St. Luke's Memorial Hospital

National Labor Relations Board - Board Decisions

Sep 15, 2004

342 N.L.R.B. 1040 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 106
1040
St. Luke’s Memorial Hospital, Inc. and Unidad Labo-
ral de Enfermeras y Empleados de la Salud
(ULEES). Case 24–CA–9271
September 15, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On August 21, 2003, Administrative Law George
Alemán issued the attached decision. The Respondent
filed exceptions and a supporting brief.
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 brief and has decided to affirm
the judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(1) of the Act (1) by discriminatorily enforcing its
no-solicitation/no-distribution policy against the Union,
and (2) by discriminatorily requiring the Union to notify
the Respondent 2 days before it came to visit its repre-
sented employees at the hospital (the 2-day rule). The
Respondent excepts to these findings and asserts, among
other things, that the General Counsel failed to establish
that the Respondent applied its no-distribution/no-
solicitation and 2-day rules in a discriminatory manner
against the Union. We find merit in the Respondent’s
exceptions and find, contrary to the judge, that the Re-
spondent did not unlawfully discriminate against the Un-
ion. Accordingly, we reverse the judge’s decision and
dismiss the complaint.
I. FACTS
A. Background: The Respondent’s Acquisition
of St. Luke’s II
The Respondent is a hospital operating in Ponce,
Puerto Rico. Prior to June 2000, the hospital was oper-
ated by the Puerto Rico Department of Health, and was
known as Jose A. Gandara Hospital. In July 2000, the
Gandara Hospital was acquired by a private health care
entity known as Hospital Episcopal San Lucas (St.
Luke’s). St. Luke’s already owned a hospital (referred to
herein as St. Luke’s I.) Upon purchase by the Respon-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall 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.
dent, the Gandara Hospital was named St. Luke’s Memo-
rial Hospital (St. Luke’s II or Respondent).
St. Luke’s I was covered by three separate collective-
bargaining agreements with the Union, encompassing
units of registered nurses, practical nurses and clerical
employees. Following the acquisition, St. Luke’s I trans-
ferred between 50–100 employees to St. Luke’s II.2 Al-
though St. Luke’s II was not a unionized facility, the
Respondent agreed that it would continue to apply the
terms of the collective-bargaining agreement to the trans-
ferred employees. All three collective-bargaining agree-
ments contained provisions enabling the Union’s repre-
sentatives to visit the hospital’s premises to ensure com-
pliance with the agreement, “provided they notify the
corresponding Hospital representative in advance about
their visit.”3
B. The Respondent Informs the Union of its No-
Solicitation/No-Distribution Policy and 2-Day Rule
On August 28, 2000, the Respondent’s counsel wrote
to the Union, informing it of the recent acquisition of St.
Luke’s II and describing the agreement reached regard-
ing the terms for transferred employees. The letter also
advised the Union of the Respondent’s no-soli-
citation/no-distribution policy. More specifically, the
Respondent stated that distribution of “propaganda
and/or informative material” or anything of a “written or
verbal nature” would not be permitted “in those areas of
direct care and/or immediate care of the patient,” pursu-
ant to NLRB v. Baptist Hospital, 442 U.S. 773 (1979).
The Respondent further stated its willingness to negotiate
with the Union in order to find alternative areas where
the Union might distribute its literature, citing the cafete-
ria (where “only employees have access”) as one possi-
bility.4 Finally, the letter stated that, if agreement could
be reached regarding the use of a “determined area in the
cafeteria to distribute informational material, this process
cannot be turned into a place to hold meetings,” and that
the Respondent would retain the right “to qualify and
control the use that is given in this specific area.”
On October 2, 2000, the Respondent’s human re-
sources director, Isabel Maldonado, sent a letter to the
Union describing the procedure that the Union was to

2 Among the departments transferred from St. Luke’s I to St. Luke’s
II were the delivery and nursery departments, the neonatal intensive
care unit (NICU), the OB/GYN department, pediatrics, and the ambula-
tory surgery department, as well as some clerical and operating room
personnel.
3 The agreement further provided that the visits “will be carried out
in a way that it [sic] does not interfere with the work performance and
complaints will not be discussed in front of patients or visitors of the
Hospital.”
4 The judge found that, contrary to the letter, the cafeteria was open
to the general public.
ST. LUKE’S MEMORIAL HOSPITAL

1041
follow when visiting either St. Luke’s I or St. Luke’s II
in connection with its representative duties. The letter
informed the Union that “all visits of the representatives
[of the union] must be notified in advance to the Human
Resources Director, and in his absence, to the Executive
Director.” The letter further requested that the Union
should notify the hospital “one or two days in advance”
of its visit. The letter also reiterated the Respondent’s
no-distribution policy (i.e., in the direct patient care
area), as in the previous letter. The Union did not re-
spond or object to the Respondent’s letter.
For 1-1/2 years after the correspondence, Union organ-
izer Ingrid Vega visited the transferred employees at St.
Luke’s II several times per week, either in the cafeteria
or at another agreed-upon location. Vega would call the
hospital on the morning of the visit and notify the human
resources office (either H.R. Director Maldonado or her
secretary) of her intent to visit that day. On one occasion
in late summer 2000, the Respondent denied the Union
permission to visit the hospital, citing the Union’s failure
to give the Respondent any prior notice, as required by
its August 28, 2000 letter.
C. The Events of Early April 2002
In early April, 2002, consistent with her past practice,
Union Representative Ingrid Vega called the human re-
sources office at St. Luke’s I to inform the Respondent of
her intention to visit St. Luke’s II that afternoon.5 She
left a message with one of the secretaries approximately
one-half hour before visiting. Thereafter, Vega and Un-
ion Executive Director Quinones arrived at the Respon-
dent’s facilities before noon. For the next 45–90 min-
utes, Vega and Quinones sat behind a cafeteria table and
distributed to employees copies of the recently printed
nurses’ collective-bargaining agreements and the Un-
ion’s newspaper. Thereafter, a hospital security guard
confronted them and asked Vega to go to H.R. Director
Maldonado’s office, where Maldonado accused Vega of
failing to give her prior notice of her visit. Vega admit-
ted to Maldonado that she had not called St. Luke’s II,
but maintained that she had left a message with a secre-
tary at the St. Luke’s I facility.
Vega then returned to the cafeteria and continued to
distribute literature and talk to employees for an hour.
Subsequently, two local policemen arrived, accompanied
by one or two hospital security guards. At first, Qui-
nones refused to leave, citing his alleged right, under the
collective-bargaining agreement, to visit employees.
Eventually, the two union representatives left together
voluntarily.

