Citrus Valley Medical Center, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 17, 2008

21-CA-037852 (N.L.R.B. Oct. 17, 2008)

JD(SF)–42–08
Covina/West Covina, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CITRUS VALLEY MEDICAL CENTER, INC.
and Cases 21-CA-37852
21-CA-37882
SERVICE EMPLOYEES INTERNATIONAL UNION, 21-CA-37901
UNITED HEALTHCARE WORKERS WEST 21-CA-37902
21-CA-37933
21-CA-38182
21-CA-38183
21-CA-38184
21-CA-38218
Stephanie Cahn, Esq., for the General Counsel.
Ana M. Gallegos, Esq., (Weinberg, Roger & Rosenfeld)
of Los Angeles, CA, for the Union.
Michael W. Monk and Susannah J. Monk, Esqs.,
(Musick, Peeler & Garrett LLP), of
Los Angeles, CA, for Respondent.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles,
California, on August 11-14, 2008. The initial charge was filed by the Service Employees
International Union, United Healthcare Workers-West (herein the Union) June 26, 2007, and the
second order consolidating cases, amended consolidated complaint and amended notice of
hearing (herein the complaint) was issued April 11, 2008. The complaint alleges that Citrus
Valley Medical Center, Inc. (herein Citrus Valley) violated Section 8(a)(1) by applying its no-
solicitation rule in a disparate manner by directing an employee not to talk to other employees
about the Union and by applying it only against employees who were supporting the Union,
interrogating employees concerning their union activities, threatening employees with loss of
benefits if the employees selected the Union as their collective-bargaining representative,
engaging in surveillance of the employees' union activities by taking written notes and
demanding the names of employees who had been engaged in union activities, giving the
impression of surveillance of employees' union activities by telling an employee that the
employee was being watched, soliciting employees to sign an anti-union petition, maintaining
and enforcing an overly broad no-loitering rule, and selectively and disparately applying the no-
loitering rule only against employees who were supporting the Union. The complaint also
alleges that Citrus Valley violated Section 8(a)(3) and (1) by giving Eric de la Torre and Ravi
Harryram written warnings because they engaged in union activity. Citrus Valley filed a timely
answer that as modified at the hearing admitted the allegations in the complaint concerning the
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filing and service of the charges, jurisdiction, labor organization status, and supervisory and
agency status; it denied committing any unfair labor practices.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Citrus Valley, I make the
following.1
Findings of Fact
I. Jurisdiction
Citrus Valley, a corporation, is an acute-care hospital with a facility located at 210 West
San Bernardino Road, Covina, California, (herein the Intercommunity Campus) and another
facility located at 115 South Sunset Avenue, West Covina, California, (herein the Queen of the
Valley Campus) where it annually derives gross revenues in excess of $1 million and purchases
and receives goods valued in excess of $50,000 directly from points outside the State of
California. Citrus Valley admits and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Citrus Valley employs about 3200 persons at its Intercommunity and Queen of the Valley
campuses. In January 2006 the California Nurses Association won an election and became the
collective-bargaining representative of a unit of registered nurses. After the Board overruled
objections to that election filed by Citrus Valley, the parties began bargaining and reach an
agreement in October 2006. During the organizing effort by the CNA and continuing after the
Union began its effort to organize employees Lisa Ann Foust, senior vice president, human
resources, made presentations to all supervisors to inform them of the rights of employees
under the Act and to attempt to maintain a union-free workplace.
The Union organizing effort began in about June 2006; the Union's efforts centered on
the approximately 1200 non-registered nurses employed at the two campuses. On April 23 the
Union's organizing committee sent a letter to Foust and Jim Yoshioka, Citrus Valley's CEO.
Among other things, the letter asserted that an employee and member of the organizing
committee was called into a meeting and questioned about her union activity. The letter pointed
out that this was illegal, claimed it was not an isolated incident, and requested a meeting with
Yoshioka and Foust. Foust replied the next day, asserting that Citrus Valley respects and
acknowledges the right of employees to engage in union activity. Foust declined the invitation
to meet with the Union's organizing committee. On May 10 and May 22 the Union again sent
letters to Citrus Valley; this time the letters were signed by a number of members of the
organizing committee. The Union's organizing committee also passed out leaflets in the
cafeterias containing photographs of some of the Union's supporters. Beginning in late May and
continuing in June, July, and August, Union officials also frequented the cafeterias. Initially
Citrus Valley asked the Union officials to leave but the Union officials refused to do so, asserting
that they had a right to be there. After the police refused to remove the Union organizers Citrus
Valley stopped asking them to leave and allowed them access to the cafeterias.

1 All dates are in 2007 unless otherwise indicated.
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B. No-Loitering Rule
The complaint alleges that Citrus Valley maintains what amounts to an unlawful no-
access rule. Citrus Valley has a policy entitled "Solicitation, Distribution and Loitering on
Hospital Premises" violations of which will result in corrective action. In pertinent part those
policies are:
Declaration I (Solicitation and Distribution)
1. Persons not employed by the organization may not solicit, distribute literature,
electronic information or products on [Citrus Valley] property for any purpose at any time.
2. Except for activities which benefit the organization or those that are approved by
Administration, staff members may not solicit, distribute literature or other products or
services in person, electronically, or any other manner for any other purpose, during
working time or in working areas. This includes the organization's electronic media.
3. Working areas are all areas in the organization except the cafeterias, employee
lounges, the lobby and the parking areas.
4. Working time includes the working time of both the employee doing the soliciting or
distributing and the employee to whom it is directed. Working time does not include rest
breaks and meal periods.
Declaration II (Loitering)
1. Employees are requested to be on the premises no more than fifteen minutes prior to
their start time and leave promptly at the end of their work day. They should not stay on
or return to the hospital when they are off duty unless they have a business reason to do
so (e.g., picking up a paycheck) or they are visiting a patient. They are not to visit with
other employees who are on duty as this could interfere with their job performance and
responsibilities. Terminated employees are discouraged from visiting employees while
they are on duty. Terminated employees who insist in engaging in this activity may be
asked to leave the premises.
In sum, the no-loitering policy on its face bans off-duty employees from access to the
premises, including parking areas, except to the extent that employees are in the process of
either arriving at the premises no sooner than fifteen minutes before starting and leaving the
premises promptly after finishing, unless they have a business reason for doing so. Employees
are required to wear a badge that identifies them as such.
Concerning the rule’s application to the interior premises, Foust testified that the purpose
of the no-loitering policy as it pertained to employees was to maintain a restful, calm, non-
chaotic environment. She also explained that for the safety of the patients Citrus Valley needed
to know who had a right to be there and who did not. She claimed that the policy has been
uniformly enforced. Frances Joseph Michaud, Citrus Valley's manager of security services at
the Inter-Community Campus, testified:
Well, if we don't keep an eye on the loitering, because the days that we live in
now, it is even more you know, for us to keep an eye on people that don't have a
visitor's badge, that don't have a badge that is going to a certain floor, or doesn't
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have an employee badge, to challenge, because you don't know who is coming
or going, and you know, heaven forbid that anything happen in a facility.
