Asociacion Hospital Del Maestro, Inc.

198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Asociacion Hospital Del Maestro, Inc and Jose Es quthn Pinto Cases 24-CA-5412 and 24-CA- 5477 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 17 1988 Administrative Law Judge Irwin Kaplan issued the attached decision The Re spondent filed exceptions and a supporting bnef and the General Counsel filed a limited cross ex ception' and a brief in support of the judge s deci lion 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 2 and conclusions and to adopt the recommended Order 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 1 We grant the General Counsels request that the notice marked Ap pendix be posted in Spanish as well as English 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Virginia Milan Giol and Raymond E Morales Esqs for the General Counsel Roberto E Vega Pacheco and Jaime R Nadal Esgs. (Cancio Nadal & Rivera) of San Juan Puerto Rico for the Respondent DECISION STATEMENT OF THE CASE IRWIN KAPLAN Administrative Law Judge These consolidated cases were heard on August 31 through September 4 1987 in San Juan Puerto Rico The under lying charges in Cases 24-CA-5412 and 24-CA-5477 were filed on July 26 1986 and November 14 1986 re spectively These charges gave rise to an order consoh dating cases consolidated amended complaint and amended notice of hearing dated June 26 1987 which document was amended further at the hearing In essence it is alleged that Asociacion Hospital Del Maestro Inc (Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by first suspending from employment its employee Jose Es quilin Pinto (Charging Party or Esquilin) from July 15 1986 to August 15 1986 and then discharging said Es quilin on October 21 1986 because of his support and activities on behalf of Union Nacional de Trabajadores de la Salud 1199 affiliated to National Union of Hospi tal and Health Care Employees RWDSU/AFL-CIO (Local 1199) Further it is alleged that Respondent inde pendently violated Section 8(a)(1) of the Act by interro gating employees about their union activities creating the impression of surveillance informing employees that they would be denied medical benefits because of their union activities and threatening them with discharge be cause of their union activities The Respondent filed an answer conceding inter alia jurisdictional facts and the supervisory and agency status of certain individuals but denying that it committed any unfair labor practices i Based on the entire record including my observation of the demeanor of witnesses as they testified and after careful consideration of the posttnal briefs I make the following FINDINGS OF FACT I JURISDICTION The Respondent Asociacion Hospital del Maestro Inc is a corporation existing under the laws of the Com monwealth of Puerto Rico and has been engaged in the operation of a hospital providing medical and related health care services at Hato Rey San Juan Puerto Rico In connection with the aforestated business operations Respondent annually derives gross revenues in excess of $250 000 and annually purchases and receives goods and products valued in excess of $50 000 directly from sup pliers located outside the Commonwealth of Puerto Rico It is admitted the record supports and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act The parties stipulated and I find that Union Nacional de Trabajadores de la Salud 1199 affiliated to National i On August 31 1987 at the outset of the hearing counsel for the Re spondent for the first time objected to the consolidation of Case 24-CA- 5412 (alleging Esgmlm s unlawful suspension) with Case 24-CA-5477 (al leging Esquilin s unlawful discharge) The cases had been consolidated by Order dated June 26 1987 (G C Exh 1(k)) Counsel for Respondent moved for dismissal of Case 24-CA-5412 as untimely and the Charging Party had failed to notify the attorney of record of his appeal in said case from the Regional Director s refusal to issue a complaint (R Br 13) Counsel for the General Counsel represented at the hearing without con tradiction that by letter dated October 14 1986 the General Counsels Office of Appeals notified counsel for Respondent of receipt of the Charging Party s appeal Counsel for the Respondent produced no docu ments nor did he recite any dates in support of his oral motion I reject Respondents unsubstantiated and belated motion It is also noted that while Section 102 19(a) of the Board s Rules and Regulations states that any person taking an appeal from the Regional Director s refusal to issue a complaint should notify all other parties it also states that any fail ure to give such notice shall not affect the validity of the appeal The consideration of an appeal untimely filed is within the discretion of the Gen eral Counsel upon good cause shown (Emphasis added ) 291 NLRB No 28 ASOCIACION HOSPITAL DEL MAESTRO 199 Union of Hospital and Health Care Employees RWDSU/AFL-CIO is and has been at all times maten al a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background and Sequence of Events The x ray technicians and clericals at Respondents hospital have long been represented by the Gastronome cal Workers Union Local 610 (Local 610) At the time of the instant hearing the Respondent and Local 610 had not yet arrived at a new collective bargaining agreement the last agreement had terminated in 1984 (G C Exh 4) The Charging Party Jose Esquilm Pinto (Esquilm) served the bargaining unit as general steward from 1974 to 1980 and was a member of Local 610 s negotiating committee which negotiated the 1982-1984 agreement Around April 1986 2 Esquilin having become frustrated because of the absence of a new collective bargaining agreement began to explore alternative union representa tion with officials of Union Nacional de Trabajadores de la Salud 1199 (Local 1199) In May or June 1986 Esqui lin distributed leaflets on behalf of Local 1199 s organiz ing efforts at the main entrance to Respondents hospital (G C Exh 5(b)) According to Esquilin s uncontroverted testimony he was observed distributing Local 1199 leaf lets by various management officials including Assistant Vice President Vincente Castro Antonio Rivera then chief of security and Supervisor Lorenzo Pardo 3 Fur ther Esquilin distributed some 45 Local 1199 authonza tion cards to hospital employees over a 2 week period immediately prior to July 2 On that date (July 2) Local 1199 