St. Mary Medical Center

National Labor Relations Board - Board Decisions

Jun 27, 2003

339 N.L.R.B. 381 (N.L.R.B. 2003)

ST. MARY MEDICAL CENTER 381
St. Mary Medical Center and CNA/USWA Health-
Care Workers Alliance. Case 31–CA–25739
June 27, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On January 21, 2003, Administrative Law Judge James
L. Rose 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 briefs and affirms the
judge’s rulings, findings,1 and conclusions as modified
and adopts the recommended Order as modified and set
forth in full below.2
This case involves several allegations of 8(a)(1) and
(3) violations by the Respondent during the Union’s or-
ganizing campaign. For the reasons set forth in his deci-
sion, we agree with the judge’s disposition of these alle-
gations, except that we disagree with his finding that the
Respondent, through Relief Supervisor Flora Lee, at-
tempted to engage in surveillance of employees’ activity
at a union meeting in violation of 8(a)(1).3
1. Lee was invited, or at least thought she was invited,
to attend the Union’s meeting on the evening of May 9,
2002.4 The Respondent’s officials told her she could go
because they believed she was not a supervisor, but they
did not direct her to go. They did not ask her to report

1 Member Walsh agrees with his colleagues in affirming the judge’s
finding in sec. III,B,1,c of his attached decision that the Respondent
violated Sec. 8(a)(1) by promulgating an overly-broad no-solicitation
rule. Food Services Director Donald Pace told employee Carlos David
that he did not “want to hear [David] or see [him] talking about the
Union inside the hospital or the hospital ground [sic].” Subsequently,
Pace issued David a written warning which stated that David could not
“distribute or talk about union organizing activities during work hours.”
The judge found that the language in the written warning was overly
broad under Our Way, Inc., 268 NLRB 394 (1983), because it was not
limited to the employees’ “working time.” Member Walsh notes, in
addition, that Pace’s oral admonition to David was overly broad be-
cause it was not even limited to any particular time, and instead on its
face unlawfully prohibited solicitation at any time on the Respondent’s
grounds.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001).
Further, we shall substitute a new notice in accordance with our deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
3 We find it unnecessary to pass on Lee’s status as a supervisor
within the meaning of Sec. 2(11) of the Act because we find the con-
duct attributed to her would not be unlawful even if she was a supervi-
sor.
4 Attendance by a supervisor at an organizational meeting of em-
ployees with their knowledge and consent does not constitute unlawful
surveillance. Dr. Philip Megdal, D.D.S., Inc., 267 NLRB 82, 88 fn. 4
(1983).
back after the meeting. As soon as Lee arrived at the
meeting, she was informed that she could not attend. She
then left. She did not say anything later to management
about the meeting other than that she was not allowed to
attend. Under these circumstances, the General Counsel
has failed to prove a coercive attempt by the Respondent
to engage in surveillance. Accordingly, we dismiss this
complaint allegation.
2. We agree with the judge that the Respondent sus-
pended and discharged Betty Melendez in violation of
Section 8(a)(3) and (1). We note that the judge did not
specifically cite Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), but that he nonetheless engaged in a Wright
Line type of analysis. See, e.g., T & H Investments, 291
NLRB 409 (1988); Bardaville Electric, Inc., 309 NLRB
337 (1992). Thus, the record shows that Melendez en-
gaged in protected activity; that the Respondent had
knowledge of that activity; and that the Respondent took
adverse employment action against her (suspension and
discharge). Animus can be inferred from the 8(a)(1) vio-
lations found by the judge, which we affirm. While we
agree with the Respondent that it would not be unlawful
for it to discharge an employee for using language that it
found “offensive and in violation of the institution’s core
values of respect,” we agree with the judge’s finding that
the Respondent’s assertion that Melendez was discharged
for making such remarks was pretextual, and that “the
discharge was really for her union activity.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, St. Mary Medical Center, Los Angeles,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with loss of benefits and
unspecified reprisals should they select the Union as their
bargaining representative.
(b) Interrogating employees about their interest in and
activity on behalf of the Union.
(c) Discharging employees because of their interest in
and activity on behalf of the Union.
(d) Giving employees written warnings because of
their interest in and activity on behalf of the Union.
(e) Promulgating and attempting to enforce an unlaw-
ful no-solicitation rule.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
339 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Betty Melendez and Paul Rodriguez full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Melendez and Rodriguez whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings,
suspensions, and discharges of Melendez and Rodriguez
and to the unlawful warnings given to David Carlos, and
within 3 days thereafter notify these employees in writ-
ing that this has been done and that the disciplinary ac-
tions will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen-
dix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 31, 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 al-
tered, 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 any facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all former employees employed by the Respon-
dent at any closed facility since May 6, 2002.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 threaten employees with loss of benefits
and unspecified reprisals should they select the Union as
their bargaining representative.
WE WILL NOT interrogate employees about their inter-
est in and activity on behalf of the Union.
WE WILL NOT discharge employees because of their in-
terest in and activity on behalf of the Union.
WE WILL NOT give employees written warnings be-
cause of their interest in and activity on behalf of the
Union.
WE WILL NOT promulgate and attempt to enforce an
unlawful no-solicitation rule.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Betty Melendez and Paul Rodriguez re-
instatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions of em-
ployment and make them whole for any loss of wages or
other benefits they may have suffered.
WE WILL rescind the written warnings given to Betty
Melendez, Paul Rodriguez, and Carlos David and will
not use such warnings in any way against them.
ST. MARY MEDICAL CENTER

