NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea and Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud. Case 24–CA–10505
April 30, 2008
DECISION AND ORDER
By Chairman Shaumber and Member Liebman
On April 30, 2007, Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions3 and to adopt his recommended Order, as modified.4
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and orders that the Respondent,
Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea,
Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not unilaterally, without notice to or consultation with the Union, make changes in the wages, hours, and other terms and conditions of employment, including changes in sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans, and progressive disciplinary proceedings for our employees in the following units:
INCLUDED: All licensed graduate nurses employed by the
Employer at its hospital located at
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray technicians, including respiratory technicians, operating room technicians, laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries, registered nurses, accountants, guards, professional personnel, and supervisors, as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and housekeeping employees, cooks, diet department employees, and non professional employees, including plumber, mason, electrician, handyman and refrigeration technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, graduated nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
We will not maintain an overly broad no solicitation and no distribution rule.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights as guaranteed by Section 7 of the Act.
We will rescind our no solicitation and no distribution rule promulgated on or about September 11, 2006, and notify our employees in writing that we have done so.
We will, upon request of the Union, rescind the unilateral changes in the terms and conditions of employment we made on or about August 2006, in sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans and progressive disciplinary proceedings, and we will, upon request of the Union, restore the terms and conditions of employment in the units in effect prior to August 2006, until such time as we negotiate in good faith with the Union to agreement or to valid impasse.
We will make whole the employees in the units for any loss of pay or other benefits they may have suffered as a result of our unilateral changes outlined above.
Metro Mayaguez, Inc., d/b/a Hospital
Ayesha K. Villegas Estrada, Esq., for General Counsel.1
Harold Hopkins Jr., Esq., for the Charging Party.2
Jose R. Gonzales-Nogueras, Esq., and Kayra D.
Montanez-Laboy,Esq., for the Respondent.3
DECISION
Statement of the Case
William N.
Cates, Administrative Law Judge.
This case involves alleged unilateral charges in the terms and conditions
of employment of employees in appropriate bargaining units, without prior notice
to the employees’ collective-bargaining representative and without affording
the bargaining representative an opportunity to bargain with respect to this
conduct and the effect of this conduct.
The case also involves an allegation of interference with employees’
rights regarding the promulgation and maintaining of an overly broad no-solicitation
and no- distribution rule. This case
originates from a charge filed on October 31, and amended on December 21, 2006,
by Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud (
Specifically it is alleged the Hospital is, and has been
since August 11, 2006, the successor to Pavia Health, Inc. d/b/a Hospital Pavia
Perea (
The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. I have studied the whole record, considered the briefs, and the authorities therein.
As more fully explained hereinafter, I find the Hospital violated the Act essentially as alleged in the complaint.
Findings of Fact
i.
jurisdiction, successor status, labor organization status and
supervisor/agent status
The Hospital is a Commonwealth of Puerto Rico corporation
with an office and place of business located in Mayaguez, Puerto Rico, where it
is, and has been, engaged in the operation of a hospital providing medical,
surgical and related health care services to the general public. Based on its operations starting about August
11, 2006, at which time it commenced its operations, the Hospital in conducting
its operations will annually purchase and receive at its
The parties stipulated to the following facts regarding
the successor employer status of the Hospital.
On August 11, 2006, the Hospital purchased the assets of
The parties stipulated, and I find, the Hospital is a
successor to
The parties stipulated, the evidence establishes, and I
find, the
Executive Director Jaime Maestre (Executive Director Maestre) and Human Resources Director Joannie Hernandez (HR Director Hernandez) are supervisors and agents of the Hospital within the meaning of Section 2(11) and (13) of the Act, and I so find.
ii. the
appropriate bargaining units
It is admitted, and I find, that since about August 11,
2006, the
A. Graduate (Registered) Nurses
The parties stipulated that the following employees of the Hospital, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and I so find:
INCLUDED: All licensed graduate nurses employed by the
Employer at its hospital located at
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
B. Licensed Practical Nurses
The parties stipulated that the following employees of the Hospital, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and I so find:
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray technicians, including respiratory technicians, operating room technicians, laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries, registered nurses, accountants, guards, professional personnel, and supervisors, as defined in the Puerto Rico Labor Relations Act.