filed a representation petition for the office and clerical employees unit represented by Local 610 (G C Exh 2) Also on that date as described below Esquilin was involved in two matters which led to his alleged des criminatory 30 day suspension on July 15 On July 2 around 11 30 am Esquelen while on his morning break and armed with some Local 1199 authon zation cards visited Betzaida Negron a clerical employ ee in her department This is an enclosed area with a glass door "and window and dust outside was the waiting room area to the emergency room There Negron was given a union card which she filled out and signed and returned to Esquilen The latter then left the area and soon after punched out for lunch Over the lunch period Esquilin dropped off signed union authorization cards with Local 1199 Organizing Secretary Jose Perez who later that day filed the aforenoted representation petition In the meantime Negron had second thoughts about the union card she had given to Esquilin and solicited guidance from her supervisor Juana Villodas Negron (Respondents witness) testified without contradiction that she was told by Villodas During working hours those things [union matters] could not be done Villodas also directed Negron to [c]ontinue working with in 2 All dates refer to 1986 unless otherwise indicated 3 For reasons discussed below unless otherwise indicated the asserted facts and version of events described in this section are set forth as cred ited structions that she (Villodas) [didn t] want any of those problems to occur in our working area , According to Negron she took an abbreviated lunch that day because she wanted to talk to Esquilin about getting her card back and because she was concerned about the patients who were waiting in the emergency room 4 Negron s early return did not please Villodas who gave her a verbal warning for not taking her full lunch period At 2 p in Negron began a search at the hospital for Esquilin to get her union card back asserted ly with the permission of Villodas Negron enlisted the help of Antonio Rivera then chief of security and also had Esquilin paged At that time Esquilin was at a bank on personal business outside the hospital with permis sion from his supervisor Lourdes Haydee Rodriguez Es cobar (Rodriguez) 5 Esquilin had punched out at 2 06 p m and back in at 3 03 p in (G C Exh 8) Within min utes after Esquilin had punched back in he was ap proached by Negron and she asked him to return her union card Esquilin informed Negron that he had al ready given her card to Jose Perez the Local 1199 orga nizer On July 7 in the afternoon Esquelen was summoned to the office of Jesse Pou Rivera (Pou) then personnel and industrial relations director and questioned about certain of his activities on July 2 Pou asked Esquilin to identify the bank he had gone to that day He also informed Es quilin that he had heard that he was distributing union cards close to the emergency room area and that he (Pou) was conducting an investigation in that respect Esquelen requested to have a union official present and he was so accommodated by Pou who summoned Juanita Santiago a Local 610 shop steward In Santiago s pres ence Pou again asked Esquilin about the bank and 'its activities around the emergency room area Esquilen told Pou that he had been to Banco Popular and conceded that he had given union cards to a fellow worker but maintained that she was on her lunch breaks and that he was on his morning break at that time Pou also wanted to know the branch of Banco Popular but Esquilin re fused to answer further pointing out that he had gone to the bank with the permission of his supervisor Santiago was unable to resolve the dispute and asked Pou to notify the Union when he completed his investigation Among those individuals Pou interviewed during his investigation were Dr Pastrana a member of the midi cal faculty at Respondents hospital Carlos Gonzalez the comptroller Lourdes Rodriguez then Esquelen s im 4 I have largely discounted Negron s testimony as conclusionary incon sistent implausible self serving and transparently biased against Esquilin 5 It is undisputed that Rodriguez authorized Esquilm to attend to such business around 1 15 p in According to Respondent Esquihn had already returned from the bank when he next spoke to Rodriguez 15 to 20 min utes later Respondent denies that Esquihn was authorized to leave the hospital at 2 p in In the circumstances of this case the Respondent s denial is untenable Thus it is noted inter alia as testified by Rodriguez that Esquthn never told her that he had actually been to the bank More over Rodriguez acknowledged that she would not deem it unusual for Esquihn to request to go to the bank but to delay his departure for 45 minutes to an hour 6 It appears that around the same time Esquilin had also given a union card to clerical employee Rosa Manso and that it was the latter and not Negron who was on her lunch break 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mediate supervisor employee Negron and Antonio Rivera then chief of security Pastrana Gonzalez and Rivera? did not testify Esquilin testified credibly and without contradiction that he borrowed Dr Pastrana s car on July 2 to go to the bank According to Rodn guez Gonzalez asked her whether she had authorized Esquilin to go to the bank on the day in question and she responded in the affirmative Juan Amador was Esquilin s regular immediate super visor On July 2 in Amador s absence Rodriguez had assumed Amador s supervisory functions Amador was back at the hospital on July 15 when late that afternoon Esquilin was summoned to Amador s office There Amador gave Esquilin a 30 day suspension letter (G C Exh 9(b)) The letter noted a host of faults on the part of Esquilin including a long history of tardiness and ab senses [sic] problems with his timecards and his recent activities on July 2 Regarding those recent activities the letter stated as follows On July 2 1986 at around 11 30 you were at the Emergency Room area having abandoned your work station without having authorization and in terrupting the work of the office employees in said Department In the afternoon of that same day you again abandoned your work area and left the Hospi tal in order to carry out some business at a bank also without proper authorization [Id par 1 ] The letter concluded with a last chance warning that if such faults are repeated a more disciplinary measure