5 Vega explained that she called St. Luke’s I (instead of St. Luke’s
II) because that was where H.R. Director Maldonado normally worked.
Analysis
In his complaint and brief before the judge,6 the Gen-
eral Counsel alleged that the Respondent’s prior notifica-
tion requirement, set forth in its October 2, 2000 letter,
was promulgated and maintained to discourage its em-
ployees from joining and/or assisting the Union or en-
gaging in other concerted activities. The General Coun-
sel further asserted that the Respondent’s ejection of the
two union representatives in April 2002 under its no-
solicitation/no-distribution policy was unlawful. The
General Counsel argued that the Respondent applied the
rule “selectively and disparately by denying access to
Union representatives to the Respondent’s cafeteria and
prohibiting union solicitations and distributions, while
permitting nonunion solicitations and distributions.”
In his decision, the judge agreed with the General
Counsel and found that the Respondent’s ejection of the
two union representatives in April 2002 under its no-
solicitation/no-distribution policy was unlawful. While
the judge recognized the rights of an employer to exclude
nonemployee union organizers from its property, he
noted that an employer may not do so in a discriminatory
manner, relying on Lechmere v. NLRB, 502 U.S. 527
(1992), and NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 112 (1956). The judge found that the Respondent
routinely allowed the distribution of two local newspa-
pers. The judge also cited one instance of an employee’s
solicitation for her personal business. Thus, the judge
found that the Respondent violated Section 8(a)(1) by
permitting solicitation and distribution by other parties,
while refusing to allow the Union to do so.
The judge further found that the Respondent violated
the Act by instituting a new rule requiring the Union to
give it 2 days’ notice before visiting the cafeteria.7 The
judge found that the imposition of such a 2-day notice
requirement on the union officials alone “constitutes dis-
parate treatment solely on the basis of union affiliation,
and interferes with the employees’ Section 7 right to
freely meet with their representatives.”
For the reasons stated below, we disagree with the
judge’s finding that the Respondent violated Section
8(a)(1) by evicting the union representatives from its
cafeteria in April 2002 based on a discriminatory appli-
cation of its no-solicitation/no-distribution policy and a
2-day prior notification rule. As shown below, the Gen-

6 The General Counsel did not file a brief before the Board.
7 The judge found that neither the collective-bargaining agreement, nor
the October 2, 2000 letter to the Union contained any such 2-day prior
notice requirement, and the parties did not have such a past practice.
Nonetheless, the judge noted that the Respondent has taken the position
that the Union is required to give it 2 days’ notice before visiting the
cafeteria or any other area of the hospital.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1042
eral Counsel has failed to meet its burden of demonstrat-
ing that the Respondent applied these rules in a discrimi-
natory manner.8
The No-Solicitation/No-Distribution Policy
The judge found that the Respondent’s denial of access
to Vega and Quinones was discriminatory because the
Respondent tolerated other types of solicitation in the
cafeteria. In finding that the Respondent discriminatorily
applied its no-solicitation/no-distribution policy, the
judge relied on evidence that the Respondent allowed
two regional newspapers to leave stacks of papers in the
cafeteria for employees to take. He further relied on the
fact that a union representative observed an employee
handing out flyers in the cafeteria advertising her nail
polishing services.9 We find that the record fails to dem-
onstrate that the Respondent discriminatorily applied its
no-solicitation/no-distribution policy against the Union
while allowing other organizations to engage in conduct
that would arguably violate the policy.
Where it is demonstrated that an employer has treated
nonunion solicitations differently than union solicita-
tions, the Board will find that the employer has violated
Section 8(a)(1). See e.g., Big Y Foods, 315 NLRB 1083,
1086 (1994). Here, it is undisputed that the Respondent
has permitted a stack of regional newspapers to be placed
in its cafeteria. It is not clear, however, that this is suffi-
ciently analogous to the Union’s action of distributing
various materials in the cafeteria to warrant a finding of
disparate treatment. The Respondent permitted regional
newspapers to be placed in the cafeteria for the comfort
and convenience of the cafeteria patrons, not to commu-
nicate information to the patrons, and these newspapers
were not provided for the purpose of engendering any
reply or other action on the patrons’ part. Accordingly,
we find that this apparent deviation from the Respon-
dent’s no-solicitation/no-distribution rule does not con-
stitute sufficient evidence of discrimination.
As to the single instance of an employee allegedly so-
liciting personal business, the evidence of this alleged

