 8(a)(1) of the Act by apply-
ing the no-solicitation rule described in paragraph 3, above, in a
disparate manner by allowing employees to wear buttons advo-
cating some causes but not informing employees that they
could wear buttons espousing union representation and mem-
bership.
5. Respondent violated Section 8(a)(1) of the Act by prom-
ulgating and maintaining a rule which prohibited employees
from discussing “their wages and rates with employees other
than supervisor or Human Resources Department.”
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
7. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.
[Recommended Order omitted from publication.]
APPENDIX A
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find
that Respondent violated Section 8(a)(1) but not 8(a)(3) of the
Act.
Procedural History
This case began on September 6, 2002, when the Charging
Party, Service Employees International Union, 1199 Florida,
AFL–CIO, CLC (which I will call the “Union”) filed its initial
unfair labor practice charge in Case 12–CA–22478. The Union
later amended this charge.
On October 15, 2002, the Union filed an unfair labor practice
charge in Case 12–CA–22560, and later amended this charge.
On December 20, 2002, the Union filed an unfair labor practice
charge in Case 12–CA–22705.
After an investigation, the Regional Director for Region 12
of the National Labor Relations Board issued an Order Con-
solidating Cases, Consolidated Complaint and Notice of Hear-
ing on January 31, 2003. The Regional Director issued an Or-
der Further Consolidating Cases, Consolidated Complaint and
Notice of Hearing on February 26, 2003. I will refer to this
latter pleading simply as the “Complaint.” In issuing the Com-
plaint, the Regional Director acted on behalf of the General
Counsel of the Board, whom I will refer to as the “General
Counsel” or as the “government.”
Respondent filed a timely Answer to the Complaint.
On August 18, 2003, a hearing in this matter opened before
me in Miami, Florida. The parties presented evidence on Au-
gust 18 and 19, 2003. On August 21, 2003, counsel presented
oral argument. Also on August 21, 2003, after a recess to con-
sider the evidence and the parties’ arguments, I am issuing this
bench decision.
Admitted Allegations
Based on the admissions in Respondent’s Answer and its
stipulations during the hearing, I find that the government has
proven the allegations raised by Complaint paragraphs 1(a)
through 1(e), 2(a) through 2(c), 3, and 4. More specifically, I
find that the government has established the filing and service
of the unfair labor practice charges, as alleged.
Further, I find that Respondent is a Florida corporation oper-
ating a nursing home in Jupiter, Florida and that at all times
material to this case, it has been an employer engaged in com-
merce within the meaning of Sections 2(2), (6) and (7) of the
Act. Therefore, it is appropriate for the Board to assert jurisdic-
tion. I also find that at all material times, the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
Additionally, I find that at all material times, Administrator
Jay Mikosch and Director of Nursing Linda Nelson have been
Respondent’s supervisors and agents within the meaning of
Sections 2(11) and 2(13) of the Act, respectively.
Complaint paragraph 7(a) alleges that on or about October 4,
2002, Respondent issued verbal and written discipline to Jer-
maine Paula Thimot. Respondent’s Answer admits that it is-
sued a written reprimand to Thimot on that date. I so find.
Additionally, Respondent’s Answer admits the allegations
raised in Complaint paragraph 7(b). Based on that admission, I
find that on or about October 15, 2002, Respondent issued writ-
ten discipline to Jermaine Paula Thimot.
Respondent has denied other allegations raised by the Com-
plaint. I now turn to those controverted issues.
Disputed Allegations
On October 4, 2002, the Board conducted a representation
election at Respondent’s facility in Jupiter, Florida. The Union
lost that election. The representation case has not been con-
solidated into this proceeding and therefore is not before me.
However, facts about the Union’s organizing campaign are
relevant to the unfair labor practice allegations raised by the
Complaint.
Complaint Paragraph 5(a)
Complaint paragraph 5(a) alleges that on or about September
5, 2002, Director of Nursing Linda Nelson directed employees
to remove their Union buttons. Complaint paragraph 8 alleges
that Respondent thereby violated Section 8(a)(1) of the Act.
JUPITER MEDICAL CENTER PAVILION 657
Dieuseul Mirtil works for Respondent as a certified nursing
assistant, or “CNA.” He supported the Union in its organizing
campaign and served as its observer during the election.
While at work on September 5, 2002, Mirtil wore a Union
button on his uniform. The square button, about 2-1/4 inches
on a side, stated:
LOCAL 1199 Florida
SEIU Stronger
Mirtil was in a patient’s room providing care when Director
of Nursing Nelson called him outside and told him to remove
the button. According to Mirtil, he asked Nelson why, and
Nelson said because he was “advertising for another company.”
According to Mirtil, he replied that the button had nothing to do
with advertising, and Nelson answered that it might upset the
patient.
Director of Nursing Nelson admitted telling Mirtil to remove
the Union button on this occasion. However, she testified that
she gave Mirtil two reasons for this instruction. She character-
ized her primary concern as patient safety, explaining that one
of the square button’s corners could cut the thin, fragile skin of
an elderly patient.
Although Mirtil’s testimony does not directly and unequivo-
cally corroborate Nelson on this point, it also does not explic-
itly contradict her. Based on my observations of the witnesses,
I conclude that Nelson’s testimony is reliable and that she did
raise the patient safety issue with Mirtil on this occasion.
Nelson also testified that she gave Mirtil a second reason for
her instruction to remove the button. She told Mirtil that the
button was “advertising” because it had the name of something
other than the company on it. I conclude that Nelson was allud-
ing to the no-solicitation/no-distribution rule which Respondent
published in its employee handbook. That rule states, in part,
as follows:
Solicitation is defined as any act of urging or persuading of
individuals, by peaceful or other means, to accept a product or
service for sale, a doctrine to follow, or an organization to
join. An act of urging or persuading can be precipitated
through oral or written communication, or by the wearing of
any article which bears the name, insignia or other identifying
symbol of a product, service or organization.
No solicitation of, or by, employees is permitted on Jupiter
Medical Center premises during working time. No unauthor-
ized distribution of literature or other printed matter is permit-
ted in work areas on Medical Center premises. Any solicita-
tion and/or distribution of literature which may, in any way,
interfere with safety, patient care or effective operations is
prohibited.
Mirtil testified that he has seen other employees wear buttons
on their uniforms. These buttons display messages such as
“God Bless America” and “I Love Jesus.” According to Mirtil,
these buttons typically were smaller than the Union button
which Nelson asked him to remove, and employees wore these
smaller buttons on their identification badges.
Based on my observations of the witnesses, I credit Mirtil’s
testimony on this point, which is essentially uncontradicted.
Accordingly, I find that Respondent at least acquiesced in the
wearing of buttons with messages such as “God Bless Amer-
ica” and “I Love Jesus.”
Additionally, the record establishes that Respondent allowed
an employee to wear a larger button referring to a hospital,
Jupiter Medical Center, which is near the Respondent’s nursing
home. The button stated:
Jupiter Medical Center
#1
Preferred Hospital
The record suggests that Jupiter Medical Center and Re-
spondent’s facility—Jupiter Medical Center Pavilion—may
share common ownership. Even if true, that fact would not
affect my analysis of the issue raised by Complaint paragraph
5(a).
In general, a health care facility may prohibit solicitations in
patient care areas, including corridors and treatment rooms.
See NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979). For
this reason, and because Mirtil had been in a patient’s room and
providing care when Director of Nursing Nelson called him
aside and told him to remove the Union button, I conclude that
Nelson’s action was lawful.
Additionally, although I am not totally convinced by Re-
spondent’s argument concerning the possibility that the button
could cut a patient’s skin while the CNA was moving the pa-
tient, this argument is not totally implausible. Indeed, in issues
involving patient safety, it is better to err on the side of caution.
Therefore, I conclude that Respondent had the right to prohibit
Mirtil from wearing the button and recommend that the Board
not find that Respondent violated the Act as alleged in Com-
plaint paragraph 5(a).
This finding, however, does not mean that the more general
rule, appearing in the employee handbook, is lawful. This rule
prohibits solicitations on Respondent’s premises on working
time without distinguishing between patient care and nonpatient
care areas. The lawfulness, or unlawfulness of this rule will be
discussed further later in this decision.
Complaint Paragraph 5(b)
Complaint paragraph 5(b) alleges that in or around late Sep-
tember/early October 2002, on a date not more specifically
known, Respondent’s Director of Nursing Nelson impliedly
threatened employees with discharge because they assisted and
supported the Union. Complaint paragraph 8 alleges that Re-
spondent thereby violated Section 8(a)(1) of the Act.
During the union organizing campaign, Respondent con-
ducted a number of meetings of employees during which it
presented its arguments against the union. At one of those
meetings, employee Jermaine Paula Thimot, also known as
Paula Thimot, told management, in the presence of other em-
ployees, that management treated the employees “like shit.”
According to Thimot, Director of Nursing Nelson observed
“Paula, you seem to be unhappy here.” To that, Thimot replied
“You’d be unhappy, too if you had to work under these condi-
tions.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD658
Thimot testified that Nelson then stated “maybe this isn’t the
place for you” and observed that there were a lot of jobs “out
there.” Although Nelson’s account differs in some respects, it
generally corroborates Thimot. I find that she did suggest that
if Thimot were unhappy, perhaps she should find other em-
ployment.
In some instances, circumstances will provide a context in
which an ambiguous statement carries a threatening message.
A comment that an employee perhaps should find another job
can constitute a threat if, under the circumstances, employees
would reasonably interpret it as a warning of discharge.
In the present case, however, no evidence establishes that
Respondent made any other more explicit statement which
would make an employee fearful of being discharged. There-
fore, I do not interpret Nelson’s ambiguous comment as a threat
to discharge Thimot. Therefore, I recommend that the Board
dismiss the allegations in Complaint paragraph 5(b).
Complaint Paragraph 5(c)
Complaint paragraph 5(c) alleges that on or about October 4,
2002, Director of Nursing Nelson threatened employees with
discharge because they assisted and supported the Union.
Complaint paragraph 8 alleges that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
On October 4, 2002, the day of the election, Director of
Nursing Nelson sent word that she wanted to speak with Paula
Thimot at the end of Thimot’s shift. During this meeting, Nel-
son discussed two topics with Thimot.
Thimot had switched shifts with another employee without
notifying Respondent in accordance with its established proce-
dure. Additionally, Thimot had signed a sheet stating she
would work an extra shift, but then failed to do so. Stated an-
other way, Thimot had volunteered to work two 8–hour shifts
“back to back,” but at the end of the first shift, she just left,
leaving the facility shorthanded. The record leaves little doubt
that Thimot actually had committed these infractions of Re-
spondent’s rules.
Based on my observations while Thimot was testifying, I do
not conclude that she is a reliable witness. For example, while
testifying about an encounter she had with another employee,
Thimot depicted herself as calm and not raising her voice.
However, even during her testimony, when she described this
particular incident her voice became louder and more strident.
In other respects, her demeanor as a witness did not inspire my
confidence in her testimony and, to the extent it conflicts with
that of other witnesses, I do not credit it.
Instead, based on the testimony of Nelson, whom I credit, I
find that Respondent did not engage in the conduct alleged in
Complaint paragraph 5(c). Therefore, I recommend that the
Board dismiss these allegations.
Complaint Paragraph 6(a)
Complaint Paragraph 6(a) alleges that at all material times,
Respondent has maintained a rule which prohibits employees
from wearing union buttons or other union insignia. Complaint
paragraph 8 alleges that Respondent thereby violated Section
8(a)(1) of the Act.