will be applied which may include discharge This was the first time Esquilin had been suspended Pou testified without contradiction 8 that approximately 1 week prior to Esquilin s asserted misbehavior on July 2 he (Pou) was notified by the personnel office that Es quilin had a chronic problem of absenteeism over the past 3 years (R Exh 6) According to Pou the person nel office was engaged in attendance studies of the vari ous departments in the hospital at that time The record disclosed that Esquilin had never received a written warning regarding his attendance and is unclear whether he ever received a verbal warning Pou merely testified that I think it had been talked about (emphasis added) his [Esquilin s] attendance at work The problem with timecards noted in the suspension letter posed something of a mystery because from time to time Esquilin s timecards had disappeared and he had in writing asked for managements help to investigate (G C Exhs 10(b) 11(b)) This problem was subsequently acknowledged (after the suspension) in a memorandum from Pou to Esquilin dated September 29 1986 in which Pou wrote inter alia In regard to the disappearance of your timecards a problem which you have had for a long time I repeat r The record disclosed personal ties between Negron and Rivera out side the employment relationship 8 In certain critical areas Pou s assertions were not corroborated by testimony or probative documentary evidence As will be discussed more fully infra I did not find Pou to be a reliable witness it is difficult for us to locate same [Emphasis added G C Exh 12(b) ] On or about October 2 Esquilin met with Hospital Administrator Filberto Garcia and asked for hospital coverage for his (Esquilin s) mother under a federally funded medical indigent program Esquilin testified that Garcia told him that he would not grant his request be cause he was a problematic employee and because he had sued the hospital (This is the essence of the 8(a)(1) allegation) Garcia denied that service under the medical indigent program for Esquilin s mother turned on union considerations According to Garcia he told Esquilin that he had not made a formal request On cross exams nation Esquilin acknowledged that he had not made a written request either to the social worker or to Garcia According to Garcia he pointed out to Esquilin that under the program the funds provided the hospital for the indigent community were limited and also reminded him (Esquilin) that the hospital had serviced his mother as an indigent person in the past Esquilin testified that on October 9 at approximately 10 30 a in while he was moving some files in the hall way of the hospital he met in passing Osvaldo Torres material and supplies manager There they had a brief conversation in which Esquilin inquired about the health of his father in law Huberto Alcover Bauza (Alcover) a patient at the hospital since September 17 According to Esquilin he asked Torres for Alcover s room number to pay him a visit and Torres told him that he was on the fourth floor Torres testified that he also provided the room and phone number of his father in law as requested by Esquilin Esquilin testified with corroboration from employee Raul Segarra Valentin (Segarra) that the same morning (October 9) around 11 30 a m while in the accounts de partment he asked Lorenzo Pardo Rodriguez (Pardo) the supervisor in that department for permission and permission was granted to copy the phone extension from Alcover s file (Torres father in law) According to Esquilin he did this because he suddenly realized that his workload was such that he would be unable to then drop in on Alcover and contemplated phoning him instead While it is undisputed that Pardo observed Esquilin take note of Alcover s file Pardo denied that he gave permission to Esquilin to do so Also in dispute is wheth er Esquilin merely noted Alcover s phone extension or as contended by Respondent that he actually examined the contents of Alcover s file As testified by Pardo at the time in question Pardo was seated next to employee Segarra when Esquilin came into their department greet ed them and quickly moved to the rear of the office where the patients files are arranged There Esquilin as sertedly lifted Alcover s file read its contents placed the file back in order and left the department approximately 1 minute after he had arrived According to Pardo Es quilin acted so quickly that he Pardo was caught by surprise and therefore did not question Esquilin regard mg his actions Torres also testified that he observed Esquilin examine a file at the time in question and merely suspected that he was looking at the file of his father in law According ASOCIACION HOSPITAL DEL MAESTRO to Torres he thought it strange for Esquiltn to inquire about his father in law because Esquilin did not know him Thus he purposely followed Esquilin to the ac counts department where he observed the latter outside the partially windowed door (Jt Exh 2(a)) Further after Esqutlin left that department Torres attempted without success to reach his (Torres) immediate boss and therefore immediately proceeded to complain to Pardo s supervisor Carlos Gonzalez because I wanted to know if Mr Esquihn had been observing my father in law s record Gonzalez summoned Pardo to his office and the latter confirmed that Esquiltn had looked at Al covers file According to Pardo it was easy to discern Alcover s from other files because it was the only one which contained a red label on the outside signifying that the patient was not covered by insurance Pardo told Gonzalez I saw [Esqutltn] take out [Alcover s] record but it was something so fast I did not have time to react According to Pardo Gonzalez reprimanded him for failing to act appropriately as a supervisor and stated that he would place a report to that effect in his file 9 That afternoon Esquilin was summoned to Pou s office and questioned by Pou regarding Torres father in law s record Esquilin denied that he had examined Torres father in law s record and explained that he had merely obtained the telephone extension for which he had Pardo s permission When Pou pressed Esquilin fur ther on this subject the latter refused to answer in the absence of a union representative and he left Pou s office According to Esquilin s uncontroverted testimony soon after he left Pou s office he had a brief friendly ex change with Pardo as they passed one another Pardo