ST. MARY MEDICAL CENTER 383
Anne J. White and Christy J. Kwon, Esqs., for the General
Counsel.
David G. Freedman, Esq., of Los Angeles, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Los Angeles, California, on October 1 and 2,
2002, upon the General Counsel’s complaint which alleged that
the Respondent discharged two employees and gave written
warnings to another all in violation of Section 8(a)(3) of the
National Labor Relations Act (the Act). Various violations of
Section 8(a)(1) are also alleged.
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that the two
named individuals were discharged for cause.
Upon the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing findings of fact, conclusions of law, and recommended
Order.
I. JURISDICTION
The Respondent is a California corporation engaged in the
business of operating an acute care hospital, in connection with
which it annually receives goods or services valued in excess of
$50,000 directly from points outside the State of California and
annually derives gross revenues in excess of $250,000. The
Respondent admits, and I conclude, that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
CNA/USWA Healthcare Workers Alliance (the Union) is
admitted to be, and I conclude is, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In early 2002,1 the Union began an organizing campaign
among the Respondent’s approximately 1200 employees.
Though sketchy in the record, it appears that a petition was
filed for a unit of nurses and an election was held on May 2,
with the Union receiving a majority of the votes cast. In March,
the Union also began to organize the ancillary employees (prin-
cipally those working in food service). This case involves cer-
tain acts of the Respondent toward food service employees,
including the suspensions and discharges of Betty Melendez,
and Paul Rodriguez, written warnings to Carlos David on May
24, and assorted acts alleged violative of Section 8(a)(1) in
April and May.
During the time material, there were about 50 employees in
the food service department, according to then Food Service
Director Donald Pace. Nicolas Bada was the executive chef.
There were 32 to 34 employees classified as food service work-