C. Laundry, Maintenance and Nonskilled Employees
The parties stipulated that the following employees of the Hospital, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and I so find:
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and housekeeping employees, cooks, diet department employees, and non professional employees, including plumber, mason, electrician, handyman and refrigeration technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, graduated nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
III. Alleged
Unfair Labor Practices
A. No-Solicitation and No-Distribution Policy
It is alleged at paragraph 9 of the complaint that since about August 11, 2006, the Hospital, promulgated, and since then has maintained, an overly broad no-solicitation and no-distribution rule.
1. Facts
As noted elsewhere herein when the Hospital assumed control
and began operations on August 12, 2006, it did not inform employees of its
intention to set initial terms and conditions of employment. The Hospital in a Memorandum dated September
11, 2006, notified all employees effective that day it had established a “No
solicitation and No Distribution” policy.
A copy of the policy was attached to the Memorandum. The Memorandum was the only notice the
Hospital provided to either the
The parties stipulated that Human Resources Director Hernandez would testify regarding the Hospital’s no solicitation and no distribution policy in part as follows:
This policy was instituted to insure the best possible
service to our patients and visitors in an atmosphere of professionalism and
seriousness without any interruption to the Hospital’s operations. In addition, the policy seeks to eliminate
traffic of persons in areas where they could have access to confidential
information, which must be protected by the Hospital according to Federal and
The Hospital’s policy follows:
POLICY OF NO SOLICITATION AND
NO DISTRIBUTION OF HOSPITAL PEREA
Purpose
It is the goal of the Hospital Perea to provide and maintain an atmosphere leading to efficient work that promotes the continuous development of the skills of their associates free of unnecessary distractions, at the same time that maintains the highest standards in the quality of service to the patient. Furthermore, it is in the interest of Hospital Perea to promote efficiency while order and security is maintained to achieve providing the best work environment. For said reasons, the following regulations apply to the solicitation and/or distribution of any kind in the Hospital Perea facilities.
Procedure
Non-Associates
Persons that are not associates of Hospital Perea cannot solicit or distribute any literature for any purpose in the facilities of Hospital Perea, including its parking areas. Without it being understood as a limitation, soliciting money is specifically prohibited, sales that are not part of the services rendered by Hospital Perea, solicit contributions or donations, take public opinion surveys, commercials or policies of any other nature, distribute leaflets, advertising or promotional material of any kind, except when the administration of Hospital Perea has given their written authorization for it and subject to the limitations that are imposed.
Associates
1. No associate can solicit or distribute any literature for any purpose during working hours. Working hours include any period during which the associate that incurs the prohibited conduct is or should be in the facilities of Hospital Perea performing their duties or (b) the associate to who said conduct is directed, is or should be in the facilities of Hospital Perea performing their duties. Lunch breaks are not working hours.
2. No associate can solicit or distribute any literature for any purpose in the areas of the facilities of the Hospital Perea where they have or could have access and/or there is traffic of patients, family members, visitors, suppliers, contractors and/or the general public. The facilities of Hospital Perea include and are not limited to parking, Hospital, warehouses, work areas, clinic areas, reception, hallways, pharmacy and offices.
3. No associate can solicit or distribute any literature for the any purpose in the work areas. Work areas include all those areas of work. Work areas include all those areas in the facilities of the Hospital Perea where associates perform their work. This policy does not apply to sales, collections, solicitation or distribution of materials on behalf or through Hospital Perea. Any doubt or question should be directed to Mrs. Joannie Hernandez, Director of Human Resources.
2. Guiding Principles, Analysis and Conclusions
The Board’s rules and presumptions regarding limitations
or restrictions by hospitals on solicitation and distribution by its employees are
different from that which the Board generally applies to other types of
employers. A unanimous Board in St. John’s Hospital and School of Nursing, 222
NLRB 1150 (1976), concluded that special characteristics of hospitals justify a
rule different from that which it generally applies to other employers. The justification, as stated by the Board,
rests on the need by hospitals to avoid disrupting of patient care and
disturbance of patients in hospital settings.
In
We recognize that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the patients’ rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas. Solicitation at any time in those areas might be unsettling to the patients-particularly those who are seriously ill and thus need quiet and peace of mind. Consequently, banning solicitation on nonworking time in such areas as described above would seem justified in hospitals and to the extent that Respondent’s rule prohibits such activity in those areas it is valid.