8 Members Liebman and Walsh note that, the record evidence sug-
gests that the Respondent unlawfully interfered with the employees’
right of access to their elected union representatives, as established by
past practice, and/or unilaterally changed the parties’ agreement and
practice regarding notification and access. However, the General
Counsel did not litigate this case, under either of those 8(a)(1) and (5)
theories. Cf. Wolgast Corp., 334 NLRB 203 (2001), enfd. 349 F.3d
250 (6th Cir. 2003), cert. denied, 124 S.Ct. 1656 (2004); Holyoke Wa-
ter Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir.
1985), cert. denied, 477 U.S. 905 (1986). Chairman Battista finds it
unnecessary to reach these issues.
9 The judge mistakenly found that Human Resources Director
Maldonado observed the employee soliciting. It was Union Organizer
Vega who testified that she (Vega) observed this.
incident is also insufficient to demonstrate that the Re-
spondent discriminatorily applied its no-solicitation/no-
distribution policy. Although Union Organizer Vega
testified to observing such solicitation on one occasion,
one month prior to the April incident, Human Resources
Director Isabel Maldonado testified that such conduct
was prohibited, and she denied that the Respondent was
aware of the solicitation. Therefore, we find that, in the
absence of evidence establishing that the Respondent
knew, or was likely to have known, of the employee’s
solicitation, this single isolated incident fails to demon-
strate the Respondent’s tolerance of such conduct. We
therefore conclude that there is insufficient evidence to
establish that the Respondent’s application of its no-
solicitation/no-distribution policy to Vega and Quinones
constituted unlawful discrimination under Section 8(a)(1)
because the Respondent tolerated other types of solicita-
tion in the cafeteria.
The 2-Day Prior Notification Rule
Similarly, we reverse the judge’s finding that the Re-
spondent violated Section 8(a)(1) by discriminatorily
enforcing a 2-day prior notification rule against the Un-
ion. Although the Respondent requested advance notice
of visitations in a letter to the Union, there is no evidence
that the request applied only to the Union and not to
other organizations. Indeed, there is no evidence that any
other organizations were permitted, or even attempted, to
enter onto the hospital’s property without advance notifi-
cation. Thus, because there was no evidence that the
Respondent allowed other entities to visit its property
without prior notice, there is no evidence that the Re-
spondent discriminatorily applied a prior notice rule to
the Union in violation of Section 8(a)(1). Accordingly,
we dismiss the complaint.
ORDER
The complaint is dismissed.

Shecyl San Miguel, Esq. and Ephraim Vega, Esq., for the Gen-
eral Counsel.
Jose Olivares Gonzalez, Esq., for the Respondent.
Harold Hopkins, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. A trial in this
matter was held on March 11 and 12, 2003, in Hato Rey, Puerto
Rico, following the filing of an unfair labor practice charge on
May 7, 20021 (subsequently amended on May 15, and August
28) by Unidad Laboral de Enfermeras y Empleados de la Salud
(herein the Union or ULEES), and issuance of a complaint on
September 25, by the Regional Director for Region 24 of the

1 All dates are in 2002, unless otherwise indicated.
ST. LUKE’S MEMORIAL HOSPITAL

1043
National Labor Relations Board (the Board). The complaint
alleges that the Respondent, St. Luke’s Memorial Hospital,
Inc., violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by promulgating and maintaining an unlawful no-
solicitation/no-distribution policy, and by selectively and dis-
parately enforcing that policy against union representatives who
sought access to its cafeteria for solicitation and distribution
purposes. By answer dated October 7, the Respondent denies
engaging in any unlawful conduct.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Puerto Rico corporation with an office
and place of business in Ponce, Puerto Rico, is an acute health
care institution engaged in providing in-patient and out-patient
medical care and related services. During the year preceding
issuance of the complaint, the Respondent’s gross revenues
exceeded $250,000, and, in the course conduct of its operations,
it purchased and received at its Ponce facility goods valued in
excess of $50,000 directly from points and places outside the
Commonwealth of Puerto Rico. The 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 that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Factual background
The Respondent, formerly known as José A. Gándara Hospi-
tal, was, prior to June 2000, owned and operated by the Puerto
Rico Department of Health. In or around July 2000, the Re-
spondent was acquired by, and became associated with, a pri-
vate health care entity known as Hospital Episcopal San Lucas,
and renamed St. Lukes Memorial Hospital.2 St. Lukes I was, at
the time, party to three separate collective-bargaining agree-
ments with the Union covering distinct units of registered
nurses, practical nurses, and clerical employees.3 Following its
acquisition of St. Lukes II, St. Lukes I transferred several of its
departments and the employees working therein to St. Lukes
II.4 The number of unit employees transferred from St. Lukes I

2 At the hearing, Hospital Episcopal San Lucas was often referred to
as St. Lukes I, and the Respondent, St. Lukes Memorial Hospital, as St.
Lukes II. For ease of reference, those same designations will be used
here, except that St. Lukes II may, at times, also be referred to as the
Respondent.
3 See CP Exhs.1–3. CP Exh. 1, the agreement covering the regis-
tered nurses, and CP Exh. 2, the practical nurses’ agreement, were both
executed in June 2001, and are effective from January 1, 2000 to De-
cember 31, 2003. CP Exh. 3, the clerical employees’ contract, was
apparently executed in May 1999, and was effective from January 1,
1999 to December 31, 2002.
4 Among the departments transferred from St. Lukes I to the Re-
spondent were the delivery and nursery departments, the neonatal in-
tensive care unit (NICU), the OB/GYN department, pediatrics, and the
to St. Lukes II during this transition totaled between 50 and 100
employees. Under an agreement entered into between the Re-
spondent and the Union, the transferred unit employees’ terms
and conditions remained the same as they had been at St. Lukes
I, and they continued to be represented by the Union and cov-
ered by the collective-bargaining agreements that were applica-
ble to them at St. Lukes I.
All three agreements contain an identical provision address-
ing the visitation rights of union officials to the facilities.5 The
provision reads as follows:

The officers of the [ULEES] may visit the different branches
of the Hospital when they believe that it is necessary during
the daytime hours, in order to make certain that the Agree-
ment is complied with or to deal with representatives of the
Hospital on issues related to the union members, provided
they notify the corresponding Hospital representative in ad-
vance about their visit. These visits will be carried out in a
way that it [sic] does not interfere with the work performance
and complaints will not be discussed in front of patients or
visitors of the Hospital.