Michaud also testified that when he learned of employees violating the no-loitering policy he
would inform the offending employee's supervisor "Hey, your person was hanging out. Your
person was kind of flitting from one department to another." Security logs indicated that the
guards have escorted homeless persons who might have been sleeping in the emergency
room, "suspicious persons," former employees, discharged patients who did not want to leave,
upset visitors, and union representatives off the property. The record shows that in 2003 an
employee was disciplined because 'She was observed after her shift." Another employee was
disciplined twice in 2003, the first time he was loitering and not on break, he failed to complete
his time card entries and failed to respond to several pages and the second time for again failing
to respond to pages. Two verbal warnings were given to an employee in 2004, the first for
being on the floor at around 10 p.m. when he was not scheduled to work and the second for
washing his car by the loading dock when he was not scheduled to work. Another employee
was disciplined in 2004 for working "off the clock" and therefore apparently "loitering." In 2006
an employee was placed on a performance improvement plan for a wide range of issues. The
plan included the following:
Arrival Time:
For your safety and also to be in compliance with Human Resource policy, your
arrival time in the department should be no earlier than 0700. You have been
noted to begin work much earlier than this mandated start time and you must
adhere to established policy. It is unsafe for you to be alone in this isolated
department and you must not be performing work for which you are not paid.
In 2007 an employee was disciplined for allowing her daughter to come to the facility
unsupervised on a number of occasions. Another employee was disciplined for loitering after
Citrus Valley discovered he was sleeping there four hours before and four hours after his shift.
In February 2008 an employee was disciplined for being in an unauthorized area during break
time. There is no evidence that employees have been disciplined for loitering in the cafeterias,
although there is also no direct evidence that Citrus Valley knowingly allowed employees to do
so.
Concerning the parking areas, a review of the logs kept by security personnel indicates
that some parking areas are apparently designated for employees and other parking areas
designated for visitors. Regarding the rule’s application to the parking areas, Michaud testified
that Citrus Valley security guards offer to escort employees to their cars during the night shifts.
He explained that in the past people have come in the parking areas to sell watches, stuffed
animals, radios, and other items and those persons have been directed to leave the parking
lots. Similarly, persons distributing flyers for restaurants and the like have also been escorted
out of the parking lots. The record shows that in 2003 an employee was given a final written
warning and a 3-day suspension for loitering in parking lot while engaging in inappropriate
conduct.
I turn now to the circumstances under which Citrus Valley has allowed off-duty
employees to return to the premises. The Human Relations Department arranges events for
which employees who are not on duty may return to the facility. For example, it has allowed
representatives from a federal credit union to meet with employees in the cafeteria to discuss
the services offered by the credit union. Citrus Valley has an Employees Activities Committee.
It has hosted events such as a Halloween costume and pumpkin contest, a pre-holiday bake
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sale, and holiday parties. Off-duty employees are allowed to attend these events. Events also
have been more informally arranged. For example, the Laboratory Department invited
employees to ICC Classroom A to have refreshments at a farewell party for a long-term
employee. As Sherry Ann Johnson credibly testified, she had come to the facility many times on
her day off to attend holiday events, potlucks, baby showers, and birthday celebrations. All of
these events were held openly. Johnson also came to the facility to purchase and pick up Avon
products and although there is no evidence that Citrus Valley knew the purpose of her coming
to the facility neither is there evidence that Citrus Valley monitored her presence to ascertain
her purpose. Deborah Sue Carrico credibly testified that she came to the facility on days she
was not on duty to attend a baby shower, retirement parties, and holiday parties. Carrico
attends a church across the street from the facility where she works and on many occasions
while off duty she brought leftover cookies from the church to her floor at the facility for the
employees. Maria Louisa Montes credibly testified that she saw an employee arrive at work
before the 15-minute time period to take a shower; the employee told her that he had not
showered at home but did so at the facility. Doreen Arvizu credibly explained that she has
attended baby showers and bridal showers while off duty.
Analysis
I apply Tri-County Medical Center, 222 NLRB 1089 (1976) in assessing the no-loitering
rule. In that case the Board held that rules limiting employee access to an employer’s premise
is:
[V]alid only if it (1) limits access solely with respect to the interior of the plant and
other working areas; (2) is clearly disseminated to all employees; and (3) applies
to off-duty employees seeking access to the plant for any purpose and not just to
those employees engaging in union activity. Finally, except where justified by
business reasons, a rule which denies off-duty employees entry to parking lots,
gates, and other outside nonworking areas will be found invalid.
I first examine the rule as it applies to the parking areas of Citrus Valley. The rule on its
face requires employees to leave the premises promptly after their shift and forbids them from
returning to the hospital when off duty except for business reasons. The rule may therefore be
reasonably understood by employees as forbidding them to engage union activity in the parking
areas of Citrus Valley. Indeed, in its brief Citrus Valley concedes that the rule does so. As
such, the rule is facially unlawful. The analysis, however, must continue to determine whether
Citrus Valley has established a good business justification for what otherwise would be an
infringement of employees’ Section 7 rights. In this regard Citrus Valley argues that I could take
judicial notice:
[O]f the fact that as our society grows more concerned with the safety of
employees, there is no question that Employers have not only a moral obligation,
but also a legal one to ensure employee safety. The risks of assaults, theft, rape,
and other dangers in parking lots have involved many cases in which employees
who were harmed have sued employers for failing to provide safe premises.
This obligation is even more pronounced in an operation like a hospital, where
the business is open 24 hours a day, employees work shifts round the clock, and
the dark distant parking lots are places where female nurses and other health
care professionals must be able safely to traverse, to get to their cars, even in
the dark of night.
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These concerns are indeed legitimate. But the issue I must decide is not whether Citrus
Valley may bar strangers from its parking areas; the record shows that Citrus Valley consistently
does so. Rather, the issue is whether banning employees from these areas enhances any
legitimate safety concerns. In this regard there is no evidence in this record that can support
such a conclusion. Citrus Valley has, after all, hired these persons and entrusted them with
patient care and other significant duties. Presumably Citrus Valley has taken whatever
precautions it needs to assure that its employees can perform these duties without
unreasonable risks to patients, visitors, and other employees. I conclude that by maintaining a
no-loitering rule that forbids employees from having full access to parking areas in order to
engage in union activities, Citrus Valley violated Section 8(a)(1). Tecumseh Packaging
Solutions, Inc., 352 NLRB No. 87 (2008)2, George L. Mee Memorial Hospital, 348 NLRB No.15
(2006), slip op. at 1, fn. 10.