e.
1 All dates are in 2002, unless otherwise indicated.
ers, which included Melendez, Rodriguez, and David. Pace and
Bada were admitted to be supervisors. At issue is whether Flora
Lee was a supervisor or agent such that her activity would bind
the Respondent.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
a. By Nicholas Bada
Many of the complaint allegations appear redundant. Thus, it
is alleged that Bada created the impression that employees’
union activities were under surveillance [6(a)(i), (b)(iii), and
(c)(i)], threatened employees with loss of benefits [6(a)(ii),
(b)(ii), and (c)(ii)], promulgated an overly broad no solicitation
rule [6(a)(iii) and (e)] and interrogated employees concerning
their union activity [6(b)(i) and d(i)].
The General Counsel argues that during a one-on-one meet-
ing between Bada and Melendez in Bada’s office on May 6,
Bada unlawfully interrogated her, impliedly threatened her, and
created the impression that her union activity was under
surveillanc
Melendez testified that when Bada called her into his office,
he started by saying, “[I]t had come to his attention that I had
been trying to help the union in the kitchen and he said people,
several people had come and told him.” She denied to Bada that
this was true.
This opening statement by Bada is alleged to have created
the impression that employees’ union activity was under sur-
veillance. I conclude not. In order to sustain an of creation of
impression of surveillance, there must be some indication that
the manager’s statement that the employee was engaged in
union activity could only have come from unlawful surveil-
lance. Here such is not the case. As related by Melendez, Bada
said it had come to his attention and several people had told
him. Such does not in any way imply that Bada gained his in-
formation through surveillance. See, e.g., South Shore Hospital,
229 NLRB 363 (1977).
According to Melendez, Bada went on to tell her that she is
“a very strong, powerful person,” such that when she talks peo-
ple listen. He suggested that she could sway employees for the
Union, which she said she would not do. Then he asked if she
had signed an authorization card. She told him she had, but that
it did not mean anything. Bada told her he was worried about
her, “I don’t what (want) to see you get in any trouble.” And
toward the end of the meeting, he again asked if she supported
the Union—that he thought she did.
Section 8(c) gives employers latitude in asking employees
about their union activity and attempting to persuade them from
supporting a union. Where coupled with threats or promises of
benefits, such interrogation is unlawful. Rossmore House Hotel,
269 NLRB 1176 (1984). Here, I conclude that by telling
Melendez he was worried about her, in the context of asking
about her union acivity, Bada impliedly suggested that her sup-
port for the Union could have adverse consequences. Accord-
ingly, the interrogation was violative of Section 8(a)(1), as was
the implied threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
However, I do not find that Bada attempted to recruit
Melendez to influence other employees by his statement to her
that she is a strong and powerful person. He did not ask her to
speak to other employees against the Union, which was the
situation in cases cited by the General Counsel. In any event,
since solicitation of Melendez was not alleged a violation of the
Act, no finding need be made.
Rodriguez testified that twice a week after March, Bada
would “pull me in his office” and tell that the Union was no
good and he knew that Rodriguez supported the Union. Bada
testified that Rodriguez came into his office about three times
and told Bada he was opposed to the Union. There is a direct
conflict between Rodriguez and Bada concerning who initiated
these discussions, and what was said. I credit Rodriguez over
Bada and find that their discussions about the Union was gen-
erally as testified to by Rodriguea.
It is specifically alleged that in a meeting Bada had with
Rodriguez on May 7, Bada interrogated Rodriguez, impliedly
threatened him, and created the impression that his union activ-
ity was under surveillance. According to Rodriguez, Bada
started the meeting by saying that he and everyone, including
the “sisters” “who own the hospital” were disappointed in him
because they found out that he was prounion. “Because, and
they saw me the night of May 2 celebrating with the nurses
when they won their election to be represented by CNA.” (Rod-
riguez is also included in a picture of the celebration in the
Union’s flyer.) Contrary to the General Counsel, I do not con-
clude this statement created the impression that the union activ-
ity of Rodriguez could only have been known through unlawful
surveillance. His activity was, in fact, a matter of general
knowledge and was published by the Union.
Bada also told Rodriguez that he had better not catch Rodri-
guez passing out union cards and he said, “[O]ne of these days
you’re gonna get in trouble and the sisters aren’t gonna help
you.” As far as I can determine, there was no interrogation by
Bada in this conversation; however, the statement that one day
he would get into trouble does seem to be a threat of unspeci-
fied reprisals. Also Bada told Rodriguez that if the Union came
in, employees would lose the benefit of free meals. I conclude
that Bada threatened employees in violation of Section 8(a)(1).
The allegation in paragraph 6(d), interrogation by Bada, ap-
parently is alleged to have occurred in a meeting with David at
which Bada was present on May 10. This allegation will be
considered below, since Bada was not the company spokesman
at this meeting.
In paragraph 6(e), it is alleged that “[o]n various dates in
April—May 2002, (Bada) promulgated and attempted to en-
force an overly broad no solicitation/no distribution rule by
telling employees that he did not want employees to talk about
the Union during work time.” I have found no testimony to this
effect nor has counsel for the General Counsel directed me to
any. Accordingly, I shall recommend that this paragraph be
dismissed.
b. By Flora Lee
It is alleged, and denied, that Flora Lee was a supervisor
within the meaning of Section 2(11) such that her actions
would bind the Respondent. Primarily from the testimony of
the Respondent’s witnesses and its records, I conclude that
during the times material here, Lee was a supervisor.
Pace testified that Lee was first designated as a “lead person”
some time in 2001. “This year (2002) she also continued to fill
in as a lead during some medical leave coverage for one of the
regular food service supervisors (Evelia Arredondo, who was
on leave following foot surgery).” Lee testified that Pace asked
her to be the relief supervisor since Arredondo would be gone
for 3 months. Pace gave Lee a badge to wear stating that she
was a temporary (or relief) supervisor and he did so because,
“while she was on that assignment (filling in for Arredondo), I
wanted to make sure that the kitchen staff understood that she
did have authority to direct them, and that when she was in the
kitchen, that they needed to listen to what she had to say if
there were work issues to be resolved.”2
Pace further testified concerning Lee’s duties