The record reflects that on August 28, 2000, Respondent’s
counsel wrote to the Union’s executive director, Radamés Qui-
ñones, informing him of the recent acquisition of St. Lukes II
by St. Lukes I, and describing, inter alia, the agreement reached
between the Respondent and the Union regarding the rights of
the transferred employees. (See Jt. Exh. 1[b].) The letter also
advised the Union that St. Lukes I maintained a no-
solicitation/no-distribution policy at its facilities consistent with
the Supreme Court’s holding in NLRB v. Baptist Hospital, 442
U.S. 773 (1979). It goes on to state that “the distribution of
propaganda and/or informative material,” or anything of a
“written or verbal” nature is not permitted “in those areas of
direct care and/or immediate care of the patient.” The letter
then describes such prohibited areas as including “patients’
rooms, hallways, nursing stations, elevators, waiting rooms
and/or reception areas, emergency rooms, areas where physi-
cians work and/or family members of the patients are inter-
viewed, x-ray units, or any other area that is for patient access
or affects the patient’s tranquility and treatment.” The Respon-
dent in its letter makes clear that it expects ULEES to adhere to
these restrictions, but advises that it was willing to negotiate
with the Union in order to find alternative areas where the Un-
ion might be free to distribute its literature, citing the cafeteria
“(where only employees have access),”6 the hospital parking
entrances, and the employees’ parking lot as possible locations.
The letter further advises that if an agreement could be reached
regarding the use of a “determined area in the cafeteria to dis-
tribute informational material, this process cannot be turned
into a place to hold meetings,” and that the Respondent would
retain the right “to qualify and control the use that is given in
this specific area.”

ambulatory surgery department, as well as some clerical and operating
room personnel.
5 See art. XXVII, sec. E of CP Exh. 1(B); art. XXVI, sec. E of CP
Exh. 2(B); art. XXIV, sec. E of CP Exh. 3(B).
6 Despite the August 28 letter’s assertion that “only employees have
access” to the cafeteria, the cafeteria is open to the general public.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1044
On October 2, 2000, Respondent’s human resources director,
Isabel Maldonado, sent a letter to Quiñones, describing the
procedure the Union was to follow when visiting either St.
Lukes I or St. Lukes II in connection with its representative
duties.7 The procedure described in paragraph 1 of the October
2, letter reads as follows:

All the visits of the representatives of [ULEES] must be noti-
fied in advance to the Human Resources Director, and in his
absence, to the Executive Director. Whenever possible, we
would appreciate that the visits of the ULEES representatives
be notified one or two days in advance, in order to coordinate
it with the employees that you need to see, so that the work
schedules are not severely altered and services to the patients
or Hospital operations are not affected. Likewise an advance
notice will help us to make the arrangements to get a private
place where the ULEES representatives can meet.8

Paragraph 8 of that same letter also describes for the Union the
Respondent’s no-distribution policy. Tracking the no-solicita-
tion/no-distribution policy described in the August 28, 2000,
letter, it reads as follows:

With regard to the distribution of printed material, the position
of the Hospital is that such distribution, literature or discus-
sion of that material may not be done in areas of direct patient
care, nor during working hours. Among these areas are the
department hallways, nursing stations, patients’ rooms, x-ray
and other areas of access to patients, among others.

Although the above policy, on its face, imposes a ban on the
distribution of literature in certain defined patient-care areas of
the Hospital, Maldonado testified that the ban extends to all
areas inside the Hospital, including the cafeteria. (Tr. 175.)
The Respondent similarly averred, in the first affirmative de-
fense in its answer to the complaint, that it “has a standing or-
der not to allow at its cafeteria distribution of any sort from any
party, other than official hospital communications.” In this
same vein, Maldonado initially testified that, to the best of her
knowledge, no solicitation or distribution has ever occurred
inside the cafeteria. However, she subsequently conceded,
contrary to her prior testimony and to the Respondent’s claim
that only official hospital communications were allowed to be
distributed in the cafeteria, that two local newspapers of general
interest to the community at large, e.g., La Perla and
L’Opinion, are in fact distributed in the cafeteria. Maldonado
explained that the Hospital has, for many years, allowed such
local newspapers to be distributed because they contain news
and information that was of interest to the public-at-large. (Tr.
177–179.)
The incident which gave rise to the instant allegations oc-
curred on or around the first week in April, and involved a visit
by Quiñones and another Union official, Ingrid Vega, to the
Respondent’s cafeteria.9 According to Vega, one of the ways