told Esquiltn I in sorry Joe but they cornered me Esquilin in turn told Pardo that s nothing shook hands and continued on his way Still that same after noon Esquilin also had a chance encounter with Jose Eligio Velez chairman of the board of directors at Re spondent s hospital Esquiltn complained to Velez about his unjustified suspension back in July and about the most recent accusations As testified by Esquilin without contradiction Velez responded go home and to analyze and think if I was doing anything wrong at the hospital and to decide if I would stay or leave the hospital (Velez statement is alleged to be a threat of discrimina tory discharge) Esquilin told Velez that he would think about it and the conversation ended The following day (October 10) a company union meeting was held in Pou s office concerning Esquilin s conduct in dealing with Torres father in law s file In at tendance were Pou and Esquilin and Local 610 Repre sentatives Reuben Davila and Jenny Santiago There Es 9 Pardo asserted that such a report must be in my file but he has not seen it nor was such a report produced at the hearing In the 13 1/2 years that Pardo has been employed by the Respondent he had not pre viously received a written reprimand Gonzalez did not testify nor was any reason advanced for the failure to call him as a witness I found Pardo unresponsive implausible inconsistent and unreliable where his tes timony is in conflict with Esquilin s Similarly I was unimpressed with Torres and found his testimony largely conclusionary implausible and un reliable As noted previously my credibility resolutions will be treated more fully infra 201 quilin traced the events of the previous day starting with his brief conversation with Torres about his father in law and Esquiltn s followup steps (with Pardo s permission) to obtain Torres father in law s phone number Davila expressed doubt as to any Esquilin impropriety pointing out that Supervisor Pardo had knowledge of Esquilin s actions but made no effort to intercede Pou did not re spond to Davila s observation The latter noted that other witnesses would have to be questioned and he asked Pou to summon Pardo and Segarra Pou refused stating that he was under no such obligation Davila of fered to carry on his own investigation in the accounts department without interrupting the work of employ ees Again Pou refused and gave no explanation On October 21 soon after Esquilin arrived at work Pou handed him a termination letter (G C Exh 13(b)) The letter recounted Esquihn s activities dealing with Torres father in law s file leading to the following of fences 1 Unduly intruding by checking some records as to which you had no bearing 2 Abandonment of place of work in order to carry out a personal errand during working hours without authorization for same 3 Interrupting the work of other fellow workers The letter also cited his earlier suspension back in July for similar offenses as well as his overall background at Respondents hospital and concluded that We are doing without your services effective immediately Another company union meeting took place at the hospital on October 30 when efforts were made to re construct Esquiltn s disputed actions of October 9 This time Pardo and Segarra were present when Esquilin de scribed what he had done with Torres father in law s file and once again (without contradiction) he noted that he had Pardo s permission Davila asked Segarra wheth er he heard Pardo grant such permission and Segarra an swered in the affirmative Pou was then asked by Davila whether he had interviewed Segarra as part of his inves tigation but Pou did not respond and the meeting ended The charges alleging a discriminatory discharge were filed 2 weeks later B Discussion and Conclusions 1 Credibility For the most part the material facts are not in dispute For example it is not disputed that on July 2 around 1 15 p in Esquilin requested and was granted permission from his supervisor to go to the bank for personal rea sons What is in dispute is whether Esquilin later aban doned his work area without proper authorization as contended by Respondent by absenting himself from the hospital for approximately 1 hour between 2 and 3 p in (rather than at 1 15 p m) I find that resolving this dis pute turns more on an assessment as to what is reason ably plausible rather than straight credibility Here (as will be discussed more fully below) as in virtually all other such areas in dispute I reject the Respondents po sitions as pretextual Insofar as there are direct credibility 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conflicts I find in favor of the General Counsels wit nesses (except in the few instances specifically noted oth erwise) The principal credibility conflict is whether Esquilm had been given permission by Supervisor Pardo to note or copy the phone extension from Alcover s record (Torres father in law s file) According to Respondent the unauthorized liberties taken by Esquilin to examine Alcover s file was the main reason for his discharge I find however that Esquilin testified credibly with cor roboration from employee Segarra that Pardo granted Esquilin access to Alcover s file to obtain the phone ex tension In crediting Esquilin over Pardo it is noted inter alia that the latter admittedly observed Esquilin pull out and look at Alcover s file but took no steps to intercept Fur ther as acknowledged by Pardo Esquilin reached for Alcover s file in Pardo s line of vision and made no effort to conceal what he was doing I find highly im probable and reject Pardo s explanation that he failed to react or question Esquilin because the latter acted too quickly and caught him by surprise Pardo s account hardly squares with his other testimony that Esquilin not only reached for Alcover s file but lifted it read it and placed it again in place [Emphasis added] Thus it ap pears to me that if Esquilin had time to read Alcover s chart then Pardo had time to ask Esquilin what he was doing with that file Rather I find that Pardo did not intercept Esquilin because he had already granted him access to Alcover s file Esquilin credibly testified that Torres had only given him the floor location not Al covers room number As the phone extension (which corresponds to the room number) appears with the pa tient s name on a plastic tape at the very top of the chart Esquilin could easily satisfy his purpose of extract ing Alcover s phone