Well, she would have to supervise the day to day kitchen op-
erations, be a monitor that people were doing their jobs, make
sure that, you know, the patients got taken care of, caterings
were taken care of. If somebody called off sick, she would
probably try to get some coverage for the schedule for that. So
basically, she would try and coordinate the normal day to day
kitchen staff.

On the work schedules in evidence, from February 17
through May 25, Lee is designated as “supervisor’ typically 5
days a week. She also worked shifts usually two each week, for
which she was not designated “supervisor.”
There is little question that during the period from February
through May, at least, the Respondent vested Lee with the au-
thority to responsibly direct rank-and-file employees and so
informed them. Such was her regular assignment during that
period. Pace referred to Lee as a supervisor in his May 14
writeup of Rodriguez and as acting supervisor in his writeup of
Melendez. Accordingly, I conclude that during the material
times of the events here, Lee was a supervisor within the mean-
ing of Section 2(11) of the Act during the time of the events
here, even though her status as such was temporary. E.g., E. I.
du Pont Newport Local 9 (du Pont & Co.), 300 NLRB 1165
(1990).
On the evening of May 9, there was a meeting of employees
at David’s home. Lee is alleged to have engaged in surveillance
of employees’ union activity by attempting to attend it. Lee
testified that David invited her to that meeting. Though he de-
nied doing so, he testified that he did invite her to a meeting. In
any event, she decided to attend and asked her superiors, Pace,
Bada, and Robert Quarfoot, the Respondent’s vice president of
business development, if she should do so. According to Bada,
“either Bob (Quarfoot) or Don (Pace) but they said, “Well, you
are not a supervisor. You can go. If you are invited, you are
free to go. You are not a supervisor at all.”
Pace testified that before the meeting, Lee had come to him

[A] little concerned and confused because she said, “I’m fill-
ing in as a supervisor.” I said, “Flora, your official title is food

2 Though of little consequence here, Lee testified that she had been
given the badge about 6 months after being made the lead person,
which would have been prior to her assuming Arredondo’s duties.
ST. MARY MEDICAL CENTER 385
service worker. That is what this would be based on is the fact
that, you know, that you are a line employee, and you would
be eligible for the same type of Union, you know, contract as
anybody else. So it’s up to you to make that decision.” I said,
“You are only filling in as a temporary supervisor here. That’s
not a permanent job assignment for you.”

