St. Francis Medical Center

National Labor Relations Board - Board Decisions

Jun 6, 2006

347 N.L.R.B. 368 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 35
368
St. Francis Medical Center, an operating division of
Catholic Healthcare West Southern California
Region1 and Service Employees International
Union, Local 399.2 Case 21–CA–33315
June 6, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 15, 2000, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and an answer to
the Respondent’s exceptions. The Respondent filed an
answer to the General Counsel’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,3 and conclusions
only to the extent consistent with this Decision and Order
and to adopt the recommended Order and notice as modi-
fied below.4
We adopt the judge’s finding, for the limited reasons
set out in further detail below, that the Respondent vio-
lated Section 8(a)(1) by refusing to remove from various

1 On March 19, 2001, after the exceptions and briefs had been filed,
the Respondent filed a Notice of Substitution of Counsel and Change in
Corporate Identity. This filing noted, among other things, that effective
January 1, 2002, the Respondent, St. Francis Medical Center, an operat-
ing division of Catholic Healthcare West, Southern California Region,
would be known and organized as St. Francis Medical Center, A Cali-
fornia Non-Profit Religious Corporation.
2 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 29, 2005.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 In cross-exceptions, the General Counsel contended that the judge
failed to order that the appropriate notice be posted in both Spanish and
English. Because the judge stated, in the remedy section of her deci-
sion, that “[t]he Board’s traditional remedy of posting in English and
Spanish is sufficient in this case,” . . . we are satisfied that her failure to
specify the Spanish-language posting in the recommended Order was
inadvertent. Accordingly, and because the record reflects that many of
the employees in the nutrition department regularly speak Spanish, we
shall modify the Order to require the Respondent to post the notice in
both Spanish and English. We have also modified the notice in accor-
dance with Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
The General Counsel further contended that the Respondent’s con-
duct in this case warrants certain special remedies. We agree with the
judge that the traditional remedies are sufficient in this case.
work areas flyers that disparaged and personally attacked
an employee because of her union activities. We further
find, contrary to the judge, that the Respondent did not
violate Section 8(a)(1) by disparately enforcing its no-
solicitation, no-distribution rule as to posting materials in
the workplace, and we thus dismiss this allegation.
I. BACKGROUND
The Respondent is a California corporation that owns
and operates a hospital and health care facility in Lyn-
wood, California. During the period relevant to the is-
sues in this case, employee Heang (Happy) Botelho
worked as a tray line technician in the nutrition depart-
ment, where she had worked for 11 years. Botelho was
active in the Union’s organizing campaign, and nearly
every day from January through March 1999,5 she dis-
tributed union literature outside the hospital after her
shift. The Respondent was aware of her participation in,
and support of, the Union’s campaign.
The events at issue allegedly occurred in the hospital’s
nutrition department from Friday, March 26 to Monday,
March 29. Although the parties presented radically dif-
ferent versions of these events, it is undisputed that at
certain times during the relevant period, multiple copies
of a flyer were posted in work areas and in nonwork ar-
eas. Some of the copies contained handwritten com-
ments that targeted and attacked Botelho because of her
union activities.6 The complaint alleged that the Re-
spondent violated Section 8(a)(1) by condoning the post-
ing of these offensive flyers, and by disparately enforc-
ing its no-solicitation, no-distribution rule by allowing
the flyers to be posted.7

5 All dates are 1999, unless otherwise indicated.
6 The flyer was a photocopy of a page that originally appeared in a
union publication. The flyer featured Botelho’s picture and the mes-
sage: “She works in Nutrition, a department made up of mostly immi-
grants with limited English skills. She believes her co-workers are
considered easier to intimidate and are picked on more frequently by
supervisors.” Comments that disparaged Botelho for supporting the
Union (e.g., “Idiot,” “Stop being used,” and “If you’re so unhappy here
get another job”) were handwritten on some of the flyers.
7 The no-solicitation, no-distribution rule states as follows:
1. Associates of the Medical Center may not solicit during
working time for any purpose.