In a related allegation the complaint alleges that on about August 15 Joe Acosta
enforced the no-loitering rule by telling an employee that she was required to leave the parking
lot immediately. Deborah Sue Carrico had worked intermittently for Citrus Valley beginning
1995 until she left in 2008 due to family health problems. At some time in August Carrico was
leaving work and encountered two union representatives in the parking lot. Surprised to see
them there, Carrico said hello and talked with them for a few minutes. As this was happening
Joe Acosta, a security guard, approached them and told Carrico that she had to leave. Acosta
said that Carrico had to go across the street. Carrico asked Acosta what he was talking about;
she said that she worked there. Acosta asked whether Carrico was on the clock. After Carrico
answered that she was off duty Acosta replied that Carrico had to leave. After some additional
discussion Acosta said he was only doing what he was told to do; Carrico and the Union
representatives left the parking lot. The facts in this paragraph are based on Carrico's
testimony. Acosta testified that on August 31 he and fellow guard William Simmons received a
call about a patient who left the hospital to smoke outside. The patient was initially combative
but Simmons was able get the patient to return to the hospital. After the situation was under
control Acosta noticed Carrico was in the parking lot with two union representatives and asked
them to leave. Carrico said that she was an employee and was entitled to be there. Acosta
reminded her of the 15 minute rule and again told her to leave and that they could go across the
street and talk at Starbuck’s. They then left the area. I note that Acosta did not tell them that
there was a crisis in process and that they needed to move away for that reason. Rather, he
applied the no-loitering rule that I have found is unlawful. By enforcing the unlawful no-loitering
rule Citrus Valley violated Section 8(a)(1).
I now assess the legality of the rule as it pertains to the interior of the hospital. The
evidence presented by the General Counsel raises the issue on access to interior of the hospital
by off-duty employees only insofar as Citrus Valley has applied its rule to its cafeterias; it alleges
that on a number of occasions Citrus Valley selectively and disparately enforced the no-loitering
rule only against employees who supported the Union. Doreen Arvizu has worked for Citrus
Valley for nearly 10 years. She openly supported the union by distributing pro0union flyers to
employees in the cafeteria. On one occasion in July she arrived at the cafeteria around noon
even though she was not scheduled to be at the hospital until 4 p.m. Arvizu was talking with
Union organizers and Yolanda Cerna, a representative from a member of the California State
Assembly, in the cafeteria when she noticed the police arrive. The police came to the table

2 In its brief Citrus Valley directs me to the judge’s decision where the judge upheld the
legality of a rule similar to the one in this case. Citrus Valley omits to indicate that several
months ago the Board reversed the judge’s decision and found the rule violated Section 8(a)(1).
Citrus Valley is reminded of its obligation to accurately cite current precedent.
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where Arvizu was sitting. A Union organizer at that table handed the police officer a document
and asked that it be given to management. The police officer left the table and came back and
asked whether an employee was at the table. Arvizu said yes, she was an employee. The
police officer said that there was a policy that she could only be there 15 minutes before and 15
minutes after she was working. Arvizu answered that she did not know that. The police officer
told Arvizu that she was going to have to leave; Arvizu answered that she could not leave then,
that she had to wait until her ride arrived. The police officer left and then Kathy Van Allen,
director of nurses, pediatrics and mother-baby care unit, arrived and asked Arvizu to step
outside the cafeteria. Cerna accompanied them outside. Van Allen asked who Cerna was and
Cerna answered. Van Allen said that she did not need to speak to Arvizu in front of Cerna, so
Cerna backed away. That matter having been resolved, Van Allen told Arvizu that Citrus Valley
had a policy that employees could only arrive 15 minutes before and had to leave 15 minutes
after their shift. Arvizu replied that she understood. Arvizu returned to cafeteria where she
waited about 15 minutes for her ride to arrive and then she left the facility. Before Arivizu left
some discussion ensued between Van Allen and the Union representatives concerning
photographs they had taken of Van Allen. Later that day after Arvizu arrived for work Van Allen
again informed her of the no-loitering policy. The foregoing facts are based on a composite of
the credible evidence of Van Allen and Arvizu; the essential facts are not in dispute. Van Allen
admitted that this was the first time anyone had ever called her to notify her that an off duty
employee was in the cafeteria too early.
The complaint alleges that on about July 11 and July 18 Al Rodriguez, food services
director, unlawfully applied the no-loitering rule. On July 11 Eric de la Torre was scheduled to
start work at 4 p.m. but nonetheless arrived at the facility around 11:30 a.m. to join Union
organizers at a table in the cafeteria. While there Rodriguez approached de la Torre and asked
to speak with him. After they moved away from the table Rodriguez gave de la Torre a copy of
the no-loitering and no-soliciting policy and said that de la Torre was allowed to be there more
than 15 minutes before or 15 minutes after he clocked in or out. De la Torre responded that it
was a public space and he was allowed to be there. Rodriguez then took de la Torre to a more
private area and repeated the policy to him. Rodriguez asked de la Torre to leave. De la Torre
asserted that he knew his rights and he would talk to his lawyer, meaning the union lawyers. De
la Torre then returned to sit with the Union organizers in the cafeteria. After about 30 minutes to
an hour later de la Torre left the facility.
On July 18 de la Torre again went to the cafeteria to join the union organizers before
noon when he was not scheduled to begin work until 4 p.m. Again Rodriguez appeared; he
asked de la Torre if he remembered the conversation that they had the last time; de la Torre
answered that he did. Rodriguez then left only to return within a minute or so. This time one of
the organizers told Rodriguez that they had filed unfair labor practice charges against them and
gave Rodriguez a copy. Rodriguez asked when the charges were filed and the organizer
provided the date that they were filed. Ravi Harryram, a coworker of de la Torre, credibly
testified that he went to cafeteria after seeing a doctor for a medical problem that he “still had
time on the clock, so I sit down with the union people at a table". Harryram testified that there
were about four or five Union officials at the table, including Nic Ramos. De la Torre was still in
"civilian clothes" and joined them at the table for a few minutes. While at the table Harryram
testified that:
"The first person poke [sic] his head through the door and look at us was Frank
[Michaud], the head of security. The second person who pushed through the
door was Al (Rodriguez), my supervisor and then he left."
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Rodriguez admitted that he asked de la Torre to leave the cafeteria on those two occasions.3
De la Torre credibly testified that before the union organizing effort began, he came to the
cafeteria a couple of times while off duty to eat the chicken twists that they served. Of course,
no one asked him to leave. There is no evidence that Citrus Valley knew about this, but
importantly there is no evidence that Citrus Valley monitored its cafeterias in an effort to
discover this.
One day in August, Cesar Raymond Buenaflor4 was scheduled to start work at 3 p.m.
but he arrived at the cafeteria around noon to meet with a Christine Chavez, a grand daughter
of Cesar Chavez. Chavez came to the cafeteria to talk to employees and support their
organizing effort. Buenaflor and others spoke with Chavez in the cafeteria and after about an
hour or so and after the employees and Union organizers passed out flyers in the cafeteria,
Kathleen Trujillo, director of surgical services, approached Buenaflor and asked if he could go
outside with her. Once outside the cafeteria Trujillo asked Buenaflor if he knew about the
loitering policy; Buenaflor answered that he did not. Trujillo told him that he was not allowed to
be there more than 30 minutes prior to his starting time and that he could get a copy of the
policy when he returned later to start work. Buenaflor returned to the cafeteria, gathered his
belongings, and then left the facility. Later Buenaflor returned to work and his supervisor gave
him a copy of the no-loitering policy and he noticed that the policy indicated a time period of 15
minutes rather than the 30 minutes mentioned by Trujillo. These facts are based on a
composite of the credible testimony of Buenaflor and Trujillo; the essential facts are not is
dispute.