After work that evening, she got a ride to the meeting with a
coworker named Doyle. David testified that he received a call
from the hospital that Lee was on her way to the meeting and
he so informed the employees present and the union representa-
tives. They said she could not attend because she was a super-
visor. When Lee arrived, she was told she could not come in.
Since she had come with others, David offered to give her a
ride back to the hospital.
Lee testified that she was very upset and humiliated. She
then paged Bada and told him what had happened. The next
day Pace came to her and asked how the meeting went, and she
told him that she had not been allowed to attend.
Although Lee may well have believed that she was invited to
the meeting at David’s home, there is also no question that she
cleared her attendance with Quarfoot, Pace, and Bada, and she
reported to Bada that evening. The next day Pace asked her
about the meeting. On these facts, I conclude that in fact Lee
attempted to engage in surveillance of employees’ union activ-
ity with the blessing of her superiors. Knowing that she had
been vested with supervisory authority, at least on a temporary
basis, they should have told Lee she should not attempt to at-
tend the meeting. According to Bada, they knew that she could
not attend if she was supervisor, but they asserted she was not.
Such assertions, contrary to the clear evidence of her supervi-
sory authority, do no relieve the Respondent. The Respondent’s
actions, I conclude, violated Section 8(a)(1). This is the case,
whether or not, as some testimony suggests, she attempted to
see who was present by looking in the front window.
On May 9, and again on May 13, according to Rodriguez,
Lee confronted him, said that she was disappointed in him for
supporting the Union and referred to him as Judas. The General
Counsel argues that such coerced and interfered with his Sec-
tion 7 rights and was therefore violative of Section 8(a)(1).
Counsel has cited no case wherein the Board has found that a
supervisor violates the Act by calling an employee a name,
even if degrading, absent a threat. Here there was no threat. I
conclude that Section 8(c) prohibits finding a violation simply
based on Lee calling Rodriguez a Judas. Of course, as in the
cases cited, such could be evidence that his union activity was
known to the Respondent for purposes of finding his discharge
violative of Section 8(a)(3). But, I conclude, Lee’s reference
was not independently violative of Section 8(a)(1) and I shall
recommend that paragraph 7(b) be dismissed.
c. By Donald Pace
On May 10 or 11, Pace is alleged to have unlawfully interro-
gated an employee about his and other employees’ union activ-
ity. The General Counsel argues that this violation occurred
during a discussion Pace had with David on the morning fol-
lowing the union meeting at David’s house. Pace testified:

What I did was I asked Carlos (David) to come into my of-
fice, and I expressed my opinion to him what I thought of
somebody (presumably David) who would invite someone
(presumably Lee) to their home and then relinquish control of
his own home to a third-party (presumably the Union) and let
them decide who was welcome in his home. And I told Car-
los that if all of these activities and action start disrupting the
workplace, that that I’m going to have an issue with: And I
said, “That’s why I’m talking to you now, because if this
starts spilling over into the workplace were it creates grief and
problems in the kitchen with the employees, then I have a
problem with this.” And that’s when I explained to him, I
said, “Carlos, I can’t tell you how to run your own home, but I
think it’s totally the most inhospitable and rudest thing I’ve
ever heard of to invite somebody to your home that gets to
you front door and you tell them to go away. And it’s not
even you telling them, it’s somebody else saying it for you.”