2. Associates of the Medical Center may not solicit at any
time for any purpose in immediate patient care areas . . . or
any other area that would cause disruption of health care op-
erations or disturbance of patients.
3. Associates may not distribute literature during working
time, for any purpose.
4. Associates may not distribute literature at any time, for
any purpose, in working areas. Working areas are all those
areas in the Medical Center except the cafeteria, gift shop,
associate lounges, lobbies, and parking areas.
The Respondent has a separate rule for postings:
ST. FRANCIS MEDICAL CENTER 369
II. DISCUSSION
A. Condoning Posting of Disparaging Flyers
According to Botelho, when she arrived at work on
Saturday, March 27, she found 50 to 60 flyers posted “on
every imaginable surface,” including walls, ceilings, pa-
tient carts, and employee lockers.8 She went to her su-
pervisor, Luis Carillo, and asked him to remove the fly-
ers, but he refused. One coworker confronted her in
Carillo’s presence, yelling, “Stop being used . . . Union is
bullshit.” Botelho testified that Carillo did nothing. Bo-
telho further testified that she found the flyers throughout
her work area during her shift (6:30–3 p.m.), and that
Carillo repeatedly refused her requests to take them
down.
According to Carillo, when he arrived at work at 5:30
a.m. on Saturday, he discovered about 50 to 60 flyers
posted throughout the workplace. Contrary to Botelho’s
testimony, Carillo testified that he immediately removed
the flyers within reach, and he had housekeeping remove
the rest. Carillo further testified that Botelho never asked
him, and he never refused, to remove the flyers. In addi-
tion, Carillo testified that he questioned employees about
the flyers but received no response as to who was re-
sponsible for them.
Although the judge did not explicitly credit Botelho’s
version of Saturday’s events—or explicitly discredit
Carillo’s version—she found that the Respondent “did
not . . . heed [Botelho’s] requests to have the flyers re-
moved,” and therefore she implicitly discredited
Carillo’s testimony.9 Accordingly, the judge effectively

Bulletin Boards are located throughout the Medical Center.
Everyone is urged to look frequently for changes and an-
nouncements of Medical Center policies, personnel policies,
and other important matters. All information and notices
posted on these bulletin boards must have the prior approval
of Human Resource Services.
Finally, the Respondent had a rule prohibiting discourteous or abu-
sive treatment of coworkers.
8 Botelho testified that she first found the flyers in the workplace on
Friday, March 26. In contrast, both her supervisor, Luis Carillo, and
the evening supervisor, Virginia Apodaca, testified that they did not see
any flyers on Friday. The judge declined to resolve this dispute, stating
that it made little difference which version was accurate.
9 Member Schaumber observes that the judge failed to make explicit
fact and credibility findings in this case, a failure that created unneces-
sary ambiguity and reviewing difficulties. Throughout her decision, the
judge cited both parties’ widely conflicting versions of the facts with-
out, in most cases, resolving those conflicts or stating which facts or
witnesses she credited. See Lewin v. Schweiker, 654 F.2d 631, 635 (9th
Cir. 1981) (courts have consistently required explicit credibility find-
ings where such credibility is a critical factor in the decision). More-
over, in those few instances when disputed testimony was credited, the
judge failed to articulate any specific reasons why one witness was
credited over another. See NLRB v. Cutting, Inc., 701 F. 2d 659, 666–
667 (7th Cir. 1983) (rejecting ALJ’s credibility findings because the
judge gave no reasons for crediting witnesses, and thus the findings
found that Carillo took no action in response to Botelho's
complaint when Botelho saw the flyers posted on Satur-
day, March 27. Relying solely on that finding, we con-
clude that the Respondent violated Section 8(a)(1) by
permitting the posting of the offensive flyers and thereby
condoning abusive behavior toward Botelho. See, e.g.,
Champagne Color, Inc., 234 NLRB 82 (1978) (respon-
dent violated Sec. 8(a)(1) where supervisor witnessed
single incident of abuse of prounion employee by anti-
union employee and failed to respond adequately).10
B. Disparate Enforcement of No-Solicitation/No-
Distribution Rule
As stated above, the complaint further alleged that the
Respondent violated Section 8(a)(1) by disparately en-
forcing its no-solicitation, no-distribution rule as to the
flyer postings.11 The General Counsel sought to prove
this allegation by comparing the Respondent’s inaction
regarding the posted flyers in this case to its decisions to
discipline prounion employees who violated its no-
solicitation, no-distribution rule at other times in the past.