The complaint also alleges that on about August 24, Kathryn Wilson and Vicki Jeanson,
4th floor nursing director, selectively and disparately enforced the no-loitering rule only against
employees who supported the Union. Sherry Johnson has worked for Citrus Valley for over
eight years. One day when Johnson was not scheduled to work she came to the facility and
met a coworker for lunch in the cafeteria. After the coworker returned to work Johnson noticed
that another employee with whom she worked was distributing anti-union flyers around the
cafeteria. She approached this employee and asked him if they could talk. The employee said
no, and instead went to a public telephone and made a telephone call. Johnson sat down at a
table and the employee then returned and they began a discussion about the Union when
Wilson5 approached them and asked Johnson if she was there on her day off. Johnson said
that she was and had just met someone for lunch. Wilson told Johnson that it was illegal for her
to be there on her day off. Wilson repeated that it was illegal for Johnson to be there on her day
off and then walked away. Johnson then continued to talk to the employee about the Union but
the employee got up and left the table only to return with several other employees and in a loud
voice told the other employees to tell Johnson "no union, no union." Johnson told the employee
to stop; the other employees said nothing and walked away. The employee then made a
second telephone call and shortly thereafter Jeanson appeared in the cafeteria, came directly to
Johnson and said that they needed to go outside. Johnson and Jeanson then walked outside

3 Rodriguez also admitted that he disciplined de la Torre and Harryram two days later; these
matters are addressed below.
4 I correct the record to reflect an accurate spelling of his name.
5 Johnson testified that the individual who approached them said her name was Katherine
and that she was a human resources consultant. I conclude this was Kathryn Wilson, employed
by the Burke Group but used by Citrus Valley as a human resources consultant to educate its
supervisory staff concerning the Act and union avoidance. Wilson admitted that she worked
that day at Citrus Valley and was in the cafeteria during lunch time and saw Jeanson there.
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the cafeteria where Jeanson said that Johnson could not be there on her day off. Johnson
replied that it was funny because she was able to come in on her day off to enjoy potlucks and
other events and it never was a problem. Johnson, referring to the conduct of the antiunion
employee, asked Jeanson to report to management the harassment and intimidation that was
going on in the cafeteria. Jeanson said that she would, that Johnson needed to leave; Johnson
then left the premises. The facts in this paragraph are based on Johnson testimony; her
testimony flowed naturally accompanied by detail that makes it unlikely that she was fabricating
or embellishing that testimony; her demeanor was convincing. I have considered Wilson’s
denials but I conclude Johnson is the more credible witness. Moreover, Wilson admitted that
her work at Citrus Valley generally involved only interface with supervisors so it strikes as highly
unlikely that Johnson would have the knowledge to entirely fabricate Wilson’s identity. Jeanson,
for her part, admitted that she went to the cafeteria and told Johnson of the no-loitering policy
and asked her to leave.
The complaint alleges another instance of unlawful enforcement of the no-loitering rule
that occurred in September. Maria Louisa Montes has worked for Citrus Valley for about 24
years; she currently works in a housekeeping position. One day in September Montes visited
her dentist whose office was located a few blocks from the hospital. She was scheduled to start
at 3 p.m. but after seeing the dentist she went to the cafeteria, arriving there around 1:30 p.m.
rather than going home only to return to work. Once in the cafeteria she bought a soft drink, saw
some representatives from the Union, and joined them at a table. After talking with them about
the Union for about 15 -20 minutes, Montes bought a snack and sat at another table with a
coworker. At that point Willie Melendez, day shift housekeeping supervisor, approached
Montes. Speaking in Spanish, Melendez looked directly at Montes and asked what she was
doing there. Montes, also speaking in Spanish, explained that she had been to the dentist and
had decided it was better to go straight to work rather than go home and come back again.
Melendez said that it was strange to see her there; Montes replied that if Melendez needed her
she could start work right away. Melendez said no, that was fine, that she should wait until it
was time for her to start work. Later, after Montes punched and was about to start work she
was instructed to see Melendez. She went to Melendez's office where he asked her if she was
aware of the hospital policy that she could not be there more than 15 minutes early. Montes
protested that there were some employees who were there 30 minutes early, some employees
slept there and some employees would shower at the shower facilities before starting work.
Melendez said he was not aware of this. Montes asked if this policy applied only to her or to the
other employees as well. Melendez answered that it applied to everyone. Montes said that she
felt uncomfortable because during the time she had worked there she had seen employees
arriving before 15 minutes and this was the first time she had done so and she had even
explained to him why she had arrived early yet she was summoned to his office and
reprimanded. Melendez told Montes not to do it again. He showed her a copy of the no-loitering
policy. The foregoing facts are based on Montes’ credible testimony; Melendez’s testimony
corroborated Montes’ in all essential respects.
As indicated above, Tri-County Medical holds that for an employer to deny off-duty
employees access to the interior of the facility, such as the cafeteria, the employer must apply
the rule to off-duty employees seeking access to the plant for “any purpose” and not just to
those employees engaging in union activity. Here, as also described above, Citrus Valley
allows employees access to the facility for a wide range of purposes ranging from directly
business related reasons such as paycheck concerns to purposes more social in nature such as
baby showers and potluck meals and dropping off cookies. Neither party directs me to a case
that deals with the issue of what types of access an employer may allow for off-duty employees
without losing the ability to bar those off-duty employees access to the interior of a facility in
order to engage in Section 7 activity; nor have I found a case. Rather, the parties cite cases
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pertaining to nonemployee access; I conclude those cases are not particularly helpful in
resolving the issue in this case. In applying Tri-County I believe I should not literally apply its
language concerning off-duty employees having access to a facility for “any purpose.” Certainly
employers could allow off-duty employees access to pick up pay checks, resolve benefit issues
and like without tainting an otherwise valid no access rule; these type of events seem to easily
fall within the exception in Citrus Valley’s rule that allows off-duty employees access to the
hospital for business purposes. I therefore conclude that rule as written is facially valid as it
pertains to the interior of the hospital. But again further analysis is needed. The evidence
shows that Citrus Valley allows off-duty employee to enter the premises for events that are not
easily classified as business purposes, including potluck meals, baby showers, bridal showers
and birthday celebrations. Citrus Valley argues that these events were at least implicitly
approved by area supervisors. But this argument proves too much. If the “any purpose”
language in Tri-County is to have much meaning, it surely cannot permit employers to allow off-
duty employees access to the interior of its facility for such a wide range of events while at same
time denying them access for Section 7 events. As noted, the facts in this case show unlawful
application of this rule only as to the cafeterias. There is evidence that off duty employees have
come to the cafeteria because they enjoyed the food, to meet an on-duty employee for lunch,
and to pass the time before their shift began. This strikes me as entirely plausible. Citrus
Valley accurately points out that there is no evidence that it was aware of these occasions. But
more importantly there is no evidence that before the start of the organizing effort Citrus Valley
really cared if off-duty employees came to its cafeterias for these purposes. In this regard there
is no evidence that Citrus Valley ever disciplined or excluded off-duty employees from its
cafeterias or even that it has monitored the cafeterias for the presence of off-duty employees.