7 See Jt. Exh. 2(B).
8 The suggestion in par. 1 of the October 8 letter, that ULEES should
try to notify the Respondent “one or two days in advance” of any visit
by a union official, is not found in the contracts’ visitatorial clauses.
9 Vega is a representative, organizer, and officer of the Union and is
responsible for administering the collective-bargaining agreements,
she maintains contact with unit employees is through visits to
the medical facilities. She testified that she visited the Respon-
dent between two and three times a week, and that her visits
often occurred between 11 a.m. and 1:30 p.m. as this was when
unit employees generally took their lunchbreak. The distribu-
tion of the union newspaper and other literature was usually
done during that time period. On those occasions when she
needed to meet with Maldonado, said meetings took place in
the latter’s offices.
Vega testified that it was her practice before visiting the Re-
spondent to first call the human resources office and let the
secretary, or whoever answered the phone, at times Maldonado
herself, know that she would be visiting the hospital either that
day or on some other particular date. According to Vega, there
were occasions when she tried but was unable to reach some-
one at the St. Lukes II office. On said occasions, which Vega
admits did not occur often, she would leave word at the St.
Lukes I human resources office of her visit. (Tr. 45.) Vega
testified that on these visits, she generally went directly to the
cafeteria somewhere between 11 a.m. and 1:30 p.m., and that
any distribution she had to make took place during that time
period. When the visits called for a meeting with the human
resources director, the meeting was held in the director’s office;
when the visit was for the purpose of going to a specific de-
partment, the human resources office would have a supervisor
accompany Vega through the department. (Tr. 42–43.)
In early April, Vega and Quiñones went to the Respondent’s
cafeteria to distribute copies of the Union’s newspaper, El
Aguacero, and of the recently printed nurses’ contracts to unit
employees. According to Vega, other nonunion material had
previously been distributed in the cafeteria. Consistent with
Maldonado’s testimony, Vega recalls seeing La Perla newspaper
made available for distribution to employees in the cafeteria, and
testified to seeing two other general circulation newspapers, El
Nuevo Dia and El Vocero, also made available for distribution.
Maldonado further recalled seeing, sometime in March, an em-
ployee distributing flyers advertising “nail polishing” services.
Vega testified that before going to the cafeteria, she called the
human resources office at St. Lukes I at approximately 11:15
a.m., and left word with one of the two secretaries there that she
and Quiñones would be visiting the cafeteria at St. Lukes II that
morning. (Tr. 48.) She explained that this was the procedure
established by the collective-bargaining agreements and, as
noted, consistent with her established practice.
After making her call, Vega and Quiñones arrived at the
cafeteria 1/2 hour later, and spent between 45–90 minutes dis-
tributing their literature until confronted by a hospital security
guard. The guard, Vega claims, told her she had to accompany
him to Maldonado’s office. Vega purportedly agreed to do so
and, on arriving at Maldonado’s office, was allegedly told by
Maldonado that she and Quiñones could not be in cafeteria
because they had not given the Respondent the required ad-
vanced notice of their visit. According to Vega, she told
Maldonado that while it was true she had not informed

including handling grievance arbitration matters, at both medical facili-
ties. According to Vega, her duties include distributing El Aquacero
and other union literature to unit employees.
ST. LUKE’S MEMORIAL HOSPITAL