David’s version of his meeting with Pace is, in substance, the
same. David testified, “that he has a problem that we didn’t let
Flora Lee to go inside the house.” “He said tht he has a problem
if it is involving his employee, Flora Lee, as a supervisor being
treated different.” “He told me that why did I let these peo-
ple—that is way he called—he say, why did I let these people
to control my house that night.”
Nowhere in David’s testimony, or that of Pace, is there an
indication that Pace was questioning David about his union
activity or the union activity of other employees. Though
Pace’s action in giving his opinion to David is questionable,
and could be construed as threatening unspecified reprisals, it
could also be construed as a statement of his legitimate concern
that the union activity not disrupt the employees’ work. In any
event, only unlawful interrogation is alleged and I conclude he
did not interrogate David. Accordingly, I shall recommend that
paragraph 8(a) be dismissed.
Additionally, it is alleged that on various dates in April and
May, Pace “promulgated and attempted to enforce an overly
broad no solicitation/no distribution rule by telling employees
he did not want to hear them talking about the Union at the
hospital or on hospital grounds.” This allegation is based on the
testimony of David concerning the May 10 meeting with Pace
and the written warnings he received on May 24.
David testified that at the end of the meeting with Pace, Pace
“told me he doesn’t want to hear me or see me talking about the
Union inside the hospital or the hospital ground [sic].” This is
undenied by Pace and generally corroborated by Pace’s state-
ment on the written warning he gave David on May 24: “Carlos
has been told that he may not distribute or talk about union
organizing activities during work hours. This is a violation of
hospital policy.” And, “Carlos must immediately cease any
union activities during work hours or face possible progressive
discipline.”
The test of whether a no-solicitation rule is valid (there being
no issue here concerning distribution of union literature) hinges
on whether the prohibition applies only to time the employees
are working at their jobs. If so, then the rule is presumptively
valid. However, if the prohibition includes all working hours,
then the rule is presumptively invalid since on its face such
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
would apply when employees are on break and before and after
work. The Board has therefore held that a rule prohibiting so-
licitation during “working time” is presumptively valid and one
prohibiting solicitation during “working hours” is presump-
tively invalid. Our Way, Inc., 268 NLRB 394 (1983), in which
the Board noted that by the time of its decision the “distinction
between ‘working time’ and working hours’ had attained sub-
stantial understanding, and many unions and employers had
fashioned their instructions, policies, and rules in reliance on
the principles” set forth in earlier cases.
Though the distinction between “working time” and “work-
ing hours” may seem trivial, if not meaningless, it is a part of
labor-management lexicon which employers are deemed to
know. Indeed, the Respondent’s written policy banning solicita-
tion during “work time” is presumptively valid. However, Pace
amended this policy when he told David that he could not talk
about the Union during “work hours.” In doing so, he promul-
gated a presumptively invalid no-solicitation rule. And he en-
forced this unlawful rule by issuing David a written warning on
May 24. The Respondent offered no evidence why this pre-
sumptively invalid rule was permissible. Accordingly I con-
clude that the Respondent violated the Act as alleged in para-
graph 8(b).
2. The 8(a)(3) allegations
a. The suspension and discharge of Betty Melendez
The facts surrounding the suspension and discharge of
Melendez are not in dispute. Sometime in late April or early
May, Melendez talked twice to Pace about a raise and receiving
no satisfaction, approached an individual named Jeff (Jernigan)
from human resources. She testified that she “went to his office
and we discussed what was going on in the kitchen. And he
asked me to explain to him what, what, you know, I was there
to talk to him about and I told him I, you know, I didn’t think it
was fair. I said I work very hard, I says I have a lot of experi-
ence, a lot of knowledge, I can do every job in the place.” Jeff
said that he would look into the matter and a week or so later,