The General Counsel relied on evidence produced in a
related case as well as documentary evidence to show
that union supporters were disciplined for discussing the
Union and for passing out union-related literature.12
Based on this evidence, the judge found that the Respon-
dent disparately enforced its rule in this case by allowing

“provide no basis for assessing the relative credibility of the wit-
nesses”). Such unsupported findings are not cured by a boilerplate
credibility statement which adds nothing to permit meaningful review.
See K-Mart Corp. v. NLRB, 62 F.3d 209, 213 (7th Cir. 1995) (judge’s
“boilerplate comment concerning general credibility determinations,”
without further explanation, was inadequate for review). Despite these
deficiencies in the judge’s decision, Member Schaumber finds enough
in the existing record to support the complaint allegation.
10 Botelho testified that she was so shaken by the events of the
weekend that she called in sick on Sunday. On Monday morning when
she returned to work, she again found numerous flyers posted in the
work area. According to Botelho, she complained to her supervisor,
Kirby, but he refused to remove the flyers. Botelho then complained to
several upper-level managers, and the flyers were removed. In addi-
tion, Food Service Director Nunez addressed the nutrition department
employees and warned them not to post any more flyers. Kirby passed
away before the hearing. In the absence of Kirby’s testimony, and in
light of the timely corrective response to Botelho's complaints by up-
per-level managers on Monday, we find it unnecessary to address Bo-
telho's testimony about Kirby's alleged failure to remove the flyers.
11 The complaint alleges that the Respondent permitted the anti-
union flyers to be posted “in spite of the fact that [the] flyers and other
written materials . . . were posted by employees in violation of Respon-
dent’s [no-solicitation, no-distribution] rule, which rule has at all times
been strictly enforced by Respondent to limit solicitation and distribu-
tion of literature in support of the Union.”
12 In the related case, St. Francis Medical Center, 340 NLRB 1370
(2003), the Board adopted the judge’s finding that the respondent vio-
lated Sec. 8(a)(1) by strictly enforcing its rule against union-related
solicitations and distributions while not enforcing the rule against non-
union solicitations and distributions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD370
employees to post antiunion flyers. We do not find that
the evidence supports this conclusion.
As stated above, the Respondent maintains one rule for
solicitation and distribution and a separate rule for post-
ing materials. The finding in the earlier case that the
Respondent disparately enforced its rule against union
solicitation and distribution is not relevant to the Re-
spondent’s alleged disparate action here regarding post-
ings. In the circumstances of this case, the comparison
between solicitation/distribution and posting is a com-
parison of “apples to oranges.”
We have found that on Saturday, March 27, Carillo
condoned the posting of offensive flyers by refusing to
remove them.13 However, the General Counsel has not
produced any evidence that the Respondent has acted
disparately in regard to what else it permits to be posted.
Without this predicate against which to compare the Re-
spondent’s actions regarding posting in this case, we
cannot find that the Respondent disparately enforced a
no-solicitation no-distribution rule against union sup-
porters, as alleged in the complaint. We therefore re-
verse the judge and dismiss the allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, St. Fran-
cis Medical Center, an operating division of Catholic
Healthcare West, Southern California Region, Lynwood,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Delete paragraph 1(b) and reletter the subsequent
paragraphs accordingly.
2. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post
at its facility in Lynwood, California copies of the at-
tached notice marked “Appendix.”15 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 21, after being signed by the Respondent’s author-
ized representative, shall be translated into Spanish, and
both Spanish and English notices 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 no-
tices 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

13 This finding does not implicate the Respondent’s rule regarding
posting. That rule regulates bulletin board postings. The violation here
does not concern the bulletin board. Rather, the violation is that the
Respondent refused to remove offensive antiunion materials after being
requested to do so by the offended employee.
closed the facility involved in this proceeding, the Re-
spondent 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 March 27, 1999.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT permit employees to post flyers and other
written materials which disparage and personally attack
employee Heang (Happy) Botelho because of her activi-
ties and sympathies on behalf of and in support of Ser-
vice Employees International Union, Local 399.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
ST. FRANCIS MEDICAL CENTER AN OPERATING
DIVISION OF CATHOLIC HEALTHCARE WEST,
SOUTHERN CALIFORNIA REGION
Julie B. Gutman, Esq., for the General Counsel.
Scott Davidson, Esq. (O’Melveny & Myers), of Los Angeles,
California, for the Respondent.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was heard in Los Angeles, California, on March 16–17,
2000. The complaint alleges that St. Francis Medical Center, an
operating division of Catholic Healthcare West, Southern Cali-
fornia Region (Respondent) disparately enforced its no-
solicitation, no-distribution rule by allowing employees to post
flyers and other written materials disparaging employee Heang
(Happy) Botelho because of her activities on behalf of Service
Employees International Union, Local 399, AFL–CIO (the
Union) while strictly enforcing its rule to limit solicitation and
ST. FRANCIS MEDICAL CENTER 371
distribution of literature by employees in support of the Union
in violation of Section 8(a)(1) of the Act.1
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,2 and after considering the briefs filed by counsel,
I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a California corporation owning and operating
a hospital and health care facility in Lynwood, California. Dur-
ing the 12-month period ending December 31, 1998, Respon-
dent derived gross revenues in excess of $250,000 and pur-
chased and received goods valued in excess of $50,000 which
were shipped directly to its Lynwood, California facility by
suppliers located outside the State of California. Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section 2(14) of
the Act. Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all material times, Respondent has maintained the follow-
ing no-solicitation, no-distribution rule:
1. Associates of the Medical Center may not solicit dur-
ing working time for any purpose.
2. Associates of the Medical Center may not solicit at
any time for any purpose in immediate patient care
areas . . . . or any other area that would cause dis-
ruption of health care operations or disturbance of
patients.
3. Associates may not distribute literature during work-
ing time, for any purpose.
4. Associates may not distribute literature at any time,
for any purpose, in working areas. Working areas
are all those areas in the Medical Center except
cafeteria, gift shop, associate lounges, lobbies, and
parking areas.
The rule also provides that associates may post literature
only on approved associate bulletin boards and only with prior
permission. Another rule prohibits discourteous treatment or
abusiveness toward coworkers.
Heang (Happy) Botelho, who has worked for Respondent for
11 years, is a tray line technician in the nutrition department. Her

1 The charge was filed by the Union on May 12, 1999. Complaint is-
sued on September 29, 1999. Unless otherwise referenced, all dates are
in 1999.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
work involves filling patient trays on the day shift. There are
approximately 10–20 employees on the day shift in the nutrition
department. Her days of work are 4 of the 5 weekdays and every
other weekend. Her hours are from 6:30 a.m. to 3 p.m.
Luis Carillo, Bill Kirby, and Virginia Apodaca are dietary
department supervisors. Carillo works 5 a.m. to 1:30 p.m. on
Fridays and Saturdays. On Sunday through Wednesday, he
works from noon until 8:30 p.m. Kirby works on Sunday
through Thursday from 5 a.m. to 1:30 p.m. Carillo, Kirby, and
Apodaca report to Matt Nunez, food service director. He, in
turn, reports to assistant administrator for professional and sup-
port services, Larry Stahl.
Botelho was active in the Union from January through
March 1999. She distributed flyers outside the hospital after her
shift. She did this almost every day in January, February, and
March. Other employees also assisted in passing out flyers.