By preventing off-duty employees from using its cafeterias to engage in union activities, Citrus
Valley violated Section 8(a)(1).
C. Interrogation Allegation
The complaint alleges that Elvia Foulke, Citrus Valley's chief operating officer, unlawfully
interrogated an employee on about June 21 concerning the employee's support for the Union.
Cesar Buenaflor works for Citrus Valley as a supply processing and distribution tech. His
signature appeared on the May 10 and May 21 letters, described above, that were sent by the
Union's organizing committee to Citrus Valley and his pictured appeared in the flyers circulated
by the Union's organizing committee, also described above. In June at around 8 p.m. Foulke
and Cynthia Geter, director of managed care, and Annette Mickelson, vice president, managed
care, visited Buenaflor's work area. This was the first time Buenaflor had met these three.
Present with Buenaflor were a contract worker and three students. Foulke told them that they
understood that the evening shift felt somewhat neglected because the workers did not get to
know upper management so they decided to stay late so they could get to know the workers
and answer any questions that the workers might have. Foulke first talked with the students
about their experience working at Citrus Valley. She then turned and pointed to Buenaflor with
her index finger and said "What do you think about the Union?" Buenaflor replied that he
thought it was a good idea. Foulke seemed surprised by the answer and asked why Buenaflor
thought it was a good idea. Buenaflor answered that the nurses seemed better off now that
they had a union. Foulke then resumed talking to the students and finally asked whether there
were any questions. Buenaflor asked what management plans on doing. Foulke asked him to
elaborate more so she could answer the question. Buenaflor then asked what plans
management had for the future. Foulke then described some remodeling plans and plans for a
lab. Buenaflor said that Foulke must have misunderstood because he was asking about the
plans for wages. Foulke explained that Citrus Valley does a census each year of the other
hospitals in the area to determine how much to pay the workers. Buenaflor then asked why it
was that they were the lowest paid hospital. He described his work tasks and said it seemed
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like a lot of responsibility yet he got paid what someone working to McDonald's makes. He said
that after he received his yearly evaluation his supervisor told him that he would receive a three
per cent raise but he did not receive the full three per cent. Foulke said the she would look into
it. Later Buenaflor was assured that he had received a four per cent wage increase. These
facts are based on the credible testimony of Buenaflor, who was especially convincing when he
related how Foulke had pointed at him while asking him about the Union. Foulke, Geter, and
Mickelson admitted that they visited Buenaflor’s work area that day and spoke to him and the
students. This was the first day of the new program of “rounding” where Citrus Valley’s top
officials stayed late so that they could speak with employees working on later shifts. They
admitted that Foulke raised the matter of the Union by asking what they heard about the Union.
All three denied that Foulke directed that question to Buenaflor. But based on my observation
of their demeanor I have the impression that there was more to the incident with Buenaflor than
they let on. Moreover, it appears that Buenaflor was the only employee in the group; it strikes
me as unlikely that Foulke would be asking the students about the Union. Keep in mind that
Buenaflor’s name and photograph were openly displayed on the Union’s campaign literature.
Analysis
In deciding whether questioning of an employee concerning his union sentiments
violates the Act all relevant surrounding circumstances must be considered to determine
whether the questioning was coercive. Medcare Associates, Inc., 330 NLRB 935 (2000). On
the one hand, Buenaflor was an open union adherent and the interrogation occurred on the
work floor. These factors tend to lessen the coercive effect. On the other hand, Buenaflor was
interrogated by Citrus Valley’s highest ranking official in the company of two other high ranking
officials; Buenaflor had never met any of these three before. Moreover, the questioning was
accompanied by finger pointing at Buenaflor. Being singled out in this manner for interrogation
was certainly coercive. In its brief Citrus Valley cites MTR Sheet Metal, 337 NLRB 713 (2002)
and Abramson, LLC., 345 NLRB 171 (2005). In MTR a co-owner of the respondent “just asked
us if [the union organizers] had asked us our wages or any other questions and we told him that
no, the conversation didn’t get that far, it was pretty short, brief.” But this type of innocuous
questioning is different from what occurred in this case. In Abramson the Board found that the
respondent did not coercively interrogate employee Eddie Allen when its superintendent Bruce
Webb, a production supervisor asked him “what about this union.” The Board majority noted
that the conversation was initiated by Allen, who approached Webb at the jobsite and asked him
for a loan. Webb loaned Allen the money and the two began to talk. It was during this
conversation that Webb asked Allen, “what about this union” and told Allen that he knew the
Union had bid on the job. Unlike here the interrogator was not the respondent’s highest ranking
official. Moreover the Board noted that it was not clear that the question sought Allen’s views
about the unionization of the respondent, or that Allen would reasonably have placed that
interpretation on it. I conclude that both cases are inapposite. By coercively interrogating an
employee concerning his union sentiments, Citrus Valley violated Section 8 (a)(1).
D. Surveillance Allegations
The complaint alleges that on about July 14 Citrus Valley engaged in surveillance of the
union activities of employees by taking notes and demanding the names of employees who had
engaged in that activity. At some point in July Eric de la Torre, an employee who works in the
Food and Nutrition Department, took his lunch in the cafeteria. He noticed a union organizer
also having lunch there so he joined her at a table where he sat for his 30 minute lunch period.
As de la Torre was walking back to the kitchen to resume work Joe Stowell, a security guard,
stopped him and asked if the person he had been talking to was a union organizer. De la Torre
answered that she was and Stowell said that the organizer was not allowed on campus. De la
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Torre answered that the cafeteria was a public space and that the organizer was allowed in a
public space. About 15 minutes later a coworker informed de la Torre that a security guard
wanted to talk to him so he returned to the cafeteria where the Stowell asked for de la Torre's
name. De la Torre asked why, was he in trouble? Stowell assured him that he was not in
trouble, that they were just taking notes on who spoke with the Union. De la Torre gave Stowell
his name, spelling his first name after Stowell asked him to do so. Stowell thanked him and de
la Torre returned to work. These facts come from de la Torre’s credible testimony. Stowell
admitted asking de la Torre if he was talking to a union representative and later asking de la
Torre for his name.
The complaint alleges that on August 1 and August 9, George Gamont, a security guard
at the Queen of the Valley campus, selectively and disparately enforced the distribution and
solicitation rules only against employees who supported the Union and that on about August 9,
Gamont engaged in surveillance and created the impression of surveillance of an employee's
union activities by telling an employee that the employee was being watched. In support of
these allegations the General Counsel presented the testimony of Sherry Ann Johnson.
