Pan American Hospital Corporation

National Labor Relations Board - Administrative Judge Opinions

Apr 15, 2005

12-CA-023630 (N.L.R.B. Apr. 15, 2005)

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Miami, FL

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

PAN AMERICAN HOSPITAL CORPORATION,
Debtor in Possession

and Cases 12-CA-23630
12-CA-23631
12-CA-23657
12-CA-23659
12-CA-23660
12-CA-23672
12-CA-23730
12-CA-23856
12-CA-23863
12-CA-23940

SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, CLC

and Case 12-CA-23944

PEDRO ARMENTEROS, an Individual

Jennifer Burgess-Solomon and Jill Guarascio, Esqs.
for the General Counsel.
Arturo Ross and Warren Zaffuto, Esqs.
(Fisher & Phillips, LLP),
of Fort Lauderdale, Florida,
for the Respondent.
Kathleen Phillips and Libby Nowarrete, Esqs.
(Phillips, Richard & Rind, P.A.),
of Miami, Florida,
for the Charging Party Union.

DECISION AND ORDER

Statement of the Case

IRA SANDRON, Administrative Law Judge. This matter arises out of various charges
filed by Service Employees International Union, AFL−CIO, CLC (the Union) or by Pedro
Armenteros against Pan American Hospital Corporation, Debtor in Possession (the Respondent
or the hospital).

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Pursuant to notice, I conducted a trial in Miami, Florida, on July 26−30 and September
13-23, 2004,1 at which all parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence.

During the hearing, I granted the General Counsel’s motions to amend the complaint,
over the Respondent’s objections. I concluded that their allowance resulted in no prejudice to
the Respondent because their subject matters were closely connected to existing allegations,
and the Respondent had the full opportunity to defend. See D&F Industries, 339 NLRB 618,
620−621 fn. 13 (2003); Pergament United States, 296 NLRB 333, 334 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). These amendments were incorporated in the second amended
consolidated complaint, General Counsel’s Exhibit 219, filed on September 23 (the complaint).

The General Counsel and the Respondent filed helpful posthearing briefs that I have
duly considered. The Respondent also filed, on February 9, 2005, a notice of errata and motion
to correct hearing transcript. The latter seeks to have excised or stricken a particular word in
the transcript attributed to Attorney Arturo Ross, as having been a side comment to co-counsel
that was mistakenly recorded. On February 15, 2005, the General Counsel filed a motion in
opposition to the request to strike and, thereafter, a motion in opposition to the request to
correct transcript, along with its own motion to correct transcript. To the extent that the parties
agree on corrections, their motions to correct are granted. Where they disagree, there is no
way to ascertain who is accurate.

The same holds true for their disagreement on the context in which Ross uttered the
word in question. It is impossible to go back in time and reconstruct the circumstances in which
it was said. In any event, whether the word was meant to be off or on the record will not affect
my determinations on any of the issues before me, and I need not rule on the motion to strike.

Both the General Counsel and the Respondent made numerous motions/requests during
the course of the hearing. I directed the parties to renew in their posthearing briefs any such
motions/requests they wished me to consider in my decision. Accordingly, only those raised in
the briefs will be addressed.

In its brief, the General Counsel renews its motions that sanctions be imposed against
the Respondent under Bannon Mills, Inc., 146 NLRB 611 (1964), and that Attorney Ross be
sanctioned for misconduct. I had deferred ruling on these motions, both in the hope that the
parties might resolve issues by the conclusion of the trial and, if not, to have the benefit of
reviewing the entire record.

Regarding Bannon Mills’ sanctions, the General Counsel urges that certain testimony
and certain documents be excluded. Although discussion of this necessarily entails a preview
of operative events, my determinations on the inclusion or exclusion of such will impact on what
constitutes the record evidence on which facts can be found. For this reason, I will address
Bannon Mills’ sanctions after recitation of the issues.

As to sanctions against Ross, the appropriate vehicle for a judge who believes an
attorney or other representative has committed trial misconduct is to file separately a
recommendation for disciplinary action under Section 102.177 of the Board’s Rules and
Regulations. See McAllister Towing & Transportation Co., 341 NLRB No. 48, slip op. at 5 fn. 7
(2004). Therefore, this matter will be the subject of a supplemental decision.
1 All dates occurred in 2004, unless otherwise specified.

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Issues

On the first day of hearing, the Respondent amended its answer to no longer deny the
factual allegations, or the resulting legal conclusions, relative to Juan Campos, environmental
department director. Thus, it is not disputed, and I find that the Respondent, through Campos:

1. Violated Section 8(a)(1) of the National Labor Relations Act (the Act) by: (a) on about
December 23 and 24, 2003, telling employees not to discuss employment matters concerning
their mutual aid and protection with coworkers; (b) in about December 2003, and between
January 15 and 26, threatening to replace employees with outside contractors if they supported
the Union or engaged in concerted protected activities; (c) in about early January, interrogating
employees about their union activities and telling them it would be futile for them to select the
Union as their collective-bargaining representative; (d) in about mid-January, impliedly
threatening employees with unspecified reprisals by telling them they were disloyal because
they supported the Union and engaged in concerted protected activities; (e) on about
January 15, instructing employees to remove union insignia; and (f) between about January 15
and 26, threatening to rescind an “open door” policy if employees selected the Union as their
collective-bargaining representative.

2. Violated Section 8(a)(3) and (1) of the Act by issuing written warnings on about
December 23, 2003, to Carlos Carbonell, Patria Diaz, Candido Jacomino, Marilu Montano,
Rockefeller Moreno, Nelson Rabelo, Xiomara Rodriguez, and Regla Teresa Roja-Garcia,
because they engaged in concerted protected activities by requesting and obtaining
permission to leave a training meeting conducted solely in English.

The issues are:

1. Whether these individuals were agents of the Respondent: Dr. Modesto Mora,
Dr. Lourdes Sanjenis, Janet Cabrera, and Vicente Rodriguez.

Dr. Mora is a member of the hospital’s board of directors (the board) and one of the
hospital’s founders. Despite my order directing him to appear pursuant to the General
Counsel’s subpoena, he did not, and no explanation was offered for his failure to comply.

Dr. Sanjenis is chairperson of the board and Dr. Mora’s wife. She did not testify.

Cabrera is the office manager of the South Florida Medical Group (the medical group),
where Dr. Mora has maintained his private medical practice. The issue of her agency status is
most important in relation to a conversation Charging Party Armenteros testified they had on
about December 30, 2003, in which she told him that Dr. Mora had stated he would fire
Armenteros and his wife and daughter (also hospital employees) if they signed union cards.
Cabrera was not called as a witness.2

Rodriguez was the hospital’s public relations director until March. His agency status
also is most significant in terms of a conversation he had with Armenteros, on about January 14,
in which he attributed statements to Dr. Mora similar to those of Cabrera. He did testify.

2 The Cabrera who testified was Tania Cabrera, a coworker of alleged discriminatee
Francisco Anido.

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2. Whether the Respondent discharged the following named employees because
they engaged in union activities: Francisco Anido and Juan Carlos Cardenas on
January 13, Reymundo Camejos on January 14, Pedro Armenteros on February 23,
and Hector Gonzalez on May 14. Further, whether the Respondent has refused to
rehire Felipe Hernandez since May for the same reason.

3. Whether the Respondent interfered with employees’ protected rights by making
threats or other coercive statements, alleged as follows.

Office Manager Cabrera, in her conversation with Armenteros on about December 30,
described above, created the impression of surveillance of employees’ union activities and
threatened employees with discharge in retaliation for their engaging in such activities. This
conversation is further alleged as the basis of the allegation that Dr. Mora, on about the same
date, impliedly threatened employees with discharge in retaliation for their union activities.

Director Rodriguez, in his conversation with Armenteros on about January 14, described
above, threatened employees with discharge in retaliation for their union activities.

Edgar Diaz, cardiopulmonary department director, in about late December 2003, in a
conversation with Camejos, impliedly threatened employees with unspecified reprisals if they
engaged in union activities.

Delsie Bosch, human resources (HR) director, on January 13, at Cardenas’ termination
interview, informed employees they were being discharged due to their union activities; and on
January 14, at Camejos’ termination interview, informed employees that they were prohibited
from engaging in union activities at work.

Security department personnel prohibited employees from distributing union literature
during nonwork time in nonpatient care, nonwork areas, to wit, the main parking lot, on various
occasions starting on December 18, 2003, and ending on June 4.3

Finally, Attorney Ross’ letters dated June 11 to Armenteros and Cardenas are alleged to
have threatened employees with civil or criminal action in retaliation for their union activities.

Bannon Mills’ Sanctions

Sanctions may be imposed for an unequivocal refusal to comply with an administrative
law judge’s order directing the production of documents pursuant to subpoena. Smithfield
Packing Co., 344 NLRB No. 1, slip op. at 10 (2004); US Postal Service, 339 NLRB 400 (2003).
They may also result from a respondent’s lack of proper diligence in complying with a
subpoena. See McAllister Towing, supra. Simply stated, a party should not be rewarded for
noncompliance by gaining an advantage in the presentation of evidence, either substantively or
procedurally.

Sanctions where the subpoenaed document has not been produced may include
permitting the party seeking production to use secondary evidence, precluding the
noncomplying party from rebutting that evidence or cross-examining witnesses about it, and
3 The complaint states “nonpatient care areas,” but the Board considers the presumptively
proper scope of location for solicitation and distribution in health care facilities to be “nonpatient
care, nonwork areas.” See Baptist Medical Center/Health Midwest, 338 NLRB 346, 350 (2002).

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drawing adverse inferences against the noncomplying party. McAllister Towing, supra. The
underlying rationale is that a respondent that has refused to provide subpoenaed materials that
are the best evidence of a fact should not be allowed to introduce secondary, less reliable,
evidence of matters provable by those materials. See Smithfield Packing, supra; Avondale
Industries, 329 NLRB 1064, 1244−1245 (1999); Hedison Mfg. Co., 249 NLRB 791, 796 (1980)
Bannon Mills, supra.

As the General Counsel’s brief reflects, numerous accusations were levied back and
forth at various points during the trial on subpoena duces tecum issues, first on their proper
scope and then on the Respondent’s compliance with my rulings.

Three observations are in order. First, many types of documents were subpoenaed.
Some were short and easily obtained; others involved greater effort in assembling and
transporting, in particular over 800 employee personnel files.4 Second, the General Counsel
and the Respondent disagreed on when some of the documents were produced. Third, with
one exception, Camejos’ termination paper, all subpoenaed documents were eventually
provided to the General Counsel. The termination paper will be treated in the section on
Camejos’ discharge.

The produced documents fall into two basic categories. The first encompasses those
discussed between opposing counsels and ultimately provided to the General Counsel
independent of any witness testimony. These include security logs and fax pages from Anido’s
personnel file.

The second consists of documents that the Respondent provided to the General
Counsel only after the testimony of witnesses raised their existence on the record. Included are
notes prepared by Maria Corzo, chief operating officer (COO) and chief compliance officer,
relating to Anido’s discharge; and a summary of events prepared by Alexandra Zuniga, director
of the physical therapy (PT) department, relative to Cardenas’ discharge. Also in this category
are a police report and photographs involving flat tires to employee Rene Mirta’s automobile in
the hospital parking lot in August (in reference to Anido’s discharge in January); and documents
pertaining to a lawsuit filed by the hospital against the Pan American Cuban Medical
Convention, Inc. (CMC), involving Director Rodriguez.

Turning to specific documents, security logs were among the documents I directed the
Respondent on the first day of trial to provide to the General Counsel. Incomplete logs were
initially produced, and I directed the Respondent on September 13 to provide the original
logbooks to the General Counsel for review and copying. The Respondent complied.
The General Counsel had the opportunity to review and to examine witnesses of the
Respondent on them, and I allowed the General Counsel to amend the complaint to add
additional violations of Section 8(a) (1) based on later-received log entries.

The General Counsel cites McAllister Towing, supra, for the proposition that Bannon
Mills’ sanctions should be imposed because the Respondent did not bring subpoenaed
documents to the hearing on the first day, and this would include the security logs. In that case,
4 These were delivered to the hearing by truck. The Respondent submitted a bill to the
Region for their packing and transportation. The Region refused to pay, and the Respondent
then filed an interlocutory motion for costs, which the General Counsel opposed. In its brief,
the Respondent has not renewed this motion or otherwise indicated that it still seeks any such
reimbursement.

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Judge Margaret M. Kern had earlier instructed the respondent’s counsel to “substantially
comply” with the General Counsel’s subpoenas, and when she issued her formal rulings
directing compliance, he equivocated on whether the respondent would even make a
good-faith effort to obtain documents. Such was not the situation here.

In the totality of circumstances, I find sanctions unwarranted with regard to the
production of security logs. It does not appear that the Respondent deliberately withheld them
or that the General Counsel was prejudiced in any way. Moreover, the General Counsel
introduced and used certain log entries as the bases for additional violations in the complaint.
For me to now exclude the testimony of security guards, as the General Counsel urges, would
essentially deprive the Respondent of an opportunity to defend and thereby violate fundamental
due process.

As to the fax pages in Anido’s personnel file, the Respondent initially provided two
incomplete faxes to the General Counsel. When this was brought to Ross’ attention, the
missing pages were located by his paralegal and provided. I do not find that the Respondent’s
actions in this rose to the level of a refusal to produce documents and therefore will not impose
any kind of sanctions.

I now turn to the second category. On the first day of trial, I narrowed the scope of the
General Counsel’s subpoena on the subject of pending lawsuits and directed the Respondent to
produce documents relating to any lawsuits filed against the Respondent and/or its current
former board members, collectively or individually, for misappropriation of funds, including any
allegation of misuse of personnel from January 1,1998, to the return date of the subpoena, that
“name[d] or in any way involve[d]” Mora, Armenteros, and/or Rodriguez.5

No such documents were furnished to the General Counsel. On September 15, during
the cross-examination of Rodriguez, Ross offered Respondent’s Exhibit 31, a letter dated March
3 from the hospital’s attorney to Rodriguez’ attorney, accusing Rodriguez of, inter alia,
misappropriating hospital funds, and threatening legal action. After Rodriguez’ testimony, the
General Counsel renewed its request for production of documents pertaining to lawsuits. The
Respondent then produced a complaint filed on June 23 by the hospital against CMC, in which
Exhibit “C” consists of the March 3 letter above, as well as a similar letter dated March 17; and
CMC’s answer, filed on September 7 (GC Exhs. 176(a) and (b), respectively).

The General Counsel argues for exclusion of the Respondent’s evidence concerning
the lawsuit—Respondent’s Exhibit 31; Respondent’s Exhibit 10, a photograph taken at the last
convention; and testimony on the subject by Vicente Sanchez, the Respondent’s executive
director and executive officer.

My direction clearly encompassed all of the above documents, with the possible
exception of Respondent’s Exhibit 10. They were in existence several months before the trial
opened, other than General Counsel’s Exhibit 176(b), which the Respondent’s counsel should
have provided to the General Counsel as soon as he received it—certainly before Rodriguez
began his testimony.

Accordingly, I find Bannon Mills’ sanctions appropriate and exclude Respondent’s
Exhibits 10 and 31, which are now rejected. I also exclude the pertinent testimony of Sanchez
as secondary evidence. Fairness dictates that other documents encompassed by my ruling be
5 Tr. 114, 117.

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treated similarly, even though the General Counsel has not so requested; I consider the fruit of
the poisoned tree principle to apply, and exclusion of evidence improperly submitted should not
be selectively applied in a manner to favor the General Counsel. Therefore, I also exclude
General Counsel’s Exhibits 176(a) and (b) and designate them as rejected.

I further directed the Respondent at the outset of the trial to provide, inter alia, notes
prepared by supervisors regarding the discharges of the alleged discriminatees.

However, only on the cross-examination of Director Zuniga on September 20 was it
discovered that she had prepared notes concerning alleged complaints against Cardenas.
The General Counsel then requested their production, and the Respondent produced Zuniga’s
summary of events that included such complaints (GC Exh.182, dated January 14). The
General Counsel now requests that documents referenced in the summary, relating to a staff
meeting she held with employees on December 4 and union flyers found in her department
(R. Exhs. 43 and 44−46, respectively), as well as her testimony concerning employee
complaints, flyers, and that meeting be excluded. The General Counsel does not ask for
exclusion of the notes themselves.

Aside from anything contained in the summary, the Respondent provided independent
documentary evidence in support of the staff meeting and the flyers (R. Exhs. 43 and 44−46,
respectively, which were offered and received on September 17). Accordingly, I consider
exclusion of those documents and Zuniga’s testimony thereon to be an overly broad sanction for
the Respondent’s failure to produce the subpoenaed notes.

The next step is treating the summary itself and Zuniga’s testimony concerning
employee complaints. Although the document has no heading, all of the listed items relate,
directly or indirectly, to the Respondent’s defenses for Cardenas’ discharge and thus fall under
the scope of my direction. Accordingly, I now sua sponte reject the document and make
General Counsel’s Exhibit 182 a rejected exhibit. However, the summary was in the nature of
corroboration of Zuniga’s testimony, not a matter of primary evidence. Thus, she testified about
employee complaints, not what was stated in the summary about employee complaints.
Accordingly, I will not exclude Zuniga’s testimony.