However, Botelho was unaware of any other nutrition depart-
ment employees who supported the Union or assisted in dis-
tributing flyers. She observed and spoke with Bill Kirby, Louis
Carillo, Lydia Romero (customer SCA), and Larry Stahl while
she was distributing flyers. Botelho also walked on a picket line
on Martin Luther King Jr. Street on March 25 from 3:30 to 5
p.m. She held a picket sign which said SEIU 399 Local. On the
second and third floor in intensive care unit (ICU) she observed
Larry Stahl, Respondent’s president, Gerald Kozai, Lydia Ro-
mero, administrative director of pastoral care, Brother Richard
Hirby, and Louis Carillo watching the picketing.
B. Events of March 26–29
Over the weekend of Friday, Saturday, and Sunday, March
26, 27, and 28, flyers were posted in the nutrition department
on almost every imaginable surface. Although Botelho claims
these postings began on Friday, Respondent’s witnesses uni-
formly testified that they saw no postings until Saturday. It
makes little difference which version is accurate.
According to Botelho, on Friday, March 26, when she
checked her schedule upon arrival at 6:15 a.m., she saw posted
on the bulletin board a flyer containing her picture. Apparently
this flyer was prepared by the Union as part of its organizing
effort. Aside from the picture, the flyer stated, “[Botelho]
works in Nutrition, a department made up of mostly immigrants
with limited English skills. She believes her co-workers are
considered easier to intimidate and are picked on more fre-
quently by supervisors.”
Usually, only employee schedules are posted on the bulletin
board. Without reading the flyer, Botelho immediately went to
her supervisor’s office and asked that the flyer be removed.
According to Botelho, Carillo, the supervisor on duty, said that
employees had a right to put the flyer up. Botelho went back to
the bulletin board and checked her schedule and decided to
remove the flyer herself. She worked in the tray line for awhile.
Then she went to the ice machine. She saw the same flyer hang-
ing on the top of the ice machine. She observed the same flyer
on a wall behind the tray line and another flyer by the clock in
the tray room. She also observed the flyer inside patient carts
and on top of patient carts. She returned to the tray line and at 7
a.m. when her supervisor came to the tray line she asked Carillo
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD372
to remove the flyers. According to Botelho, he said no, other
employees had a right to express their opinion.
According to Botelho, while Carillo was in the area, Botelho’s
coworkers Willie Rodriquez, Antonio Bennett, Patty Abasio, Joe
Serra, and Aldo Altio asked Botelho why she called them immi-
grants with limited English skills. Botelho countered that she was
an immigrant with limited English skills and she was not
ashamed of that. In Botelho’s view, her coworkers were hostile
toward her and continued talking to her in a similar vein. She
asked Carillo to control the situation. Carillo spoke in Spanish to
them. Carillo and the coworkers laughed. Botelho does not speak
or understand Spanish. Carillo testified that he did not recall any
employees harassing Botelho or laughing at her. He did not see
any employees yelling at or confronting Botelho. Carillo recalled
that employees were upset about the statement in the flyer that
they were immigrants with limited English skills. I credit Bo-
telho’s version of this encounter.
At about 8:30 a.m., Botelho spoke with Willie Rodriquez by
the ovens. Rodriquez had a copy of the flyer which he handed
to Botelho. He told her that the Union was just using her. Bo-
telho asked Rodriquez where he obtained the flyer. Rodriquez
responded that it was in the supervisor’s office and he made a
photocopy of it. Rodriquez said he put a copy of the flyer on
the bulletin board. Botelho saw another copy of the flyer posted
on the bulletin board and on a trip back from the lady’s room,
she noticed that “idiot” had been written on the flyer on her
forehead. She took the flyer down at this point and went to her
supervisor’s office. She asked for his help again and, according
to Botelho, he once again refused saying employees had a right
to express their opinions. Botelho thought she recognized the
handwriting of the “idiot” comment as that of Antonio Bennett.
She asked Carillo to stop Bennett from harassing her. Carillo
refused. While she was in Carillo’s office, she saw a stack of
flyers on Carillo’s table. At a later point, she saw Bennett
emerge from Carillo’s office with another flyer and write some-
thing on it with a marker.