1045
Maldonado at St. Lukes II of the visit, she had in fact left a
message advising of the visit at the St. Lukes I facility. (See
Tr. 53–54.)
According to Vega, nothing else was said and she returned to
the cafeteria where she continued to distribute union literature
and to talk to employees until two local policemen arrived ap-
proximately 1 hour later accompanied by one or two hospital
security guards. (Tr. 58.) Vega claims that the security guards
told her and Quiñones they had to leave. The police officers,
she testified, did not approach her but did speak with Quiñones
and also informed him that management had requested that he
leave the premises. Quiñones, Vega recalls, refused to leave,
explaining to the police that under the Union’s collective-
bargaining agreement with the Respondent, union representa-
tives were allowed to visit the facility. Quiñones purportedly
further told the police that they were also allowed into the cafe-
teria because the cafeteria was open to the general public. Fol-
lowing Quiñones conversation with the police, he and Vega
simply left the premises. Vega recalls seeing visitors, physi-
cians, unit employees, and supervisory personnel in the cafete-
ria during this incident. (Tr. 61.) Vega testified that some 2 or
3 weeks later, she advised the Respondent’s human resources
department that she wished to visit the cafeteria, but that when
she and union official Jose Costas arrived at the hospital, they
were met by three security guards at the front entrance who
denied them entry. (Tr. 63.) She further recalled that sometime
in June or July, she notified Maldonado that she was planning
to visit St. Lucas I, that Maldonado told her she could not do so
because of the Board charges (pertaining to the early April
visit) that were pending, and that, unless Vega’s visit was for
the purpose of addressing specific complaints or grievances,
she would not be allowed to visit the facilities until Board
charges were resolved. Vega claims that from then on, all of
the union-related material, including bulletins, newspapers, and
subpoena notices, that had been left in the Respondent’s facility
were thrown out. (Tr. 89.) Vega’s testimony as to her subse-
quent encounter with security guards as she tried to enter the
Respondent’s facility following her April visit, as to her con-
versation with Maldonado in June or July, and regarding the
subsequent discarding by Respondent of union-related litera-
ture, was undisputed and is credited.
Maldonado also testified as to the procedures the Union was
required to follow when visiting the Respondent’s facilities,
and as to the early April cafeteria incident. Regarding the pro-
cedure for visits, she testified that typically the Union, usually
Vega, calls the human resources department and informs her of
the visit, and its intended purpose. If the purpose is to meet
with employees, then her department affords employees the
time needed and place to meet with the union official.
As to Vega’s and Quiñones’ early April visit to the cafeteria,
Maldonado testified that on the day in question, she was at her
St. Lukes I office when she received a call late that morning
from Elizabeth George, her secretary at St. Lukes II, advising
that Vega and Quiñones were in the Respondent’s cafeteria.
George, she further claims, also informed her that Quiñones
was making personal negative comments about her
(Maldonado) and the Respondent’s executive director, Ramon
Lopez, and being confrontational with other hospital personnel.
Maldonado concedes, however, that George had not personally
witnessed Quiñones’ behavior at the cafeteria, and had instead
been told of Quiñones’ activities by a security guard, Lieuten-
ant Gonzalez, and by St. Lukes II facilities supervisor, Do-
mingo Colon. (Tr. 190–191.) Maldonado’s description of the
information she purportedly received from George does not, it
should be noted, include any mention by George of Quiñones
giving a speech or holding an employee rally in the cafeteria.
According to Maldonado, after receiving the information from
George, she inquired of the four secretaries in the St. Lukes I
human resources office if Vega had notified any of them of her
visit, and all four denied receiving any such call. (Tr. 229.)
Maldonado claims that following George’s phone call, she
called Colon and Gonzalez and directed them to remove Vega
and Quiñones from the premises. She purportedly also called
Hector Rivera, the head of environmental affairs at the facility,
as well as Lopez, to update him on what was going on. She
recalls telling Lopez that Vega and Quiñones had not given the
Respondent prior notice of their visit and that, consequently,
she had issued instructions to have them removed from the
hospital premises. (Tr. 234.) Although initially citing only the
failure to give prior notice of the visit as the reason for having
Vega and Quiñones ejected from the hospital premises, on fur-
ther questioning from me, Maldonado altered her response by
adding that Quiñones’ conduct in the cafeteria, which she de-
scribed as a “crisis,” was also a factor in her decision to have
them expelled. (Tr. 234–235.)
Maldonado could not recall if, prior to calling Colon, she in-
quired of her staff at the St. Lukes II human resources office
whether Vega had given it prior notice of her visit. Further,
while she claims to have asked the staff at the St. Lukes I office
if Vega had notified them of her visit, she could not recall if
this latter inquiry occurred before or after she directed Colon to
evict Vega and Quiñones from the Respondent’s cafeteria. (Tr.
224.) After calling these individuals, Maldonado testified she
headed over to St. Lukes II and, on arriving, went straight to
Lopez’ office where she and Lopez spent several hours discuss-
ing numerous topics, including Vega’s and Quiñones’ visit to
the cafeteria. (Tr. 168.)
Maldonado denies Vega’s claim that the two met personally
that day, and instead testified that she and Vega only spoke on
the phone. Thus, she testified that Vega called her around
noontime, while she was still meeting with Lopez in the latter’s
office, to inform that the hospital’s security guards were asking
her to leave, and also apologized for not having notified
Maldonado in advance of her visit. Maldonado purportedly
replied that she, Vega, definitely needed to leave the hospital
premises. Maldonado admits she never personally went to the
cafeteria to investigate the incident. Maldonado claims that at
some point, she gave instructions to Colon and/or Rivera, both
of whom were in the cafeteria at her direction, to call the local
police because Quiñones was refusing to leave the cafeteria
unless the police were called. Maldonado purportedly chose
not to investigate the incident herself because she feared Qui-
ñones “aggressive attitude.” (Tr. 202–203.)
Colon testified to receiving a call in early April from
Maldonado at around 12:40 p.m. asking him to look into
Vega’s and Quiñones activities in the cafeteria. Colon claims
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1046
that on arriving at the cafeteria, he observed Quiñones giving a
speech on how the Respondent was “fooling the people,” and
that a security official, Lieutenant Gonzalez, was trying to get
Quiñones to lower his voice by telling him that there were pa-
tients in the area. Colon claims he too got involved in trying to
get Quiñones to lower his voice. Vega denies that Quiñones
gave a speech in the cafeteria that day. Colon claims that at
one point, when he approached Quiñones, the latter asked him
who he was, and he proceeded to identify himself to Quiñones.
Quiñones, according to Colon, then took Colon’s picture over
the latter’s objection.10 At one point, Quiñones, Colon claims,
called him a “charlatan” and stated he could not understand
how “the administration could count on someone like” Colon.
Colon then left the cafeteria to call Maldonado and update her
on what was transpiring, and thereafter presumably returned to
the cafeteria. He claims that he in fact called Maldonado on
several occasions to inform her of what was going on, and that,
on the last call, told Maldonado that the police had arrived, that
everything had calmed down, and that Quiñones and Vega had
left the facility.
Although Gonzalez did not testify, Colon claims the latter at
one point asked Quiñones to leave the cafeteria, but that Qui-
ñones declined to do so unless the police were called. He testi-
fied that some 5 minutes later, the police were called. On their
arrival, Gonzalez, according to Colon, explained to the police
that Quiñones had been giving a speech and had failed to fol-
low the proper procedure for visiting the hospital. The police,
however, declined to take any action because Vega and Qui-
ñones were calm at the time and not doing anything. (Tr. 277.)
Quiñones, according to Colon, left either during or shortly after
the police officer’s conversation with Gonzalez. Colon claims
that he spent about 35 minutes in total in the cafeteria during
this incident, and that, during that period, he did not see either
Vega or Quiñones handing out union literature.
Called by the Respondent, Eduardo Mercado, a messenger at
St. Lukes II, testified that he was in the cafeteria for about 5 or
10 minutes around noontime on the day in question, and, during
that period, heard Quiñones say in a loud voice that the funds
that were intended to cover employee benefits were instead
being given to Maldonado and Lopez. Mercado recalls seeing
other coworkers, as well as nurses, physicians, and cafeteria
personnel, in the cafeteria at the time the incident occurred.
Although claiming that Quiñones was speaking somewhat
loudly in the cafeteria, Mercado never claimed to have seen or
heard Quiñones making a speech or conducting a rally.
I am not convinced that Quiñones made a speech or con-
ducted a rally in the cafeteria during his early April visit, as
claimed by the Respondent on brief. While Maldonado and
Colon testified that he did, Vega, contrary to the Respondent’s
further assertion on brief, denies that Quiñones engaged in any
such conduct.11 Except for the brief period of time when