Similar to the above, on September 21, the first knowledge the General Counsel had
that COO Corzo took notes of Rene’s complaint about Anido was when it cross-examined Rene.
The General Counsel then requested their production, but Ross represented that he did not
have them. The following day, Corzo stated on cross-examination that she had provided them
to Ross, who said he did not have them and asked her to produce them. She did so. The
General Counsel offered them as General Counsel’s Exhibit 213.

The General Counsel contends that documentary evidence related to Corzo’s notes,
including Anido’s termination report (R. Exh. 6), and Corzo’s testimony concerning her
conversation with Rene about Anido should not be considered.

I find, rather, that the appropriate sanction is the exclusion of Corzo’s notes, General
Counsel’s Exhibit 213, because they were not properly produced pursuant to subpoena. It is
now a rejected exhibit. As with Zuniga, I do not consider any of Corzo’s testimony—other than
with regard to the notes themselves—to be “secondary evidence” in lieu of primary evidence.
In any event, the notes consisted of only two short handwritten incomplete sentences, with no
heading or date, and the General Counsel had the opportunity to cross-examine Corzo about

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them. Any adverse impact on the General Counsel’s ability to present its case was negligible.6
Therefore, I deny the General Counsel’s request to strike any of Corzo’s testimony, other than
her testimony about taking the notes.

Finally, the General Counsel asserts that the Respondent failed to comply with my
direction at the outset of the trial to produce police reports and photographs relating to the
discharged employees. In connection with the Respondent’s defense for discharging Anido,
Ross offered such types of documents (R. Exhs. 66 and 67) during his direction examination
of Rene on September 21, concerning flat tires she had in the hospital parking lot in August.
Ross represented that he had received these documents the previous Saturday. It is
undisputed that he did not provide them earlier to the General Counsel.

Since Anido’s discharge took place in January, the August incident logically could have
played no part in the decision to discharge him, and the documents in question were technically
outside the scope of the subpoena. However, Ross has contended that the incident bears on
whether the discharge was justified. Therefore, in compliance with my ruling, he should have
provided the documents to the General Counsel as soon as practicable after he received them
and, certainly, before Rene began testifying.

As opposed to Zuniga’s and Corzo’s notes that were confirmations of other events, the
police report and photographs were integral and necessary parts of the incident itself.
Accordingly, I find it appropriate to exclude Respondent’s Exhibits 66 and 67, which are now
rejected, and to exclude any secondary evidence of the incident, to wit, Rene’s testimony.

Facts

Based on the entire record, including the pleadings, testimony of witnesses and my
observations of their demeanor, documents, and stipulations of the parties, I make the following
findings of fact.
THE HOSPITAL

The Respondent operates an acute care hospital in Miami, Florida, providing inpatient
and outpatient care, primarily to elderly Hispanic Americans. The hospital has over 30
departments. Department directors report to either COO Maria Corzo, who is in charge of all
areas of clinical services (with over 150-200 employees), or to Sandy Sosa-Guerrero, chief
nursing officer (CNO), who oversees all nursing and related units (employing 400-500
employees). They, in turn, report to Executive Director Vicente Sanchez, the hospital’s
highest administrative official.

Sanchez played a key role in the termination of Armenteros, whereas Corzo did the
same in the discharges of Anido, Camejos, and Cardenas. Delsie Bosch, HR director since
November 1993, was present at all of the termination interviews but played no part in any of the
decisions to discharge. Nor was she involved in the decision not to rehire Hernandez.

6 See People’s Transportation Service, 276 NLRB 169, 222 (1985) cited in Member
Schaumber’s dissent in part in McAllister Towing, supra at slip. op. at 13.

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THE UNION’S ORGANIZING DRIVE AND REPRESENTATION CASE PROCEEDINGS7

Between November 20, 2003, and January 27, the Union filed petitions for certification
as representative of six distinct bargaining units at the hospital: registered nurses,
nonprofessional employees (excepting skilled maintenance), technical employees, skilled
maintenance employees, and business office clericals.

Pursuant to stipulated election agreements, elections were held on January 15.
The Union received a majority of votes in each of the bargaining units. The Respondent filed
objections to the conduct of all six elections, which objections were heard by a hearing officer,
who recommended that the objections be overruled. The Respondent appealed this
determination to the Board.

On August 31, the Board upheld the hearing officer’s recommendations and conclusions
as to five of the elections and certified the Union as the representative of the hospital’s
registered nurses, nonprofessional employees, technical employees, and business office
clericals. Regarding the skilled maintenance employees’ election, the Board sustained the
Respondent’s objections and directed a second election. In the rerun election, the Union failed
to obtain a majority of votes cast and filed objections that remain pending before Region 12.

I draw no inferences of any kind from the filing of post−hearing objections by either the
Respondent or the Union, pursuant to their statutory rights to question whether the other’s
conduct destroyed the laboratory conditions necessary for fair elections.

INDIVIDUALS WHOSE AGENCY STATUS IS CONTESTED

A. Drs. Modesto Mora and Lourdes Sanjenis

The Board presumes officials of an organization are its agents clothed with apparent
authority. House Calls 304 NLRB 311 (1991) Nemacolin Country Club, 291 NLRB 456, 458
(1988), enfd. 879 F.2d 858 (3d Cir. 1989). Absent compelling contrary evidence, the holding of
such office is persuasive and substantial evidence that will lead to a finding of agency status.
Electrical Workers Local 453 (National Electrical Contractors Assn.), 258 NLRB 1427, 1428
(1981).

Neither Drs. Mora or Sanjenis, or any other members of the hospital’s board of directors,
testified. I credit Executive Director Sanchez’ uncontroverted testimony regarding his position,
his interview for the position, and the board’s role, and find the following facts.

Drs. Mora and Sanjenis were the two board members who interviewed him (and,
evidently, recommended his hire to the full board). They told him during the interview that he
would be responsible for the hospital’s day-to-day operations and the management of its
employees. He serves at the pleasure of the board, which sets the policies of the hospital and
approves major transactions.

Sanchez’ testimony clearly establishes that Drs. Mora and Sanjenis exercise authority
over him, the hospital’s highest administrative official, and are at the top of the Respondent’s
chain of command. They therefore possess not only putative but actual authority.

7 See GC Exhs. 11(a)-(f), 12(a)-(f), & 13(a)-(f).

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I note also that Dr. Sanjenis held herself out to employees as a representative or agent
of the Respondent in a letter with hospital letterhead that in late June was hand-distributed to
employees and posted at the timeclocks, in which she responded to statements made in the
Miami Herald concerning the Respondent and the Union.8 She signed this letter as chairperson
of the hospital’s board.

Based on the above, I conclude that Drs. Mora and Sanjenis are and were agents of the
Respondent within the meaning of Section 2(11) and (13) of the Act and under common law
principles of agency.

Finding them to be agents of the Respondent, I draw an adverse inference against the
Respondent on any factual matters in the case about which they likely would have knowledge.
See Daikichi Sushi, 335 NLRB 622 (2001) International Automated Machines, 285 NLRB 1122,
1123 (1987), enfd. mem 861 F. 2d 730 (6th Cir. 1988); Martin Luther King Sr., Nursing Center,
231 NLRB 15 fn. 1 (1977). I also deem this an appropriate sanction for Dr. Mora’s failure to
comply with subpoena. See McAllister Towing, supra; Teamsters Local 776 (Pennsy Supply),
313 NLRB 1148, 1154 (1994).

B. Director Vicente Rodriguez

Rodriguez was public relations director from 1970 until March, when he was terminated.
In a July 2000 classification of managers, the Respondent classified him as a manager level
300 (director’s level), rather than the lower level of 200, in which it placed admitted supervisors
Armando Delgado, Pedro Ortiz, and Alfredo Padilla.9 There is no evidence that his
classification was ever later changed.

Rodriguez reported directly to Dr. Mora and never punched a timeclock. He was in
charge of media relations and publications and also accompanied Mora to various events. One
of his responsibilities was putting on meetings of the CMC. Rodriguez used to have an office at
the hospital but was moved to a warehouse facility about a year before his employment ended.
Although Rodriguez at different times had a secretary to whom he assigned work and gave
evaluations, his testimony was too unclear as far as dates to make a finding that in recent years
he exercised supervisory authority within the meaning of Section 2(11) of the Act.

Clearly, though, he occupied the status of a managerial employee and was considered
one by the Respondent. As such, he was an agent under Section 2(13) of the Act, and his
statements to Armenteros were imputable to the Respondent. Modern Mfg. Co., 261 NLRB 534
(1982); Idaho Falls Consolidated Hospitals, 257 NLRB 1045 (1981).

C. Office Manager Janet Cabrera

As a hospital courier, Armenteros frequently made deliveries to the medical group
offices, where Cabrera was the office manager and Dr. Mora maintained his individual medical
practice. Cabrera interfaced with Armenteros’ employment through the years. For example,
she signed his March 1986 evaluation as his evaluator and supervisor, signed as evaluator for
his pay increase in November 1987, and notarized his hospital retirement plan document after

8 GC Exh. 31(a) & (b).
9 GC Exh. 93.

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his termination.10

Armenteros testified that when Cabrera called him on about December 30, 2003, she not
only made statements she attributed to Dr. Mora that Armenteros and his family members would
be fired if they signed union cards, but she further said that Mora was directing him to go to the
hospital the following morning to meet with the hospital’s attorneys regarding the Union.
Significantly, the Respondent has confirmed that Mora did instruct Cabrera to tell Armenteros to
so report for that purpose.11

The Board applies common law principles of agency in determining whether an
employee is an employer’s agent, and hence if his or her conduct is attributable to the employer.
Ergo, if another employee has a reasonable basis to believe that the employer has authorized
the conduct, the employer is responsible. D&F Industries, supra, slip op. at 2; Cooper
Industries, 328 NLRB 145 (1999) GM Electrics, 323 NLRB 125 (1997) (secretary found to be
agent). This may occur when the alleged agent has been held out as a conduit for transmitting
information from the employer. Cooper Industries; Debber Electric, 313 NLRB 1094, 1095
fn. 6 (1994).

The fact that Cabrera was an employee of the medical group and not per se of the
hospital does not prevent her from being found to be an agent of the hospital. See D & K
Frozen Foods, 293 NLRB 859 (1989) Lemay Caring Center, 280 NLRB 60, 66 (1986) affd. sub
nom. 815 F.2d 711 (8th Cir. 1987). In this regard, the hospital and the medical group were not
wholly separate entities, in light of their connection in the person of Dr. Mora. Further, in the
course of his duties as a courier for the hospital, Armenteros made frequent deliveries to the
medical group over a period of many years. I find that a reasonable person in Armenteros’
position would have concluded that Cabrera spoke for Mora. Indeed, Cabrera had the actual
authority to call Armenteros and relate Mora’s instruction to him.

Accordingly, I find that Cabrera was an agent of the Respondent within the meaning of
Section 2(13) of the Act. Therefore, the burden was on the Respondent to call her as a witness,
and not on the General Counsel, as argued in the Respondent’s brief.12 As with Drs. Mora and
Sanjenis, I draw an inference against the Respondent on any factual matters about which she
likely would have knowledge.

ALLEGED DISCRIMINATORY CONDUCT

Independent 8(a)(1) allegations pertaining to particular alleged discriminatees will be
included herein.

A. Francisco Anido’s discharge on January 13

Anido was employed as a medical lab technologist (lab tech) since1995, or for about
8−9 years. For the last several years, he worked the third shift, 11 p.m. to 7 a.m. under the
supervision of Armando Delgado, lab administrative director. Delgado supervises about
52 employees.

10 GC Exhs. 25, 26 & 27.
11 GC Exh. 178 at 5 (position statement).
12 In this regard, the Respondent’s admission of her agency status on behalf of Mora, at
least in part, was made prior to the opening of the trial.

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Anido’s Statements to Cabrera and Rene

Anido signed an authorization card in late December and, at around the same time, had
a conversation in the lab with lab tech Tania Cabrera. Lab techs Mariza Mora (no relation to
Dr. Mora) and Mirta Rene were also in the area. Since this one conversation formed the sole
basis for Anido’s termination,13 I need not address any of his prior work history.

Anido, Cabrera, and Rene all testified about what Anido said in this conversation.
Cabrera and Rene are still employed by the Respondent.

Cabrera struck me as the most forthright of the three. Although her recall of the
conversation was not precise, she credibly testified that she did not give it any importance, and
she answered questions directly and without any apparent hesitation. Although in other portions
of his testimony, Anido had trouble staying focused in his answers, added qualifiers (i.e., “kind
of” or “may have”), and equivocated, he was specific and unequivocal in relating this
conversation, and his version was substantially consistent with Cabrera’s.

For the variety of reasons that follow, Rene was not credible. I need not base my
negative credibility assessment on any inferences arising from Armenteros’ unrebutted
testimony that Dr. Mora told him that Rene was a long-time friend of the Mora family, going
back many years to when they were still in Cuba.

When she was testifying, Rene often seemed deliberately overdramatic, sometimes
even melodramatic, leading me to believe that she was exaggerating. Related to this, Rene’s
testimony about how frightened she was did not mesh with her actions. She testified that Anido
threatened to burn down her house and damage her car and that she was afraid to go out,
yet she did not report the incident to COO Corzo for several days, never called the police,
and never filed a hospital security report.

Rene was impeached on two points concerning her reporting of the incident to Corzo.
As to why she went directly to Corzo instead of to Delgado, her supervisor, she first testified that
it was because she thought this was “more serious.” However, when the General Counsel
asked if the reason was that Delgado had not done anything in the past when she complained
to him about issues, Rene then said yes (Delgado, whom I find was credible, testified that she
had not previously complained).

Rene herself conceded that she waited a long time to report the incident to Corzo, first
stating that the reason for her delay was that she was “afraid.” However, the reason she gave
at the representation (R) hearing was that Anido did not state that he was the one who took
action against her. On re-direct examination, Rene provided yet a third reason; that she
appreciated Anido. Rene never explained why, after several days, she finally decided to see
Corzo.

Therefore, I credit Anido’s and Cabrera’s versions of the conversation where they
differed from hers, and find the following.

Anido had several previous conversations with Cabrera about the Union. This
conversation was short (2−3 minutes) and casual, as reflected by Cabrera’s testimony that she

13 See R. Exh. 6, Anido’s termination report.

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attached no importance to it and concluded that his comments had nothing to do with her.
Cabrera asked Anido what he thought about the Union. He replied that as far as he knew when
a union came in and represented employees, it was supposed to negotiate with a company to
reach a contract; if not, there could be a strike. He further said that violence could occur when
people crossed the line, such as tires slashed.

When I asked Cabrera who Anido said had done that, she replied, “[P]eople that wanted
the union and people who did not want the union. . . . Not that he was going to do that. He was
just talking about anecdotes concerning things that had happened.” 14

Rene got upset over Anido’s statements and said that this was a free country and they
could choose to be part of the Union or not.

Cabrera did not report the incident to any managers or supervisors, and none of them
ever talked to her about it, or to Anido prior to his termination interview on January 13.

Management’s Response

After Rene reported the incident to Corzo several days later, Corzo met with Delgado.
They gave conflicting accounts of their meeting and its aftermath.

According to Corzo, she called Delgado to her office and related Rene’s accusations
against Anido. She then asked him to investigate and, if he verified it was true, to terminate
Anido. She further testified that she had a subsequent conversation with Delgado days later
(she was vague about the specific details), in which he told her that he had met with Anido, who
acknowledged part of the allegations. Therefore, Delgado had gone ahead and terminated him.

In marked contrast, Delgado testified unequivocally that Corzo did not ask him to
investigate the incident and that he played no role in the decision to terminate Anido. Rather,
Corzo called him in and presented Anido’s termination as a fait accompli, based solely on the
complaint or complaints she had received about his making threatening remarks. Delgado’s
testimony was supported by Anido, who testified that he had no contact whatsoever with
management about the incident prior to his discharge. Delgado’s account was also consistent
with the language in the termination report Anido received stating, “Following orders from
Administration (M. Corzo) Frank has been terminated.” Thus, Corzo’s testimony was
controverted not only by Delgado but by the Respondent’s own document.

I credit Delgado’s account over Corzo’s. Delgado struck me as candid, he answered
questions directly and readily, and his testimony was internally consistent. Corzo, on the other
hand, was not a reliable witness in general. With respect to Anido alone, ample reasons
support this conclusion. First, she was directly contradicted by a supervisor I find more credible,
as well as the Respondent’s own document. I also find it incredible that she did not obtain any
kind of written statement from Rene, prepare any kind of formal report, or make a referral of the
matter to the security department. I would certainly expect a high-level manager such as Corzo
to have better documented a serious allegation before discharging an employee because of it.
14 Tr. 502−503. Rene conceded that, in response to her threat to call the police if Anido
was threatening her, he explained that he was talking about events that would or could happen
if there were a strike, not about anything he would do presently. She told this to Corzo when
she related the incident.

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Significantly, CNO Sosa-Guerrero testified that when there is a threat against an employee, an
investigation is conducted and a security report is generated, yet Corzo did neither.