Johnson has worked for Citrus Valley for nine years as a licensed vocational nurse; she works
in the Oncology Department. Johnson was an open supporter of the Union; among other things
she openly distributed flyers while at work. On one occasion in August after Johnson had
distributed a pro-union flyer at work she was discussing the flyer with a coworker who was
antiunion. In the middle of the discussion Gamont approached them and handed the coworker
a number of the leaflets and told the coworker that this is what she was asking for.6 Later that
same day Gamont was running down the hall toward the elevators carrying the same flyers.
Johnson asked Gamont what was the matter and what was he doing. Gamont turned around
and told Johnson: "[W]e're watching you." As Gamont got on the elevator Johnson answered
that it was not about him. These facts come from Johnson’s credible testimony. I have
considered Gamont’s testimony but he seemed uncertain and hesitant. Citrus Valley notes that
the General Counsel did not call the antiunion employee to testify to corroborate Johnson’s
testimony, but that person was equally accessible to Citrus Valley and I make no inference one
way or the other concerning her failure to testify.
The complaint alleges that Jim Kirk, a security guard, engaged in surveillance of an
employee's union activity by following the employee through the parking lot. Jaime Vasquez,
Sr. has worked for Citrus Valley for over five years. He currently works as an insurance verifier
in the Admitting Department. On about December 10 Vasquez worked overtime. After he
finished work he went toward the parking lot through the cafeteria where he encountered a
Union representative. The Union representative said that he needed to talk to Vasquez.
Vasquez asked the Union representative to walk with him to his car in the parking lot because
he was pressed for time after working late; the Union representative did so. As they were
entering the parking lot Kirk had just pulled up and parked his security truck. When Kirk saw
Vasquez and the Union representative Kirk got back in his truck, turned it around and followed
the two as they walked toward Vasquez's car. Kirk, who was aware of the fact that the person
accompanying Vasquez was a Union representative, then shouted out of the window of his truck
that Vasquez needed to conduct his business in the cafeteria. Vasquez replied that he was on

6 The General Counsel contends that by this conduct Citrus Valley disparately enforced its
rules concerning solicitation and distribution. The argument is that Citrus Valley was lax in
enforcing these rules and that it suddenly enforced them by collecting only the pro-union leaflets
that Johnson had distributed as evidenced by the fact that Gamont only gave those flyers to the
antiunion employee. However, there is insufficient evidence to show that Citrus Valley only
gathered pro-union leaflets and I dismiss this portion of the allegations.
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his way home and the Union representative was just walking him to his car. Kirk was about four
to five feet from Vasquez at his side. Kirk followed the two to Vasquez's car, making a right turn
and then a quick left turn so that he could do so. Kirk remained about four to five feet from them
as he did so. When Vasquez arrived at his car Kirk shouted that he was just doing his job. Kirk
waited there until Vasquez got in his car and left the parking lot. The facts in this paragraph are
based on a composite of the credible testimony of Vasquez and Kirk.
Analysis
An employer who merely observes employees openly engaging in union activity on the
employer’s property does not engage in unlawful surveillance of that activity. Roadway
Transportation System, 302 NLRB 961 (1991). However, if the employer does something out of
the ordinary beyond mere observation then the employer is unlawfully engaging in surveillance
of that activity. London Steel, Inc., 340 NLRB 307, 313 (2003). Also unlawful is when an
employer, by words or conduct, gives the impression to employees that it is watching or spying
on their union activity. Tres Estrellas de Oro, 329 NLRB 50, 51 (1999).
As described above, Stowell went beyond merely observing de la Torre’s activity in the
cafeteria. He approached de la Torre and asked him if he was talking to a union representative
and then later asked for his name. Although Stowell assured de la Torre that de la Torre was
not in trouble, nonetheless it remained clear to de la Torre that Citrus Valley was making a
record of his union activity. This is unlawful. By engaging in surveillance of the union activities
of employees, Citrus Valley violated Section 8(a)(1).
Gamont focused his attention on the pro-union leaflets that Johnson had distributed; he
handed them to an antiunion employee in the presence of Johnson and later raced across
Johnson’s work area with the leaflets in hand. At that time he informed Johnson that they were
watching her. The reasonable conclusion under these circumstances is that they were
monitoring Johnson protected right under Section 7 to distribute union literature during
nonworking time in non-work areas. This goes beyond mere lawful casual observation to reflect
a purposeful observation under circumstances that would not otherwise occur. By giving the
impression to employees that it was monitoring their union activity, Citrus Valley violated
Section 8(a)(1).
Kirk’s conduct too went beyond mere observation. After seeing Vasquez with the Union
representative in the parking lot Kirk entered his security vehicle and closely followed the two,
making necessary turns to remain in close physical proximity to them. This almost in-your-face
monitoring is clearly beyond the ordinary and it too violated Section 8(a)(1).
E. Cynthia White’s Supervisory Status
Before turning to address the substantive allegations concerning Ravi Harryram and Eric
de la Torre, I must first address whether Cynthia White, allegedly a supervisor over Harryram
and de la Torre, meets the statutory definition in Section 2(11). White has worked for Citrus
Valley for 23 years. Her current title is “supervisor.” She reports to Al Rodriguez, food services
director, and Tom Harney, director of environmental and nutritional services. Rodriguez
became her superior in 2007. Harryman works in Food and Nutrition Services Department as a
grill cook; since July he has been off from work for medical reasons. September 19, 2000,
Harryman received a notation of a verbal counseling from White for leaving work before
completing all of his job tasks. Although Harryram has been disciplined after 2000 it has not
been by White. De la Torre began working for Citrus Valley in 2000 and resigned his
employment there in August 2007. He testified that when things were slow White would tell him
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to clean the walls or clean the tray line. On April 22, 2002, White gave de la Torre a notation of
a verbal counseling for failing to finish his job tasks before leaving for the day. More recently,
on June 14, 2006, White gave de la Torre a notation of verbal counsel for have been tardy four
times. All of the verbal counseling forms warn that if the problem continued more severe
corrective action, including termination, may result. However, since Rodriguez was hired he
does all discipline and White does not.