The Board’s holding that prohibiting solicitation in immediate patient-care areas was justified but that prohibition in areas other than immediate care areas, absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted, was unjustified and unlawful was upheld by the Supreme Court in Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). The Supreme Court in Beth Israel Hospital, supra, inferred Congress intended for the Board to appropriately balance the interests between hospital employees, patients, and employers related to solicitation and distribution. The Supreme Court noted, “The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review” quoting NLRB v. Teamsters Local 449, 353 U.S. 87, 96 (1957). The Supreme Court in Beth Israel Hospital, supra, affirmed the Board’s order requiring the hospital to rescind its prohibition against solicitation in the hospital’s cafeteria and coffee shop because the hospital failed to justify the prohibitions as necessary to avoid disruption of its operations or disturbance of its patients. In Beth Israel Hospital, supra, the Supreme Court concluded;
We therefore hold that the Board’s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in non-working areas, where the facility has not justified the prohibitions as necessary to avoid disruption of healthcare operations or disturbance of patients, is consistent with the Act. We hold further that, with respect to the application of that principle to petitioner’s cafeteria, the Board was appropriately sensitive to the importance of petitioner’s interest in maintaining a tranquil environment for patients.
The Supreme Court in Baptist Hospital, Inc., 442 U.S. 773 (1979), noted the Board had never published a more definite list of “immediate patient-care areas” than set forth in St. John’s Hospital & School of Nursing, supra, which included patients’ rooms, operating rooms, and places where patients received treatment, such as X-ray and therapy areas. The Supreme Court also noted in Baptist Hospital that it appeared that the Board in that case assumed the validity of prohibitions on solicitation only in those limited areas, treating any broader ban as presumptively invalid. The Supreme Court noted that the Board’s presumption did nothing more than place on the hospital therein the burden of proving, with respect to areas to which it applies, that union solicitation may adversely affect patients. The Supreme Court found the hospital met its burden with respect to its ban on solicitation and distribution in the corridors and setting rooms adjoining or accessible to patients’ rooms and treatment rooms. The Court noted that small public rooms or sitting areas on the patient-care floors, as well as corridors themselves provide places for patients to visit family and friends, as well as for doctors to confer with patient’s families often during crisis times. The Court noted there was nothing in the evidence for doubting the testimony of hospital officials that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery. The Court noted the importance of a hospital’s interest in protecting patients from disturbance. The Supreme Court in Baptists Hospital; however concluded, notwithstanding the absence of any direct evidence contradicting the importance of a tranquil hospital atmosphere to successful patient care, that a total ban on solicitation or distribution was essential to patient case. Thus the Court affirmed the Board’s order insofar as it found a ban on solicitation and literature distribution in the hospital’s first floor cafeteria, gift shop and lobbies was unlawful.
The Board in Brockton
Hospital, 333 NLRB 1367 (2001), found a violation of the Act where the
hospital therein prohibited the distribution of union literature in a vestibule
adjacent to its front lobby. The Board
in
We adhere to the Board’s established precedent. Under that precedent, a hospital’s prohibition of solicitation or distribution of literature in immediate patient care areas, even during employees’ nonworking time, is presumptively lawful. Restrictions on solicitation, during non-working time, or distribution of literature, during non-working time and in nonworking areas, however, are presumptively unlawful even with respect to areas that may be accessible to patients. The Supreme Court has upheld these presumptions as consistent with the Act, and we find no support in the record of this case for departing from these well-settled principles.
Although the Hospital’s rule herein speaks in terms of “working hours” the descriptions provided thereafter, to include the notification that lunch breaks are not included, appears to bring that term more closely in line with the more acceptable term “working time.” It is also true, as asserted by the Hospital, that it can lawfully prohibit solicitation and distribution on its premises without further justification so long as it is in immediate patient care areas; however, such prohibition applies only to patient rooms, operating rooms and places where patients receive treatment such as X-ray and therapy. The Hospital’s rule herein far exceeds acceptable limitations. The rule, for example, forbids solicitation and distribution in “the areas of the facilities” at the Hospital, as well as any place where patients, family members, visitors, suppliers, contractors or the general public “could have access.” The Hospital’s rule prohibits solicitation and distribution specifically in, but not limited to, its parking facilities, warehouses, reception areas, hallways, pharmacy facilities and offices. The Hospital’s justification for its far-reaching prohibitions, namely, that it was necessary to insure the best possible service to its patients and visitors and to display an atmosphere of professionalism, fails to rebut the Board’s presumption that essential patient care would require such broad prohibitions. For example, the Hospital has failed to show any justification for its prohibition on solicitation and/or distribution in its parking facilities, warehouses, reception areas or in its pharmacy. Likewise, the Hospital’s blanket prohibition regarding solicitation and distribution, without justification, in areas patients “could have access to” constitutes an overly broad and unlawful policy. Simply stated the Hospital’s no-solicitation and no-distribution policy is unlawfully broad.