number without ever opening up the file or examining its contents While Esquilin did not know or barely knew Alcover (a patient at the hospital) it appears that he merely hoped to convey some greeting or words of encourage ment to a relative of a fellow employee Esquilin ex plained as follows [D]unng the morning when I was coming to work I would meet with Mr Torres wife and I would ask her about the [health] condition of her father and I deemed that it was reasonable as a fellow worker of Mr Torres to go and see his father in law Esquilin testified at length and I found him to be re sponsive forthright and consistent with only a few minor discrepancies It is also noted that his testimony in some key areas was either uncontradicted or corroborat ed by other credible witnesses As I was impressed with Esquilin s overall demeanor and found him otherwise to be a reliable witness I do not reject his professed interest in the health of Alcover as implausible I also credit the testimony of the General Counsel s witnesses Segarra and Davila in material respects As noted above Segarra corroborated Esquilin s testimony that Pardo had granted him (Esquilin) permission to obtain the phone extension from Alcover s file In assess ing whether Segarra was forthright as a witness it is noted inter alia that he candidly acknowledged on cross examination that he has known Esquilin for 14 years and considers him a good friend Respondent contends that Segarra harbored animus against the Re spondent because he was suspended for 5 days without pay in 1986 (which Segarra asserted related to his union activities) On the other hand it is also noted that Se garra had not been disciplined since and he was still em ployed by Respondent at the time he testified a factor at least ostensibly against his self interest and long recog nized by the Board not to be lightly disregarded See e g Federal Stainless Sink Div of Unarco 197 NLRB 489 491 (1972) Gateway Transportation Inc 193 NLRB 47 48 (1971) On balance including demeanor factors I find Segarra to be a credible witness In crediting Davila it is noted inter alia that his testi mony was largely corroborated and uncontradicted Fur ther in assessing Davila s overall reliability it is noted that while he testified in support of the General Coun sel s case his interests are not necessarily allied with Es quilin s Thus Davila at all material times has represent ed Local 610 the same union which Esquilm tried to dis lodge by his organizing efforts on behalf of Local 1199 On the other hand with the exception of Garcia I was unimpressed with the demeanor of Respondent s witnesses and found them to be largely conclusionary vague elusive implausible and unreliable The testimony of Torres is a case in point According to Torres he sus pected that Esquilin improperly examined his father in law s file However it is undisputed that Esquilin acted openly and in full view of Supervisor Pardo Yet Torres unaccountably elected not to question Pardo and instead complained to Gonzalez Pardo s supervisor In the ab Bence of any cogent explanation as to why Torres a manager himself bypassed Pardo I view his overall tes timony as highly suspect As for Torres explanation for his surveillance of Esquilin I find that it does not have the ring of truth While Torres asserted that he thought it strange for Esquilin to inquire of his father in law s health it is noted that Torres did not hesitate to disclose his father in law s condition to Esquilin as well as the lo cation so that Esquilin could pay him a visit Pou was Respondents principal witness While he was no longer employed by Respondent at the time he testi fled it is also noted that he sat at Respondent counsel s table to assist throughout the entire hearing In addition to the negative credibility factors noted above regarding Respondent s witnesses generally Pou s testimony also suffers because of the serious doubts raised by the un precedented severity of the punishment given Esquilin for his alleged offenses It is noted that Esquilin an employee with 14 years of service for Respondent was suspended for 30 days with out ever having received a prior written warning for any offense In contrast employee Negron with 4 years of service for Respondent and a history of violating compa ny rules had never been suspended and was still em ployed at the time she testified Negron s supervisor ad vised Pou in writing that Negron had an attitudinal prob ASOCIACION HOSPITAL DEL MAESTRO lem with patients in the emergency room and was also disrespectful to the supervisor (G C Exh 19(b)) The record also disclosed that Negron was severely criticized in writing by the mother of an emergency patient for ne glect insensitivity and verbal abuse without any appar ent action taken by Respondent against Negron (G C Exh 20(b)) Insofar as Esquilin was suspended for tardiness and absences the record disclosed that other employees re ceived written warnings before being suspended or dis charged (See e g Tr 373-374) In this regard I reject Pou s uncorroborated assertion that even prior to July 2 a study was undertaken by the personnel office regarding Esquilin s tardiness and absenteeism over the past 3 years and coincidentally (my word) it was brought to Pou s attention during the week of the July 2 incident that Es quilin had a chronic problem Rather I find that Pou merely seized on Esquilin s attendance record as well as his other alleged offenses merely as a pretext to take the disputed disciplinary action In short I find that Pou was not a credible or reliable witness Thus I credit the Gen eral Counsels witnesses over Pou in all material areas when the testimony is in conflict 2 The 8(a)(3) allegations (suspension and discharge) It is undisputed that shortly before Esquilin was sus pended that he had actively and openly solicited employ ee support for Local 1199 s organizational drive This ac tivity included distributing Local 1199 leaflets at the main entrance to Respondents hospital and passing out and receiving union cards at work Over a 2 week period to on or about July 2 Esquilm distributed to employees approximately 45 union cards The July 2 date is critical because Esquilin s organizing efforts in the emergency room area that day admittedly led to an investigation by Respondent and to Esquilin s subsequent suspension On July 2 Local 1199 also filed its representation petition According to Pou in connection with