White's job description confirms that her title is “supervisor” and that description does
include duties that would meet the statutory definition of a supervisor. But White, Foust,
Rodriguez, and Harney all testified that the job description does not accurately describe White’s
actual duties. Importantly, there is no evidence that employees have seen the job description or
have otherwise been lead to believe White has the authority to exercise the duties described
therein. Harney testified that he promoted White to the position as a way to give a long term
employee more money and that her duties did not change. While as explained below I have
doubts about Harney’s credibility concerning certain matters, in this instance, when assessed
against the entire record on this issue, Harney’s testimony rings true and I credit it. White
testified that after Rodriguez became her superior she records tardiness and absences in a
book. White oversees the activities of the employees to make sure they properly complete their
tasks. She helps to train employees primarily by assigning experienced employees to show
inexperienced employees how to perform the tasks; this is routine in nature. She creates a
schedule for employees, but that schedule is ultimately approved by Rodriguez, who makes
changes if needed; the scheduling is routine in nature. White spends about 70 per cent of her
time doing the same work as the other employees. The rest of her time is spent on clerical
work, making cash deposits, doing schedules, and examining time cards. If employees voice a
grievance to her, White takes the matter to Rodriguez for disposition. At times Rodriguez is not
present at the workplace; during those times employees go to White with any problems and
concerns and White resolves those matters. But there is no evidence that in doing so White
exercises the type of independent judgment needed to qualify her as a supervisor. White sends
employees home up to one-half hour early; this is based on a drop in census and the need to
make production numbers that are already set. If employees have personal emergencies that
require them to leave early White allows them to do so. The foregoing facts are based on
White’s testimony. I conclude her testimony is credible. Her demeanor was convincing and her
testimony seemed to flow naturally, especially when I examined her concerning her duties.
Analysis
The burden of establishing the supervisory status of White rests on the General Counsel
in this case. NLRB v. Kentucky River Community Care, 532 U.S. 706, 712 (2001). Routine
assignments and monitoring of work is insufficient to show supervisory authority. Pacific Beach
Corp., 344 NLRB 1160 (2005). Of course, White’s title of “supervisor” is not determinative. MJ
Metal Products, 325 NLRB 240, 241 (1997). White’s actual duties and responsibilities are all
routine in nature and do not show the independent judgment that is essential in the
distinguishing between a supervisor and an employee. Bowne of Houston, Inc., 280 NLRB
1222 (1986). I conclude White that is not a supervisor as defined by the Act.
In his brief the General Counsel argues that even if White is not a supervisor she is
nonetheless an agent of Citrus Valley. However, in the complaint and answer the General
Counsel and Citrus Valley were careful to differentiate between persons who were agents
because of there supervisory status and persons who were agents without any supervisory
indicia; White fell in the former category. I conclude that the General Counsel failed to give
Citrus Valley adequate notice that he intended to independently litigate White’s agency status.
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Moreover, this issue was not fully litigated. I therefore decline to resolve this issue. I dismiss
the allegation in the complaint concerning White's conduct.
F. De La Torre Allegations
The complaint alleges that on June 20 Rodriguez applied the no-solicitation rule in a
disparate manner by directing an employee not to talk to other employees about the Union. De
Ia Torre openly supported the Union. His signature appeared on the two letters sent to Citrus
Valley, described above. He participated in an unsuccessful effort to personally present the
letters to Citrus Valley's CEO. De Ia Torre also sat with the Union organizers in the cafeteria, as
fully described above. In June Rodriguez asked de Ia Torre to come to his office. Rodriguez
said that he had received complaints from other employees that de la Torre had been harassing
people because they did not want to sign a union card. De la Torre immediately responded that
it was not true, that any conversations he had were nice and friendly. After some discussion
Rodriguez said that de Ia Torre was not allowed to speak about the Union while on the clock.
De Ia Torre said that he knew his rights from a booklet he had read. Rodriguez ended by saying
that he just wanted to let de Ia Torre know what he was hearing; de Ia Torre thanked Rodriguez
for letting him know and left the office. De la Torre admitted that on occasion he stopped
working while he talked to employees about the Union. He denied that Rodriguez told him that
the problem was that he was stopping work to talk about the Union. These facts are based on
de Ia Torre's credible testimony. I have considered Rodriguez's testimony that the:
Complaints were that [de la Torre] wanted several employees to sign the white
union cards, and why the employees came to complain is that they said they did
not want to sign the cards that they were feeling forced to sign these cards.
Actually, they felt that they were getting harassed into signing the white cards.
Rodriguez then claimed that the employees said that this activity took place on work time. Later
Rodriguez added:
I spoke to [de Ia Torre,] I spoke to him, brought him into my office, and I
explained to him, since I had some union experience, I said, "If you want to talk
about this. . . ." The situation was he would stop working, and he would distract
the employees, and they would fall behind in their work.
I do not credit this testimony because it appears Rodriguez was embellishing it as he went
along. Rodriguez testified that he told de la Torre:
If you want to talk about union activities, it is fine, but let me guide you. You can
talk to them on their break, you, after work. We have a park across from the
hospital. "So, if you want to go meet with the employees, that is fine. I will try to
help you out if you want to do that, but these are the proper ways that it needs to
be done if you are going to do it.”
When I spoke to him, he - he was upset. He had mentioned something to the
effect that, you know, "You can't tell me what to say," and I said, "You are right. I
can't tell you what to say, but I am here to help you out. These are the guidelines,
these are the rules, that need to be followed,"
According to Rodriguez, this made de la Torre angry. I do not credit this testimony to the extent
it is inconsistent with de la Torre’s; it strikes me as very unlikely that Rodriguez offered to help
de la Torre engage in union activities. After Rodriguez completed his description of his
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conversation with de la Torre, he was asked "And again, to summarize, you told him - "You just
can't stop working and engage in. . ." to which Rodriguez answered "Absolutely" and then
described an incident where he claimed he heard de la Torre yelling at an employee about
signing a union card and noticed that de Ia Torre had stopped working while doing so. I do not
credit this testimony as it was in response to an obviously leading question.
Employees and supervisors in the Food and Nutrition Services Department talk about a
wide variety of subjects while working. The topics include sports, weekend barbeques, recipes,
family and more. On rare occasions employees also stopped working for a few moments while
discussing these matters.
Analysis
Citrus Valley allows employees to talk to each other about non-work matters so long as
they do not stop working. Although de la Torre admitted that at times he momentarily stopped
working while talking about the Union, I have not credited the testimony that Rodriguez told de
la Torre that he must continue working if he wanted to discuss the Union with fellow workers.
To the contrary, I have concluded that Rodriguez told him that that he was not allowed to talk
about the Union. Employers may not allow employees to talk about non-work matters but then
ban only conversations about the Union. Teksid Aluminum Foundry, 311 NLRB 711, 713-714
(1993). By forbidding employees to talk about the Union while allowing employees to talk about
other non-work related subjects, Citrus Valley violated Section 8(a)(1).
The complaint alleges that on July 20 Citrus Valley gave written warnings to Harryram
and de la Torre because they supported the Union. On July 20, two days after de la Torre and
Harryram were seen together in the cafeteria with the Union organizers, as more fully described
above, Rodriguez asked de la Torre to come with him to his office; Harney was already there.
Rodriguez began the conversation by asking about the linens that he had earlier indicated that
he would lend to de la Torre for de la Torre's impending wedding. Rodriguez asked de la Torre
to make a list of the things he needed at the wedding so that Rodriguez could help him out.
They then talked about a job description that Rodriguez had posted; de la Torre asked to be
considered for that position and Rodriguez assured him that everyone would be considered.