I reject the Hospital’s request that I reevaluate the Board’s policy of considering a ban on places such as parking lots, warehouses, reception areas, pharmacies and offices as being unlawful. Any request for such reevaluation should be directed to the Board as I am required to follow and apply Board law.
B.
Unilateral Changes to Terms and
Conditions of Employment
It is alleged at paragraph 10 of the complaint that since August 11, 2006, the Hospital made changes to the terms and conditions of employment of employees in the units that are mandatory subjects of collective bargaining without prior notice to the Union and without affording the Union an opportunity to bargain with the Hospital about the conduct or the effects of the conduct. The alleged changes include sick leave days, vacations, funeral leave, uniform incentives, college membership payment, perfect assistance (attendance) bonus, salary, retirement plan, and progressive disciplinary proceeding.
Government counsel, at the conclusion of the Government’s case, stated she had no evidence to suggest any unilateral changes with respect to funeral leave, college membership payment, or salary.
Counsel for the
1. Facts
(a) Funeral Leave and College Membership Payment
Inasmuch as no evidence was presented to suggest any unilateral changes with respect to funeral leave or college membership payment, I dismiss those allegations.
(b) Salary
The Government called no witnesses or presented any evidence
regarding unilateral changes in salary; however, as noted earlier, the
Operating Room Graduate Nurse Ferdinand Velez testified that in the past, pursuant to the collective-bargaining agreement, the employees were given an annual pay increase at an amount called for in the collective-bargaining agreement. Velez said that between September and October 2006, Operating Room Supervisor Angela Gau told him she had met with the operating room employees and noted Velez had not been present. According to Velez, Supervisor Gau approached and “she told me come, I’m going to orient you regarding the new changes that are going to take place” adding “she wanted to orient me.” Velez testified Operating Room Supervisor Gau told him employees would be given an employment evaluation on their employment anniversary with the Hospital and that salary increases would be made in accordance with the evaluation. Velez acknowledged he had not yet been evaluated pursuant to the policy he was told about by Supervisor Gau.
No evidence was presented to dispute Velez’s account regarding salary increases. I credit his testimony and find that management through Operating Room Supervisor Gau announced a change in the method by which salary increases would be determined.
(c) Sick Leave Days
The parties stipulated that
(d) Vacations and Holidays
On October 26, 2006, the Hospital, in a Memorandum to
Management, listed 15 employee holidays for 2007. The Hospital’s holiday schedule did not
include January 9, Eugenio Maria de Hostos Day; March 22, Abolition Day;
November 19, Discovery of Puerto Rico Day; and, December 31, New Year’s Eve,
which days were part of
Since August 2006, the Hospital has paid employees who
work a holiday at a rate equal to twice their hourly rate.
The parties stipulated that in order for an employee to receive the Hospital’s double pay for a holiday the employee, if scheduled, must work the day before and the day after the holiday.
The Hospital contends that
The above changes are undisputed and self explanatory.
(e) Uniform Incentives
It is stipulated that since August 2006, the Hospital provides three uniforms yearly to all employees that require the use of uniforms rather than paying a clothing allowance to its employees.
The change from providing uniform allowances to providing actual uniforms is undisputed and self explanatory.
(f) Perfect Assistance Bonus4
Under
Since about August 2006, the Hospital implemented a quarterly perfect assistance (attendance) bonus that pays $225 for perfect assistance (attendance) during a 3-month period. Since August 2006, operating room technicians, radiology technicians, respiratory therapy technicians, licensed graduate nurses and licensed practical nurses have been the only employees eligible to participate in the perfect assistance (attendance) bonus.
Under
The Hospital announced, in a Memorandum dated January 29, 2007, that the quarterly perfect assistance (attendance) bonus applied to all regular employees and at a rate of $270.
The undisputed changes show that the bonus of $90 determined on a monthly basis was changed initially to $225 (later to $270) determined on a quarterly basis. The attendance bonus was initially changed to apply only to certain select employees rather than all employees and paid every 3 months rather than every month. The time for tardiness was reduced by 3 minutes.