Other testimony of Sosa-Guerrero weakened Corzo’s credibility. At the R case hearing
on February 26, Sosa-Guerrero testified that in late December 2003 or early January, Corzo
called her to her office. Corzo informed her that she was investigating Anido and wanted to
know if Sosa-Guerrero had had any similar problems. She replied no. Corzo then said that
maybe it was a solitary or one-time issue, and they agreed they were “not going to put a lot of
weight on the matter.”15

I credit that prior testimony over Sosa-Guerrero’s testimony before me on the subject.
She appeared evasive and frequently claimed lack of recall, and I cannot believe that her
recollection of this conversation would have diminished so greatly in a matter of mere months.
I would expect better memory from a high-level manager. She also had what appeared to be
convenient lack of recall when asked if Dr. Mora attended any of the meetings with the
hospital’s attorneys regarding the Union. The presence of a figure as paramount in the
hospital structure as Mora is not a matter where I find failure of recall plausible.

Termination Interview on January 13

Delgado, HR Director Bosch, and Anido were present. Delgado stated that Anido was
being terminated because he had made threatening remarks to another employee. Since the
decision to discharge him had already been made, I need not go into detail about what was said
at this meeting about the allegations. Suffice to say, neither management nor Anido made
statements against interest. Consistent with Delgado’s testimony and the termination paper,
Anido testified that Delgado and Bosch said “top administration” had made the decision to
terminate him. I draw no inferences from the fact that Anido signed the termination paper but
wrote in no comments.

B. Juan Carlos Cardenas’ Discharge on January 13

The Hospital’s Solicitation and Distribution Policy

The hospital relies in substantial part on the defense of violation of its no-solicitation/no-
distribution rules in the discharges of two of the alleged discriminates—Cardenas and Camejos.

1. Legal parameters

As applicable to all employers, rules prohibiting solicitation on an employee’s or other
employees’ worktime are presumptively valid, with employees being able to solicit on
nonworktime in both work and nonwork areas. See Eagle-Pitcher Industries 331 NLRB 169,
174 (2000); St. John’s Hospital, 222 NLRB 1150 (1976). An employer can lawfully place more
restrictions on distribution, recognizing that distribution of literature or other physical objects can
potentially result in more interference in, or disruption, to the employer’s business than mere
speech. Thus, an employer’s prohibition against distribution during work time or in work areas
is presumptively valid. See MEMC Electric Materials, Inc., 342 NLRB No. 119 (2004); TeleTech
Holdings, Inc. 333 NLRB 402, 403 (2001).

Special rules apply to solicitation and distribution in health care facilities, in recognition of

15 Tr. 1421.

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their unique role of providing medical treatment to patients. Both solicitation and distribution
may be prohibited in immediate patient care areas; in other work areas, restrictions are
presumptively invalid but can be overcome by a showing that they are necessary to avoid
disruption of care or disturbing of patients. NLRB v. Baptist Hospital, supra; Doctors’ Hospital of
Staten Island, Inc. 325 NLRB 730 (1998); Heartland of Lansing Nursing Home, 307 NLRB 152,
159−160 (1992).

Facially valid rules that are discriminatorily applied to employees engaged in union or
other protected concerted activities lose their validity. A.P. Painting & Improvements, 339 NLRB
1206, 1207 (2003); Our Way, Inc. 268 NLRB 394, 395 (1983).

2. The hospital’s written policy16

These are contained in the hospital’s policies and procedures manual, consisting of
three volumes, each several inches or more thick, maintained in each department. Employee
job descriptions reference the hospital’s administrative manuals, and new employees, at
orientation, are told to become familiar with them.

The General Counsel does not argue that anything in the written policy overly restricts
employee solicitation or distribution. Rather, it contends that the policy was discriminatorily
applied to Camejos and Cardenas. The Respondent, on the contrary, asserts that the policy
has been strictly enforced, and thus employees engaged in union activities were not disparately
treated.

3. Other solicitation and distribution

Bulletin Boards

HR maintains a bulletin board, locked and behind glass, near the timeclocks on the first
floor of the hospital. HR permission is required to post anything thereon.

As an initial matter, I do not consider the following postings on this bulletin board to have
constituted employee solicitation. The first was Dr. Sanjenis’ advertisement (ad) for the sale of
a car, which Cardenas saw in December 2003. As chairperson of the board, she logically was
in a separate category from rank-and-file employees and not governed by the same rules and
standards. The second were ads for Disney World trips, seen by Felix Monzon. They listed an
HR contact person and apparently were events sponsored, subsidized, or at least encouraged,
by the hospital.

There was testimony about employees’ ads posted on the HR bulletin board: a canoe for
sale (Cardenas); apartments for rent, and household items for sale (armoires, tables, chairs,
refrigerators, and cars) (Charge Nurse Juanita Alicante); and furniture for sale (Felix Monzon).

On cross-examination, Alfredo Padilla, director of security, conceded that employees are
able to post items of a personal nature on the HR bulletin board, although he has not seen this
in a while.

16 R. Exh. 24.

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Turning to department bulletin boards, the testimony of various supervisors reflects that
the hospital’s official policy is not to permit employees to post items of a personal nature.
However, several employees testified to seeing such on the bulletin boards, as follows.

Camejos testified that employees used the respiratory therapy department bulletin board
(as opposed to the main bulletin board in the department used by management) to post for rent
and for sale signs and other ads.

Cardenas testified that on the bulletin board in the PT department kitchen, where
employees ate lunch and took breaks, employees posted whatever they wanted, with the
exception of selling personal items. These included jokes, news, notices, ads for parties, and
food collections, and Cardenas posted many such items himself, without seeking permission.
He testified without controversion that in November 2003, Director Zuniga, his supervisor,
observed him posting a flyer relating to the Free Trade Area of the Americas Summit taking
place in Miami, they discussed demonstrations in connection with that event, and she never
reprimanded him for posting the flyer.

Current employees Alicante, Monzon, and Charge Nurse Marietta Vasquez all have
seen employee for-sale notices posted on the bulletin boards in nursing stations, for a variety of
items, such as furniture, bicycles, or cars. Vasquez related that, in addition to those ads other
typically posted items are schedules, memoranda, invitations for weddings, and picnics. She
personally has posted union flyers, invitations, memos, and postcards from employees who
traveled abroad. Neither Alicante, Monzon, nor Vasquez have ever heard any supervisors or
managers say anything about what to post on these bulletin boards or of any employees
disciplined for posting.

I credit the substantially similar testimony of these witnesses on what has been put on
the bulletin boards in their departments. Significantly in this regard, Group Leader Joaquin
Trista’s testimony implicitly makes it clear that, despite what might be official hospital policy,
employees do post ads for such things as the sale of houses or dogs, or apartment rentals,
on the bulletin boards. Thus, when asked if he always removed such ads, he replied candidly,
“I try to do my best. I wouldn’t say that I do something always because it’s impossible,”17
suggesting that the practice is fairly widespread.

Based on the above, I find that HR has allowed employees to post items of a personal
nature on its first floor bulletin board. I further find that, at least in many departments,
employees have been permitted to freely post ads and other items of a personal nature on
bulletin boards.

Sales of Products and Other Solicitations

Monzon was the single most important witness on the subject of employee sales
because he personally engaged in such activity on a regular basis for many years. Monzon
appeared candid, and his testimony about his own sales activities and those of other employees
was consistent with other credited testimony. I find that his active support for the Union, as well
as his testimony on cross-examination that he was friendly with Cardenas and upset when
Cardenas was fired, insufficient to establish bias that would undermine his credibility.
Accordingly, I credit his testimony and find the following, with one caveat that applies to all

17 Tr. 2050.

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witnesses who testified about soliciting: in the absence of any documentation, the dates given
by witnesses on this subject generally cannot be taken as precise.

When Monzon started at the hospital in February 1994, his immediate supervisor,
Carmen Cabanas, told him he could not buy or sell anything at the hospital. However, he in fact
sold items from 1995 until approximately early December 2003, even though Cabanas remained
his supervisor until around 2002, when Noemi Desir took over that role.

On a daily basis, Monzon sold umbrellas, perfumes, and ceramic ornaments to other
employees, supervisors, physicians, or others who came by his nurses’ station, sometimes on
his worktime. Alicante corroborated this by testifying that she witnessed him sell perfumes.18
The last time was in November 2003, at a nurses’ station, when he was on his worktime. She
did not know if the employees who purchased from him were on break or on worktime, or if any
supervisors witnessed his activity. Cardenas also testified to observing him engage in sales.
Monzon kept his perfumes and ornaments under the nursing station desk that Director Desir
and Supervisor Elizabeth Williams used; he maintained a catalogue for the ornaments on top.

In addition to selling at the nurses’ station where he was assigned, Monzon also made
sales and deliveries to employees on their worktime in other departments. He had a business
card, “Vakadero Perfumes The Best Prices in the Market,” which he distributed to other
employees and doctors.

On several occasions, Monzon sold umbrellas to Supervisor Cabanas. He also sold
three or four umbrellas to Director Desir. When he last sold to Cabanas, at the end of 2001,
and to Desir, at the end of 2002, he was on his worktime. In early December 2003, Desir
observed him selling ornaments. He asked if she wanted to buy any. She replied no but that
she wanted an umbrella, to which he responded that he did not have them any more.

Desir denied any knowledge that Monzon ever engaged in sales activities on worktime.
She did corroborate his testimony in part, by testifying that she bought an umbrella from him a
couple of years ago, when he came to a nursing station on his time off and was selling them.
She did not consider this a violation of the no-solicitation policy because he was not working
at the time. Presumably, though, other employees at the nursing station were.

Desir was not credible. I cannot believe that she did not know that Monzon was
engaged in sales activities, sometimes on his or other employees’ worktime, based on the
above incident and the frequency and openness with which he conducted sales. I also find
highly implausible her testimony that in the approximately 11 years she was med/surg director,
with supervisory authority over more than 100 employees, she never saw any nonhospital
catalogues of any kind at nurses’ stations and had no knowledge that any employee ever
solicited on worktime. Accordingly, I do not credit her testimony where it conflicted with
Monzon’s or other witnesses who testified on the subject.

No management or supervisors ever told Monzon not to sell his various wares or issued
him any kind of warning.

Employees other than Monzon have engaged in solicitation for sales. Marcela
Fernandez, formerly a group leader and now general supervisor of the food and nutrition

18 Her NLRB affidavit, while not specifically mentioning Monzon, stated that employees
sold jewelry, perfume, and uniforms.

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services department, sold Avon products at the hospital at one time. Because Fernandez
appeared to attempt to minimize the scope of her sales activities, I credit the following testimony
of Monzon and Cardenas.

Monzon testified that Fernandez kept a catalogue on top of the department desk and
that he personally purchased Avon products from her in February and March. He never saw
other catalogues on the desk, other than his catalogue for ornaments and hers for Avon
products. Cardenas observed Fernandez sell Avon products on the floors, when she brought a
cart with juices and fruits upstairs to replenish the pantries. The last time was in 2003.

I do credit Fernandez’ testimony, with the exception of the date she gave (December
2002), that her supervisor, Pedro Ortiz, told her that the policy of the hospital was not to allow
anyone to sell products and, if she continued to do so, he would write her up. She said she
would stop. She never received anything in writing. As to the date, Ortiz did not testify about
the event, nothing documentary corroborates her, and I do not believe that Monzon and
Cardenas would both be wrong about seeing her engage in sales activities after December
2002.

I credit the other witnesses who testified about employees (and at least one
nonemployee) buying or selling, as follows.

Vasquez has seen this, “All the time.” Thus, Marina Izquierdo, the unit secretary’s
mother and a nonemployee, comes to hospital with a large bag of perfumes on a regular basis
at various times of day. During the July 4 weekend, Vasquez observed Supervisor Marissa
Brown and one of the nurses buy perfume from Izquierdo on worktime. In May, while Vasquez
was on worktime, she purchased a pair of earrings from Izquierdo and ordered another pair
from her in September. Further, employees purchase their own uniforms, and an employee with
the first name of Marina has sold uniforms on most weekends, the last occurring in early
September. Vasquez purchased such from her earlier in 2004. Employees sell chocolates,
usually around the holidays. The last time she observed this was in the summer.
One employee sells from her child’s school catalogue, which she keeps on the table in the
nurses’ station. Vasquez has seen various catalogues at the nurses’ station “all the time,”
including Victoria’s Secret and Avon. On cross-examination, she testified that she has not seen
any sales from the Victoria’s Secret catalogues and has no direct knowledge that any
supervisors ever saw them.

Alicante bought a candleholder from Theresa Gonzalez, another nurse, in December
2003. Alicante was on worktime when Gonzalez asked her and a third nurse if they wanted to
buy something from a school catalogue. Also that same month, Alicante purchased a butter
spreader from Director Carmen Cabanas. Alicante was in Cabanas’ office on her worktime,
when Cabanas showed her a catalogue and asked if she wanted to make a purchase for her
(Cabanas’) daughter. Alicante has not seen other catalogues at the hospital.

Cardenas observed Avon and jewelry catalogues displayed at the nurses’ station in his
department, up until the time he was discharged, and he witnessed two other employees sell
Avon products and a third sell uniforms. However, he did not know if any supervisors were
aware of these activities. Until late 2001 or early 2002, he took school catalogues to work, to
sell candy bars to other employees. During the workday, he would put a box on candies on the
desk, and people were free to come by and buy candy and leave money. His supervisor at the
time, Maria Luzon, observed him doing this but said nothing. In fact, she herself brought in
school catalogues and sold candy bars for school fund-raising, both to employees and patients.

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Other employees continued to sell school candy up to the time Cardenas was discharged.
Director Zuniga’s testimony about not never seeing any catalogues not related to hospital
business was ambiguous, in that it is unclear whether she meant only in the PT kitchen or in the
whole department.

Based on all of the above, I find that solicitation and distribution for sales and purchases
by employees was a common occurrence in many departments; frequently took place on
employees’ worktime and in work areas (sometimes, in locations that were proximate to
immediate patient care areas, i.e., nurses’ stations); and was often carried out with the
acquiescence and, at times, direct participation of management/supervisors. Most notably,
Monzon for many years openly engaged in soliciting employees and others to buy various
items but was never told to stop. Prior to Camejos and Cardenas, only one employee,
Fernandez, was ever disciplined for engaging in prohibited solicitation or distribution, in the
form of a verbal warning.

There was also credible evidence regarding solicitation for the Florida Lottery or Lotto,
in two departments: environmental services and PT. In the former, the activity is regularly
conducted with Director Ricardo Crespo’s knowledge, approval, and even participation. He
and Floor Man Rockefeller Moreno disagreed, however, on whether such activity takes place
only on employees’ lunch hour (Crespo) or at all times during the day (Moreno). Both of
them appeared candid, and no corroboration was offered for either version.

As to the PT department, I credit Cardenas’ uncontroverted testimony that he and other
employees, Director Zuniga, and patients participated in the Lotto; the last time he did so was
in December 2003; and that this took place throughout the day, including on employees’
worktime. However, Cardenas offered no evidence of how often the activity occurred on
worktime or that Zuniga was aware that it did.

I deem the evidence insufficient to make a finding that employees in either department
engaged in lottery solicitation on worktime with supervisors’ knowledge.

Security personnel testified without controversion that members of religious
organizations who have come to the hospital have been asked to stop soliciting.
I credit this testimony.

Cardenas’ Pre-discharge Activities

Cardenas was employed by the hospital since November 1994, or for over 9 years.
From 1996 or 1997 on, he simultaneously encumbered the positions of physical therapist
assistant and orthopedic tech in the PT department. For the last year, he worked the
7:30 a.m. – 4 p.m. shift Mondays through Fridays but was on call for other hours. Depending
on workload, he usually took his lunchbreak between 12 and 1 p.m. His other breaktimes were
flexible. After July 2003, his supervisor was Director Zuniga. He testified without controversion
that he received no discipline prior to his discharge and, as reflected in his termination report,19
the Respondent has not raised problems with his performance as a defense.

Cardenas engaged in a variety of union activities prior to his discharge. Starting shortly
after the petition for his unit was filed on November 20, 2003, he passed out union flyers in the
lobby or cafeteria two or three times a week, during lunchtime. On one such occasion, he
19 GC Exh. 32.

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testified without controversion, he attempted to give Dr. Sanjenis a flyer, but she informed him
she was a supervisor. Also starting in November 2003, and continuing until his discharge, he
solicited employees to sign authorization cards in the cafeteria and lobby. From the end of
December 2003 on, he wore a union lanyard to work every day. Finally, he posted flyers on
the bulletin board in the PT department kitchen, where employees ate lunch, took breaks, and
held meetings. According to Cardenas, all of his union activities were on nonworktime.

Photography is one of Cardenas’ hobbies, as both he and Zuniga testified. He took
pictures in his department for every hospital-sponsored activity and also shot photographs at
hospitalwide activities, such as the diversity fair. Moreover, he took pictures of coworkers and
their children. Many people also took such kinds of photographs.

Charge Nurse Vasquez also testified that employees take pictures around the nurses’
stations. Employee Delia Artiles, a Respondent’s witness, testified with respect to her
photograph, one of many photographs of employees, in Respondent’s Exhibit 18. She was in a
patient’s room when Cardenas told her he was going to take her picture. She posed, and he
took it. Immediately before or afterward, he took the picture of the coworker next to her on the
photo. She did not report the incident to anyone. Her testimony reflects that she considered his
activity a casual matter and not unusual or in egregious violation of hospital policy.