10 Vega explained that Quiñones brought a camera with him that day
to take photos of unit employees receiving copies of their collective-
bargaining agreements and that the photos were to be included in the
Union’s newspaper.
11 The Respondent’s claim, on brief at pp. 4 and 7 (fn. 5), that Vega
admitted on cross-examination that Quiñones “made a speech” during
the early April visit to the cafeteria is patently wrong and misleading,
Maldonado purportedly summoned her from the cafeteria, Vega
was in the cafeteria and had first hand knowledge of what tran-
spired therein. Maldonado, on the other hand, never went to
the cafeteria and had no direct knowledge of Quiñones’ activi-
ties.12 Although Colon did testify to having seen Quiñones
giving a speech in the cafeteria, Mercado, as noted, made no
such claim in his testimony, and testified only that Quiñones
was being loud. Having considered the above conflicting tes-
timony, I am persuaded that while Quiñones may have been
speaking somewhat loudly, he did not give a speech or engage
in a rally. I note in this regard that, according to Colon, the
police felt it unnecessary to take any action because neither
Quiñones nor Vega were engaging in any inappropriate conduct
when they arrived.
B. Discussion
The complaint, as noted, alleges, the General Counsel con-
tends, and the Respondent denies that its ejection of Vega and
Quiñones from the hospital’s cafeteria in early April was unlaw-
ful and in violation of Section 8(a)(1) of the Act. The Respon-
dent on brief raises two principal defenses to the allegation, both
of which I find lack merit. First, the Respondent contends that
Vega and Quiñones were lawfully evicted from its premises be-
cause they did not provide the Respondent with advance notice of
their visit. Second, it argues that its actions were justified be-
cause Vega’s and Quiñones’ distribution of union literature vio-
lated its no-solicitation/no-distribution policy.
As to the Respondent’s claim that it did not receive prior no-
tice of the Union’s early April visit, Vega, as noted, testified
that she, in fact, called the St. Lukes I human resources office
prior to her visit and left word with a secretary that she and
Quiñones would be visiting the St. Lukes II cafeteria that morn-
ing. Her claim in this regard was not seriously challenged by
the Respondent. The only contrary evidence on this question
came from Maldonado who, as noted, testified that she inquired
of the secretaries at the St. Lukes I office and that all denied
receiving any such call from Vega. None of the secretaries,
however, was called to corroborate Maldonado’s claim in this
regard. As for Maldonado, she was not a particularly credible
witness. Her rather vague and ambiguous testimony on whom

for when asked by Respondent’s counsel on cross-examination if Qui-
ñones made a speech that day, Vega twice stated clearly and unambi-
guously that he had not. (Tr. 121.)
12 Maldonado, as noted, claims that the information she received
about Quiñones’ activities came from George who, in turn, purportedly
received the information from security guard Gonzalez and Colon.
Neither George nor Gonzalez were called to testify, and while Colon
did testify, he made no mention in his testimony of having seen or
spoken with George regarding this incident. In fact, Colon’s testimony
suggests that he first learned of Vega and Quiñones being in the cafete-
ria when Maldonado called him and asked him to look into the matter.
Colon’s testimony, if true, makes patently clear that he could not have
reported to George that Quiñones was giving a speech in the cafeteria,
as claimed by Maldonado. Maldonado’s claim, therefore, that George
learned that Quiñones was speaking ill of her and Lopez in the cafeteria
from Gonzalez and Colon, is uncorroborated and, indeed, somewhat
inconsistent with Colon’s own testimony. Accordingly, Maldonado’s
testimony regarding what she was told by George is found not to be
credible.
ST. LUKE’S MEMORIAL HOSPITAL

1047
she may have called, and what she may have done or been told,
following her receipt of George’s call, was full of contradic-
tions and is simply not worthy of belief. The inconsistency
between her claim at the hearing that George described to her
what Quiñones was doing in the cafeteria, and the admission in
her sworn affidavit that George made no such statements to her,
further undermines her overall credibility.
Vega on the other hand came across as more reliable and
sincere than Maldonado. Her claim, therefore, of having given
the Respondent prior notice of her early April visit, and her
version of what transpired between her and Maldonado during
her visit, is credited. The Respondent’s assertion on brief, that
a 2-day advance notice from the Union was required for any
such visit, is without merit, for neither the October 2 letter it
sent to the Union and on which it relies to support its assertion,
nor the notice provision in the parties’ collective-bargaining
agreement, contains any such requirement. Rather, as de-
scribed above, both the October 2 letter and the notice provi-
sion in the contract state only that advance notice should be
given without specifying the amount of advance notice ex-
pected or required.13
Regarding its claim that Vega and Quiñones were lawfully
evicted under its no-solicitation/no-distribution policy,14 the
Respondent, on brief, correctly points out that under Lechmere
v. NLRB, 502 U.S. 527 (1992), an employer cannot be com-
pelled to allow distribution of union literature by nonemployee
organizers on his property unless the employees are otherwise
inaccessible, id., at 534, a factor it contends, and I agree, is not
present here. This, however, does not end the inquiry, for there
is another long-established exception, which the Respondent