(g) Retirement Plan
Since about August 2006, the Hospital implemented a 401(k) plan which provides a matching contribution of .25 cents for every dollar the employee designates under the plan up to maximum of .06 percent of the employees’ salary.
These changes are undisputed.
(h) Progressive Disciplinary Proceedings5
On August 23, 2006, the Hospital in a written Memorandum “To All Personnel” from HR Director Hernandez stated:
REGULATION OF PROGRESSIVE DISCIPLINE
Attached is the Progressive Disciplinary Regulation that will apply to all of our employees from now on. You must sign the acknowledgement of receipt and return it to your supervisor immediately.
It will be your responsibility to read this regulation and if you have any doubt, you should consult with your supervisor immediately.
Thank you for your accustomed cooperation.
The 22-page Progressive Disciplinary Regulation attached to the August 23, 2006, memorandum, indicated the regulations were necessary to establish a pattern of conduct for the employees. The Hospital noted it did not desire to apply disciplinary sanctions but it was enumerating offenses and sanctions that would result from violations of its regulations. The Hospital noted; “[t]he violation on behalf of an associate [employee], of any of the regulations contained in this Manual, will be a justified cause for disciplinary action on behalf of the Hospital, including in some cases the suspension or discharge of the associate.” The Hospital listed 78 “infractions” of its regulations and the specific discipline for each infraction with some infractions resulting in discharge.
It is admitted the Hospital established these regulations on August 23, 2006.
2. Guiding Principles, Analysis, and Conclusions
The Act, specifically Section 8(a)(5), requires an
employer to bargain with its employees’ collective-bargaining representative in
good faith regarding wages, hours, and other terms and conditions of
employment. An employer must notify and
bargain with its employees’ collective-bargaining representative before
imposing changes in its employees wages, hours, and other terms and conditions
of employment. However, a successor
employer is ordinarily free to set initial terms on which it will hire the
employees of a predecessor. NLRB v. Burns Security Services, 406
Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms.
This exception is referred to as the “perfectly clear” Burns caveat. The Board interpreted the “perfectly clear” language in Burns in Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curium, 529 F.2d 516 (4th Cir. 1975) where it stated:
We believe the caveat in Burns, therefore, should be restricted to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer, unlike the Respondent here, has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment.
It is undisputed and admitted that the Hospital is a
successor employer to
I am fully persuaded the undisputed facts in this case are sufficient to establish a “perfectly clear” successorship pursuant to the Burns exception. The Hospital did not require the employees of the predecessor to fill out job applications, nor were they offered employment by the Hospital rather all they had to do was show, as usual, for work and they continued to be employed without change to the terms and conditions of their employment. The employees of the predecessor were not asked to apply for work nor were they even interviewed before they continued their employment. Viewed from the employees’ perspective, it would seem to be perfectly clear that they were being employed without change to the terms and conditions of their employment.
Likewise, the Hospital upon assuming control (August 11) of and beginning operation (August 12) of the Hospital did not inform employees of any intentions on its part to set initial terms and condition of employment. The Hospital announced no such intention until approximately some 17 days later and its announcement even at that late time was vague.
In summary, the facts herein are sufficient to establish that the incumbent employees were actively led to believe, or at least misled by tacit inference into believing, that they would be retained without change in their terms and conditions of employment.
Having found, as I do, that the Hospital is a “perfectly clear” successor I find the changes it admittedly unilaterally made violated Section 8(a)(5) and (1) of the Act.
I specifically reject the Hospital’s contention that the
Board’s traditional remedy of restoring, upon request by the
Conclusions of
Law
1. Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea, is a “perfectly clear” successor to Pavia Health, Inc. d/b/a Hospital Pavia Perea.
2. Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea has been, and is, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institution within the meaning of Section 2(14) of the Act.
3. Unidad Laboral De Enfermeras (OS) Y Empleados De La Salud is a labor organization within the meaning of Section 2(5) of the Act.
4. The following units are appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:
INCLUDED: All licensed graduate nurses employed by the
Employer at its hospital located at
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray technicians, including respiratory technicians, operating room technicians, laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries, registered nurses, accountants, guards, professional personnel, and supervisors, as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and housekeeping employees, cooks, diet department employees, and non professional employees, including plumber, mason, electrician, handyman and refrigeration technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, graduated nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
5. At all material times, the Union has been the exclusive representative of the employees in the above-described appropriate units, for the purpose of collective bargaining with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment.