In discussing the allegations in Complaint paragraph 5(a), I
quoted relevant portions of this rule, which appears in Respon-
dent’s employee handbook. Clearly, the rule included within
its definition of “solicitation” the wearing of a union button.
Thus, the rule defines “solicitation” to include “any act of urg-
ing or persuading individuals” and states that such an act “can
be precipitated” by wearing any “article which bears the name,
insignia or other identifying symbol of a product, service or
organization.” A Union button certainly falls within that defi-
nition.
Employees wear other buttons on their uniforms without be-
ing required to remove them. Arguably, a button saying “God
bless America” or “I love Jesus” does not identify a “product,
service or organization.” However, such messages do fall
within the rule’s general definition of solicitation, because they
certainly urge the acceptance of “a doctrine to follow, or an
organization to join.”
By condoning these messages, Respondent has applied its
no–solicitation rule in a way which allows employees to com-
municate their views on matters which do not fall within the
protection of the Act but which discourages employees from
communicating their views on matters which do come within
the Act’s protection. Moreover, this disproportionate impact on
Section 7 rights is not limited to the wearing of buttons. The
rule explicitly defines solicitation to include any act of urging
or persuading individuals.
In this regard, the no-solicitation rule does not exist in isola-
tion but as one of a number of workplace rules. Reasonably, an
employee would understand the gravamen of the no-solicitation
rule by considering it in the context of Respondent’s other
rules.
As will be discussed later in this decision, Respondent also
has promulgated a rule prohibiting employees from discussing
their wage rates with each other. Taken together, the rule pro-
hibiting employee discussion of wages and the selective appli-
cation of the no–solicitation rule reasonably would have a
broad chilling effect on the exercise of Section 7 rights.
In sum, I conclude that Respondent’s no–solicitation rule, as
applied, violates Section 8(a)(1) of the Act. Additionally, in
two other ways, the same rule violates Section 8(a)(1) on its
face.
Although the rule limits the prohibition to “working time,” it
does not distinguish between patient care areas and nonpatient
care areas. By its terms, it prohibits solicitation on “Jupiter
Medical Center premises” and thus applies to all of the facility,
including nonpatient care areas. As written, the rule forbids
solicitation in employee locker and rest rooms, staff lounges,
break rooms and other areas where only employees, and not
patients, would be present. Thus, the rule is overly, and unlaw-
fully broad.
Moreover, the rule defines solicitation to be persuasion to
“accept a . . . doctrine to follow, or an organization to join.”
(Emphasis added.) Thus, by its literal terms, the rule prohibits
both advocating the principle of collective-bargaining and per-
suading someone to join a labor organization, but it does not
prohibit expressions of opposition to collective-bargaining and
union membership.
JUPITER MEDICAL CENTER PAVILION 659
In sum, both on its face and as applied, Respondent’s no-
solicitation rule interferes with, restrains and coerces employ-
ees in the exercise of their Section 7 rights. For all these rea-
sons, I recommend that the Board find that this rule violates
Section 8(a)(1) of the Act.
Complaint Paragraph 6(b)
Complaint paragraph 6(b) alleges that at all material times,
Respondent has maintained a rule which prohibits employees
from discussing their wages and rates with one another. Com-
plaint paragraph 8 alleges that Respondent thereby violated
Section 8(a)(1) of the Act.
It is uncontroverted that Respondent has established a rule
prohibiting the “discussion of employee wages and rates with
employees other than supervisor or Human Resources Depart-
ment.” Respondent argues that the rule has not been enforced
and therefore constitutes a de minimis violation.
In Radisson Plaza Minneapolis, 307 NLRB 94 (1992), the
Board, citing Heck’s, Inc., 293 NLRB 1111, 1119 (1989), and
Waco, Inc., 273 NLRB 746 (1984), stated:
Thus, Heck’s and Waco make clear that the finding of a viola-
tion is not premised on mandatory phrasing, subjective im-
pact, or even evidence of enforcement, but rather on the rea-
sonable tendency of such a prohibition to coerce employees in
the exercise of fundamental rights protected by the Act. [307
NLRB at 94.]