On the following day, Saturday, March 27, Botelho reported
to work at 6:15 a.m. Another flyer with her picture on it was
posted on the bulletin board. Written on it was, “stop being
used, aren’t you the same as them, Union is bull shit.” Attached
was a handwritten note stating,
Some of us just know better. We have minds of our own. We
know how to talk for ourselves. We don’t need someone with
less intellegence [sic] talking for us. The UNION is here only
for one reason, Union Dues. Ask them if it wasn’t for Dues
would do it for free. You know the answer. RONNIE
According to Botelho, she went to Carillo’s office and asked
him to come and look at the posting. Carillo followed Botelho
but refused to remove the poster. Botelho confronted coworker
Ronnie Rainwater who yelled at her, “[S]top the Union, stop
this bull shit.” Botelho continued her duties that day and saw
posters, “All over, everywhere I turned, is all over.”
According to Carillo, when he reported to work on Saturday
around 5:30 a.m., there were 50–60 posters all around the
kitchen containing Botelho’s picture. He removed all the flyers
he could reach and called housekeeping to remove the remain-
der that he could not reach. However, before housekeeping
arrived, Botelho reported to work and was very upset. She said
she was going to sue the Union. Carillo tried to calm her down
and told her that housekeeping was coming to take the flyers
down. Carillo told her he had removed all he could reach and
put them in the trash. Carillo did not know who put up the fly-
ers. He asked the employees around 7 a.m. who put up the fly-
ers. They all said they did not know.
Virginia Apodaca first became aware of flyers around 1 p.m.
on Saturday. Carillo told her when he reported to work on Sat-
urday, there were flyers all over the place. He told Apodaca that
he took them all down but if Apodaca saw any more she should
take them down. Around 4:45 p.m., Apodaca saw a flyer on the
wall to the left of the tray line around the clock. She asked the
group of three or for employees who were working who posted
the flyer and no one said anything. Apodaca said, whoever did
this, don’t do it again. She asked for assistance in removing it.
She threw the flyer away. The flyer had a picture and type-
written text. There was no handwriting on the flyer. Apodaca
removed 15 additional flyers that day. Apodaca did not work on
Sunday or Monday.
On Sunday, March 28, Botelho was scheduled to work. How-
ever, she called in sick and did not report to work on Sunday.
Carillo worked from noon to 8:30 p.m. that date. Bill Kirby was
morning supervisor that date. Kirby and Carillo spoke around 1
p.m. Kirby said he found a few more flyers and he put them in
the trash. Carillo told Kirby about what happened on Saturday
too. Carillo did not see any flyers on Sunday.
On Monday, March 29, Botelho arrived at 6:15 a.m. She saw
the same flyer posted in numerous locations. On one of them
was handwritten, “If you’re so unhappy here get another job.”
Another said, “[T]hink before you talk?” and teardrops were
shown coming from one of Botelho’s eyes. Botelho gathered
some of these flyers and went to her supervisor’s office. Bill
Kirby was supervising that morning.3 According to Botelho,
Kirby told her that employees were entitled to put these flyers
up. Botelho worked in the cafeteria that day. She saw Kirby in
the cafeteria and asked him to help her remove some of the
flyers which were posted around the area. He refused.
Finally, Botelho went to human resources. Julie, a human re-
sources representative, called Kirby and told him to remove the
flyers immediately. On her return to the cafeteria, Botelho saw
Bobby Bland, director of public safety. She told him her super-
visor would not help her remove the flyers and asked him to
help her remove the flyers and he did so. Bland corroborated
Botelho. Bland became aware of leaflets posted in the nutrition
department when Botelho informed him of them on Monday
around 6:30 or 7 a.m. He followed her into the food preparation
area and she showed him about 15 to 25 flyers. According to
Bland, Botelho told him that her supervisors would not remove
the flyers. Bland began removing the flyers. He contacted engi-
neering to bring a ladder. Engineering removed the rest. Bland
thought there may have been handwriting on some of the fly-
ers—he remembered something about not being idiots and get a
job. Bland told Botelho to report the incident. Bland saw Kirby
while he was removing the flyers. Kirby said he had contacted

3 Kirby died prior to this proceeding.
ST. FRANCIS MEDICAL CENTER 373
house keeping about getting a ladder. Bland stated that this was
not tolerated.
Later, Matt Nunez, food service director, inquired of Botelho
if anything was wrong. She asked Nunez to speak to Bland and
she went to employee health because she felt ill. According to a
memorandum prepared by Nunez, Bland told Nunez that Botelho
claimed her supervisor would not help her remove the flyers.
After visiting employee health, Botelho went to the office of
Larry Stahl, assistant administrator for professional and support
services. Brother Richard Hirby was in Stahl’s office at the
time. There is substantial agreement regarding the conversation
which took place. Botelho complained of the posting of the
flyer and harassment by her coworkers.4 Stahl said he agreed
with her and this should not happen. Brother Richard told Bo-
telho that three of her coworkers had come to him to tell him
that they were hurt by Botelho’s comments in the flyer. Stahl
called Nunez to his office and asked Nunez to investigate and
make sure it did not happen again. Nunez said he would con-
duct an investigation immediately.
A meeting was called among Botelho’s coworkers. She did
not attend that meeting. Botelho felt. “[S]ick from anxiety,” and
went to her doctor. She left work and was on leave of absence
until September 9.
In any event, Nunez met with his staff around 8:30 a.m. He
told employees that the behavior of posting flyers would not be
tolerated and employees should not be singled out. The em-
ployees were angry. They said the literature stated they were
immigrants and illiterate. He asked employees who was respon-
sible. No one claimed responsibility, “and that was the end of
it.” He told them they needed to come to him or go to admini-
stration if they were angry.5 Later individual meetings with
employees failed to discover who had posted the flyers.
C. Contentions
Counsel for the General Counsel argues that Respondent per-
mitted employees to harass Botelho because of her union activi-
ties and to post materials which disparaged Botelho because of
her union activities in violation of Section 8(a)(1). Counsel notes
that Botelho’s complaints were ignored and there was no mean-
ingful investigation into the matter.6 Counsel also asserts that
Respondent violated Section 8(a)(1) by disparately enforcing its
solicitation policy to allow posting of antiunion materials while
strictly enforcing its policy against prounion postings or distribu-
tions.7 Counsel argues that while Respondent failed to investigate
the posting of antiunion flyers in violation of its policy, it never-
theless investigated and disciplined prounion employees for simi-
lar violations and invited employees to report questionable inci-

4 Stahl did not testify that Botelho mentioned harassment by her co-
workers. However, he did not deny this. In any event, I credit Botelho
that she mentioned harassment as well as the posting of flyers.
5 Nunez questioned the evening staff jointly and individually.
6 Counsel relies upon Taylor Machine Products, 317 NLRB 1187
(1995), enfd. in relevant part 136 F.3d 507 (6th Cir. 1998) (permitting
and condoning harassment of employees because of union activities
violates the Act).
7 Counsel cites Funk Mfg. Co., 301 NLRB 111, 113 (1991); South
Nassau Communities Hospital, 274 NLRB 1181, 1182 (1985) (dispa-
rate enforcement of no-distribution rule discriminatory).
dents of prounion conduct. Counsel notes that Respondent rou-
tinely disciplined employees for abusiveness and discourteous
behavior but made no effort to determine who was responsible
for the posting of the Botelho flyers.
Counsel for Respondent claims that Respondent did not di-
rect, encourage or permit the posting of the flyers and did not
acquiesce in, or condone, the posting of the flyers. Rather, Re-
spondent took immediate action to express disavowal and dis-
approval of the conduct.8 Moreover, counsel asserts that Re-
spondent consistently enforced its lawful no-distribution rule in
a nondiscriminatory manner.
D. Analysis
There is no dispute that Botelho was harassed by her co-
workers because of her support for the Union.9 Botelho’s co-
workers were insulted that she considered them immigrants
with limited English skills and thus easier targets for intimida-
tion by management. They posted numerous copies of flyers
depicting Botelho and documenting her support for the Union.