6. The Hospital violated Section 8(a)(1) of the Act by about August 2006, promulgating and thereafter maintaining an overly broad no solicitation no distribution rule.
7. The Hospital violated Section 8(a)(5) and (1) of the Act by making changes to the terms and conditions of employment of employees in the units, described herein, which changes include sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, retirement plans, and progressive disciplinary proceedings without prior notice to the Union and without affording the Union an opportunity to bargain with the Hospital with respect to this conduct and the effects of this conduct.
8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Hospital has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Hospital promulgated and maintained an overly broad no solicitation and no distribution rule; I shall recommend the Hospital rescind its no-solicitation and no-distribution policy and notify its unit employees in writing that it has done so. Having found the Hospital unilaterally changed sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans, and progressive disciplinary proceedings of its unit employees, I shall recommend the Hospital cease and desist from making unilateral changes in wages, hours, and other terms and conditions of employment in the appropriate Units herein, and that the Hospital make whole said employees for any loss of pay or other benefits they may have suffered as a result of the Hospital’s unilateral changes. I shall also recommend that the Hospital, upon request of the Union, rescind its unilateral changes including sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans, and progressive disciplinary procedures it put into effect on or about August 11, 2006, and continue in effect the terms and conditions of employment in effect prior to August 2006, until such time as the Hospital negotiates in good faith with the Union to an agreement or valid impasse.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended:6
ORDER
The Respondent, Metro Mayaguez, inc., d/b/a Hospital Pavia Perea, it officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining an overly broad no solicitation and no distribution rule.
(b) Unilaterally, changing working conditions without
prior notice to or affording the
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind its overly broad no-solicitation and no-distribution rule established on September 11, 2006, and notify employees in the Units, in writing, that the policy has been rescinded.
(b) Upon request of the Union, rescind the unilateral changes made to terms and conditions of employment of employees in the units specifically with respect to sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans, and progressive disciplinary proceedings, and continue in effect the terms and conditions of employment in effect prior to August 2006, until the Hospital negotiates in good faith with the Union to agreement or valid impasse.
(c) Make whole the employees in the Units for any loss of pay or benefits they may have suffered as a result of the above-described unilateral changes, in the manner set forth in the Remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, one copy of all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service
by the Region, post at its facility in
(f) Within 21 days after service by the Region, file with the Regional Director of Region 24, a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Hospital has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations not found.
Dated,
APPENDIX
Notice To
Employees
Posted by Order
of the
National Labor
Relations Board
An Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not unilaterally, without notice to or consultation with the Union, make changes in the wages, hours, and other terms and conditions of employment, including changes in sick leave days, vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement plans, and progressive disciplinary proceedings for our employees in the following Units:
INCLUDED: All licensed graduate nurses employed by the
Employer at its hospital located at
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All licensed practical nurses, pharmacy aides, escorts, and X-ray technicians, including respiratory technicians, operating room technicians, laboratory assistants, E.K.G., phlebotomists, and center supply technicians.
EXCLUDED: All other employees, including executives, executive secretaries, registered nurses, accountants, guards, professional personnel, and supervisors, as defined in the Puerto Rico Labor Relations Act.
INCLUDED: All laundry, maintenance, non-skilled, warehouse, parking, and housekeeping employees, cooks, diet department employees, and non professional employees, including plumber, mason, electrician, handyman and refrigeration technicians employed by the Employer.
EXCLUDED: All other employees, including executives, executive secretaries, licensed practical nurses, graduated nurses, accountants, guards, professional personnel, supervisors, nurses aides, pharmacy aides, escorts, X-ray technicians, respiratory therapy technicians, central supply technicians as defined in the Puerto Rico Labor Relations Act.
We will not maintain an overly broad no-solicitation and no-distribution rule.
We will rescind our no solicitation and no distribution rule promulgated on or about September 11, 2006, and notify our employees in writing that we have done so.
We will,
upon request of the Union, rescind the unilateral changes in the terms and
conditions of employment we made on or about August 2006, in sick leave days,
vacations, uniform incentives, perfect assistance (attendance) bonus, salary, retirement
plans and progressive disciplinary proceedings and we will, upon request of the Union,
restore the terms and conditions of employment of our employees in the Units in
effect prior to August 2006, until such time as we negotiate in good faith with
the
We will make whole the employees in the units for any loss of pay or other benefits they may have suffered as a result of our unilateral changes outlined above.
Metro Mayaguez, Inc., d/b/a Hospital