Therefore, the nonenforcement of the rule does not make it
any more lawful. Further, the record does not establish that
Respondent has rescinded the rule. Therefore, I reject the ar-
gument that this rule is a de minimis violation and recommend
that the Board find that it violates Section 8(a)(1) of the Act.
Complaint Paragraph 7(a)
Complaint paragraph 7(a) alleges that on or about October 4,
2002, Respondent issued verbal and written discipline to em-
ployee Jermaine Paula Thimot. Complaint paragraph 9 alleges
that Respondent thereby violated Sections 8(a)(1) and 8(a)(3)
of the Act.
Respondent admits giving Thimot a warning on October 4,
2002. In analyzing the lawfulness of this action, I will apply
the Board’s test articulated in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under Wright Line, the General Counsel must
establish four elements by a preponderance of the evidence.
First, the government must show the existence of activity pro-
tected by the Act. Second, the government must prove that
Respondent was aware that the employees had engaged in such
activity. Third, the General Counsel must show that the alleged
discriminatees suffered an adverse employment action. Fourth,
the government must establish a link, or nexus, between the
employees’ protected activity and the adverse employment
action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent bears the burden of show-
ing that the same action would have taken place even in the
absence of the protected conduct. Wright Line, 251 NLRB
1083 at 1089. See also Manno Electric, Inc., 321 NLRB 278,
280 at fn. 12 (1996).
The record clearly establishes that Thimot engaged in Union
activities and that Respondent knew about her Union sympa-
thies. She was quite outspoken on this subject at employee
meetings. The record also establishes that she suffered an ad-
verse employment action. The timing of this action, on the day
of the election, as well as Respondent’s violative rules, estab-
lish a link between the protected activities and the adverse em-
ployment action. Therefore, I conclude that the General Coun-
sel has satisfied all for Wright Line elements.
However, I further conclude that Respondent has established
that it would have imposed the same discipline in any case.
Thimot’s failure to follow company policies concerning her
presence at work clearly had an impact on operation of the
nursing home and on the wellbeing of the elderly residents. I
find that these failings are so serious, and the penalty im-
posed—just a written warning—so relatively minor that it
would have resulted even in the absence of protected activities.
Therefore, I recommend that the Board dismiss the allegations
in Complaint paragraph 7(a).
Complaint Paragraph 7(b)
Complaint paragraph 7(b) alleges that on or about October
15, 2002, Respondent issued written discipline to employee
Jermaine Paula Thimot. Complaint paragraph 9 alleges that
Respondent thereby violated Sections 8(a)(1) and 8(a)(3) of the
Act.
The evidence establishes that Director of Nursing Nelson is-
sued Thimot a written warning on October 15, 2002 for a num-
ber of serious failings in patient care. Most notably, she left
incontinent patients soaked with urine without changing them.
I reject as implausible the argument that because the patients
were on diuretic medicine, there was no way to keep all of them
dry to the end of the shift. That might be true with respect to
one patients, but when a number of patients are all wet, it be-
comes clear that the CNA has not been doing her duty.
Performing a Wright Line analysis similar to that for Para-
graph 7(a), I conclude that the General Counsel has proven all
four Wright Line elements. However, I further conclude that
Respondent would have given a warning to any CNA who let
patients lie in their own urine.
Considering that Respondent has a “five star” rating—the
highest—by the authority which accredits nursing homes, and
considering that Thimot’s immediate supervisor, Tanya Conley,
was a diligent nurse who imposed high standards on her staff, I
have no doubt that Thimot would have received a written warn-
ing in any event. Therefore, I recommend that the Board dis-
miss the allegations in Complaint paragraph 7(b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD660
Conclusion
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, Remedy, Order and Notice.
When that Certification is served upon the parties, the time
period for filing an appeal will begin to run.
The hearing is closed.