13 Although the October 2 letter states that the Union should, “when-
ever possible,” give “one or two days” advance notice of a visit, it is
patently clear from the above “whenever possible” language that the
“one or two day” notice was more of a suggestion to the Union rather
than a requirement. As noted, this “one or two day” language is not
found in the notice provision of the parties’ agreement. There is no
evidence here to suggest, nor does the Respondent contend, that a 2-day
advance notice was an established practice of which the Union was
aware and to which it had acquiesced. In fact, Vega’s testimony is to
the contrary, for she testified that she generally called the Respondent
between 15 minutes to 1 hour before making any such visit. (Tr. 72–
73.) I credit her testimony in this regard.
14 As previously described, the no-distribution policy in the October
2, 2000 letter to the Union bans the distribution of literature “in areas of
direct patient care,” and includes “department hallways, nursing sta-
tions, patients’ rooms, x-ray and other areas of access to patients,
among others.” The cafeteria is not included in the list of areas where
distribution of literature is prohibited, suggesting the possibility that the
ban on distribution of literature does not extend to the cafeteria. Nor
does the cafeteria qualify as a “direct patient care” area. As such, a ban
on the solicitation and distribution of literature in the cafeteria, absent a
showing that the ban is needed to avoid a disruption of patient care,
may very well be unlawful under the NLRB v. Baptist Hospital holding
referenced by the Respondent in its August 28, 2000 letter. The com-
plaint, however, does not allege the Respondent’s no-distribution pol-
icy, as set forth in the October 2, 2000 letter to be unlawful. Rather, the
allegation here is that the Respondent has applied its no-distribution
policy in a disparate and discriminatory manner. Accordingly, I make
no finding regarding the actual validity of the Respondent’s no-
solicitation/no-distribution policy.
does not mention, to an employer’s right to restrict access to its
property, e.g., a “nondiscrimination” exception. Under this
latter exception, an employer may not discriminate by refusing
to allow a union to distribute literature on its premises while
allowing similar distribution or solicitation by nonemployee
entities other than the union. NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112 (1956); Price Chopper, 325 NLRB 186, 187
(1997), enfd. Four B Corp. v. NLRB, 163 F.3d 1177 (10th Cir.
1998).15 I agree with the General Counsel’s claim on brief that
the “nondiscrimination” exception is applicable here.
The record evidence makes patently clear, and the Respon-
dent on brief concedes as much, that the distribution of nonun-
ion literature, e.g., local newspapers, has long been allowed in
the hospital cafeteria. Maldonado admitted as much in her
testimony, with corroboration from Vega. Vega also testified,
credibly and without contradiction, to having observed, one
month prior to her and Quiñones’ April visit, an employee so-
liciting and distributing literature for a nail-polishing business
in the cafeteria, establishing to my satisfaction that the solicita-
tion and distribution of other literature of a nonunion, nonwork
related nature also occurs. It is also patently clear, and the
Respondent does not contend otherwise, that these past inci-
dents of solicitation and distribution in the cafeteria do not fall
within either of the previously-cited exceptions to the “nondis-
crimination” rule. (see fn. 15 supra.) The Respondent’s refusal
in early April, therefore, to allow Vega and Quiñones to dis-
tribute union material in its cafeteria, when it has allowed other
nonunion material to be distributed, was, I find, discriminatory
and a violation of Section 8(a)(1) of the Act.
I further agree with the General Counsel that the Respon-
dent’s rule requiring that the Union give it 2-days prior notice
before visiting the cafeteria further violates Section 8(a)(1) of
the Act.16 There is in this regard no evidence to indicate, and
the Respondent does not contend, that this 2-day advance no-
tice requirement applies to other members of the public who
may wish to enter and use its cafeteria. The imposition of such
a 2-day notice requirement on the union officials alone consti-
tutes disparate treatment solely on the basis of union affiliation,
and interferes with the employees’ Section 7 right to freely
meet with their representatives. The 2-day prior notice re-
quirement is therefore discriminatory and, as noted, violative of
Section 8(a)(1).

15 The “nondiscrimination” rule is itself subject to two exceptions.
Thus, an employer’s refusal to allow union solicitation will not violate
the Act if the nonunion solicitations it has allowed consist only of a
small number of “isolated beneficent acts,” or are related “to the em-
ployer’s business functions and purposes.” Four B. Corp. v. NLRB,
supra at 1183; Albertson’s, 332 NLRB 1132, 1135 (2000); Sandusky
Mall Co., 329 NLRB 618, 621 (1999); Hammery Mfg. Corp., 265
NLRB 57 fn. 4 (1982).
16 Although, as previously discussed, neither the collective-
bargaining agreement, nor the October 2 letter to the Union, contains
any such 2-day prior notice requirement, the Respondent, as noted, has
taken the position that the Union is required to give it 2 days’ notice
before visiting the cafeteria or any other area of the hospital.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1048
CONCLUSIONS OF LAW
1. The Respondent, St. Luke’s Memorial Hospital, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Unidad Laboral de Enfermeras y Empleados de la Salud
(ULEES) is a labor organization within the meaning of Section
2(5) of the Act.
3. By requiring union representatives to provide 2-days ad-
vance notice before visiting the cafeteria while imposing no
such requirement on other visitors to the cafeteria, and by pro-
hibiting union representatives from distributing literature in the
cafeteria while allowing the distribution of other nonunion
material, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1) of
the Act, it shall be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]