on May 9, Jeff told her that he agreed she deserved a raise and
that if Pace did not give her one, he would. “He says don’t
worry, he says don’t get upset.”
But she continued to be upset and cried while working by
herself in the kitchen. Lee came into the kitchen and asked
Melendez what was wrong. Lee said to her, “[M]aybe I can
help you. And I, I said to her, I said it just gets me mad that I
can do every job in here, I can be pulled from one job to an-
other job and help everybody do their work, and all of these
dumb yellow bus people are going to be getting raises and I’m
not.” Lee told her not to worry and left.
According to Lee, Melendez was “upset because of the
raise” and said to Lee “I’m going to make the same amount of
money like this stupid yellow bus in the kitchen.” Lee asked
whom she was referring to and Melendez said, “Oh, that stupid
Carol and Jennifer.” Lee testified that Jennifer is very slow and
Carol is hyper.
Lee testified that she reported this incident Bada, writing:
“She told me about the pay that she is making the same amount
as the yellow buses in the kitchen make.” Bada in turn reported
to Pace who suspended Melendez for 3 days with the explana-
tion: “On 5/9/02 Betty was talking to Acting Supervisor Flora
Lee and made some very disparaging and discriminatory Re-
marks about co-workers. She specifically referred to several
other employees as ‘Stupid Yellow Bus’ people. And how
could they be making the same amount as her. This represents a
serious violation of behavior and attitude Inconsistent with the
values of the hospital.”
Melendez responded in writing that she was sad and had
been crying and said to Lee, “I just don’t understand, how I
don’t get a raise but all the Dumb Yellow Bus people got one.”
She ended her response: “I’m very sorry and this will not hap-
pen again.”
On May 14, Pace discharged Melendez, he claims, “for mak-
ing disparaging and discriminatory remarks against another
employee.” The issue is whether the suspension and discharge
of Melendez was the result of her perceived activity on behalf
of the Union, or, as asserted by Pace, because she had made an
offensive and disparaging remark about coworkers. I conclude
that the discharge was really for her union activity.
First, I simply do not believe Pace. He asserts that what
Melendez said to her supervisor, no one else being present, was
of the same seriousness as a racial or ethnic slur is simply in-
credible. Indeed, there is minimal indication what the reference
to “yellow bus” is suppose to mean. It is certainly not com-
monly known as a slur. Melendez testified that she had heard
the phrase used commonly by others, including supervisors.
Lee testified that she had heard it once, at a distance. Pace testi-
fied that he had never heard it before. Quarfoot testified that he
had never heard this phrase, but nevertheless thought is so
egregious as to warrant discharge.
Pace testified that he might have considered a lesser penalty
“[b]ut her approach was so offhanded that it was like this was
acceptable, and to me, that wasn’t acceptable, and it showed no
remorse for even making the comment whatsoever.” Yet he
testified that he had not read the written response submitted by
Melendez which contained the apology. Either Pace was not
telling the truth (which I believe to have been the case) or he
did not consider all available evidence before deciding to dis-
charge Melendez, which itself suggests a hidden motive.
But even if Melendez meant to disparage two employees
who were slow in their work, to discharge her for saying so
only to her supervisor, in the context of believing she would not
get a raise while the others would, goes well beyond reason. In
fact, others who used racial slurs were disciplined with only
written warnings. Of course, an employer does not have to be
guided by reason or consistency in terminating employees;
however, experience dictates that where an employer’s decision
is patently unreasonable or inconsistent, then the employer’s
self-serving explanation need not be accepted by the trier of
fact. Indeed, in such a situation, I can, and do, infer a motive
which I believe the Respondent sought to hide—that the union
activity of employees was the basis of the suspension and dis-
charge of Melendez. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966). I therefore conclude that the Respon-
dent suspended and discharged Melendez in violation of Sec-
tion 8(a)(3).
ST. MARY MEDICAL CENTER 387
b. The suspension and discharge of Paul Rodriguez
On May 14, Rodriguez was suspended by Pace