The Respondent has no written prohibitions or other policies concerning employees
photographing other employees. Significantly, when Director Zuniga was asked about the
hospital policy regarding the taking of photographs, her answer focused on patients: she
testified that no pictures can be taken with patients without properly executed consent forms.
She initially mentioned nothing about a prohibition against employees taking pictures of other
employees. Similarly, Director Desir, when asked about the hospital policy regarding taking
pictures in patient care areas, also replied that consents must be maintained again, implying
that the primary concern of the hospital relates to photographs of patients.

Desir’s testimony that pictures of employees are never taken for reasons other than for
hospital-authorized activities such as nurses’ week, Christmas parties, and decorating parties,
was unbelievable, and I do not credit it.

Management’s Actions and Decision to Discharge

Director Zuniga testified about an incident on December 1, 2003, in the gym area of the
department. She was doing paperwork at the counter when she observed Cardenas come in to
the gym and have a conversation with physical therapists Maritza Sablon and Carmen Derkocz.
Zoila Viego, another physical therapist, was in their vicinity. Zuniga did not hear what was said,
but shortly thereafter, Viego approached her and stated, “I feel like I am in Cuba again.”

A few minutes later, she was still doing paperwork when Derkocz, Sablon, and Viego
came over to her. Derkocz stated that she felt she was being pressured by Cardenas to sign
union authorization cards. Sablon said that Cardenas had pressured her many times, and it
made the atmosphere very uncomfortable for them.

The Respondent called none of these three employees to testify and provided no
explanation of why they could not be available. Thus, all we have on the record is
uncorroborated hearsay statements of what Cardenas may have said to them. I will not
consider this testimony as evidence of the truth of the matters asserted therein.

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Although Zuniga had the authority to impose discipline, all the way from verbal
counseling to termination, she wanted further guidance and, on December 2 or 3, met with
COO Corzo. Their versions of the meeting were generally similar, with the following exception.
Zuniga testified that she reported only what the employees had said about Cardenas pressuring
them to sign cards and to join the Union. Corzo, on the other hand, testified that Zuniga also
mentioned union literature being distributed in the department.

After calling the hospital’s attorney, Corzo directed Zuniga to make certain statements at
Zuniga’s next regular monthly department staff meeting. Zuniga held such meeting later that
week, on December 4, 2003, and did so. She stated to the effect that employees could be for or
against the Union and were not under any obligation to sign authorization cards, pressure from
other employees would not be tolerated, and such behavior should be reported to Zuniga.
Cardenas attended the meeting. He recalled she referred to union activity and said that if
anyone was uncomfortable with what was happening, to come talk to her.

At around this time, Zuniga called Security Supervisor Arturo Padilla and told him about
a union flyer being posted in the lunchroom inside the PT department. He went there and found
Respondent’s Exhibit 21, which he removed. This was the first one he saw. Subsequently,
over a period of months, he found and removed over 100 union flyers throughout the hospital, in
such places as the main lobby, bathrooms, nursing stations, and the lunchroom.

After the staff meeting, Zuniga continued to see union materials posted on the kitchen
bulletin board and to receive complaints from employees that Cardenas was pressuring them to
sign authorization cards. Zuniga never witnessed anyone posting.

On about January 9, Sablon told Zuniga that she was upset and frustrated because
Cardenas had come to her many times with invitations to union meetings and other activities
and had kept leaving union literature on her desk, even though she had told him many times
that she did not want to be involved. Sablon gave Zuniga the literature.20 Zuniga asked if
Sablon had been working at the time he solicited, and she replied yes.

Zuniga went to see Corzo that afternoon. Their versions of their meeting that day and
the one a couple of days later were not materially different, again with one important exception.
At this first meeting, Zuniga reported to Corzo what had occurred after the staff meeting and
brought the materials that Sablon had given her. Corzo stated she would consult with the
hospital’s attorneys.

Either at this or the second meeting, Corzo told Zuniga that she had received multiple
other reports about Cardenas. Corzo and Zuniga testified differently as to the scope of those
reports. According to Zuniga, they were that Cardenas had been engaged in “soliciting for the
Union in patient care areas during working times.”21 Corzo’s description was considerably more
expansive: Cardenas had been seen during his working time “posting flyers, taking pictures,
and trying to get people to sign up for the Union, and those types of things.”22

At the second meeting, a couple of days later, Corzo called Zuniga to her office and
directed her to terminate Cardenas.

20 R. Exhs. 45 & 46.
21 Tr. 2174.
22 Tr. 2732.

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22

Zuniga’s testimony regarding Cardenas was not fully credible. On direct examination,
she testified about only one conversation with Corzo prior to January 9 concerning reports about
Cardenas. However, on cross-examination, she contradicted that earlier testimony by stating
that “multiple times” between December 4 and January 9, whenever she got information about
Cardenas pressuring other employees or she would see union flyers, she made reports about
him to Corzo. When then asked how many such conversations occurred, she was evasive and
could not recall.

Zuniga’s demeanor changed noticeably when she was relating her conversations with
Corzo, in that she sounded less confident and avoided eye contact, leading me to believe that
she was not comfortable in giving testimony about them and to the inference that her testimony
was not fully reliable.

Finally, I take into account the Respondent’s failure to call any of the employee-
witnesses who allegedly complained to her about Cardenas. Since they cannot be assumed to
be reasonably disposed toward any party, drawing an adverse inference would be improper.
Nevertheless, such lack of corroboration can be used as a factor in determining that Zuniga was
not credible. See Port Printing Ad & Specialties, 344 NLRB No. 34 slip op. at 4−5 fn. 9 (2005);
C & S Distributors, 321 NLRB 404 fn. 2 (1996).

I have already detailed my reasons for not finding Corzo’s testimony credible regarding
the discharge of Anido. For the following reasons, I reach that same conclusion here.

The inconsistencies between her accounts of their conversations, and Zuniga’s, were
described above. Corzo appeared to be trying to expand the Respondent’s defenses for the
discharge.

Although Corzo testified that most of the time she contacts the hospital’s attorneys
before terminating an employee, she then could not remember any other specific instances
when she has done so.

Corzo testified that other employees had made reports to her about Cardenas. When
asked on cross-examination who, she first answered there were several but then could name
only one, Jeanette Lago, who had allegedly seen him with a camera around his neck taking
pictures in patient care areas.23

Finally, I asked Corzo if she had taken any notes of these other reports, and she replied
no. Further, no one provided her with anything in writing concerning them. I find it simply
unfathomable that a high-level manager such as Corzo would terminate an employee on the
basis of complaints by other employees and yet have absolutely no documentation of such, in
the way of any statements or other affirmations by the employee-witnesses.

At no time did anyone from management or supervision speak with Cardenas about the
allegations against him prior to his termination interview.

23 Lago was director of contract compliance at the time. Since she later resigned (see GC
Exh. 92), I draw no adverse inference from the Respondent’s not calling her as a witness.

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23

Termination Interview on January 13

Zuniga and Bosch met with Cardenas. Bosch first cited allegations of harassment from
different employees as the reason for his discharge. She concededly stated that Cardenas was
discharged for soliciting employees to sign for the Union, and for passing out union literature
and posting flyers on hospital property “while at work,”24 without distinguishing by time or
location. Bosch said repeatedly during the conversation that she was only a messenger for
the administration, and Zuniga stated words to the effect that she had tried without success to
get the administration to change the decision.25 Both Bosch and Zuniga said he was a good
worker, but Zuniga also said he had engaged in impermissible activities despite being informed
that it was unacceptable.

Posttermination Events

Following his discharge, Cardenas engaged in distributing union literature26 in the
parking lot, as later discussed. He also entered the interior of the hospital on three occasions.
The first two times were on January 26, to attend the pre-election conference and then to vote in
the election. On the third, in late May, he provided the hospital with 10-day notice of the Union-
sponsored March for Democracy march, which took place on June 5.

Attorney Ross, by separate but identical letters dated June 11 to Cardenas and
Armenteros,27 stated that, as a former employee, Armenteros or Cardenas had “regularly visited
the Hospital and remained at the Hospital for hours at a time without any apparent legitimate
purpose for your visits,” requested that they “cease and desist from loitering and/or trespassing
at the facility,” and concluded with, “Consider yourself formally notified that any further invasions
on your part of our Hospital will be treated as trespass and loitering on our property and the
Hospital will take all appropriate civil and criminal action to remedy the situation.”

C. Reymundo Camejos’ Discharge on January 14

Camejos was employed as a respiratory therapist in the cardiopulmonary services since
March 2003. He did not appear to try to embellish or exaggerate the facts to which he testified,
and he struck me as credible, with one exception.

That was his impeachment on cross-examination relative to whether two other
employees in his department engaged in the same union activities as he did. He seemed
reluctant to implicate them, a sentiment I find understandable in light of his allegation that he
was discharged for engaging in union activities. Moreover, I find this to be impeachment on a
collateral matter not going to the substance of his termination. Other than this, Camejos’
testimony was internally quite consistent on both direct and cross-examination, and I generally
credit it.

24 Tr. 1760.
25 Cardenas attributed this statement to Bosch, who denied making it. Zuniga, however,
could not recall if she made such a comment. Her testimony about the termination interview
was quite precise in general, and I would expect that she could remember unequivocally
whether or not she said that. Accordingly, I find that she tacitly admitted making the remark.
26 See, e.g., GC Exh. 34.
27 GC Exhs. 22 & 36, respectively.

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24
Camejos’ supervisor was Edgar Diaz, who has been department director for 16 years
and supervises about 25 employees. Camejos is the only employee Diaz has terminated in
those 16 years. Diaz also seemed to be candid and to answer questions without trying to slant
them either for or against Camejos. Therefore, his testimony is also generally credited.
On many facts, Diaz’ testimony was quite similar to Camejos.’

Camejos worked a 12-hour shift 3 days a week, and an 8-hour shift on 1 day.
Depending on work demands, he took his morning 15-minute break between 9 and 10 a.m.,
and his 30-minute lunchbreak between 1:30–2 p.m. Camejos’ work performance is not raised
as a defense for his discharge and need not be discussed.

Camejos distributed many union flyers and solicited signatures on authorization cards at
the hospital on his and other employees’ nonworktime, wore a union lanyard or a union button
daily at work starting in mid-November 2003, and posted several flyers on the respiratory
therapy department bulletin board.

Diaz observed Camejos wearing lanyards and buttons and knew he was “very
emotional” about the Union. He thought that Camejos was posting union material on the bulletin
boards and department secretary’s counter over a period of 1-1/2 to 2 months, starting in mid-
November but never actually saw Camejos engage in this.

In mid-November 2003, Diaz called Camejos to his office. Camejos recalled that Diaz
stated that Camejos and another employee were “very enthused” concerning the situation with
the Union, and someone had told him that they had put union flyers on the counter and that
could bring them a problem or problems. Camejos responded that he would not do such a thing
because he respected Diaz a lot. Diaz’ version was fairly consistent with Camejos.’ However,
he testified that he specified that distribution of pamphlets was illegal during “time of work.”
I believe that Diaz would have had a better recollection of the precise words he used than
Camejos, and I find that Diaz added this clarification.

I credit Camejos’ uncontroverted testimony that immediately following the conversation,
Diaz went outside his office and, in front of two department secretaries, said that the Union was
no good because Eastern had gone to a union and then gone on strike because the union was
no good or did not function. Camejos responded that his experience was different.

Camejos further testified that Diaz held a meeting with 12−13 department employees in
December. In Spanish, Diaz stated that they should be very careful voting for the Union
because “it would be illegal voting against the company policy.”

Diaz did not testify about this meeting, nor did any employees other than Camejos.
Although I have no reason to doubt Camejos’ sincerity in relating what he recalled, I find it
implausible that Diaz would have used that kind of language, particularly when there was
management training regarding the Union, and the complaint alleges no other violations based
on what managers/supervisors told employees at group meetings, other than Director Juan
Campos, who engaged in a pattern of unfair labor practices.

In view of this and the absence of any corroboration by other employees who attended
the meeting, I do not find as a fact that Diaz made the statements attributed to him by Camejos.
See Port Printing Ad & Specialties, supra at slip op. at 4−5 fn. 9; C & S Distributors, supra at
404 fn. 2 (administrative law judge may properly consider lack of corrorobation by employee-
witnesses in evaluating whether testimony is credible).

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Decision to Discharge

As with the discharge of Anido, Corzo’s version of how and why management came
to the decision to discharge Camejos was contradicted by the testimony of the employee’s
immediate supervisor. Consistent with my overall conclusions that Diaz was credible and
Corzo was not, I credit Diaz’ account.

According to Corzo, she had a conversation with Diaz in her office in early January.
She called him because there had been reports that Camejos was overheard in a nurses’
station making negative comments about the hospital to a group of employees and suggesting
they get together and sue the hospital. Diaz told her he was not surprised because he had
been having some problems with Camejos, who had been “for a number of weeks now
distributing literature about the Union, and during working time posting pamphlets, literature
on nursing floors, and in the departments, patient care areas, and this is something [Diaz] had
talked to him about but he continue[d] to do.”28 Corzo then told Diaz there was a no-solicitation
policy in effect which Camejos had continued to violate despite warnings and that it warranted
termination.

Markedly different was Director Diaz’ testimony that, after Corzo related that Camejos
was making malicious statements about the hospital, he told her only that he “suspected”
Camejos was the one who was posting and distributing union paraphernalia in the department.
Corzo then said that there were policies and procedures in place that the hospital needed to
follow and to terminate Camejos. Diaz did not tell Corzo that he had previously warned
Camejos.

Termination Interview on January 14

Diaz, Bosch, and Camejos were in attendance. Diaz stated that Camejos was a very
good employee, and he had no complaints about his work, but he had told Camejos that he
should be very careful with the problem of the Union, which was going to get [Camejos] in
trouble. There was no disagreement in the testimony of Bosch, Diaz, and Camejos concerning
Bosch’s stating that Camejos’ termination was due to his soliciting and/or distributing activities
on behalf of the Union, although they differed as to her specific words. It is clear that she said
this in the context of his violating hospital policy and did not narrow the policy’s prohibitions in
terms of worktime or immediate patient care or work areas.

Bosch testified that she also told Camejos he had been put on notice several times but
had continued to violate the no-solicitation policy to the point that he had been “insubordinate” to
his supervisor. However, Diaz did not corroborate her on this, and since he was the supervisor,
I would expect that he would have recalled Bosch making any such statement. I further note
there is no evidence in Camejos’ personnel file that he received any prior formal warnings from
Diaz and no mention of “insubordination” in the e-mail memorandum of the termination meeting
that Diaz later sent to Bosch.29 For these reasons, I discredit this testimony of Bosch and find it
an attempt to come up with a new ground for Camejos’ termination after the fact.

Camejos was asked to sign a termination paper, but he refused because no union
attorney was present. He did not read the paper or ask for or receive a copy.

28 Tr. 2725.
29 GC Exh. 69.

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I will now address the General Counsel’s request for Bannon Mills’ sanctions for the
Respondent’s failure to produce the termination paper pursuant to subpoena. Bosch testified
that the Respondent was “unable to locate” it. The General Counsel contends that this should
result in exclusion of the testimony of the Respondent’s witnesses and of its documentary
evidence, including Diaz’ e-mail to Bosch, regarding Camejos’ termination.

That such a document existed is clear. Diaz corroborated Camejos’ testimony that
Camejos was presented with a termination report, and Diaz was fairly certain that he completed
it. Further, HR Benefits Representative Mirelis Asper testified that there was a termination
report for Camejos, because at one point during Anido’s unemployment proceedings, she
confused it with Anido’s.

Obviously, the claim of “lost” or “misplaced” can be a convenient subterfuge for not
turning over a document that contains admissions against interest or otherwise is deemed
damaging to a respondent’s case. The primary question, therefore, is whether the
Respondent’s failure to produce the document resulted from its proffered explanation or from a
willful refusal or bad-faith effort to search for and locate it. Champ Corp., 291 NLRB 803 (1988).
See also CPS Chemical Co., 324 NLRB 1018, 1019 (1997), enfd. 160 F.3d 150 (3d Cir. 1998);
Midwest Hanger Co., 221 NLRB 911, 926 fn. 61 (1975).

Although I find Bosch’s credibility lacking in other portions of her testimony, this does not
mean that I must find her untruthful on everything. See Golden Hours Convalescent Hospitals,
182 NLRB 796, 799 (1970). I do find it strange that the Respondent would have lost or
misplaced a document as important as a termination paper. Nevertheless, of the myriad of
documents subpoenaed, this was the only one not produced. In view of this, I decline to impute
improper motives to the Respondent, accept its explanation, and will not impose sanctions for
its nonproduction.

D. Pedro Armenteros’ discharge on February 23

Armenteros testified without controversion about the nature of his employment as
a courier and his interface with Drs. Mora and Sanjenis and Office Manager Janet Cabrera.
He appeared candid, and other witnesses with direct knowledge corroborated him.
The Respondent offered only hearsay evidence in rebuttal. Accordingly, I credit his testimony.

Armenteros was employed since October 1985. His testimony about his employment
history at the hospital was somewhat confusing, but I take into account that it covered over
18 years and included several different positions. He first was a security guard for several years
and then began performing courier duties, to which he was formally reclassified in 1999 or 2000.
His duties remained the same after the reclassification.

Armenteros was always paid by the hospital, and administration staff filled out his time
cards. Drs. Mora and Sanjenis were his immediate supervisors. Mora either called him directly
or relayed assignments to him through Cabrera. Sometimes, Mora communicated his
assignments through hospital administration staff, including, during the last several months,
Executive Director Sanchez. Armenteros received his last evaluation in August 2003, covering
the period from April 2002—April 2003.30

30 GC Exh. 20.

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As a courier, Armenteros drove both a leased limousine and a hospital van until early
2003, when the lease for the limousine expired; thereafter, he drove only the van. He normally
worked 5 days a week, but occasionally on weekends. His primary responsibility was to serve,
effectively, as a personal chauffeur for the Mora family. Not only did he take Dr. Mora to the
hospital or his own medical office at the medical group, but he also would take Mora’s children
to and from school and doctor’s appointments and other places, and Dr. Sanjenis’ mother to the
doctor. He would clock in at the hospital and then go to the Mora home. Director Rodriguez,
who worked for the hospital from 1970 until late February, confirmed that Armenteros was
primarily a chauffeur for the Mora family, and Isidro Valladares, a former lab messenger,
observed Armenteros make numerous deliveries to the medical group over a period of years.

Secondarily, for only several hours a week, Armenteros performed duties more directly
associated with the hospital, such as taking Dr. Sanjenis to monthly board meetings, taking
deposits to the bank, going to attorneys’ offices to deliver checks or documents, or making other
deliveries.

Armenteros signed an authorization card on November 20, 2003.31 He never wore any
union sticker or other insignia.

Statements Attributed to Dr. Mora

I credit the following unrebutted testimony of Armenteros and Director Rodriguez.
Although Rodriguez had a personal friendship with Armenteros, was terminated, and is currently
engaged in litigation with the hospital, I find that he was a credible witness. He appeared to be
straight forward in answering questions, has never been a union member and made no
contention that his own termination was due to anything other than Dr. Mora’s believing he put
on a convention without Mora’s consent.

Dr. Mora knew that Rodriguez and Armenteros were friends. In December 2003, Mora
called Rodriguez and asked if he knew that Armenteros was involved in the Union. Mora stated
that if Armenteros were so involved, Mora would have him fired, and the same would go for
Armenteros’ wife and daughter. As to the latter, who was on maternity leave, Mora said,
“[W]hen she comes back, I’ll fire her too because I have fought the Union for five times and I’ve
won all the time.”32 Rodriguez responded that Armenteros had nothing to do with the Union.
A few days later, Mora called him again. This time, Mora asked if Rodriguez knew if a certain
physician was involved with the Union. Rodriguez replied that he did not think that a doctor
would be.

On about December 30, 2003, Cabrera called Armenteros. She told him that Dr. Mora
had found out he had filled out a card and that he either was already fired or was going to be
fired. Further, if his wife and daughter (who also worked at the hospital) had filled out cards,
they also would be fired. She told him that, as per Mora’s orders, he was to report the following
morning to see the hospital’s attorneys. However, when he went to the administration offices
the next day, CNO Sosa-Guerrero told him that it was a misunderstanding and that they did not
need to see him.

31 GC Exh. 24.
32 Tr. 1566.

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On January 13 or 14, Armenteros had a conversation with Rodriquez while they were
having lunch at the hospital. They were social friends and regularly met for lunch. Similar to
what Cabrera had said, Rodriguez stated that Dr. Mora had told him that Armenteros had filled
out a union card and, if that was the case, Armenteros was going to be fired from the hospital,
and the same went for his wife and daughter. Armenteros replied that they were in a free
country, not Cuba, and it was his right to be part of the Union.

Decision to Discharge

Executive Director Sanchez was responsible for the decision to discharge Armenteros.
According to Sanchez, he had found out that Rodriguez was engaging in a side business in
connection with the CMC and using it for a personal gain, and because of the hospital’s efforts
to cut costs, he called Bosch in to his office in January or February and told her to terminate
Rodriquez immediately. According to Sanchez, Bosch volunteered sua sponte that she had
found another ‘”phantom employee,” who was Armenteros.

Bosch did not testify about this conversation and thus did not corroborate him.
On the contrary, she testified that she played no part in the decision to terminate Armenteros.
That aside, It strikes me as implausible that she would have brought up Armenteros, particularly
when she has responsibility for all employees at the hospital and limited firsthand knowledge of
their day-to-day work. Further, from her demeanor as a witness and other record evidence,
Bosch appears to have something of a protective attitude toward employees in general, and I
doubt if she would have initiated action against an employee, as claimed by Sanchez.

Sanchez testified that after Bosch’s remark, he had Armenteros’ file brought to him.
He learned that Armenteros was being paid and enjoyed certain “perks,” such as a paid
company car, paid car expenses, and paid insurance. He concluded that Sanchez cost the
hospital between $50,000 and $60,000 a year in salary and benefits. Sanchez allegedly
inquired of the secretaries on the administrative staff what Armenteros did and why he was
never around, but no one knew, and he was told that Armenteros was a courier for “the
Administrator’s Office and nobody else.” He became “very upset that we had somebody
who was basically collecting a salary and not doing any work.”33

Sanchez came to these conclusions and made the decision to terminate Armenteros
with out ever communicating, either directly or indirectly, with Armenteros or, according to his
own testimony, with Drs. Mora or Sanjenis, for whom Armenteros performed most of his work. I
cannot believe that Sanchez had no awareness, either personal or from others in administration,
that Armenteros served as a chauffeur for the Mora family. It is noteworthy that Sanchez never
specified who told him that Armenteros was a courier solely for the administrator’s office, and
the Respondent called no one to corroborate Sanchez on this point.

Further shedding doubt on Sanchez’ credibility was his professed inability to recall
whether Dr. Mora attended any meetings between hospital management and company
attorneys with regard to the Union. As I stated with regard to CNO Sosa-Guerrero, Mora was
too important a personage at the hospital to be forgotten, and I do not consider this claimed
failure of memory believable. It is yet another indication that Sanchez was less than fully
forthright and another reason I do not credit his testimony as to why the Respondent discharged
Armenteros.

33 Tr. 2573.

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Termination Interview on February 23

Bosch met with Armenteros. She told him she was sorry to have to tell him, but by order
of the administration, his position had been eliminated starting that day. He would receive pay
for 15 days and vacation pay. She gave him a paper to sign, which he did.34

Posttermination Events

Following his discharge, Armenteros returned to the hospital to pick up his check and,
later, for tri-annual followup scans as a cancer patient. He also went there to visit patients, to
drop his wife off to work, and to visit his daughter’s department and say hello.

I described the June 11 letter Attorney Ross sent to Armenteros in the section on
Cardenas’ discharge.

E. Hector Gonzalez’ Discharge on May 14

Gonzalez was employed since June 1988. For the last 6 or 7 years, Pedro Ortiz,
director of food and nutrition services (food services), was his supervisor.

Until November 2000, when he suffered a shoulder injury at work, Gonzalez was a
sanitation aide. He had surgery 3 months later, followed by physical therapy. He returned to
work on light duty, with restrictions imposed by his treating physician, Jacqueline Redondo, that
included no lifting above his right shoulder. For a couple of months, he was assigned to be
sandwich/salad maker and thereafter was put in the cafeteria aide position, filling in products
and preparing the counters. The latter was more physically demanding than sandwich/salad
maker but less so than sanitation aide.35 The only physical problem he had as a cafeteria aide
was in taking down trays from the cafeteria cart, for which he sometimes needed the help of
another employee.

Ortiz testified that Gonzalez could not lift anything, even in a light duty position, and
someone had to come and lift for him, and that he performed only about 50 percent of what
other people in the cafeteria did. Nothing documentary supports these assertions, and there is
no evidence that Gonzalez was ever told he was inadequately performing his duties as a
cafeteria aide or that his position as such was only temporary.

Over a period of time, Dr. Redondo completed a number of medical restrictions reports
for Gonzalez, which Gonzalez submitted to Ortiz. Her work status report dated November 8,
2001, stated, “No lifting over level shoulder. *Permanent.*” The limitation in her February 28,
2002, report was that Gonzalez not lift over 10 pounds, and she stated in her August 15, 2002,
report, “No overhead lifting over R shoulder is permanent,” a conclusion she repeated in
subsequent reports. In her April 17, 2003, report, Redondo eased Gonzalez’ restrictions by
removing the 10-pound overhead lifting limitation and replacing it with overhead lifting activity
limited to tolerance.36
34 It is not in the record.
35 Compare GC Exh. 121 (cafeteria aide job description) & R. Exh. 27 (job description
Gonzalez received as sandwich/salad maker). Ortiz testified that most employees in the
department perform the duties of both cafeteria aide and sanitation aide, regardless of title.
36 The reports described in this paragraph are, in chronological order, GC Exh. 192,
R. Exh. 28, R. Exh. 98, & GC Exh.197.

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Prior to his discharge from the hospital, Gonzalez worked as a part-time bag boy for
Publix market for approximately 13 years. Bosch conceded that the hospital was aware for
years that Gonzalez held this second job. On cross-examination, Gonzalez volunteered that
he continues to work there still. He testified without controversion that the job involves no lifting
that causes him any problems.

Starting in December 2003, Gonzalez became active in union activities. He began
wearing union lanyards and stickers daily at work, as did most other kitchen employees, and
started distributing union pamphlets three or four times a month on breaks or in the parking lot
after his shift (5:30 a.m. to 2 p.m.). His picture appeared in a union campaign flyer,37 which
was widely distributed in the hospital, and on the day of the election, January 26, he was among
a group of 30 or so union supporters celebrating the Union’s victory. Their photographs were
taken and circulated by the media. He also distributed authorization cards but had no direct
evidence of management knowledge of this.

Decision to Discharge

Lorenzo Rodriguez has been safety manager since May, in charge of the entire
employee safety program, which includes handling workers compensation claims.
Rodriguez’ investigation and recommendation led to Gonzalez’ termination.

Rodriguez testified that the first thing he did when he was hired was to review the
hospital’s workers compensation program and the 30 or so open cases. In Gonzalez’ file, he
noticed the following factors. The injury had occurred 4 years ago but the claim was still
continuing. Gonzalez had been on light duty for 2 years. The treating doctor had said his
restrictions were permanent and involved reaching overhead. Gonzalez had surgery for rotator
cup repair but there was a notation there had been loss of the repair. He had another job as a
stock clerk that could have caused this loss. According to Rodriguez, these were all “red flags,”
especially Gonzalez being on light duty assignment for over 2 years, because they meant his
inability to perform the essential elements of the job. Light duty, Rodriguez stated, is a
temporary measure meant to help the person to rehabilitate to full duty. He also saw indications
in the files that the hospital recognized that Gonzalez had been in the job for a long time and
also that the hospital had wanted to terminate him because he was not able to perform the
duties of sanitation aide but feared an Americans with Disabilities Act (ADA) claim.38

After this review, Rodriguez recommended that Gonzalez be terminated because: (1) his
restrictions preclude him from performing the essential elements of his job with or without a
reasonable accommodation; (2) he had been on temporary light duty assignment since 2002.
Rodriquez based the first conclusion on Dr. Redondo’s stating that Gonzalez’ inability to do
overhead work was permanent, meaning no further rehabilitation was possible. Therefore,
Gonzalez could not perform the job requirements of sanitation aide or cafeteria aide.

37 GC Exh. 34. Numerous employees were pictured.
38 Ortiz testified about two conversations he had to this effect with Bosch and Gina Perez
of HR, one at the end of 2002, and the other several months later. See also R. Exh. 104, a
memo dated October 9, 2003, from Bosch to Corzo. Bosch noted that Gonzalez’ only restriction
was not being able to do overhead reaching, and she raised the possibility of his being placed
in a position requiring only sitting.

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Rodriguez testified that the fact that Gonzalez had another job “really weighed” in the
decision to recommend he be discharged, because the activities Gonzalez performed as stock
clerk could result in injury that could subject the hospital to further worker’s compensation
exposure. However, Gonzalez testified he was a bag boy, not a stock clerk, and Rodriguez
never inquired of either Gonzalez or Publix exactly what Gonzalez’ job duties were. The
absence of meaningful investigation raises a question of whether Rodriguez’ conclusions were
based on bona fide assessment or were pretextual and suggests lack of credibility.

Rodriguez’ credibility was also undermined by the following. He first testified that he
did not believe there was a replacement for Gonzalez, but in his June NLRB affidavit only a few
months earlier, he stated that the Respondent hired a woman to replace Gonzalez. Rodriguez
also first testified that he did not recall if Gonzalez was performing the same job in 2004 that he
performed before February 28, 2002 (when Dr. Redondo stated he could not lift anything over
10 pounds). In that same affidavit, however, he said that Gonzalez did perform the same job
before and after that date.

Rodriguez detailed his findings to Ortiz, who agreed with Rodriguez’ recommendation to
terminate Gonzalez. They then met with Corzo, Rodriguez’ superior, who gave final approval
for the discharge.

Mercedes Garcia

During this period, another employee under Ortiz’ supervision, Mercedes Garcia, also
had a longstanding workers’ compensation claim and permanent medical restrictions as to lifting
(no overhead and not over 20 pounds occasionally). To accommodate these restrictions, she
was offered a temporary position as team leader, which was less physically demanding and
required less lifting than either sanitation or cafeteria aide. Because Garcia said she could not
push a heavy door upstairs, she was relieved from that responsibility.39 Further, in discussing
Garcia’s situation, Rodriguez and Ortiz agreed that if any overhead lifting needed was needed
as part of her job duties, she would be helped by either sanitation aides or cafeteria aides.
Garcia turned down the team leader position offered to her on the same day that Gonzalez
was discharged.

Ortiz testified that Gonzalez was not offered a team leader position because he did not
have the requisite skills and was not offered a cashiering position because his job at Publix
would not allow flexibility of schedule. Ortiz never asked Gonzalez if he wanted the cashiering
job.

I do not credit Ortiz’ testimony that he knew Garcia was a union supporter but had no
knowledge that Gonzalez was also one, since I credit Gonzalez’ testimony that he wore union
insignia to work daily and engaged in other covert union activities. Further, Ortiz was frequently
vague or evasive when questioned on cross-examination about Garcia. These factors detract
from his overall credibility, especially when considering that fairly recent events were involved.

Termination Interview on May 14

Ortiz and his assistant, Bosch, and Gonzalez were in attendance. Ortiz stated that
Gonzalez was terminated because of his injury, and Bosch reiterated this. Ortiz gave him the

39 See GC Exh. 141.

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termination form40 and had it read to him in Spanish. It stated that because he had reached
maximum medical improvement (MMI) on May 15, 2003, and the doctor imposed permanent
restriction of no lifting overhead, his “temporary assignment” from March 2002 could not
continue, and they could not use him any more.

Although the Respondent has asserted the existence of a report from Dr. Redondo
dated May 15, 2003, stating that Gonzalez had reached MMI, no such document was produced.

F. Failure to rehire Felipe Hernandez

Hernandez did not testify at the hearing, because he was recovering from surgery.
Information about his situation came primarily from Director Ortiz, his supervisor, and HR
Director Bosch. The Respondent did not call HR Generalist Gina Perez, who is in charge
of all employment applications.

Hernandez was a cook in food services. Ortiz knew that he was a union supporter
because he wore lanyards and SEIU buttons at work. Hernandez was laid off on January 23
when the food kiosk was closed down and his position eliminated. An NLRB charge was filed
over his layoff.

During the first week of May, Hernandez went to HR and obtained and completed an
employment application.41 In the portion for position applied for, he wrote, “(o)pen kitchen.” He
was never contacted for work. Ortiz was aware that Hernandez applied for a position and
wanted him rehired, apparently to fill a sanitation aide opening.

When there is a vacancy in food services, Ortega fills out a job requisition and sends it
to HR, which posts the position and its qualifications. HR handles applications and forwards
them to Ortiz, who has ultimate authority to hire or not hire. If no vacancy exists in food services
and an application for a position there comes in, Ortiz would never see it. However, Ortiz does
has the authority to directly hire for a vacancy, in which event, at Ortiz’ discretion, the applicant
need not specify a job title. Director Delgado’s gave a similar description of the application and
hiring process for his department, and I credit this portion of Ortiz’ testimony.

There were vacancies in food services at around the time Hernandez applied. On
April 22, the hospital’s weekly job announcements posting listed the positions of cafeteria aide
and sanitation aide, and the posting for May 1 listed a vacancy for cafeteria aide.42 Bosch
testified that on about May 11, the Respondent decided to hire Dilia Sanchez for one of the
cafeteria aide positions. She had not previously worked for the hospital. Efforts to contact her
were unsuccessful. Applicants with no prior hospital experience eventually filled the three
positions.

Bosch testified that when an application is received for a vacant position, it is logged in
and given to Perez, who handles recruitment for the hospital. After screening applications for
qualifications, Perez forwards them to the corresponding director. If there is no vacancy for the
position listed in the application, the application is filed in a filing cabinet, by job code and not in

40 R. Exh. 58.
41 GC Exh. 82, which he dated May 4. The HR log (R. Exh. 108 at 2) has May 13 as its
filing date. Bosch testified it was received by mail that day.
42 GC Exhs. 119(c) at 3 & 119(d) at 3, respectively.