Although the Union initially published the newsletter contain-
ing Botelho’s picture and her comments, 50–60 copies of the
pertinent page were posted on 1 day alone. Botelho’s supervi-
sors were aware that she was harassed by the posting of these
flyers and did not discipline or caution employees. Even if Re-
spondent did not know which particular employees were re-
sponsible and even given Respondent’s assertion that it was not
aware of any flyers until Saturday, Respondent did not disabuse
employees of the idea that posting such flyers would not be
tolerated until Monday. There is no evidence that employees
were ever warned that such incidents could lead to disciplinary
action.10 Thus, over the weekend, Respondent, by its inaction,
condoned posting of these flyers. In fact, when Botelho asked
for help, Carillo spoke to employees in Spanish, and everyone
laughed, except Botelho.
In contrast to Respondent’s strict enforcement of its no-
solicitation, no-distribution rule against union supporters,11

8 Counsel relies on Knogo Corp., 265 NLRB 935 (1982), enfd. in
relevant part 727 F.2d 55 (2d Cir. 1984); Giovanni’s, 259 NLRB 233
(1982) (employer did not condone employee harassment of prounion
employees).
9 Although Botelho recalled that the flyers were initially posted on
Friday, March 26, Carillo testified that he saw no flyers on Friday. He
and Botelho agreed that numerous flyers were posted on Saturday,
March 27.
10 Apodaca’s admonishment to three or four afternoon-shift employ-
ees not to repeat the posting of flyers does not rise to the level of such a
caution.
11 In a related case, St. Francis Medical Center, JD(SF)–81–00, is-
sued simultaneously with this decision, I concluded that Respondent
violated Sec. 8(a)(1) and (3) of the Act by counseling Carmen Bautista
and Caroline Plaza and by warning Carmen Bautista, Victor Rios, and
Jaime Duarte for violating the no-solicitation, no-distribution rule be-
cause these employees were acting on behalf of the Union. I also con-
cluded that Respondent violated Sec. 8(a)(1) of the Act by enforcing its
no-solicitation, no-distribution rule selectively and disparately by pro-
hibiting union solicitations and distributions while not enforcing the
rule against nonunion solicitations and distributions and by prohibiting
employees from speaking about the Union during working time while
not prohibiting conversations about nonunion topics.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD374
Respondent did not ask Botelho for the names of suspects12or
heed her requests to have the flyers removed. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act by
permitting employees to post flyers disparaging and personally
attaching Botelho because of her support for the Union. In addi-
tion, I find that Respondent violated Section 8(a)(1) by dispar-
ately enforcing its no-solicitation, no-distribution rule strictly
against supporters of the Union.
REMEDY
Counsel for the General Counsel contends that Respondent
should be required to provide written assurance to Botelho that
its unlawful conduct will not be repeated and should be re-
quired to read the remedial notice to employees in both Spanish
and English as well as providing a copy of the notice to each
nutrition department employee.13 I decline to require written
assurances to Botelho or the reading and copying of the notice.
The Board’s traditional remedy of posting in English and Span-
ish is sufficient in this case.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, St. Francis Medical Center, an operating
division of Catholic Healthcare West, Southern California Re-
gion, Lynwood, California, its officers, agents, successors, and
assigns, shall
1.Cease and desist from
(a) Permitting employees to post flyers and other written ma-
terials which disparaged and personally attacked employee
Heang (Happy) Botelho because of her activities and sympa-
thies on behalf of and in support of the Union.

12 Respondent invited employees to report any questionable actions
employees made on behalf of the Union. Even if it is true, as Respon-
dent’s witnesses testified, that Botelho did not voice her suspicions to
them regarding which employees were responsible for the postings,
Respondent nevertheless failed to ask her for or invite her to provide
this information.
13 Counsel relies on Pacific Bell, 330 NLRB 271, 275 (1999); J. P.
Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969).
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(b) Disparately enforcing its solicitation and distribution
policies to limit solicitation and distribution of literature by
employees in support of the Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Lynwood, California, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 26, 1999.
(b) 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.

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