his investigation he learned that Esquilin had also absented himself from the hospital on July 2 for approximately 1 hour without permission and this too contributed to Esquilin s suspen sion The record disclosed that on or about July 7 Pou summoned Esquilin to his office where he questioned him regarding the distribution of union cards in the emergency room area on July 2 and also about leaving the hospital that same day without permission Esquilin acknowledged to Pou that he had given union cards to an employee around the emergency room area but as serted that the employee was on her lunch break As for absenting himself from the hospital without authonza tion Esquilin told Pou that his supervisor had given him permission to go to the bank When Pou pressed Esquilin for more information regarding the name and branch of the bank the latter requested that a union representative be present I find with regard to Esquilin s activities in the emer gency room area contrary to Pou s uncorroborated as sertion that there is no credible evidence tending to show that Esquihn actually interrupted the work of the people that [were] working in that area [Emphasis added ] As for Esquilin absenting himself from the hospi 203 tal I credit his testimony with corroboration from Ro driguez his supervisor at the time that she had, given him permission Pou testified without corroboration that Comptroller Carlos Gonzalez had informed him that Esquilin absent ed himself without authorization (Tr 397-398) Howev er Rodriguez testified credibly that Gonzalez asked her about Esquilin s absence and she informed him that she had given him (Esquilin) permission to go to the bank (Tr 39) In fact Respondent does not dispute that Rodn guez gave Esquilin permission at 1 15 p in Rather Re spondent contends that Esquilin did not have authority to leave approximately 1 hour later In the circumstances of this case I fail to discern any material difference Thus Rodriguez acknowledged that it is not unusual for an employee to request permission to leave the hospital and not leave at that moment but an hour later Further there is no showing that Esquilin neglected any of his re sponsibilities or that the hospital suffered in any way by his later departure On the basis of these factors and on the entire state of the record I am convinced that any reliance by the Respondent on the fact that Esquilin left the hospital improperly at 2 06 p in instead of at ap proximately 1 15 p in when he requested permission of his supervisor is merely subterfuge Similarly I find that Respondent wrongfully and un lawfully seized on the incident involving Torres father in law s file (Alcover s file) as a pretext for discharging Esquihn Thus the credited testimony disclosed that Es quilm with Supervisors Pardo s permission obtained the phone number from Torres father in law s file (See sec 1 Credibility supra ) That Esquilin elected not to fol lowup and actually phone Torres father in law to in quire about his health is understandable given Pou s im mediate investigation and questioning of Esquilin as as serted by the latter Counsel for the Respondent argues that the motivat ing factor for Esquilin to examine Alcover s file was to learn whether he had been granted charity while his (Esquilin s) mother who had also been a patient was not carried under the same program Respondents counsel maintains that as such Esquilin acted outside the scope of his duties and responsibilities as a clerk in the central file area I find that the record disclosed a number of impressive factors that tend to militate against Respond ent counsels conclusion Thus I find it highly unlikely that if Esquihn acted improperly that he would do so openly and in full view of the departments supervisor In any event for reasons stated previously Esquilm also had the supervisors permission Moreover the record disclosed that Esquilin worked 4 hours alone in that de partment every Saturday and had he wanted any infor matron from Alcover s file he had easy access to that file Under the Board s causation test as set forth in Wright Line 251 NLRB 1083 1089 (1980) in all cases alleging violations of Section 8(a)(3) as here the burden is on the General Counsel to make a prima facie showing that the union activity was a motivating factor in the employer s disputed action Once accomplished the burden then shifts to the employer to demonstrate that the same 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD action would have taken place notwithstanding the union activity Here the elements supporting a puma facie case are strong and persuasive The record disclosed that Esqui fin s widespread organizational efforts on behalf of Local 1199 were well known to Respondent Indeed on or about July 7 Pou admittedly questioned Esquilin about his actions in handing out union authorization cards to employees approximately 5 days earlier Those activities in large measure led to Esquilin s 30 day suspension Ap proximately 2 months after Esquilin s suspension ended he was terminated As noted above the reasons ad vanced by Respondent for Esquilin s termination do not stand scrutiny In the letter of termination the Respond ent noted inter alia Your personnel file shows that in July 1986 you were laid off [suspended] for similar of fenses As such the termination letter clearly linked the discharge to the earlier suspension which itself was largely the outcome of Esquilin s actions in handing out Local 1199 authorization cards The record having clearly disclosed that the timing of Respondents disputed action had come soon after Esqui fin s intensive union activities and that the Company had knowledge thereof I turn now to company animus the remaining element necessary to satisfy a puma facie case While I do not find that the Respondent independently violated Section 8(a)(1) (see sec 3 8(a)(1) allegations infra) or that it made any clear statements reflecting hos tility toward Local 1199 I am convinced and I find on the total state of this record that an inference of compa ny animus against Local 1199 is justified 10 noting inter alia that the various reasons assigned by Respondent for its action have been rejected as pretextual See Murd In dustries Inc 287 NLRB 864 870 (1987) Here I find that Respondent accused Esquilin falsely and in bad faith for taking certain unauthorized liberties when in fact he acted only after he requested and was granted permission by his supervisors As stated by the Board A pretextual reason of course supports an inference of an unlawful one Keller Manufacturing Co 237 NLRB 712 717 (1978) Further it is noted that the seventy of the disci pline for the alleged offenses was unprecedented Thus Esquilin a longtime employee was suspended for 30 days although unlike other employees he had never re ceived a prior written warning Having found that the General Counsel made a prima facie showing of unlawful motivation on the part of Re spondent for its action against Esquilin as required under Wright Line and having rejected Respondent s reasons as unsubstantiated and pretextual I further find that Re spondent 'ailed to meet its Wright Line burden by dem onstrating that it would have taken the same action io For purposes of animus in assessing the total surrounding circum stances I have not relied on the Board s previous findings against the same Respondent (Asociacion Hospital del Maestro Inc 283 NLRB 419 425 (1987)) There basically the findings were predicated on an overly broad rule banning the wearing of all union insignia on uniformed per sonnel everywhere and at all times in the hospital The judge (with Board approval) noted that the Respondent was motivated by a genuine fear that the Local 1199 insignia and especially red ribbons would have an adverse affect on patients and patient care against Esquilin absent his activities on behalf of Local 1199 In short I find that Respondent suspended and later terminated Esquilin in violation of Section 8(a)(3) as al leged 3 The 8(a)(1) allegations It is alleged that Respondent independently violated Section 8(a)(1) by (1) interrogating employees about their union activities (2) creating the impression that the employees union activities are under surveillance (3) threatening employees with discharge because of their union activities and (4) informing employees that they would be denied medical benefits because of their union activities a Interrogation and creating the impression of surveillance As these two allegations involved remarks made by Pou to Esquilin on the same occasion they are treated together The record disclosed that on or about July 7 Pou summoned Esquilin to his office and questioned him re garding two matters that had occurred on July 2 It is undisputed that Pou told Esquilin that he had heard that the latter had distributed union cards in or around the emergency room area around 11 30 a in on July 2 and questioned Esquilin about what he was doing at the time and location in question Pou also questioned Esquilin re garding certain details of a personal errand to the bank on July 2 While the General Counsel correctly cites the totality of circumstances test noted by the Board in Rossmore House 269 NLRB 1176 (1984) I arrive at different con clusions First regarding the alleged interrogation it is noted inter alia that Esqutltn openly and actively solicit ed employee support for Local 1199 both inside and out side the Respondents hospital Esqutltn also distributed Local 1199 leaflets at the main entrance to the hospital in full view of managerial personnel before the meeting with Pou Thus Pou unquestionably knew of Esquilin s varied activities on behalf of Local 1199 Given such knowledge I find it highly unlikely that Pou questioned Esqutltn to learn more about his union activities Rather I find that the focus of Pou s inquiry was on the enter gency room area In these circumstances I cannot con clude that Pou as personnel manager did not have a le gitimate concern about Esquilin interfering with the work of other employees or with patients in an obvious ly sensitive area such as the emergency room The fact that Esquilin did not actually interfere with anyone does not mean that Pou improperly conducted an investiga tion in the first instance On the basis of the total circumstances I am unper suaded and reject the notior that Pou coercively interro gated Esquilm in violation of Section 8(a)(1) Similarly given the total state of this record noting particularly that Esquilin s union activities were open uninhibited and widespread I find that Pou s statement to Esqutltn that he had been informed that he (Pou) had given out union cards around the emergency room area without ASOCIACION HOSPITAL DEL MAESTRO more falls short of conveying to him that his union ac tivities are under surveillance Accordingly I shall rec ommend that these allegations be dismissed b Threat of discharge This allegation is based on a brief chance verbal ex change on October 9 between Esquilin and Jose Velez chairman of the board at the hospital According to Es quilin (Velez did not testify) on the occasion in question while he was on route to his department he met Velez and stopped to talk to him about his problems Earlier that day Pou had questioned Esquilin about his actions in looking at Torres father in law s file While Esquilin and Velez had seen each other previously at the hospital and knew each other s identity they did not otherwise have any relationship Esquilin testified without contra diction about their brief meeting as follows I called [Velez] to talk to him I told him Mr Velez in July I was suspended without just cause and now I was given permission to look at a tele phone extension and they are saying that I am look mg into a record in a file Mr Velez said for me to go home and to analyze and think if I was doing anything wrong at the hos pital and to decide if I would stay or leave the hos pital I find contrary to the General Counsel that Velez re sponse falls far short of constitut[ing] a veiled threat to abandon union activities if [Esquilin ] wanted to stay at the hospital Neither Esquilin nor Velez men tioned the Union and the remarks ascribed to Velez were otherwise vague and ambiguous This was also a chance meeting when Esquilm approached Velez and initiated the brief discussion Given the casual or indifferent nature of their employment and social relationship I find without more no reason to read into Velez re marks a meaning not expressly stated In this connection it is noted that the record is devoid of evidence tending to show that Velez played any role in labor management relations In sum I find that the record does not support the allegation that Velez remarks constituted a threat to discharge Accordingly I shall recommend that this alle gation be dismissed c Informing employees that they would be denied medical benefits because