Rodriguez then opened an envelope that he had with him and said that de la Torre was being
written up for violating the no-loitering policy. Rodriguez read the warning and asked if it was a
correct description of what had occurred; de la Torre said that it was. Rodriguez asked de la
Torre to sign the corrective action form, but de la Torre refused. The form read:
Problem:
On Wednesday, July 11, 2007, Mr. Eric De La Torre was loitering in the cafeteria,
a violation of CVHP HR Policy. HR-416. He was told by PSD, Al Rodriguez, that
it was against hospital policy to be loitering and that he was to leave immediately.
Mr. Rodriguez showed Mr. De La Torre a copy of the policy and asked if he could
get a copy, in which the copy was given to him. Mr. De La Torre left within fifteen
minutes.
On Wednesday, July 18, 2007, Mr. De La Torre was loitering in the cafeteria. The
PSD, approached him and told him if he remembered the conversation we had
the previous week, in which he replied "Yes." He was also asked if he
remembered the policy which was in violation and he replied "Yes." The PSD,
said "I just want to make sure you understand," and Mr. De La Torre said, "Yes."
Plan of action:
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Due to the violation of policy HR-416 this will result in a Verbal counseling. It
states an employee can be at work 15 minutes prior to the beginning of his/her
shift. Mr. De La Torre was at the hospital 3 hour(s) before his shift. The policy
also states an employee can only be on campus if visiting a patient or picking up
his/her paycheck, which he was doing neither.
Consequences:
If the problem continues, more severe action may result, up to and including
termination.
Analysis
In context, it is clear that de la Torre was disciplined because he engaged in union
activity in the cafeteria. Citrus Valley relies on its no-loitering rule, but I have already concluded
that the rule is unlawful as applied to the cafeteria and parking areas. It follows that by
disciplining de la Torre because he engaged in union activity, Citrus Valley violated Section
8(a)(3) and (1).
G. Harryram Allegations
By way of background, Ravi Harryram received an evaluation from Rodriguez on
February 13, 2007, that criticized his performance in a number of areas. Concerning those
areas that most directly bear upon the issues in this case, in the category of "Standards of
Performance" that evaluation noted that Harryram:
Needs improvement: Has shown a lack of respect for a patient/customer, a co-
worker, a visitor, or other on one substantiated occasion during the evaluation
period.
Comment:
Needs to be careful of his surroundings, especially when there are visitors/staff in
the dining area. Some comments might be considered offensive.
In the category "Compassion" it indicated:
Needs Improvement: Has had more then two reasonable, significant and
substantial complaints about customer/patient service during the evaluation
period.
Comment: He needs to work faster and limit talking to customers during peak
periods.
In the category "Integrity" Harryram's evaluation read: "Needs Improvement: Does not meet
above standards. Comment: Needs to show fairness with customers."
On April 4, Rodriguez gave Harryram a one-day suspension because he began
screaming at Harney after Harney told Harryman not to stock the soups too high on the tray line
because they were getting cold. Harryram was instructed to follow orders even if he disagreed
with them. He was warned that any further insubordination would result in termination.
As indicated, Harryram was an open supporter of the Union. He signed the May 21
letter, described above, that the Union organizing committee sent to the chief operating officer
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of Citrus Valley. Harryram refused to sign an antiunion petition that White had been circulating
among employees.
The complaint alleges that in about June, Harney unlawfully interrogated an employee
concerning his union activity. In June Harryram was working by the dish machine when Harney
came up to him and asked "Ravi, are you for the union crap?" Harryram looked at him for a
moment and then said yes, he would support the union. Harney said that the Union was only
going to take the money that Harryram needed for his family, but Harryram replied that they all
had their chance and walked away.7 A couple days later Harney and Rodriguez summoned
Harryram to Rodriguez's office. Harney said that they heard that Harryram was a union recruiter.
Harryram answered that he was not, that he did not have time for that. Harney said yes he was,
that Harryram was a very influential person and that he talks to everyone in the cafeteria.
Harney said that they will have to move Harryram in the back. Harryram protested that that was
unfair and questioned why they would move him to the back. Harney continued, saying that
they would do so and do so soon. Harryram said that his beliefs are his beliefs and that he was
not trying to force them on anyone; he asked if could leave. After Harney nodded, he left.
Harney denied asking Harryram whether he was for the “union crap” or that he
commented that “I heard that you are a union recruiter.” But Harney was less unequivocal when
asked whether he talked to Harrryram at all about the Union or whether he ever asked Harryram
any questions about the Union, testifying only that he did not recall. I have already indicated my
reluctance to credit Rodriguez’s testimony. In its brief Citrus Valley challenges Harryram’s
credibility, claiming that he understated the number of times Rodriguez warned him to lower the
sound of his radio while at work. Although Rodriguez produced a hand written list of the number
of times he warned Harryram about lowering the radio, for reasons explained above I am
reluctant to credit his testimony. On the other hand it struck me that Harryram was understating
the number of times he had been told to lower the sound of the radio. But I conclude that this is
more of a collateral challenge to Harryram’s testimony and is insufficient to taint his entire
testimony. Citrus Valley also argues that Harryram appeared emotional while testifying. Based
on my observation of Harryram’s demeanor I agree with that description. However, my sense is
that Harryram is generally more emotional than many of us and I cannot conclude that this
detracts from his credibility. Under all the circumstances, I conclude that Harryram’s testimony
is the more credible.
Analysis
I have described earlier in this decision the standard I apply in assessing whether the
interrogation of an employee is unlawful. Here Harney said that they heard that Harryram was a
union recruiter. Harryram answered that he was not, that he did not have time for that. Harney
said yes he was, that Harryram was a very influential person and that he talks to everyone in the
cafeteria. From the context I conclude Harney was questioning Harryram concerning the extent
of his support for the Union. Harryram was a very open supporter of the Union; this weighs
against any coercive nature of the interrogation. But the interrogation took place away from the
work area in a supervisor’s office with the door closed. Present were both Harryram’s direct
supervisor, Rodriguez, and Rodriguez’s supervisor Harney. It was Harney who did the
questioning. Harney was to some degree persisted in his questioning as he challenged
Harryram’s denial that he was a union recruiter. Finally, the questioning occurred in the context
of many other unfair labor practices by Citrus Valley generally and Rodriguez and Harney in
particular, some directed at Harryram himself that were close in time to the questioning. Under

7 The General Counsel does not contend that this constituted an unlawful interrogation.
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all the circumstances, I conclude Citrus Valley violated Section 8(a)(1) by coercively
interrogating Harryram concerning his support for the Union.
The complaint alleges in June, Rodriguez unlawfully threatened that employee benefits
would be lost if the employees selected the Union as their collective-bargaining representative.
A few days after the events described in the previous paragraphs Harryram was again called to
Rodriguez's office; this time only Rodriguez was there. Rodriguez said that they saw his
signature on the letter to the "CEO," referring to the letters described above that Harryram had
signed. After Harryram said "yeah" Rodriguez said "Let me tell you something." Rodriguez then
explained how he had worked for another employer where a union came in and there were a lot
of problems. Number 1, