Asociacion Hospital Del Maestro, Inc.

ASOCIACION HOSPITAL DEL MAESTRO 419 Asociacion Hospital del Maestro, Inc. and Juan David Rosario and Heibert Rojas Hernandez. Cases 24-CA-5245 and 24-CA-5276 30 March 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 27 October 1986 Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's, rulings, findings, and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Asociacion Hospital del Maestro, Inc., San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The General Counsel seeks a visitatorial clause authorizing the Board, for compliance purposes , to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order. Under the'cir- cumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request. 2 We grant the General Counsel's request that the notice marked "Ap- pendix B" be posted in Spanish as well as English. Raymond E. Morales, Esq., for the General Counsel. Roberto Vega-Pacheco, Esq. (Cancio, Nadal & Rivera), of San Juan, Puerto Rico, for the Respondent. DECISION ROBERT W. LEINER, Administrative Law Judge. This matter was heard on four occasions on and between 26 February and 1 April 1986, in San Juan, Puerto Rico, on the General Counsel's consolidated amended complaint,' i The underlying unfair labor practice charge, filed by Juan David Ro- sario on 15 October 1985 (Case 24-CA-5245), was served on 16 October 1985. His amended charge was filed and served on 20 November 1985. Complaint and notice of hearing were issued and served on 26 November 1985. The underlying charge in Case 24-CA-5276, filed by Herbert Rojas Hernandez on 29 November 1985, was served on 2 December 1985. The General Counsel's order consolidating cases, the consolidated amended complaint, and notice of hearing were issued and served on 16 January 1986. Respondent's timely answer to the consolidated amended complaint is dated 27 January 1986. Its amended answer is dated 14 February 1986. as further amended at the hearing, alleging, in substance, that Asociacion Hospital Del Maestro, Inc. (Respond- ent), violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), by promulgating and maintaining an unlawful rule prohibiting employees from wearing union insignia and buttons on their uniforms, threatening employees with discipline if they did not remove insignia from their uniforms, indefinitely sus- pending employees for wearing insignia on uniforms, conditioning their return to work on the removal of such insignia from the uniforms, and, on 26 November 1985, discharging its employee, Heibert Rojas Hernandez, and thereafter failing and refusing to reinstate him, because of his union activities. At the hearing, all parties were represented by coun- sel, were given full opportunity to call and examine wit- nesses, submit oral and written evidence, and to argue orally on the record. At the close of the hearing, the par- ties waived final argument and elected to file posthearing briefs which have been carefully considered.2 On the entire record, including the briefs, and from my observation of the demeanor of the witnesses as they testified, I make the following FINDINGS OF FACT 1. RESPONDENT AS STATUTORY EMPLOYER The consolidated amended complaint alleges, Re- spondent admits, and I find that Asociacion Hospital del Maestro, Inc., a corporation existing under the laws of the Commonwealth of Puerto Rico, has maintained its principal office and place of business in Hato Rey, San Juan, Commonwealth of Puerto Rico, where it has con- tinuously engaged in the operation of a health care insti- tution, an acute hospital, providing medical and related services. During the year ending January 1986, a repre- sentative period of its annual operations, Respondent, in the course and conduct of its hospital operations, derived gross revenues in excess of $250,000 and, during the same period, purchased and caused to be shipped and de- livered to, its aforesaid place of business from points lo- cated outside the Commonwealth of Puerto Rico materi- als and supplies valued in excess of $50,000. Respondent, as it admits, at all material times, has been and is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and is a health care in- stitution within the meaning of Section 2(14) of the Act. II. THE UNIONS AS STATUTORY LABOR ORGANIZATIONS The consolidated amended complaint alleges, Re- spondent in its amended answer admits, and I find that at all material times Union Local No. 2 de Enfermeras y Enfermeros Auxiliares Practicos Licenciadoes y Escoltos del Hospital del Maestro, affiliated with Confederacion Obrera Puertoriquena (Local 2) is, and has been at all 2 Along with her brief, the General Counsel submitted it motion to correct the transcript of evidence in various respects. That motion, dated 22 July 1986, has been unopposed and is granted. 283 NLRB No. 71 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD material times, a labor organization within the meaning of Section 2(5) of the Act.3 III. THE ALLEGED UNFAIR LABOR PRACTICES4 A. Background Respondent's hospital in Hato Rey employs 700 em- ployees .in 7 bargaining units each with its own local s Respondent also admitted that the following employees of the hospi- tal were Respondent's supervisors within the meaning of Sec. 2(11) and Respondent's agents within the meaning of Sec. 2(13) of the Act: Jesse Pou Rivera, industrial relations and personnel director; Maria T. Rivera, nursing director, and Juana Maldonado Ortiz, general supervisor. There was also no dispute that Charging Party Juan David Rosario, at all mate- rial times, has been president of Local 2; and that Charging Party Herbert Rojas Hernandez, a member of Local 2, a nurses aide ' and therefore a member of the unit represented by Local 2, a former vice president of Local 2, was discharged on 26 November 1985. Lastly there is no dispute that Frank Ruiz, at all material times was president of Local 2's parent, the Confederation Obrera Puertoriquena (the Confederation), also a labor organization. 4 In its answer; at the hearing, and again in its brief, Respondent plead- ed as a defense that the instant alleged unfair labor practices be deferred to arbitration. The parties stipulated that a collective -bargammg agree- ment between the Confederation and Local 2 and Respondent expired on 8 April 1985. There is no current agreement . While Respondent desires to proceed to arbitration, the General Counsel, Local 2, and the individ- ual Charging Parties herein oppose. Respondent has stated a willingness to waive all procedural defenses as well as the issues of substantive arbi- trabihty of the,controversy and the timeliness of filing the arbitration re- quest The General Counsel defends principally with the argument that under Board rules, although allegations involving violations of Section 8(aXl) and (3) are ordinarily deferrable to arbitration , United -Technologies Corp, 268 NLRB 557 (1984), they should not be deferred when the inter- ests of the Union which ,might be expected to represent the employees are adverse to those of the employee, United Technologies Corp., 268 NLRB at 560. In the instant case, there is evidence of "friction " between Local 2 and the Confederacion. This ill feeling was known by Respond- ent at all material times. Local 2, on this record, has sought to disaffiliate from the Confederacion and has-sought to affiliate with another labor or- ganization, Local 1199 of the Hospital Workers Union . Moreover, there was evidence on this record of antagonism on the part of Confederacion President Frank Ruiz against the members of Local 2 whose interest the Confederation might be called on to defend in an arbitration proceeding. Respondent notes that, the expiration of the contract is no defense to its continued vitality as a vehicle , permitting arbitration, Nolde Bros v. Bakery Workers Local 358, 430 U.S. 243 (1977); American Sink Top Ca, 242 NLRB 408 (1979). The deferrability of a discharge allegedly in viola- tion of the Act under United Technologies, when the discharge occurs well after contract expiration and is not linked with, any element of the expired contract, appears to be a matter raising doubts on the applicabil- ity of Nolde Bros. See Teamsters Local 238v. CRS. T, 795 F.2d 1400 (8th Cit. 1986) Furthermore, the Board' appears to be not entirely satisfied with its American Sink Top decision Southwest Security Equipment Corp., 262 NLRB 665 (1982) See also Emery Air Freight Corp. v. Teamsters Local 295, 786 F.2d 93 (2d Cr. 1986). (1Volde requires, inter alia, that the grievance be raised within a reasonable time after contract expiration). Here, the grievances arose 6 months after contract expiration. However, in resolving Respondent's deferral defense it is unnecessary to reach or decide the Nolde Bros. issue or the General Counsel 's argu- ment of union hostility. For whatever reason, the parties have failed to submit in evidence the expired contract , or even its terms, if any, relating to arbitration, including the binding nature thereof, or what issues the ar- bitrator might consider. There is nothing on this record other than a stip- ulation that a contract binding the parties, expired in April 1985. Nor was the contract or its arbitration provisions, if any, introduced in evidence or described in a companion case (Case 24-CA-5293) involving some of the same parties, certain issues in which ' apparently were submitted to arbitra- tion. Because the Board rule is settled that a precondition to deferral is the existence of a contract which an arbitrator may interpret , Teamsters Local 287 (Reed & Graham), 272 NLRB 348 (1984), and because there is insufficient evidence of the existence, scope, or binding nature of an agreement to arbitrate any dispute, I must necessarily recommend to the Board that Respondent's request for deferral under the doctrine of Col- union. They are designated Locals '1 through 7, Locals 1, 2, 5, and 6 being affiliated with the Confederation: Local 2 represents a unit of 180 LPNs, nurses aides, and "es- corts." 5 All collective-bargaining agreements represent- ing these labor organizations expired in 1985 and there are no collective-bargaining agreements in effect between the Respondent and any of its employees through the time of the hearing, On 9 September 1985, Juan Rosario, president of Local 2, requested a meeting with Respondent regarding rumors of an impending layoff of ' the licensed practical nurses (LPNs) and their replacement by registered nurses (RNs). Respondent and representatives of Local- 2 met on 9 September and Respondent, by Supervisor Jesse Pou Rivera, told the Local 2 representatives that they had heard only rumors and if there was any decision, the hospital would -notify the Union. Within a short time thereafter, however, Respondent decided to terminate all the practical nurses and, in a meeting of 16 September 1985, notified Confederation President" Frank Ruiz that it intended to replace all the practical nurses with regis- tered nurses and that 'it was willing to negotiate and dis- cuss this decision. Pou told Ruiz that the reasons for this decision included the hospital's desire to upgrade the quality of its services, that fewer registered nurses could provide the same services 'as the LPNs, and that the use of registered nurses would shorten the hospital stay of patients through the upgrading of services. While no LPNs were actually laid off until 5 Octo- ber,6 commencing on or about 30 September, 90 of the 180 Local 2 unit employees started 'wearing black rib- bons on their uniforms . The black ribbons measured about 4 inches in length and consisted of a folded-over piece of cloth creating two "wings," each of which was about 4 inches long. At or about the same time that' the black ribbons appeared, a handbill was distributed at the hospital on the letterhead of Local 1199 of the Hospital Workers Union. It is uncontested that Local 2 was seek- ing to affiliate with Local 1199 and that sometime in July 1985, Local 1199 filed a petition for certification as statu- tory representative of the employees ' represented by Local 2. The handbill protested the threat of discharge of the LPNs and criticized Confederation President Frank Ruiz for taking a position giving'the employer any advantage in ridding itself of the LPNs . The -handbill also stated that the purpose of the wearing of black rib- bons was to show unity and solidarity among all the members of the unit (G.C. Exh. 7(a)). The black ribbons were worn commencing on or about Tuesday, 3 October 1985, and were worn, for about 7 days thereafter ending on or about 9 October. Commencing on or about Monday, 7 October 1985, lyer Insulated lIire, 192 NLRB 837 (1971), and United- Technologies Corp., 268 NLRB 557 (1984), be denied. See Arizona Portland Cement Co, 281 NLRB 304 fn. 2 (1986). 5 Local 1 represents warehouse, maintenance, and laundry employees; Local 3 represents clerical workers; Local 4 represents X-ray technicians; Local 5 represents operating room technicians ; Local 6 represents practi- cal nurses in the clinics only; and Local 7 represents registered nurses 8 More than 20 L'PNs were laid off on 15 October, with a further group in excess of 20 laid off on 29 November. Thirty-five registered nurses were hired to replace them. ASOCIACION HOSPITAL DEL MAESTRO some of the employees ceased wearing black ribbons and wore only a round union button, while others wore the black ribbon and the union button. Whereas the black ribbon (G.C. Exh. 6) measures about 4 inches long in each wing, the union button (G.C. Exh. 12) is 2-1/2 inches in diameter and is white with black letters and yellow markings showing affiliation with Local 1199 (Union Nacional de Trabajadores de la Salud). This was not Respondent's first experience when black ribbons were worn by its personnel . In August 1981, eight of its emergency room employees wore black rib- bons with the word "protest" on the ribbon. The admin- istrator of the hospital at that time (Jose Antonio Brull) contacted Confederacion President Frank Ruiz and told him that the wearing of the ribbons in the hospital was illegal. Ruiz answered that if the hospital withheld disci- plinary action, he would try to get them to remove the ribbons. The ribbons were removed after a few days and the hospital took no action 'against the employees. The parties did not take the matter to arbitration or seek to further specify in the succeeding collective-bargaining agreement, or otherwise, what prohibitions, if any, on wearing items on uniforms, existed. Commencing about Wednesday, 9 October 1985, more than 90 unit employees ceased wearing the black ribbons and commenced wearing 6-inch long red ribbons (G.C. Exh. 8), the red ribbons consisting of a single wing ap- proximately 7-1/4 inches long and bearing, in parallel lines along its length, the words "Protesta por Despido" ("protest for discharge"). The employees wore the red ribbons on their uniforms inside the hospital from around 10 October to 15 October. At that time no black ribbons were worn. Some employees wore Local 1199 union but- tons with the red ribbons. Many unit employees are employed in the nursing de- partment (total of 286 employees) under the direction of Nursing Director Maria T. Rivera. ' In four to six meet- ings (9 to 14 October) of nursing department personnel,7 many of whom were wearing union buttons and , ribbons in various colors, Nursing Director Rivera told the em- ployees that wearing the"ribbons and buttons violated a hospital rule and that they had to remove the ribbons and union buttons from their uniforms or face "severe disciplinary measures" very few employees removed the ribbons. These meetings were a result of 9 and 10 Octo- ber meetings of hospital supervisors called by Pou. Pou told' his supervisors that the red ribbon could not be worn anywhere or at any time in the hospital. There is no dispute that both the black and red ribbons were worn pursuant to Local 2's protest against the replace- ment of LPNs by registered nurses., As a result of Pou's meeting with hospital supervisors, Respondent invoked its "uniform code" and instructed its supervisors to direct the employees to remove the rib- bons and any other object on the uniform other than'em- ployee nametag and the name of the school in which the employee trained . It might be noted that Rivera told the employees under her control in 'the nursing department, 'T While Supervisor Rivera testified that the meetings started in the week of 3 October, Pou testified that they started around 9 October. I credit Pou's recollection. 421 at these four to six meetings, that they would have to remove the black ribbons even before the appearance of the red ribbons (Tr. 443); and that the employees also had to remove the Local 1199' buttons (Tr. 443-444). Rivera testified that, a great majority of the employees wearing the ribbons were involved in direct care of pa- tients (Tr. 445). She did not tell any of the employees, whether involved in direct patient care or not, when or where they could wear any of the ribbons or buttons. It is uncontested, for instance, that the unit employees and other employees eat in a cafeteria on hospital grounds which is restricted to the employees of the hospital. No others may eat there. Pou convened the 9 October meeting of his supervi- sors because of reports, discussed below, of dissention among employees and harassment of patients with regard to the wearing of the ribbons and buttons. It was on that basis that - Pou directed his supervisors to direct the em- ployees to remove ribbons and any other objects from their uniforms. On 11 October, Respondent issued the following letter (G.C. Exh. 9(a)) to all employees wearing the red ribbon: As you are aware, it is this Hospital's policy not to allow its uniformed employees to wear insignias or buttons not pertinent to same, other than the identification, employee , name or other articles which are part of your uniform or essential for your work. The reason for this policy is that the use of this insignia, buttons or objects not pertinent to the uni- form 'interferes with the rendering' of the health services assigned to you, causes confusion and inse- curity in our patients and provokes friction and dis- cord between- visitors and employees. We hereby urge you to comply with this policy. If you fail to' act pursuant to same , we will be forced to take more severe disciplinary action which may include your suspension from work without pay until same is complied with. Expecting your usual cooperation, I remain, Very truly yours, /s/ Jesse Pou Rivera Industrial Relations and Personnel Director On the same morning ( 11 October) that the letters were distributed, Local 2 President Rosario , wearing a red button, met with Personnel Director Pou and asked why the letters were being distributed. Pou said that they had to remove the ribbons because the wearing of the ribbons was against the hospital's "norms and regula- tions" (Tr. 84). When Rosario asked Pou for the author- ity in the hospital manual restricting the use of the red ribbons on the uniforms, Pou did not show him any such rule or regulation but told him that if he did not take off the ribbon he would have to leave. Rosario told him he would not leave without a letter of suspension and Ro- sario returned to work without consequence. The em- ployees continued to wear the red ribbons , through 14 October 1985. 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Respondent's Dress Code At all material times, Respondent has maintained in its nursing department employee manual a dress code (R. Exh. 1(a)). The dress code appears in the manual but is not otherwise distributed to employees at the time of first hire or any other time. The manual is maintained in the nursing department and applies only to nursing de- partment employees: STANDARDS FOR USE OF UNIFORMS Purpose To project adequate and correct image, both to the patients, family members and visitors, as well as to the other fellow employees in the hospital. Standards 1., The nursing personnel at all levels will use the complete and correct uniform in all shifts. 2. In the newborn, maternity and sterile supplies de- partments, the nursing staff will arrive at their re- spective departments with the completely white uniforms as it corresponds to them. Afterward, he or she will change to the proper clothing in these departments. 3. The maternity ward, newborn ward, and sterile supplies personnel will use their completely white uniforms to go down to the dining room as well as to go out to other areas of the Hospital. This personnel will only be allowed to perform perti- nent tasks in the light blue flowered robe or the white robe over the light blue clothing used in these departments. 4. It is an indispensable requirement as part of your uniform the use of the Hospital identification pin. Professional Nurses: `Feminine: White uniform, with 3/4 length sleeve, nursing cap, and school insignia, white stockings and white shoes. You can wear a skirt or white pants following the same indications. Masculine: White pants, shirt, socks and shoes, as well as school pin. Escorts: Feminine: White uniform with short sleeve, brown socks and white shoes. Masculine: Black pants, blue shirt (preferably Guayabera), do not use sweaters. Practical Nurses: Feminine: White short sleeve uniforms, nursing cap and school insignia, white socks and white shoes. She can wear an ensemble of skirt or pants following the same indications. 'Masculine: In the case of the male nurse he will use white pants and shirts with the school insignia as well as white shoes and white socks. Hospital Aids: Feminine: White short sleeve uniform, brown socks, white shoes. Masculine: White pants, shirts, socks and shoes. Respondent does not suggest the existence of any other rule with regard to the use of uniforms. With regard to actual practice in the wearing of insignia, Gen- eral Counsel's "witness Maria L. Badillo testified without contradiction that at all times since her employment as a registered nurse in June 1978 she has worn on her uni- form, while dealing with patients, various insignias in- cluding a yellow metal flower with leaves 2-1/2 inches by I inch; and particularly in the period September 1985 through November 1985'a 1-1/2-inch turkey to celebrate Thanksgiving, a 1-inch snowman, a 2-1/2-inch by 3/4- inch orange cat and ribbon; a 1-1/2-inch round "purple union button; a 1-inch white plastic owl; a 1-inch green plastic elephant; a'2-inch enamel bird, a 1-1/2-inch by 2- 1/2-inch black bat and a 3- to 4-inch double red ribbon holding a 1-inch figure of a doctor (this pin was distrib- uted by the Hospital itself). General Counsel's witness testified that she has continued to wear these pins, even through the time of the hearing, and 'that she sees physi- cians, nurses, and other personnel wear various types of insignia and has not heard that they had been cautioned or disciplined therefor. C. Invocation of Respondent's Rule against Wearing of Insignia Jesse Pou testified that the reason he held the 9 and 10 October meetings with his supervisors which resulted in Respondent issuing its 11 October letter (G.C. Exh. 9) forbidding employees from wearing the red ribbon (as well as the Local 1199 button) was that he had received reports from Nursing Supervisor Rivera and from other supervisors that patients were inquiring, why LPNs were wearing ribbons, and red ribbons in particular; that there was friction among unit employees in the unit with regard to the wearing,of ribbons; and that there was fric- tion between LPNs and RNs with regard to the wearing of the ribbons; and that a patient had been discovered with a red ribbon attached to his bedclothes. In addition, he testified that the, president of Local 7, a registered nurse, told him that she had been threatened by the LPNs. This president of Local 7 was never produced and the report of such a threat was never supported. In any event, these reports led to the meetings of 9 and 10 October among Respondent's supervisors, attended by Respondent's lawyer, where it was concluded that em- ployee use of the red ribbon, in the light of all the cir- cumstances, had to be curtailed for the best interest of the hospital and that they would , have to invoke the dress code (Tr. 611). Pou testified that Respondent noti- fied all supervisors to tell the employees to, remove the red ribbons and any other object that was not part of the uniform. Respondent then issued its 11 October letter to employees forbidding the wearing of insignia and buttons (G.C. Exh. 9(a)). Pou also testified that, in a meeting of 11 October with Confederacion President Frank Ruiz, he told Ruiz that ASOCIACION HOSPITAL DEL MAESTRO the wearing of the red ribbons violated a hospital rule and that Ruiz agreed.8 At the time of his conversation with Ruiz, Pou knew of friction between Local 2 and the Confederacion and that Local 2 might affiliate with Local 1199. When Pou asked Ruiz to speak to the unit members and have them remove the red ribbons, as he had done in 1981, Ruiz refused and said that any hospital discipline over wearing the red ribbon was Local 2's problem and not his problem (Tr. 631). In support of Pou's testimony that the 11 October warning letter to remove the red ribbon was occasioned by reports of employee and patient friction, Respondent produced' Supervisor Nilda Camora who testified that commencing with the wearing of red ribbons , patients told her that nurses had told them that the nurses were to be fired and that no one would take care of them. She told the patients that services would improve with regis- tered nurses. These first conversations with patients oc- curred when the LPNs began wearing ` red ribbons. Indeed, she found one of the patients ' wearing a red ribbon. She observed that of the 65 employees under her supervision, 25 to 30 of the employees wore - the black ribbon and even some registered nurses work black rib- bons; and that perhaps 40 patients or family members ap- proached her in the first 2 weeks, of October regarding the ribbons and the layoffs which were going to occur among the LPNs. She reported all of these incidents to her nursing director_Maria T. Rivera. - Nursing Director Rivera testified that her department started to receive calls' from patients regarding the use of black ribbons and wanted to know what it was all about. In meetings which followed these reports regarding black ribbons, she told employees that the insignia affect- ed the patients negatively regardless of the reasons that the insignias were, being worn and that the hospital did not want to affect patient care. Rivera further testified that the red ribbons were being worn from 1 to 2 days before the 11 October warning letter went out. She ' ad- mitted that the rules with regard to employee dress were never distributed and appeared only in the manual. She testified that in meetings in early October, she told em- ployees that the wearing of ribbons was against the nurs- ing department standard and told them to remove the ribbons or face severe discipline. Lastly, Rivera testified that the great majority of nursing department employees are involved in patient care, but that the rule prohibiting insignia of any kind applied to employees regardless of where they wore them, even in the cafeteria (which is restricted only to employees) and related to - nursing de- partment employees whether or not they were involved in direct patient care. Irt' support of Jesse Pou's testimony, Respondent,ad- duced testimony from employee Gladys Bermudez, who testified that she refused the request of members of Local 2 to wear the black ribbon or the Local 1199 button and thereafter her fellow employees did not talk to her. She reported her co-employees' conduct to Nursing Director Rivera. Furthermore, on 7 October, she received an anon,yrnous note (R. Exh. 4) that stated that "squealers >i Pou's lawyer sent Ruiz a letter memorializing the meeting and Ruiz' agreement R. Exh . 2(a)). ' 423 and brown nosers will be treated the same way as our enemies." She told this to Director Rivera. Rivera re- ported these facts to Pou prior to Pou's 9 October meet- ing with supervisors. D. Suspension of 96 Unit Employees for Wearing the Red Ribbon As above noted, after distribution of the 11 October warning letter (G.C. Exh. 9), and after Local 2 President Rosario and other employees refused to remove the red ribbons, many unit employees reported to work in the period 11 through 14 October wearing red ribbons in spite of having received the 11 October warning letters. On 14 October, the LPNs, aides, and escorts punched in without ribbons but pinned on the red ribbons once inside the hospital. Pou told his supervisors to tell the employees to remove the ribbons and if they were not removed to give them a "suspension letter" (G.C. Exh. 10(a)). Thereafter, commencing 14 October and ending 16 October, as the employees wearing red ribbons re- ported for work and/or refused to remove them while at work, each was handed a letter dated 14 October 1985 as follows: Dear Sir: You have refused-to comply with the rule of not wearing insignias or buttons not pertinent to the uniform other than the identification, employee name or other articles which are part of your uni- form or essential for your work. In view of your refusal, which constitutes an act of insubordination, you are suspended from work without pay. Very truly yours, M. T. Rivera RN MSN Nursing Director The parties agreed that pursuant to Respondent's letter, Respondent suspended, 96 named employees (Ap- pendix A) for wearing the red ribbon, over a 3-day period, 14-16 October. The parties further agreed that the suspensions were for an indefinite period until the employees removed the ribbon . On 17 October, all the employees who had been suspended returned to work at the hospital but did not then or thereafter wear the red ribbons. E. Discharge of Heibert K. Rojas Hernandez Herbert .Rojas Hernandez was discharged on 26 No- vember for wearing a red ribbon in the hospital. He punched in at 3 p.m. for his 3-11 p.m. shift and was told by an employee that Respondent had discharged two employees for chronic absenteeism and was going to ter- minate the next group of LPNs on 30 November rather than waiting until 15 December . Hernandez was con- cerned that Respondent's termination procedure in dis- charging these two employees was inconsistent with the prior method of terminating employees: to have Confe- deracion President Frank Ruiz `meet with Jesse Pou prior to the actual terminations to discuss them. Hernandez telephoned Union President Rosario, discussed the two 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discharges and the impending early layoffs of the LPNs, and told Rosario he was going to wear a red ribbon to protest these Respondent actions. Hernandez pinned on the ribbon about 5:30-p.m. At 6 o'clock, he was assisting a registered nurse in giving emergency treatment to a patient. He left the patient area and went to a nurses' counter to request an EKG ma- chine when Supervisor- Wanda Maldanado came by and noticed the red ribbon. She told him to remove the ribbon or else he would have "problems." Hernandez told her that he was wearing the ribbon in support of the LPNs. Personnel Director Pou was notified of this event and paged Supervisor- Maldanado by telephone about 6:40 p.m. She told him that she had found Heibert Hernandez wearing a red ribbon, told him to remove it, and that he had refused. Pou told her that he was coming to the hos- pital. Maldanado testified that at the time she spoke to Hernandez, he was about 10 to 12 feet from the nearest patient's room and that there were no visitors or patients nearby. When Pou found Hernandez in the hospital, he was wearing a red ribbon and, with another employee, was moving an oxygen tank to the store room. The record is not clear whether there were any patients nearby or this was a patient care area. Pou told Hernandez to remove the red ribbon; Hernandez refused; Pou told him that he was "forcing a situation," but Hernandez refused again. Hernandez told Pou that he was wearing the ribbon in protest of his companions. Pou told him that if he did not remove the ribbon it would be an act of insubordina- tion. They went to the supervisor's office where Pou asked ' him to remove the ribbon. Hernandez again re- fused. Pou asked him to punch out and go home. When Hernandez asked for a discharge letter, Pou told him that he would send it later because he had no secretary present at the time. Contrary to Hernandez' testimony, Pou testified that Hernandez did not mention the issue of employees terminated that day for chronic lateness but said that he was wearing the red ribbon because of the layoff of his "companions." It is unnecessary to resolve this conflict. In any event, Heibert Rojas Hernandez left that 'day and on or immediately after' 29 November 1985 received 'a' letter (G.C. Exh. 11(a)) signed by Jesse Pou advising him that his services were terminated for his in- subordination on' 26 November 1985 because of his wear- ing of the red ribbon in violation of the rules of the hos- pital; and that he was discharged because of "the most recent incident of insubordination and [his] past record which reveals a serious absenteeism problem, and other behavior problems ever since . [he] started to work for the hospital." IV. DISCUSSION AND CONCLUSIONS The facts show that Respondent, in early October 1985, was presented with sufficient circumstances of pa- tient anxiety and employee friction regarding employees' wearing red ribbons (a) to promulgate a rule restricting the wearing of union insignia at certain times and places in the hospital, but (b) violated Section 8(a)(1) of the Act in promulgating, maintaining, and enforcing an overly broad rule banning the wearing of all union insignia on uniformed personnel everywhere and at all times in the hospital. Such a rule would be invalid in its breadth even if employees' wearing the red ribbons posed a threat to patient care in immediate patient care areas. Mesa Vista Hospital, 280 NLRB 298 (1986). Moreover, (c) although there was some evidence of friction among employees occasioned by the wearing or refusing to wear the rib- bons, the evidence thereof did not rise to the level of posing a threat to patient care or breaches of discipline so as to ban the red ribbons, as Respondent did, every- where and at all times in the hospital, Southwestern Bell Telephone Co., 200 NLRB 667 (1972). The General Counsel, in paragraph 5(a) of the consoli- dated ' amended complaint, as further amended at the hearing, alleges that, in violation of Section 8(a)(1) of the Act, Respondent's 11 October 1985 letter to its employ- ees promulgated and maintained an overly broad rule prohibiting its uniformed employees from wearing insig- nia and buttons on their uniforms in order to discourage the employees from wearing the red ribbon (bearing the legend "Protest for Discharge") and from engaging in other concerted activities protected by the Act. A. Promulgation The initial question regarding unlawful "promulga- tion" is whether Respondent already had a rule in exist- ence which in any way prohibited the wearing of insig- nia by its employees. Respondent argues that its nursing department "Standards for Use of Uniforms" was and is such a rule (R. Exh. 1). I find, consistent with the Gener- al Counsel's argument, that the nursing department's rules for uniforms amount essentially only to a style code and do not amount to any proscription of what- may not be worn on the uniform. Certainly the imposition of the affirmative obligation to wear the employee's school in- signia and name identification card, without more, does not suggest the negative obligation to wear no other in- signia. Moreover, as a matter of actual practice, the un- contradicted and credited evidence is that at all material times, employees, including LPNs, registered-nurses, and even physicians, while administering patient care, wore all sorts of idiosyncratic insignia on their working uni- forms, including animals, political pins, and similar ele- ments, even red ribbons and union buttons, without evoking any disciplinary action or even verbal admoni- tion from Respondent. The wearing of ribbons, buttons, and pins was fully acceptable conduct. The only prior evocation of 'any employer reaction to the wearing of insignia was in 1981 when a group of em- ployees wore black ribbons to protest taking orders from a particular nurse (Tr: 558). The black ribbons contained the word "protest" on them. While it is true that Respondent's supervisor, in 1981, spoke to Confederacion President Ruiz about disciplining employees for wearing black ribbons (Tr. 561), the matter was mooted because the employees discontinued wearing the ribbon (there were about eight employees who -wore the ribbon) (Tr. 562). Respondent's former of- ficer who testified that the wearing of those black rib- bons was against hospital rules was able only to point to the Respondent's "Standards For Use of Uniforms" as ASOCIACION HOSPITAL DEL MAESTRO 425 the source of his statement that it was against the hospi- tal rules (Tr. 564-565). It was only his interpretation of that document that led him to testify that the hospital rules had been violated by the wearing of the black rib- bons (T'r. 566). In any event, I conclude that, on its face, there is nothing in Respondent's "Standards for Use of Uni- forms" that proscribes the use of insignia on uniforms. The one instance in which employees ceased wearing ribbons because the supervisor told Ruiz it was against the rules does not establish union acquiescence in that in- terpretation. To the contrary, as above noted, the prac- tice of wearing all types of insignia, including red rib- bons and union buttons, has brought and does not bring, admonition or disciplinary action by Respondent. Nor can Confederacion President Ruiz' apparent 11 October 1985 agreement (R. Exh. 2) that the' employees' wearing of the ribbons and Local 1199 buttons violates hospital rules constitute a waiver of Local 2's and em- ployees' rights to support Local 2 and Local 1199. The record is clear that by October 1985, Ruiz was aware of Local 2's antagonism against the Confederacion and its support of Local 1199. Under such conflicted circum- stances, any Ruiz agreement with Respondent could not limit employee support for another labor organization or their disaffection for the Confederacion, NLRB v. Mag- navox of Tennessee Co., 415 U.S. 322 (1974). I therefore agree with the General Counsel that Respondent's "Standards for Use of Uniforms" does not constitute a proscription against insignia and that there was no rule or practice in existence, in or about September through November 1985, that proscribed these Local 1199 union buttons or red ribbons. As I have found, the evidence of practice was substantially to the contrary (Respondent distributed a 4-inch red ribbon with the attached figure of a doctor on one occasion). I further conclude, consistent with the General Coun- sel's argument, that the initiation of a rule proscribing union buttons (never before banned) and insignias com- menced with the issuance of Respondent's 11 October letter (G.C. Exh. 9(a)) and that it was in response to and retaliated particularly against the wearing of the red rib- bons, Respondent does,not contest this latter fact. The red ribbons, protesting LPN layoffs, were a concerted and union activity, and so known to Respondent. The Supreme Court has held that the display of union insignia on wearing apparel proclaiming union support or support for union activities is a right protected under Section 7 of the National Labor Relations Act. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945). This right to display union insignia and union slogans is part of the employees' right to organize, to engage in ac- tivities for mutual aid and protection, and to solicit sup- port, among themselves toward that end. Republic Avia- tion Corp. v. NLRB, supra; Midstate Telephone Corp. v. NLRB, 706 F.2d 401, 403 (2d Cir. 1983). As the court noted-in Midstate Telephone Corp. v. NLRB (at 403): As a general rule, the balance must tip against rules restricting employees' right to wear union-re- lated insignia or attire, unless the employer demon- strates "`special circumstances' showing that such rule is necessary to maintain production and disci- pline." With particular regard to health care facilities, the Board has recently ruled, in Mesa Vista Hospital, 280 NLRB 298 (1986), that: In health care facilities, rules that contain restric- tions of nonworking time solicitation outside imme- diate patient care areas are presumptively invalid. NLRB v Baptist Hospital, 422 U.S. 773, 781 (1979). The presumption is also applicable to rules restrict- ing the wearing of insignia outside immediate pa- tient care areas. George J. London Memorial Hospi- tal, 238 NLRB 704, 708 (1978). . . . An employer may rebut the presumption by demonstrating that the rule is "necessary to avoid disruption of health- care operations or disturbance of patients." [Citing Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978)]. The Supreme Court has observed that the Board's presumption "does no more than place on the hospital the burden of proving, with respect to areas to which it applies, that union solicitation, may adversely affect patients." [Emphasis added] In view of my findings above that Respondent had no rules or established practice restricting the use of union insignia on uniforms, or indeed any insignia on uniforms, prior to the issuance of its 11 October letter; and because the 11 October letter was specifically designed to pre- vent the wearing of union insignia on uniforms while the employees were any place in the hospital„ I find that Re- spondent's promulgation, as a prima facie matter, was de- signed for the purpose of interfering with and preventing the wearing of union insignia on hospital uniforms and therefore its promulgation was presumptively unlawful and a violation of Section 8(a)(1) of the Act. Rich Plan of Weather Reserve v. NLRB, 796 F.2d 864 (6th Cir. 1986); Harry M. Stevens Services, 277 NLRB 276 (1985); Wood- view Rehabilitation Center, 265 NLRB 838 (1982). My observation of Respondent's witnesses and review of the record indicates a genuine fear by Respondent that the wearing of the red ribbons and attached slogans, indeed the wearing of any ribbons and even the Local 1199 union insignia, but especially the red ribbons, would have an adverse affect on patients and patient care. The uncontradicted evidence shows, through Nursing Direc- tor Rivera's testimony, that patients told her that they were apprehensive because LPNs reported that they might be fired, thus leaving the patients in a stale of ap- prehension over future care in the hospital. In addition, there is uncontradicted evidence that unit employee Ber- mudez received an anonymous : note accusing her of "brown nosing" and being an "enemy." This was a threat from the employees wearing the ribbons because of employee Bermudez' refusal to wear the ribbon or union button. I conclude that Jesse Pou was, in fact, con- cerned whether employees wearing the red ribbons might and did cause dissention among employees on the basis of the reports to him of the Bermudez incident, supra; and on the basis of reports from Supervisor Rivera that patient care was being affected because patients told 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her of being uneasy concerning their future treatment if the LPNs were fired (as the LPNs reported to the pa- tients). As the Board noted in Southwestern Bell Telephone Co., 200 NLRB 667 (1972), the employer there had a right, as a reasonable precaution against discord and bitterness among employees, to, prevent wearing of an otherwise protected union 'I'-shirt bearing an obscene slogan. More important, as the Board noted in Southwestern Bell Tele- phone 'Co., 200 NLRB at 671, the employer was under no compulsion to wait until employee and supervisor resent- ment piled 'up and physical violence occurred before it could suppress the wearing of the T-shirt as a method to enforce employee discipline. In this regard, it must be noted that employee Bermudez threatened to go "else- where" if there was a repetition of the threatening anonymous note to her. Taking this tincontradicted evidence into account with regard to patient anxiety and this evidence of an employ- ee threat, I nevertheless conclude that Respondent has failed to prove as a defense the presence of special cir- cumstances sufficient to rebut and overcome its promul- gating a rule overly broad in its scope. In short, as the Board recently held in'Mesa Vista Hospital, supra: Even if we again assume that the wearing of the - union insignia poses a threat to patient care, the Re- spondent cannot rely -on this alone as a "special cir- cumstance" to restrict the wearing of union insignia at all times when employees are working. [Empha- sis added.] Under the Mesa Vista rule, above, Respondent may not ban the wearing of union insignia at all places and at all times as it has done in its 11 October letter to all unit employees. Read literally, the newly promulgated rule applies to uniform personnel even outside the hospital. Thus, even in the presence of evidence of widespread pa- tient anxiety due to the, wearing of the red ribbons, Re- spondent may, not promulgate such an overly broad rule as a response. Nor is the single threat to employee Ber- mudez nor co-employee ostracizing her of such signifi- cance, as to permit Respondent to promulgate such an overly broad rule which applies everywhere and at all times. The; Bermudez incidents do not suggest the immi- nence of riot or widespread employee friction so as to bring the facts within the rule of Southwestern Bell Tele- phone Co., 200 NLRB 667 (1972), in which a total ban was permitted to avoid widespread discord and perhaps violence. B. Maintenance and Enforcement of the Rule Against Wearing Union Insignia on Uniforms 1. Maintenance As above noted, in Mesa Vista Hospital, 280 NLRB 298 (1986), the Board has recently held that in health care fa- cilities, rules that contain restrictions of nonworking time solicitation outside immediate patient care areas are pre- sumptively invalid (NLRB v. Baptist Hospital, 422 U.S. 773, 781 (1979)); and the presumption is also applicable to rules restricting the wearing of insignia outside imme- diate patient care areas (George J London Memorial Hos- pital, 238 NLRB 704, 708 (1978); St. Vincent's Hospital, 265 NLRB 38 (1982). The maintenance of an-unlawfully broad rule restricting union solicitation is presumptively unlawful regardless of its enforcement. St Vincent's Hos- pital, 265 NLRB 38, 41-42. As the present rule shows on its face, and as Respond- ent's counsel at the hearing conceded , the rule makes no distinction relating to immediate patient care areas, other patient care areas , and nonpatient care areas . In terms of enforcement, it would be enforced even in Respondent's employee cafeteria which is restricted to use only by em- ployees. There was no showing that any patients even used the cafeteria where employees only were permitted; nor does the rule permit employees. to wear their ribbons and buttons in any hospital nonwork area. It therefore follows, under the authorities cited in Mesa Vista Hospi- tal, supra, Respondent is ,then obliged to rebut the pre- sumption of invalidity since the rule applies outside im- mediate patient care, areas by showing that the rule is "necessary to avoid disruption of health-care, operations or the disturbance of-patients" everywhere in the hospi- tal and at all times. Respondent has failed to do so. The mere maintenance of the rule therefore violates Section 8(A)(1) of the Act as alleged. St. Vincent's Hospital, supra. As discussed above, the evidence does not support the special circumstances defense of Respondent's 'total ban -of insignia. 2. Enforcement of the rule I agree with General. Counsel that when Nursing Di- rector Rivera told employees during department meet- ings in early October that, because of hospital policy, they would meet severe discipline if they did not remove their black -ribbons,, union buttons, and red ribbons, Re- spondent violated Section 8(a)(1) of the Act. This-threat is unlawful enforcement of an unlawful rule. The Board has held in St. Vincent's Hospital, supra, 265 NLRB at 42, that formal disciplinary action is not a prerequisite to finding that an overly broad rule has been unlawfully en- forced. In St. Vincent's Hospital, the supervisor merely told an employee to remove a union pin which she was wearing in a patient care area . The Board there held that Respondent violated Section 8(a)(1) of the ACt where the supervisor told the employee to remove her union pin pursuant to an unlawful rule notwithstanding that there was no supervisor threat and 'notwithstanding that it was in a patient care area. Here, Director Rivera threatened employees with discipline. I therefore con- clude, consistent with the allegation of the complaint, as amended at the hearing (the newly added subparagraph 6(d)), that Nursing Director Maria T. Rivera, in' viola- tion of Section 8(a)(1) of the Act unlawfully threatened employees with severe disciplinary measures if they failed to remove from their uniforms the red and black ribbons and the union button. I further conclude that Jesse Pou's 11 October letter itself, threatening discipline for the wearing of buttons or insignia on uniforms at any ASOCIACION HOSPITAL DEL MAESTRO time or at any place,9 similarly violated Section 8(a)(1) of the Act under the above-cited authorities, as alleged in paragraph 6(a) of the consolidated amended com- plaint. a. Suspension of employees for wearing union insignia With regard to the suspension of 96 employees com- mencing 14 October 1985, the uncontradicted evidence is that they were suspended solely for wearing red ribbons. Respondent did not even adduce evidence that they were wearing red ribbons in patient care areas; but re- gardless of that fact, under Board rule, absent "special circumstances," as here, the indefinite suspension of the 96 employees for wearing the red ribbons pursuant to an unlawful rule violates Section 8(a)(1) and (3) of the Act as alleged. St. Vincent's Hospital, supra, 265 NLRB at 42. b. Discharge of Heibert Rojas Hernandez - Lastly, the November 26 discharge of Heibert Rojas Hernandez indicated that he was discharged for wearing the red ribbon 10 pursuant to Respondent's rule. The dis- charge, based on the enforcement of the hospital's un- lawful rule, appears on'the face of Respondent's 29 No- vember 1985 discharge letter to Hernandez (G.C: Exh. 11(a)). There is no mention therein that he was engaged in patient care or was in a patient care area. But assum- ing that for at least part of the time he was engaged in patient care or certainly in a patient care area (he was wearing the red ribbon within 15 feet' of a patient's room while at the nurses' station desk seeking an EKG ma- chine but the precipitating act of "insubordination" oc- curred when, alone with Pou in a supervisor's office, he refused to remove the red ribbon) his discharge never- theless violates Section 8(a)(1) and (3) of the Act because the discharge was solely based on enforcement of an un- lawful rule. As in the case of the layoff of the 96 em- ployees for wearing' the red ribbon, the discharge of Hei- bert'Rojas Hernandez similarly violates the Act, St. 67n- cent's Hospital,' supra. I further find, as alleged, violation of Section 8(a)(1) and (3) of the Act in Jesse Pou's condi- tioning the 96 employees' return to work on their not wearing the red ribbon. This was also pursuant to Re- spondent's unlawful rule. ` Finally, I find that, Jesse Pou Rivera unlawfully threat- ened Heibert Rojas Hernandez with discharge for failing to remove his ' ribbon from his uniform on or about 26 November as alleged in the complaint in violation of Section 8(a)(l) of, the Act. While it is true that families,, as well as patients, need a restful, uncluttered, relaxing, and healthful atmosphere in hospitals, rather than one remindful of the tensions of the 8 Cases such as Evergreen Nursing, Home, 198 NLRB 775 (1972), cited in Mesa Vista, supra, are not in point. In Evergreen, the Board upheld a dress code rule requiring no adornments on white uniforms. In the instant case, as a matter of actual practice,Respondent has long tolerated, and continues to tolerate, all kinds of ribbons and buttons on its uniformed personnel. 'o To the extent that Respondent's discharge letter to Rojas Hernandez alludes to misconduct ' other than thei "insubordinate" wearing of the red ribbon as-a basis for the discharge , such other alleged misconduct is re- jected as unproven. NLRB v. Transportation Management Corp., 462 U.S 393 (1983). 427 market place, Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978), the means of achieving this desirable end in hos- pitals do not include the promulgation, maintenance, and enforcement of prohibitions of employee statutory rights to such a degree that the prohibitions apply even in areas far removed from patient care areas. Mesa Vista Hospital, supra. In short, the answer is for Respondent to draft, maintain, and enforce a lawful insignia rule."" CONCLUSIONS OF LAW 1. Asociacion Hospital del Maestro, Inc. is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) and is a health care institution within the meaning of Section 2(14) of the Act. 2. Union Local No. 2 de Enfermeas y Enfermeos Auxiliares Practicos Licenciados 'y Escoltos del Hospital del Maestro, affiliated with Confederation Obrera Puer- toriquena, Confederation Obrera Peurtoriquena, and Local 1199, Union Nacional de Trabajadores de la Salud, are, and have been at all material times, labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By promulgating, maintaining, and enforcing a rule prohibiting its employees' wearing union insignia on their uniforms, not limited to immediate patient care areas or other specifically identified areas where the wearing of union insignia would adversely affect patient care, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By threatening employees, pursuant to the rule in paragraph 3, above, with disciplinc, for wearing ribbons or other union insignia on behalf of Local 1199, Local 2, or any other labor organization, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By suspending those 96 employees listed in Appen- dix A, on or about 14 October 1985, pursuant to the above-described rule, for wearing or failing to remove union insignia, Respondent is engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By conditioning the recall of the 96 employees listed in Appendix A on their not wearing red ribbons, desig- nating union activity, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 7. By discharging and refusing or failing to recall Hei- bert Rojas Hernandez, Respondent's employee, com- mencing about 26 November 1985, because he wore union insignia while at work, Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discriminating against such employee thereby discouraging membership in a labor organization. ii Respondent engaged in the very conduct proscribed in Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-501: in banning insignia without regard to 'impact on patient care under its assessment of the , need to ensure patient care and avoid employee friction, "[ii is not surprising that [the hospital's] assessment of the need for a particular practice might overcompensate its goals, and give too little weight to employee organi- zational interests." Cf. Hudgens v. NLRB, 424 U S. 507 (1976). In Beth Israel, supra, the Supreme Court found unlawful the hospital's ban on union solicitation in the hospital cafeteria used by employees, patients, and visitors. 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent is engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend to the Board that Respond- ent cease and desist therefrom and take certain affirma- tive actions designed to effectuate the policies of the Act. Accordingly; I shall recommend to the Board that Respondent make whole those 96 employees unlawfully suspended commencing about 14 October 1985 for any loss of earnings, including all contract benefits, they may have suffered as a result of their unlawful suspensions with interest to be computed in the manner described in Florida Steel Corp., 231 NLRB 657 (1977); see Isis Plumb- ing -Co., 138 NLRB 716 (1962). Similarly, I shall recom- mend' to the .Board that Heibert Rojas Hernandez; dis- charged because of his wearing the red ribbon, in viola- tion of Section 8(a)(1) and (3) of the Act, be offered im- mediate reinstatement to his old job, discharging if neces- sary any replacement, and similarly make him whole for any net loss of earnings he may have suffered because of Respondent's discrimination against him, with interest, pursuant to the above-noted Board rules. Backpay shall be computed on a quarterly basis as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950). On the foregoing findings of fact and conclusions of law, and-on the entire record, I issue the following rec- ommended- 12 ORDER The Respondent, Asociacion Hospital -del Maestro, Inc., San Juan, Puerto Rico, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging, suspending, refusing to recall, or oth- erwise discriminating against employees pursuant to an unlawful rule governing their wearing of union insignia on uniforms or for engaging in other union or concerted activity, protected by Section 7 of the Act. (b) Promulgating, maintaining, or enforcing any rule, regulation, or other prohibition which forbids the wear- ing of union insignia on employee uniforms, outside im- mediate patient care areas, 'or outside other specifically identified areas where the wearing of union insignia would adversely affect patient care. (c) Threatening employees with discipline, pursuant to an overly broad rule governing the wearing of union in- signia, or the wearing of insignia otherwise protected by the provisions of Section 7 of the National Labor Rela- tions Act. (d) 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. 12 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2. Take the followings affirmative action necessary to effectuate the policies of the Act.' (a) Offer to Heibert Rojas Hernandez 'immediate and full reinstatement to his former job or, if such job no longer exists, to substantially_ equivalent employment, without prejudice to his seniority or other rights and privileges, and make him, and those employees listed on Appendix A, whole for any loss of earnings, including contract benefits, they may have suffered by reason of Respondent's discrimination against them in the manner set forth in the remedy section of this decision. (b) Rescind its 11 October 1985-rule governing the wearing of insignia to,the extent that it prohibits employ- ees from wearing union insignia on their uniforms, out- side immediate patient care areas, or outside other specif- ically identified areas where the wearing of union insig- nia would adversely affect patient care. (c) Remove from its files any reference to the unlawful suspensions of any of the employees listed in the at- tached Appendix A and of Heibert Rojas Hernandez, and notify each of them, in writing, that this has been done, and that evidence of the unlawful suspensions or discharge will not be used as a basis for future personnel actions concerning them. (d) Preserve and,, on request, make available to the Board or its agents for examination and copying, all pay- roll records,,social security payment records, timecards, personnel records and reports, and all other- records nec- essary to analyze the amount of backpay due under the terms of this Order.. - - (e) Post at its San Juan, Puerto Rico hospital facilities, copies of the attached notice marked "Appendix B."13 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Re- spondent'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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (1) Notify the, Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. - 19 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A Onelia Gely Margarita Planell Carmen M. ,Rivera Pagan Esperanza Melendez Zulma I. Colon Maria L. Rivera Leonarda Sanchez Brenda Llanos Maria D. Lozada David Rosario Heibert Rojas Hernandez Raquel Carrion Elfrida Martinez Luz M. Barreiro Isabel Davila Victoria Santos ASOCIACION HOSPITAL DEL MAESTRO Felicita Perez Antonia Rolon Maria Romero Maria Cortex Elizabeth Ortiz Clara Diaz Ada L. Faura Carmen G. Pizarro Milagros Frasqueri Aria M. Lopez Ramona Catala Oneida Nieves Angeles Cepeda Vivian Merced Carmen P. Hernandez Margarita Madera Elsa Hernandez Rivera Juanita Encarnacion ' Ana M. Rivera Maria Lopez Pacheco Cruz Cruz Rodriguez Gloria Esther Matos Maria T. Trinidad Mojica Carmen Judith Rosa Garcia Petra Villegas Hilda M. Medina Felicita Ayala' Muriel Milagros Collazo Gonzalez Aria R. Nieves Andrea Gonzalez Carmen I. Rodgiguez Jacqueline Atiles Josefina Aveles Angelita Torres Carlos R. Zayas Norma Pacheco Ruben Medina Dinelia Felix Maria J. Walker-Mate Gloria I. Delgado Confesor Muriel' Carlos Vallejo Luis A. Vicente Luz E. Albaladejo Eulalia Andino Maria Morales Celia Gomez Hernandez Milagros Pastrana Angela Cintron Ortiz Carmen J. Acevedo Esperanza Latimer Migdalia Vega Zoraida Casado Luz Z. Raya Margarita Febres Rivera Luis Torres Tomas Garcia Enmelinda Gonzalez Martin Morales Zoraida Collazo Luis Bonilla Nereida Delgado Nicolasa Otero Madeline Ortega Sanchez Adelaida Diaz Delgado Sylvia Diaz Delgado Maria Quinones Fuentes Gertrudis Pizarro Jorge A. Torres Olga Collazo Julio Lopez Mercedes Hernandez Evelyn Freight Alida G. Vega Maria de los A. Ramona Catala Gladys Garcia Virgen Vega Julia Sota De Jesus Maria Isabel Delgado APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 429 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discharge, suspend, or otherwise dis- criminate against any of our employees, pursuant to an overly broad rule restricting employees' right to wear union insignia, where the wearing thereof is lawful and protected pursuant to the terms of the National Labor Relations Act. WE WILL NOT promulgate, maintain, or enforce any rule, regulation, or other prohibition which forbids the wearing of union insignia on employee uniforms, outside immediate patient care areas, or outside other specifically identified areas where the wearing of union insignia would adversely affect patient care. WE WILL NOT threaten employees to cease wearing union insignia on pain of severe discipline pursuant to an overly broad rule governing the wearing of insignia. WE WILL NOT in any like or related manner interfere with, restrain, or coerce `employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL rescind our rule, issued on 11 October 1985, governing the wearing of insignia, to the extent that it prohibits employees from wearing union insignia, outside immediate patient care areas, or outside Other specifically identified areas where the wearing of insignia would ad- versely affect patient care. WE WILL offer immediate and full reinstatement to our employee Heibert Rojas Hernandez, to his old job or, if that job no longer exists, to substantially equivalent em- ployment, and WE WILL make him and the 96 employees listed in Appendix A whole for any loss of pay they may have suffered as a result of our unlawfiil 'discrimination against such employees, plus interest. WE WILL remove from our files any reference to the unlawful discharge of Heibert Rojas Hernandez or sus- pensions of any of our, employees listed in Appendix A of the decision of the National Labor Relations Board, and notify each of them, in writing, that this has been done, and that evidence of these unlawful acts will not be used as a basis for future personnel actions concerning them. ASOCIACION HOSPITAL DEL MAESTRO, ]INC.