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alphabetical order by name of applicant. It is not looked at again, unless the position specified
is hard to fill.

Although Bosch stated emphatically that applications listing no specific position are
rejected and also filed away, other applicants who did not list a specific position were
considered for employment during the same period Hernandez applied. Thus, Sanchez was
offered a cafeteria aide position even though she wrote only “kitchen” on her application.43
Similarly, the Respondent hired Ana Hernandez (no relation), another new employee, as a
cafeteria aide starting on May 21, although she had only written “any” in the position portion
of the application and not even specified a department.44 Based on this treatment of other
applicants, I find, contrary to Bosch’s assertion, that HR does accept and forward to department
supervisors applications that do not specify a particular position.

Other aspects of Bosch’s testimony further undermined her credibility. She testified that
she could recall no employee whose position was eliminated for whom the hospital had another
job and, further, that she would know if this happened most of the time. Yet, the testimony of
Directors Crespo and Delgado establishes that in recent months, at least two employees whose
positions were abolished filled vacancies in other departments rather than been terminated and
that this is not an uncommon occurrence.

Bosch also gave directly conflicting testimony on the length of time the Respondent
maintains applications that are filed, initially testifying 6 months but later stating 1 year. This is a
straightforward matter, on which I would expect a straightforward answer from the head of HR.

Finally, Bosch was frequently tentative and uncertain in testifying about Hernandez and
Sanchez, whether intentionally evasive or just simply due to lack of first-hand knowledge.
In this regard, Bosch testified that she was not the one responsible for the lack of action on
Hernandez’ application, which means that the Respondent did not call the person or persons
who were.

For all of the above reasons, Bosch was not a reliable witness regarding why the
Respondent did not contact Hernandez after he filed an application for rehire.

ALLEGATIONS OF PROHIBITING EMPLOYEE DISTRIBUTION OF UNION LITERATURE
DURING NONWORK TIME IN NONPATIENT CARE, NONWORK AREAS

Unless otherwise indicated, all of the following allegations concern events that took
place when employees and others were distributing union literature in the hospital’s main
parking lot. Witnesses of both the General Counsel and the Respondent were generally
consistent as far as the interaction between those who were distributing and security personnel.

Alfredo Padilla, director of security, has encumbered his position for about 7 years and
oversees the entire security department of approximately 15 security officers. In his absence,
three group leaders (or team leaders) and three acting group leaders are in charge and direct
the security officers.

43 GC Exh. 88.
44 R. Exh. 60.

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The testimony of Cardenas and of Director Padilla and Group Leader David Diaz makes
it clear that, although it may be prohibited by hospital policy, persons have engaged and
continue to engage in washing cars in the parking lot and in placing flyers for car washes under
the windshield wipers of parked cars. However, inasmuch as there is no evidence that such
persons are employees, it cannot be concluded that any disciplinary action could be taken
against them for such activity. There is no evidence that any of those individuals have ever
been arrested for trespass.

The specific allegations follow.

A. On December 18, 2003, by David Diaz, group leader.

Diaz confirmed his notation in the December 18, 2003, security log that he asked several
employees who were giving out “union paper” without authorization “not to.”45

B. On January 22, by Diaz.

In January, Cardenas and others were engaged in distributing, when Padilla and Diaz
told him to stop because he did not have authorization from the administration. One such
occasion was on January 22, as documented by Diaz in an incident report.46

In January, Charge Nurses Alicante and Vasquez together engaged in distributing flyers
and other paraphernalia, on their nonwork days. They testified about three incidents, the first on
January 22. That morning, Diaz approached them and stated they were not allowed to
distribute the flyers because it was private property. Alicante asked who was the person who
had told him to tell them. Diaz gave her the policy to read.47 Since people no longer at the
hospital signed it, Alicante questioned whether it was valid. Alicante and Vasquez did leave.
Diaz’ testimony was substantially the same as theirs.

C. On about January 26, by Diaz and Alfredo Padilla, director of security.

The second two incidents involving Alicante and Vasquez took place on this date. They
were distributing flyers in the morning when one or two security guards approached and stated
they could not distribute them, after which Alicante and Vasquez left. Their testimony differed
as to whether it was one or two guards and also as to the exact time the incident occurred.
Neither identified a guard by name.

In the early afternoon, they returned and sat in the shed located in the parking lot area.
Vasquez recalled that Diaz and Padilla came in and that the latter told them to stop what they
were doing, because it was putting them (security) in a very uncomfortable position. Alicante,
on the other hand, testified that only one security guard whom she did not recognize came in
and said they could not distribute anything.

Neither Diaz nor Padilla testified about such an incident. Since Alicante named Diaz as
the security guard who spoke to them on January 22, her testimony that she did not recognize
45 GC Exh. 181(a) at 24.
46 GC Exh. 188.
47 Consistent with Diaz, Alicante testified that it was R. Exh. 24, signed by CEO
Roberto Trejidor in April 1994. Vasquez testified it was not R. Exh. 24 but a document
signed by someone else.

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the guard on January 26 was inconsistent with Vasquez’ testimony that Diaz came in to the
shed that afternoon.

In the absence of any identification of the security guards in the morning and the lack of
consistent identification of those in the afternoon, I cannot make findings of fact as to who they
were. It follows that this allegation fails.

D. On April 20, by Cristobal Airado, security officer.

Diaz’ testimony and the security log entry of April 2048 reflect that Airado saw several
people by the bridge giving flyers and told them not to.

E. On May 3, by Diaz; on about May 5, by Padilla; and on about May 19, by Diaz.

On at least three occasions, starting in early May, Cardenas distributed flyers for the
Union’s June 5 March for Democracy. Felix Monzon was with him on some of those occasions,
as was Carmen Duran. Cardenas had been discharged by these times, but Monzon and Duran
were still hospital employees.

The security log of May 3,49 and the testimony of Cardenas and Diaz, establish that on
that day, Cardenas and two others were distributing by the bridge, and Diaz told them they
needed approval for the administration and to stop. They did so.

On about May 5, while engaged in distributing, Cardenas had a conversation with
Padilla. Hospital employees and union organizers were also present. Padilla stated that the
administration had said they would have to leave the premises and it was bad for their jobs
(security personnel) if they kept doing that. Cardenas replied they did not want to get the
security people in trouble with the administration, and they then left. Monzon testified that on
two or three occasions in May, when he was distributing flyers on his breaktime with Cardenas,
Padilla told them to move because the administration said they could not distribute there
because it was private property.

On about May 19, Cardenas testified without controversion, he was engaged in
distribution when Diaz came over. Again, employees and union organizers were in the
immediate area. Diaz said basically the same thing as Padilla had on May 5.

F. In around late May, by Juan Rivera, group leader.

Cardenas further testified that in late May, in similar circumstances, a security guard
came over and made similar statements. Cardenas could not identify the individual on the
record and stated that he believed but was not certain that the individual was evening shift
supervisor. Even if Juan Rivera was the evening group leader or supervisor at the time,
Cardenas’ testimony was too uncertain to make a finding as to whom the security officer was.
On that basis, this allegation fails.

G. On June 2, by Diaz; and on June 4, by Joaquin Trista and Alberto Villages,
group leaders.

48 GC Exh. 181(b) at 6.
49 GC Exh. 181(b) at 11.

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Diaz confirmed a June 2 security log entry of June 250 that on that date, he told three
individuals distributing literature not to be giving out propaganda and to move off hospital
property.

A security log entry and an incident report of June 4,51 as well as Trista’s testimony,
establish that on that date, Trista and Vallarez observed Cardenas and a presumed
nonemployee engage in union activity; i.e., stopping employees in the parking lot as they left the
hospital and giving them papers. Trista and Vallarez told them that they could not distribute any
propaganda on the hospital’s premises and to leave. They did. Although Trista testified that
Cardenas and the other individual were causing a congregation of people by the entrance and
a potential safety hazard, there is no mention of this whatsoever in either the security log or the
incident report, and I do not find this to be a fact.

I find that in all the above incidents, the sole conduct viewed as prohibited by the
security officers was the act of distribution itself, and that was reflected in what they said to
employees engaging in that activity.

Analysis and Conclusions of Law

Independent 8(a) (1) allegations

A. Director Juan Campos:

1. On about December 23 and 24, 2003, told employees not to discuss employment
matters concerning their mutual aid and protection with coworkers.

2. In about December 2003, and between January 15 and 26, threatened to replace
employees with outside contractors if they supported the Union or engaged in concerted
protected activities.

3. In about early January, interrogated employees about their union activities and told
them it would be futile for them to select the Union as their collective-bargaining representative.

4. In about mid-January, impliedly threatened employees with unspecified reprisals by
telling them they were disloyal because they supported the Union and engaged in concerted
protected activities.

5. On about January 15, instructed employees to remove union insignia.

6. Between about January 15 and January 26, threatened to rescind an “open door”
policy if employees selected the Union as their collective-bargaining representative.

The Respondent having admitted all of these allegations, I sustain them as violations
of Section 8(a)(1).

B. Director Edgar Diaz, in about late December 2003, impliedly threatened employees
with unspecified reprisals if they engaged in union activities.

50 GC Exh. 181(b) at 24.
51 GC Exh. 181(b) at 26 & R. Exh. 37, respectively.

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This relates to the conversation between Diaz and Camejos in approximately mid-
November 2003. Diaz made the remark about Camejos having a problem or problems in
connection with having distributed union flyers in the department. However, in this connection,
Diaz told him that such distribution was illegal during “time of work.”

Contrary to the argument in the General Counsel’s brief, Diaz’ use of the phrase “time of
work” was not improper, since the Board has found rules restricting solicitation and distribution
on “working time” to be presumptively valid, as opposed to those using the terminology,
“working hours” or other wording suggesting that the prohibition covers the entire workday,
including lunch and other breaks. Brockton Hospital, 333 NLRB 1367 (2001); S. E. Nichols,
Inc., 284 NLRB 556 (1987); Our Way, supra. Included in the latter category is the term
“company time,” the language at issue in RCN Corp., 333 NLRB 295 (2002), cited in the
General Counsel’s brief; see also M.J. Mechanical Services, 324 NLRB 812, 813 (1997). Thus,
with his clarification, Diaz was making a statement of the law rather than an unlawful threat.

After the conversation, Diaz went outside his office and, in the presence of Camejos and
two department secretaries, stated that the Union was not good because Eastern had gone to a
union and then gone on strike. I do not conclude that that Diaz’ remarks were coercive as
threatening. The comments were vague and ambiguous and did not state or imply the
inevitability of a strike if the Union became the hospital’s employees’ collective-bargaining
representative. See Embossing Printers, 268 NLRB 710, 715 (1982) contrast Smithfield
Packing Co., 344 NLRB No. 1 (2004); Wilkie Metal Products, 333 NLRB 603 (2001). In making
this determination, I have considered the totality of the surrounding circumstances, in particular,
the legality of Camejos’ statements in his immediately preceding conversation with Camejos
and the casualness with which these comments were made. See Ebenezer Rail Car Services,
333 NLRB 167 fn. 2 (2001); Mediplex of Danbury, 314 NLRB 470, 471 (1994).

Therefore, I recommend dismissal of this allegation.

C. Office Manager Janet Cabrera, on about December 30, 2003, created the impression
of surveillance of employees’ union activities and threatened employees with discharge in
retaliation for engaging in those activities. Directly related is the allegation that Board Member
Dr. Modesto Mora, on the same date, impliedly threatened employees with discharge in
retaliation for their union activities.

Armenteros' unrebutted and credited testimony is that when Cabrera called him on
December 30, she stated that Dr. Mora had said he found out about Armenteros filing out a
union card and that if Armenteros had filled out that union card, he was going to be fired or was
already fired and, further, the same would happen to Armenteros’ wife and daughter if they filled
out cards.

Having found Cabrera an agent of the hospital within the meaning of Section 2(13),
I sustain the above allegations of violation of Section 8(a) (1) of the Act.

The General Counsel contends that Cabrera’s statements to Armenteros above should
be directly imputable to Dr. Mora, so that, in essence, the threats she made to Armenteros on
behalf of Mora should constitute double violations of the Act—by her, and also by Mora.
Since Cabrera’s threats were uttered once and by Cabrera alone, I find it unnecessary and
inappropriate to find a second and separate violation by Mora for the same words and
recommend dismissal of this allegation. The cases cited in the General Counsel’s brief do
not dictate a contrary result.

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D. Director Vicente Rodriguez, on about January 13 or 14, threatened employees with
discharge in retaliation for their union activities.

Rodriguez told Armenteros that Dr. Mora said he would discharge Armenteros and his
wife and daughter if they signed union authorization cards. I have determined that Rodriguez
was a managerial employee and an agent of the Respondent under Section 2(13) of the Act.
The fact that Armenteros and Rodriguez frequently had lunch together and even may have been
close personal friends is immaterial, inasmuch as the test for determining whether Rodriguez’
statements were coercive is based on an objective, rather than subjective, standard; to wit,
whether they reasonably tended to interfere with the free exercise of Armenteros’ protected
rights. See Southwire Co., 282 NLRB 916, 917−918 (1987); Florida Steel Corp., 224 NLRB 45
fn. 1 (1976); Hanes Hoisery, 219 NLRB 338 (1975). Threatening an employee and his family
members with discharge because they signed authorization cards certainly meets this test,
and I sustain the allegation.

E. HR Director Delsie Bosch, on about January 13, informed employees that they were
discharged due to their union activities; and on about January 14, informed employees they
were prohibited from engaging in union activities at work.

These relate to Bosch’s termination interviews with Cardenas and Camejos,
respectively. As to Cardenas, Bosch admitted told him on January 13 that he was being
discharged for soliciting employees to sign union authorization cards, passing out union
literature, and posting flyers on hospital property “while at work,” a phrase that connotes
the entire workday, including nonworktime. Its use was therefore improper. See Chartwells
Compass Group, U.S.A., 342 NLRB No. 121 (2004); See also Our Way, supra. By indicating
that the Respondent was relying on an overly broad no-solicitation/no-distribution rule as the
ground for an employee’s discharge, she violated Section 8(a)(1) on that basis. The above
allegation seems too expansive, and I narrow my finding of a violation to this.

During Camejos’ termination interview the following day, Bosch said that soliciting
and distribution for the Union was prohibited by hospital policy, without distinguishing between
employee’s worktime and nonworktime. Therefore, I draw the same conclusion and find that
the violation was in Bosch stating that the hospital could enforce an overly broad no-
solicitation/no-distribution rule.

F. Prohibited employees from distributing union literature during nonworktime in
nonpatient care, nonwork areas (to wit, the main parking lot).

There can be no reasonable contention, and the Respondent does not suggest, that the
parking lot was a patient care area or otherwise a work area of the hospital. Nor is there any
claim that any of the employees who distributed there were on their worktime. As noted earlier,
the sole conduct the security guards saw was improper, and sought to stop, was the act of
distributing union literature.

In this regard, even though Cardenas had already been discharged when the incidents
involving him occurred, nothing in the security logs or the testimony of the security officers
states or implies that the security department saw his offense as trespassing separate and apart
from engaging in distribution that violated hospital policy. Therefore, the Respondent cannot
now successfully advance as an additional defense, after the fact, that he was an ex-employee
trespasser, as asserted in Ross’ June 11 letter and in the Respondent’s brief.

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Cardenas’ status aside, current employees were distributing union literature along with
him or, at the very least, were in the immediate vicinity when the security officers told him to
stop. Since other employees overheard the statements made by security officers to Cardenas,
the statements, if found unlawful, were violations of Section 8(a)(1) as to those employees.
See Family Nursing Home 295 NLRB 923, 926 (1989); Southern Maryland Hospital Center 294
NLRB 823, 824 (1989).

Based on the above law and analysis, and the facts as previously set forth, I sustain
the following allegations of interference with employees who were engaged in distributing
union literature.

1. On December 18, 2003, Group Leader David Diaz asked several employees to
stop distributing because they did not have permission from the hospital’s administration.

2. On January 22, Diaz told Cardenas to stop distributing because he did not have
authorization from the administration. On about this date, in the morning, Diaz told Alicante
and Vasquez and stated they were not allowed to distribute because it was private property.

3. On April 20, Security Officer Cristobal Airado told several people by the bridge
not to distribute.

4. On May 3, Diaz told Cardenas and others that they needed approval from the
administration and to stop distributing.

5. On May 5 and on about May 19, Director of Security Alfredo Padilla and Diaz,
respectively, told Cardenas and others that the administration had said they would have to
leave the premises.

6. On June 2, Diaz told three individuals not to give out propaganda and to move
off hospital property.

7. On June 4, Group Leaders Joaquin Trista and Alberto Vallarez told Cardenas and
others that they could not distribute any propaganda on the hospital’s premises and to leave.

G. The Respondent, by Ross’ June 11 letter, threatened employees with civil or criminal
action in retaliation for their union activities.

Both Cardenas and Armenteros received identical letters. All of the former’s post-
discharge presence at the hospital was connected with protected union activity or with NLRB
processes. Accordingly, I conclude that the letter, which told him to “cease and desist from
loitering and/or trespassing at the facility” or face “all appropriate civil and criminal action”
constituted an unlawful threat in violation of Section 8(a)(1).