Paul approached me on 05/02/02 with a complaint about his
supervisor Flora Lee. He felt she was rude and treated him
with disrespect when she asked him why he didn’t make cus-
tards for the patients. He felt she should have discussed it only
in private and not where others could overhear. He freely ad-
mitted that he did not make the custards and also told me “he
wasn’t going to take any more of her S—.” I investigated the
incident and felt that while the counseling location was not
entirely appropriate, Flora was performing her duty consistent
with the guidelines. (cont. separate page) Paul was counseled
about his attitude and behavior towards staff and patients pre-
viously as documented on Oct 22, 2001. (See Attached). Also
he was counseled about inappropriate behavior on March 6,
2001 as documented. (See Attached). This demonstrates a
negative behavior pattern that seems to crop up with some
regularity. It is unacceptable to have this type of issue con-
tinue to be a problem.

Rodriguez was thus suspended for 3 days, and when he re-
ported back to work on May 17 (or May 20), was discharged.
In asserting a pattern of unacceptable behavior on the part of
Rodriguez, Pace relied on two earlier incidents—one on March
6, 2001, involving an argument between Rodriguez and another
employee wherein both were “raising their voices in public.”
The second occurred on October 22, 2001, and involved an
argument between Rodriguez and Lee in the presence of a pa-
tient, and Rodriguez was suspended for 3 days for: “1. Rude
comments about Patient. 2. overstepping bounds—calling secu-
rity. 3. inappropriate behavior towards co-workers.” Though
Rodriguez tends to minimize the seriousness of these previous
events, no doubt they did occur.
The question then is whether the claim of relying on two
events occurring 7 to 14 months previously, was a pretext or
was true. I conclude that Pace’s asserted reliance on the two
previous events was a pretext to disguise his true motive in
suspending and discharging Rodriguez. These two previous
events hardly establish a “pattern of inappropriate behavior
towards co-workers and patients” as argued by the Respondent.
There is little doubt about Pace’s animosity toward the Un-
ion and the employees’ organizational campaign. That Rodri-
guez was a supporter of this campaign was a matter of common
knowledge. His picture with some nurses the night of their
election victory appeared in the Union’s flyer. In his dispute
with Lee, for which he was discharged, Rodriguez did exactly
what he had been told to do previously—that is, take up with a
superior any dispute he had with another employee, or in this
case, a lower-level supervisor. Finally, Pace’s action against
Rodriguez did not take place at about the time it occurred (May
2) but nearly 2 weeks later and after the union flyer was pub-
lished and Rodriguez became generally known as a sympa-
thizer. Counsel for the Respondent incorrectly stated in his
brief that this event occurred on May 12, which, if true, would
have minimized the significance of the delay.
The dispute between Rodriguez and Lee, for which the Re-
spondent claims he was discharged, involved Lee’s contention
that Rodriguez had not made enough custard on May 1. Rodri-
guez contends that he did, but in any event, he reported Lee’s
criticism to Pace. I conclude that absent the union activity, Pace
would not have discharged Rodriguez for doing so. I conclude
that in suspending and discharging Rodriguez, the Respondent
violated Section 8(a)(3) of the Act.
c. The written warnings to Carlos David
On May 24, Pace gave David a written warning dated May
23 which states:

On Wednesday May 22, 2002 Carlos was observed in
the company of Albert and Art (Surgery Supply employ-
ees) by Jim (Security Officer) near the corner of Physical
Therapy and Food Service Offices and was talking to these
other employees about a “Union Newsletter’ he had in his
hand. Jim stated to me (Don Pace) that he asked if they
were on a break and that Carlos immediately put the news-
letter in his pocket and returned to work. Carlos has been
told that he may not distribute or talk about union organiz-
ing activities during work hours. This is a violation of
hospital policy.
Carlos must immediately cease any union activities
during work hours or face possible progressive discipline.

On May 24 David received a second written warning, signed
by Pace that day, which reads:

On Friday May 17, 2002, Carlos was observed outside the
hospital warehouse area at approximately 4:30 pm. Carlos had
worked in the kitchen earlier that day, but was off work at ap-
proximately 1:30 pm. Carlos knows that he is not supposed to
be in an unauthorized work area or hanging around the hospi-
tal grounds during off hours.

The warning for talking about the union during “work hours”
was clearly unlawful and violative of Section 8(3). David and
the other two employees were on break and certainly had the
Section 7 right to talk about the Union. Similarly, the warning
for being on company property after work hours was an unlaw-
ful interference with Section 7 rights. As Pace admitted, the
Respondent had no policy requiring employees to stay off the
property after they had finished working. Pace claims that his
policy “is to go home when you when your are off the clock.”
“That’s my policy regardless of whether there is a stated spe-
cific hospital one.” There is no evidence of a business justifica-
tion for the alleged policy asserted by Pace.
Pace clearly had animus against the employees’ union activ-
ity, and toward David specifically, as demonstrated by his state-
ments to David following the May 9 union meeting at David’s
house. These warnings, I conclude, were in retaliation for
David’s union activity and would not have been given absent
that activity. David had been given only one warning (for being
late) in his 14 years of employment. Accordingly, I conclude
that the Respondent violated Section 8(a)(3) by issuing David
two written warnings on May 24.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist there from and to take certain affirmative action
designed to effectuate the policies of the Act, including offering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
reinstatement to Betty Melendez and Paul Rodriguez to their
former jobs, or if those jobs no longer exist, to substantially
equivalent positions of employment and make them whole for
any loss of earnings and other benefits in accordance with the
provisions F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]