of their union activities It is undisputed that on or about October 2 Esquilin met with Hospital Administrator Garcia to discuss cov erage for his mother then a patient at the hospital under a federally funded program for medically indigent per sons in the community Esquilin testified that Garcia told him that he would not offer that service because he (Es quilin) was a problematic employee and had sued the company Garcia denied that he threatened Esquilin with a denial of such medical benefits for his mother because of his union activities According to Garcia he noted to Esquilin that he had not submitted a formal written request This was ac knowledged by Esquilm on cross examination (Tr 180) 205 Garcia explained that the initial request is made to the social worker before and not after the patient is admitted to the hospital in time for a socio economic study to de termine whether the applicant is a candidate for the pro gram He also pointed out to Esquilin that funds were limited and reminded him that the hospital covered his mother in the past Garcia testified that Esquilin told him that he under stood that the hospital would deny him such benefits be cause of union considerations and noted that he had always faced persecution from the hospital In crediting Garcia s testimony it is noted inter alia that Esquilin did not deny this account and it is somewhat similar to his (Esquilin s) complaint to Velez 1 week later about being mistreated by the hospital Further Garcia testified without contradiction that Esquilin told him that he was comfortable talking to Garcia because the latter was the only one in the hospital administration who did not act in bad faith Given the limited testimony provided by Esquilin re garding this meeting with Garcia that the remarks as cribed to Garcia are vague and subject to a number of interpretations that Garcia is not accused of otherwise making coercive statements that Garcia s testimony in some material areas is uncontradicted and as I found Garcia overall to be responsive consistent and plausible I am unpersuaded that the allegation is supported by the record In sum I find that the General Counsel has failed to establish that Garcia informed Esquilm that medical benefits would be denied his mother because of his union activities Accordingly I shall recommend that this alle gation be dismissed CONCLUSIONS OF LAW 1 Asociacion Hospital del Maestro Inc Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Union Nacional de Trabajadores de la Salud 1199 affiliated to National Union of Hospital and Health Care Employees RWDSU/AFL-CIO Local 1199 is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act 3 By suspending and subsequently discharging from employment its employee Jose Esquilin Pinto (Esquilin) because of his activities on behalf of Local 1199 Re spondent violated Section 8(a)(3) and (1) of the Act 4 The General Counsel has not established that the Respondent independently violated Section 8(a)(1) of the Act 5 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 has engaged in cer tarn unfair labor practices I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As I have found that Respondent unlawfully suspend ed and later discharged Jose Esquilin Pinto (Esquilin) be 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause he engaged in union activities on behalf of Local 1199 I shall recommend that the Respondent be ordered to offer said Esquilin immediate and full reinstatement to his former position or if that position no longer exists to a substantially equivalent job without prejudice to his seniority and other rights and privileges and to make him whole for any loss of earnings as a result of the dis crimination against him with backpay to be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) with interest to be computed in the manner prescribed in New Horizons for the Retarded 11 I shall also recommend that any reference to Esquilin s suspension and termination be expunged from his em ployment record On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed1z 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) Suspending discharging or otherwise discnminat ing against employees because of their activities on behalf of Local 1199 or other union activities (b) 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 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to Jose Esquilin Pinto immediate and full re instatement to his former job or if such job no longer exists to substantially equivalent employment without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful suspension and discharge of Jose Esquilin Pinto and advise him in writing that this has been done and that evidence of the unlawful suspension and discharge will not be used as a basis for future personnel action con cerning him (c) 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 " In accordance with the Board s decision in New Horizons for the Re Larded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 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 personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Hato Rey San Juan Puerto Rico hospi tal facilities copies of the attached notice marked Ap pendix 13 Copies of the notice on forms provided by the Regional Director for Region 24 after being signed by the Respondents 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 cus tomanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that those portions of the complaint found to be without merit are hereby dis missed 13 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 at Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT suspend discharge or otherwise dis criminate against our employees because of their active ties on behalf of Local 1199 or other union activities WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL offer Jose Esquilin Pinto immediate and full reinstatement to his forcer job or if such job no longer exists to substantially equivalent employment without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings and other benefits suffered as a result of our discrimination against him WE WILL expunge from our files any reference to the suspension and discharge of Jose Esquilln Pinto and advise him in writing that this has been done and that evidence of such suspension and discharge will not be used as a basis for personnel action concerning him ASOCIACION HOSPITAL DEL MAESTRO INC