Armenteros, on the other hand, returned to the hospital after his discharge for only
personal reasons: to pick up his check, go for tri-annual followup scans as a cancer patient,
visit patients, drop his wife off to work, or visit his daughter’s department and say hello.
To the extent that Armenteros went to the hospital to pick up his final check or as a patient,
the Respondent cannot seriously argue that he was a trespasser.

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Regarding the other reasons, the Respondent provided no documentation or other
evidence to show that Armenteros abused visiting privileges afforded to all members of the
public, went into nonpublic areas, or interfered with the work of employees, hospital business,
or patient care. In such circumstances, a reasonable person in Armenteros’ position could
logically have concluded that the hospital did not want him on the premises because he had
engaged in union activities, especially after what Cabrera and Rodriguez had communicated to
him about Dr. Mora’s sentiments. Accordingly, I conclude that the June 11 letter to Armenteros
also amounted to an unlawful threat under Section 8(a) (1).

Therefore, this allegation is sustained as to both Armenteros and Cardenas.

Violations of Section 8(a) (3) and (1)

The Respondent has admitted, and I find, that Director Campos violated Section 8(a) (3)
and (1) of the Act by issuing written warnings on about December 23, 2003, to Carlos Carbonell,
Patria Diaz, Candido Jacomino, Marilu Montano, Rockefeller Moreno, Nelson Rabelo, Xiomara
Rodriguez, and Regla Teresa Roja-Garcia, because they engaged in concerted protected
activities by requesting and obtaining permission to leave a training meeting conducted solely in
English.

The Alleged Discriminatees

The framework for analysis is 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
make a prima facie showing sufficient to support an inference that the employee’s protected
conduct motivated an employer’s adverse action. The General Counsel must show, either by
direct or circumstantial evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such conduct, the employer harbored
animus, and the employer took action because of this animus.

Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. The burden
of persuasion then shifts to the employer to show that it would have taken the same adverse
action even in absence of the employee’s protected activity. NLRB v. Transportation Corp., 462
U.S. 393, 399−403 (1983) Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Serrano
Painting, 332 NLRB 1363, 1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993). To meet
this burden, “an employer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action would have taken place
even in the absence of the protected conduct.” Serrano Painting, supra at 1366, citing Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984).

Although the Board cannot substitute its judgment for that of an employer and decide
what would have constituted appropriate discipline, the Board does have the role of deciding
whether the employer’s proffered reason for its action was the actual one, rather than a pretext
to disguise antiunion motivation. Detroit Paneling Systems, 330 NLRB 1170 (2000) Uniroyal
Technology Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir. 1998).

The Respondent’s counsel has emphasized that the hospital still employs many known
union adherents. However, this fact does not serve as evidence that the Respondent’s actions
against the alleged discriminatees were not motivated by antiunion animus. An employer’s
unlawful discrimination against some union supporters and activists is not negated simply

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because the employer did not discriminate against all union supporters. Handicabs, Inc., 318
NLRB 890, 997−898 (1995), enfd. 95 F.3d 681 (8th Cir. 1996). Indeed, the chilling effect that
selective discrimination has on all employees cannot be doubted.

Antiunion Animus

There is direct evidence of the Respondent’s antiunion animus. From the unrebutted
and credited testimony of Armenteros and Rodriguez, it is clear that the Respondent’s hostility
toward the Union and employees who supported it emanated from the highest level, to wit, Dr.
Mora, a founder and member of the governing board of directors whose spouse is the board
chairperson. Mora stated more than once that he would fire Armenteros and his family
members if they signed union cards and made other antiunion remarks. Because of Mora’s
position, his animus must be considered to bear on all of the alleged discriminatees, not only
Armenteros.

Direct evidence of animus bearing on the alleged discriminatees as a whole is also
found in the independent 8(a)(1) violations, including various threats and numerous instances
that the security department ordered employees to stop distributing union literature on their
nonworktime in nonpatient care, nonwork areas.

A. Francisco Anido

Anido signed a union card and had conversations about the Union with coworkers. The
Respondent discharged him on January 13 because of one particular such conversation in late
December 2003. The last element, animus, is satisfied by Dr. Mora’s expressed hostility toward
employees who supported the Union, as well as the Respondent’s commission of independent
violations of Section 8(a)(1). I conclude that the General Counsel has made out a prima facie
case of unlawful discharge under Wright Line.

Going to the Respondent’s proffered justification for Anido’s discharge, the sole basis
was the one conversation in which he purportedly threatened coworker Mirta Rene with
physical and personal harm. Basically, the Respondent contends that the threatening nature of
Anido’s statements removed it from the penumbra of protected union activity.

As I previous stated, I do not credit Rene’s account of that conversation or, more
importantly, COO Corzo’s testimony about the circumstances behind Anido’s discharge.
I will not repeat all of the reasons I described earlier for finding Corzo unreliable but only
highlight the most consequential ones, insofar as evaluating the validity of the Respondent’s
defense.

Anido’s supervisor, Director Delgado, whom I find credible, directly contradicted Corzo’s
testimony that she asked him to investigate Rene’s complaint, and that he later told her he
had met with Anido, Anido had admitted in part the allegations, and he had terminated Anido.
Delgado’s testimony that he conducted no investigation was consistent with Anido’s, and his
testimony that Corzo presented him with Anido’s discharge as a fait accomplish comports with
the termination paper and both HR Director Bosch’s and Delgado’s statements at Anido’s
termination interview that “the administration” had discharged him.

This not only seriously undermined Corzo’s credibility. Her failure to conduct any kind of
investigation whatsoever after the one conversation with Rene undermines the Respondent’s
defense that Anido was discharged for threatening Rene, especially since the normal procedure

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when there is a threat against an employee is to conduct an investigation (testimony of CNO
Sosa-Guerrero). An employer’s failure to conduct a fair and complete investigation of
allegations of employee misconduct suggests that the employer is not genuinely interested in
knowing the underlying facts and circumstances of the event but, rather, is looking for a pretext.
See Publishers Printing Co., 317 NLRB 933, 938 (1995) Burger King Corp., 279 NLRB 227, 239
(1986) Syncro Corp., 234 NLRB 550, 551 (1978).

Further, Corzo failed to obtain any kind of written statement from Rene, prepare any kind
of formal report, or make a referral of the matter to the security department before proceeding to
have Anido discharged. Significantly, Sosa-Guerrero further testified that when there is a threat
to an employee, a security report is generated. Thus, Corzo, a high-level manager, incredibly
asserted that she discharged an employee based only on the verbal complaint of another
employee with no documentary confirmation of what the employee said.52

This conduct was wholly inconsistent with the normal management goal of having
adequate documentation in the event that a discharge or other disciplinary action against an
employee is challenged. This suggests that, for whatever reason, Corzo did not want Anido’s
discharge to be documented and leads to further doubt that the defense offered by the
Respondent was the real reason for Anido’s termination.

In sum, Corzo alone heard Rene’s allegations and made the decision to discharge
Anido. Her testimony concerning the discharge was not credible, and the actions she took
were inconsistent with the conclusion that it was based on the good-faith belief that Anido had
engaged in misconduct. It follows that the Respondent has failed to meet its burden of showing
by a preponderance of the evidence that it would have discharged Anido on January 13, 2004,
other than for his protected union activities. Therefore, the discharge violated Section 8(a) (3)
and (1) of the Act.

B. Juan Carlos Cardenas

Cardenas was active in various types of union activity prior to his discharge on
January 13: he wore a union lanyard daily to work, from the end of December 2003 on, passed
out flyers in the lobby or cafeteria two or three times a week, starting in about late November
2003, and also solicited employees to sign authorization cards in the cafeteria and lobby,
starting in November 2003 and continuing until his discharge. On one occasion that he
passed out flyers, he encountered and spoke with Dr. Sanjenis, who informed him she was
a supervisor. The Respondent’s proffered defenses for his termination, along with security
logs and testimony of guards, further demonstrate employer knowledge of his union activities.

Animus is found in independent violations of Section 8(a)(1) directed specifically at
Cardenas (Bosch’s articulation of an overly broad no-solicitation/no-distribution rule at his
termination interview and counsel’s June 11 letter), and in Dr. Mora’s hostility toward
employees engaged in union activity.

I conclude that the General Counsel has made out a prima facie case of unlawful
termination and now turn to the Respondent’s defenses. There were discrepancies between

52 Even if not excluded, her purported notes of the conversation with Mirta—untitled and
undated and consisting of two brief handwritten incomplete sentences—hardly qualify as a
meaningful memorialization.

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hospital witnesses on the exact reasons that Cardenas was discharged. Director Zuniga
testified that at her first meeting with Corzo, in December 2003, she reported to Corzo only that
Cardenas had been pressuring employees to sign cards and join the Union. Corzo, on the other
hand, testified that Zuniga also told her about union literature being distributed in the
department. At the second meeting, in January, Zuniga testified that Corzo stated that she had
received numerous other reports that Cardenas had engaged in soliciting for the Union in
patient care areas during worktime. Corzo, however, testified that she told Zuniga not only that
she had reports of Cardenas soliciting employees but also of his having posted flyers and taken
pictures during worktime. I note that at Cardenas’ termination interview, Bosch said nothing
about his taking pictures.

Neither Zuniga nor Corzo was satisfactorily credible concerning the reasons for
Cardenas’ discharge. As to Zuniga, none of the employees who allegedly complained to her
about Cardenas were called as witnesses, and thus her hearsay testimony was not
corroborated; moreover, she was evasive and directly contradictory on the important matter of
how many conversations she had with Corzo about Cardenas prior to his termination.

Corzo’s versions of her December and January 9 meetings with Zuniga were not fully
consistent with Zuniga’s and appear to have constituted an attempt to expand the bases for
discharge. Corzo’s credibility was further diminished by her failure to recall any other specific
instances when she has contacted the hospital’s attorneys before terminating an employee,
following her testimony that she does so most of the time; by her first testifying that several
other employees had made reports to her about Cardenas and then being able to name only
one; and by her failure to have anything in writing from any of the employees who allegedly
made such reports.

Inasmuch as Cardenas’ alleged violation of the hospital’s no-solicitation/no-distribution
rule is the primary focus of the Respondent’s defense, I will now address it. Cardenas testified
he engaged in all of his union activities on nonworktime, and no evidence was introduced to the
contrary.

The record reflects that employees in at least many departments posted personal items,
including advertisements, on department bulletin boards. In some departments, catalogues for
Avon products and other nonhospital purposes were maintained in open view.

Employees (and at least one nonemployee) were permitted to engage in solicitation for
purchases and sales. Such activities were frequent, widespread, and openly conducted; often
with the knowledge of supervisors and sometimes with their direct participation. Frequently, this
occurred on employees’ worktime with awareness by supervisors, who they took no action.
Felix Monzon is the best example of the hospital’s permissiveness toward solicitation for sales.
He sold various products for many years with the full knowledge of his supervisors and was
never once told to stop. Prior to Camejos and Cardenas, only one employee was ever
disciplined for engaging in solicitation of sales (Marciela Fernandez), and she received just a
verbal warning.

In sum, the Respondent’s written no-solicitation/no-distribution policy was not strictly
enforced on a hospital-wide basis prior to the Union’s organizing campaign. Even if Cardenas
and Camejos did violate the written policy on no-solicitation/no-distribution, the imposition of the
penalty of discharge on them was disparately harsh compared to the verbal warning issued to
Fernandez and, more strikingly, at total odds with the leniency the hospital has displayed toward
other employees, such as Monzon, who have engaged in other kinds of solicitation on a regular
basis. This undercuts the Respondent’s reliance on its no-solicitation/no-distribution policy as a

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defense. See Avondale Industries, 329 NLRB 1064, 1065 (1999); Merillat Industries, 307 NLRB
1301, 1303 (1992).

Since Corzo (but not Zuniga) testified that Cardenas’ taking of photographs was also a
factor in his discharge, I will now address the issue. The hospital has no written prohibition or
other policy against employees taking photographs of other employees, even in patient care
areas or their proximity, and such activity is not an unusual occurrence or one considered by
employees to be a major breach of hospital policy. Even if Cardenas engaged in such on
worktime, other employees have been allowed to engage in solicitation or distribution on
worktime with impunity. In these circumstances, this defense fails.

By management’s failure to provide a consistent, coherent, and sustainable defense, the
Respondent has failed to meet its burden of showing that it would have discharged Cardenas on
January 13, 2004, other than because he engaged in protected union activities. Therefore, the
discharge violated Section 8(a)(3) and (1) of the Act.

C. Reymundo Camejos

Camejos engaged in various activities in support of the Union, including wearing a union
lanyard or button daily starting in mid-November 2003. His supervisor, Director Diaz, observed
this and believed that Camejos was the one who was posting union materials on the bulletin
boards and department secretary’s counter. He was discharged on January 14 for engaging in
allegedly prohibited solicitation or distribution on behalf of the Union. The last element, animus.
has been shown by the Respondent’s independent violations of Section 8(a)(1), in particular,
Bosch’s enunciation of an overly broad no-solicitation/no-distribution policy at Camejos’
termination interview, and by Dr. Mora’s antiunion attitude. I conclude that the General Counsel
has made out a prima facie case of unlawful termination under Wright Line.

Since Camejos’ termination paper was never located, the Respondent’s reasons for his
discharge must be taken from the testimony of its witnesses. There is no dispute that at his
termination interview, Bosch told Camejos that his discharge had to do with his soliciting/
distributing on behalf of the Union, although Bosch, Diaz, and Camejos recalled her exact words
differently. Because of this and because management representatives provided differing
justifications, the reasons for Camejos' discharge are not entirely clear.

As with Anido’s discharge, Corzo made the decision to terminate Camejos. Once again,
her version of how and why management came to the decision to discharge was not supported
by the employee’s direct supervisor, here Diaz. For reasons stated, I credit Diaz and find that
Corzo told him she had heard Camejos was making “malicious” statements about the hospital
(to the effect of employees suing it), he stated that he believed that Camejos was posting
and placing union paraphernalia in his department, and she then instructed him to terminate
Camejos. He did not tell her, as testified by Corzo, that he had previously warned Camejos
about distributing literature during worktime and in patient care areas but that Camejos had
continued to do so.

Similarly, Diaz did not corroborate Bosch’s testimony that at the termination interview,
she stated that Camejos had been put on notice several times but had continued to violate the
no-solicitation policy to the point where he was “insubordinate” to his supervisor (Diaz).

I find that this testimony of Corzo and Bosch, that Camejos’ alleged failure to heed prior
warnings, or insubordination, was another ground for his discharge, constituted an after-the-fact
attempt to buttress the Respondent’s case. To the contrary, rather than strengthen it, such

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advancement of a new reason is an indication that the Respondent’s asserted reasons for
Camejos’ termination were pretextual and not bona fide. See McClendon Electric Services, 340
NLRB No. 73, slip op. at 2 (2003); Meaden Screw Products Co., 336 NLRB 298, 302 (2001).

So did the failure of Corzo to conduct any kind of investigation into the matter, after Diaz
merely stated he “believed” that Camejos was posting or otherwise distributing union
paraphernalia in the department. See Publishers Printing Co., supra; Burger King Corp., supra;
Syncro Corp., supra.

I dealt with the hospital’s lax enforcement of its rules against employee solicitation and
distribution in the section on Cardenas’ discharge and reach the same conclusions as to
Camejos.

On the matter of the treatment of other employees, I further note that in the 16 years
that Diaz has run his department Camejos has been the only employee he has discharged.
Common sense dictates the conclusion that other employees in Ortiz’ department during those
many years violated hospital policies but that none of their misconduct was considered serious
enough to warrant termination. The Respondent has no doubt treated other employees who
violated hospital policies differently, undermining its defense that Camejos was discharged for
violating the hospital’s no-solicitation/no-distribution rules. See Avondale Industries, supra;
Merillat Industries, supra.

As with Cardenas, management’s failure to provide a consistent, coherent, and
sustainable defense for Camejos’ discharge on January 14, 2004, equates to a failure by
the Respondent to meet its burden of showing that it would have discharged him other
than because he engaged in protected union activities. Therefore, the discharge violated
Section 8(a) (3) and (1) of the Act.

D. Pedro Armenteros

Armenteros signed an authorization card on November 20, 2003. Office Manager
Cabrera and Director Rodriguez, agents of the Respondent, told him on about December 30
and on about January 13 or 14, respectively, that Dr. Mora had found out he filled out a card
and that he was fired or going to be fired. Armenteros was discharged on February 23,
following which he was threatened by letter of June 11 with legal action if he “trespassed” on
hospital property. I conclude that the preceding establishes all of the elements necessary for
a prima facie case of unlawful discharge under Wright Line.

Executive Director Sanchez was the one who made the decision to terminate
Armenteros, for allegedly “basically collecting a salary and not doing any work.”

Sanchez’ his testimony about what led to his decision was not convincing. Thus, I do
not credit his uncorroborated testimony that Bosch sua sponte named Armenteros as “another
‘phantom employee’” in a conversation he had with her in January or February; his
uncorroborated testimony that secretaries on the administrative staff told him that Armenteros
was a courier for their office and no one else; or his professed ignorance of Armenteros’ role
as a personal chauffeur for the Mora family.

Strikingly similar to Corzo’s treatment of Anido, Sanchez came to the conclusion that
Armenteros was “not doing any work” without ever communicating, either directly or indirectly,
with Armenteros or, according to Sanchez’ own testimony, with Drs. Mora or Sanjenis, for whom
Armenteros performed most of his work. This failure to conduct a fair and complete

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investigation weakens the Respondent’s defense. See Publishers Printing Co., supra; Burger
King Corp., supra; Syncro Corp., supra.

In light of Armenteros’ long tenure (over 19 years) as an employee, the timing of his
discharge—only a couple of months after he signed an authorization card—also is suspicious.
See Howard’s Sheet Metal, 333 NLRB 361 (2001); Signature Flight Support, 333 NLRB 1250
(2001); Masland Industries, 311 NLRB 184 (1993). This is particularly so because I have
discredited Sanchez’ testimony that Bosch triggered his investigation of Armenteros in January
or February. The record is left without credible evidence of why and when the Respondent
suddenly decided to scrutinize Armenteros’ duties as an employee after so many years—or
of credible evidence of why he was discharged.

I conclude in these circumstances that the Respondent has failed to meet its burden of
showing that it would have discharged Armenteros on February 23, 2004, other than for his
protected union activity. Therefore, the discharge violated Section 8(a)(3) and (1) of the Act.

E. Hector Gonzalez

Gonzalez started wearing union lanyards and stickers daily at work in December 2003,
and that same month started distributing union pamphlets three or four times monthly. His
picture was on a union flyer, which was widely distributed in the hospital, and on the day of
the election, January 26, he was among a group of 30 or so union supporters celebrating the
Union’s victory whose photographs were taken and circulated by the media.

Based on the extensiveness of Gonzalez’ overt union activities at the hospital, employer
knowledge of his union activity can be inferred. See E. Mishan & Sons, 242 NLRB 1344 (1979);
Texas Industries, 156 NLRB 423 (1965). Animus is shown by the Respondent’s commission of
various violations of Section 8(a) (1), as well as Dr. Mora’s antiunion attitude. Gonzalez was
discharged on May 14. I conclude that the General Counsel has established a prima facie case
of unlawful discharge under Wright Line.

Manager Rodriguez made the recommendation to Corzo that Gonzalez be discharged.
He averred that shortly after he came to the hospital in May 2004, he reviewed pending workers’
compensation files and determined that Gonzalez should be terminated because, in essence,
Gonzalez could not perform his job duties as a cafeteria aide or otherwise be accommodated for
his permanent physical restriction. Rodriguez also testified that Gonzalez’ part-time job at
Publix market weighed heavily in his recommendation that Gonzalez be terminated, because his
job there as a “stock clerk” could result in injury that could subject the hospital to further
worker’s compensation exposure.

Rodriguez was not satisfactorily credible. First as to the part-time job, Gonzalez testified
that he was a bag boy, not a stock clerk. Rodriguez never inquired of either him or Publix
exactly what his job duties were. Moreover, Gonzalez worked for Publix for approximately 13
years prior to his termination from the hospital, and Bosch conceded that the hospital was
aware for years that he held this second job. Second, Rodriquez twice testified contrary to his
June 2004 NLRB affidavit, given only about 3 months earlier, and on simple facts.

As with Executive Director Sanchez and Armenteros, Rodriguez failed to conduct a
meaningful investigation into the nature of Gonzalez’ part-time position. This undercuts the
conclusion that concerns relating to that employment were a bona fide reason for his discharge,
especially when he had worked there for so many years without any evidence it adversely

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impacted his job at the hospital. See Publishers Printing Co., supra; Burger King Corp., supra;
Syncro Corp., supra.

The Respondent’s defense is further undermined by the timing of the discharge and by
its very different treatment of another individual, Mercedes Garcia, who was in a similar situation
in terms of having a longstanding workers compensation claim and permanent medical
restrictions involving lifting.

Respecting timing, as early as her work status report of November 18, 2001, Dr.
Redondo stated Gonzalez’ restriction of no lifting over shoulder level was permanent, and she
repeated in subsequent reports that the restriction was permanent.

It is true that earlier internal reports of the hospital reflected a desire to terminate
Gonzalez and fear that such could subject the hospital to liability under the ADA. The fact
remains that nothing was said to Gonzalez about dissatisfaction with his job as cafeteria aide
or that his employment was in any way in jeopardy until the date he was terminated, May 14,
following his engaging in union activity and 2-1/2 years after Dr. Redondo placed him on
permanent lifting restriction.

Rodriguez’ claim that he saw “red flags” in Gonzalez’ file and decided he should be
discharged, without first even talking to him, contacting Publix, or getting an updated medical
opinion, seems all too convenient. The haste with which the Respondent discharged
Gonzalez—at most, 2 weeks between the time Rodriguez stated he reviewed Gonzalez’ file
and the date of termination—further strikes me as inconsistent with a genuine desire to fully
ascertain the surrounding facts.

As to Mercedes Garcia, both Rodriguez and Director Ortiz went out of their way to
accommodate her. Thus, she was offered a temporary position as team leader to
accommodate her permanent medical restriction, and Rodriguez and Ortiz determined that if
her job duties required any overhead lifting, she would be helped by either sanitation aides or
cafeteria aides. She also was relieved from having to push a heavy door upstairs because she
said she could do everything except that. Clearly, the Respondent treated a similarly situated
employee very differently, a fact sapping the defense that Gonzalez was discharged because
his permanent limitation could not be accommodated. See Avondale Industries, supra;
Merillat Industries, supra.

Finally, the failure of the Respondent to produce a document referenced in Gonzalez’
termination report and used as a reason for his discharge, to wit, the alleged May 15, 2003
report from Dr. Redondo stating that he had reached MMI, further weakens its defense that
Gonzalez was terminated because of his physical limitations.

In light of all of the above, I conclude that the Respondent has not met its burden of
showing that it would have discharged Gonzalez on May 14, 2004, other than for his protected
union activities. The discharge therefore violated Section 8(a)(3) and (1) of the Act.

F. Felipe Hernandez

Hernandez’ union activity and employer knowledge thereof were established by Director
Ortiz, who testified that he knew Hernandez was a union supporter because Hernandez wore
lanyards and SEIU buttons at work. Animus toward Hernandez can be inferred from the
independent violations of Section 8(a) (1) committed by the Respondent, as well as from Dr.
Mora’s attitude. The Respondent admittedly failed to contact Hernandez after he applied for re-

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employment in May. I conclude that that a prima facie case of unlawful termination under Wright
Line has been made out and will now examine the Respondent’s defenses.

Preliminarily, I note the similar credited testimony of Directors Ortiz and Delgado that if
they have a vacancy in their respective department, they have authority to hire directly. Ortiz
also testified that he was aware that Hernandez applied for a position and that he wanted him
rehired as a sanitation aide (Ortiz testified that most employees in kitchen services, regardless of
title, perform both cafeteria aide and sanitation aide duties).

The Respondent, through Bosch, has raised two main defenses for why Hernandez was
never contacted after he applied: first, his application was defective; second, there were no
vacancies at the time it was received.

Bosch emphasized the fact that, in his application, Hernandez wrote “(o)pen kitchen” in
the portion for position applied for. She stated unequivocally that job applications listing no
specific position are rejected and essentially filed away for good. Contradicting her testimony,
other applicants who failed to specify specific positions in their applications were offered
employment during the same period that Hernandez applied. Dilia Sanchez was offered a
kitchen aide position yet wrote only “kitchen” on her application. Ana Hernandez started as a
cafeteria aide on May 21, when she had only written “any” in the position portion of the
application and not even specified a department. Moreover, neither of these individuals offered
positions in the kitchen had previously been employed by the hospital. I also, note Ortiz’
testimony that when he hires directly, the applicant need not specify a job title.

The Respondent’s acceptance of new employees’ applications that did not specify a
particular position, while rejecting one from a former employee for that reason, strips the viability
of this defense for not hiring Hernandez. Cf. Avondale Industries, supra; Merrilat Industries,
supra. This conclusion is bolstered by the fact that Ortiz wanted Hernandez back in his
department.

The Respondent further contends that by the time Hernandez’ application was received,
there were no positions available, because those listed in the April 22 and May 1 HR job
announcements had already been filled.

Hernandez’ application shows an HR log-in date of May 13. Bosch testified that it was
not until about May 11 that the decision was made to offer the position of cafeteria aide to Dilia
Sanchez, whom HR was unsuccessful in contacting. The Respondent provided no evidence of
how long its efforts to reach her lasted or when it gave up. Nor did the Respondent produce
evidence that as of May 13, it had pending offers to applicants for either of the other two posted
food services positions. Ana Hernandez did not start working as a cafeteria aide until May 21,
8 days after Hernandez applied.

I conclude that as of May 13, when Hernandez’ application was received, there were still
one or more unfilled positions in food services, undercutting the Respondent’s defense that no
positions were available.

In the absence of demonstrating valid reasons why Hernandez was not rehired, the
Respondent has failed to show that it would have taken the same course of action other than for
Hernandez’ protected union activities. Accordingly, I conclude that the Respondent violated

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Section 8(a) (3) and (1) of the Act by not rehiring Hernandez starting on May 13, 2004.53

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By the following conduct, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section
8(a)(1) of the Act.

(a) Created the impression of management surveillance of employees.

(b) Instructed employees to remove union insignia.

(c) Interrogated employees about their union activities.

(d) Prohibited employees from distributing union literature during nonworktime in
nonwork, nonpatient care areas.

(e) Threatened employees with the following for their support of the Union or for
engaging in concerted protected activities:

i. Civil or criminal action.
ii. Discharge.
iii. Replacement with outside contractors.
iv. Rescission of an “open door” policy.
v. Unspecified reprisals.

(f) Told employees:

i. Not to discuss employment matters concerning their mutual aid and protection
with coworkers.
ii. Selecting the Union as their collective-bargaining representative would be futile.
iii. The hospital could enforce an overly broad no-solicitation/no-distribution rule and
discharge an employee for violating it.

4. By discharging employees Francisco Anido, Pedro Armenteros, Reymundo Camejos,
Juan Carlos Cardenas, and Hector Gonzalez and failing and refusing to rehire Felipe
Hernandez, the Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and violated Section 8(a) (3) and (1) of the Act.

5. By issuing written warnings to Carlos Carbonell, Patria Diaz, Candido Jacomino,
Marilu Montano, Rockefeller Moreno, Nelson Rabelo, Xiomara Rodriguez, and Regla Teresa
Roja-Garcia because they engaged in concerted protected activities for their mutual aid and
53 Contrary to what the Respondent asserts in its brief at 53, Ortiz did not testify (at Tr.
2350-2354) that Hernandez was later offered the cafeteria aide position for which Sanchez
could not be reached, and he did not respond.

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protection, the Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and violated Section 8(a) (3) and (1) of the Act.

Remedy

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

The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

The Respondent having discriminatorily failed and refused to rehire Felipe Hernandez, it
must offer him employment and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from May 13, 2004, to date of proper offer of employment, less
any net interim earnings, as prescribed in F. W. Woolworth Co., supra, plus interest as
computed in New Horizons for the Retarded, supra.

The General Counsel also seeks expungement from the Respondent’s records of any
references to the discharges of Francisco Anido, Pedro Armenteros, Reymundo Camejos, Juan
Carlos Cardenas, and Hector Gonzalez; and any references to the January 20, 2004 written
warnings issued to employees Carlos Carbonell, Patria Diaz, Candido Jacomino, Marilu
Montano, Rockefeller Moreno, Nelson Rabelo, Xiomara Rodriguez, and Regla Teresa Roja-
Garcia.

Finally, the General Counsel seeks rescission of the June 11, 2004 letters sent to
Armenteros and Cardenas

On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended54

ORDER

The Respondent, Pan American Hospital Corporation, Debtor in Possession, Miami,
Florida, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Creating the impression of management surveillance of employees’ union activities.

(b) Instructing employees to remove union insignia.

(c) Interrogating employees about their union activities.
54 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 102.48 of the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.

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(d) Prohibiting employees from distributing union literature during nonworktime in
nonwork, nonpatient care areas.

(e) Threatening employees with civil or criminal action, discharge, replacement
with outside contractors; rescission of an “open door” policy; or unspecified reprisals
because they engage in union or other protected activities.

(f) Telling employees not to discuss employment matters concerning their mutual
aid and protection with coworkers, that selecting the Union as their collective-bargaining
representative would be futile, or that the hospital can enforce an overly broad no-solicitation/
no-distribution rule and discharge an employee for violating it.

(g) Issuing written warnings to employees because of their protected concerted activity.

(h) Discharging employees because of their union activities.

(i) Failing and refusing to rehire employees because of their union activities.

(j) 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) Within 14 days from the date of the Board’s Order, offer Francisco Anido, Pedro
Armenteros, Reymundo Camejos, Juan Carlos Cardenas, and Hector Gonzalez full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(b) Within 14 days from the date of the Board’s Order, offer Felipe Hernandez a
position in the food and nutrition services department or, if no job exists in that department,
to a substantially equivalent position.

(c) Make Anido, Armenteros, Camejos, Cardenas, Gonzalez, and Hernandez whole for
any loss of earnings and other benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.

(d) Within 14 days from the date of the Board’s Order, remove from its files any
references to the discharges of Anido, Armenteros, Camejos, Cardenas, and Gonzalez, and
within 3 days thereafter, notify each of them in writing that this has been done and that the
discharges will not be used in any way against them.

(e) Within 14 days of the Board’s Order, remove from its files any references to the
January 20, 2004 written warnings issued to Carlos Carbonell, Patria Diaz, Candido Jacomino,
Marilu Montano, Rockefeller Moreno, Nelson Rabelo, Xiomara Rodriguez, and Regla Teresa
Roja-Garcia, and within 3 days thereafter, notify them in writing that this has been done and
that the written warning will not be used in any way against them.

(f) Within 14 days of the Board’s Order, rescind the June 11, 2004 letters issued to
Armenteros and Cardenas, threatening them with legal action for entering the hospital’s
premises, and within 3 days thereafter, notify them in writing that this has been done and that
the letters will not be used in any way against them.

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(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(h) Within 14 days after service by the Region, post at its facility in Miami, Florida, copies
of the attached notice marked “Appendix,”55 in English and Spanish. Copies of the notice, on
forms provided by the Regional Director for Region 12, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since December 18, 2003.

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

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. April 15, 2005

____________________
Ira Sandron
Administrative Law Judge

55 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 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.”

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 create the impression of management surveillance of your union or other
protected activities.
WE WILL NOT instruct you to remove Service Employees International Union AFL−CIO,
CLC insignia.
WE WILL NOT interrogate you about your union or other protected activities.
WE WILL NOT prohibit you from distributing union literature during nonworktime
in nonwork, nonpatient care areas.
WE WILL NOT threaten you with civil or criminal action, discharge, replacement
with outside contractors; rescission of an “open door” policy; or unspecified reprisals, because
of your union or other protected activities.
WE WILL NOT tell you not to discuss employment matters concerning your mutual aid
or protection with coworkers, that selecting the Service Employees International Union
AFL−CIO, CLC (the Union) as your collective-bargaining representative would be futile, or that
we can enforce a rule unlawfully restricting your solicitation and distribution on behalf of the
Union and discharge an employee for violating it.
WE WILL NOT issue written warnings to you because of your union or other protected
activities.
WE WILL NOT discharge you because of your union or other protected activities.
WE WILL NOT fail and refuse to rehire you because of your union or other protected
activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you
in the exercise of the rights guaranteed to you by Section 7 of the Act, as set forth at the top of
this notice.
WE WILL within 14 days from the date of the Board’s Order, offer Francisco Anido,
Pedro Armenteros, Reymundo Camejos, Juan Carlos Cardenas, and Hector Gonzalez full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL within 14 days from the date of the Board’s Order, offer Felipe Hernandez a
position in the food and nutrition services department or, if no job exists in that department, to a
substantially equivalent position.
WE WILL make Francisco Anido, Pedro Armenteros, Reymundo Camejos, Juan Carlos
Cardenas, Hector Gonzalez, and Felipe Hernandez whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, less any net interim earnings,
plus interest.

WE WILL within 14 days from the date of the Board’s Order, remove from our files any
references to the discharges of Francisco Anido, Pedro Armenteros, Reymundo Camejos, Juan
Carlos Cardenas, and Hector Gonzalez, and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the discharges will not be used in any way
against them.
WE WILL within 14 days of the Board’s Order, remove from our files any references to
the January 20, 2004 written warnings issued to employees Carlos Carbonell, Patria Diaz,
Candido Jacomino, Marilu Montano, Rockefeller Moreno, Nelson Rabelo, Xiomara Rodriguez,
and Regla Teresa Roja-Garcia, and within 3 days thereafter, WE WILL notify them in writing
that this has been done and that the written warning will not be used in any way against them.
WE WILL within 14 days of the Board’s Order, rescind the June 11, 2004 letters issued
to Pedro Armenteros and Juan Carlos Cardenas, threatening them with legal action for entering
the hospital’s premises, and WE WILL within 3 days thereafter, notify them in writing that this
has been done and that the letters will not be used in any way against them.

PAN AMERICAN HOSPITAL CORPORATION
DEBTOR IN POSSESSION
(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.
201 East Kennedy Boulevard, South Trust Plaza, Suite 530
Tampa, Florida 33602-5824
Hours: 8 a.m. to 4:30 p.m.
813-228-2641.

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, 813-228-2662.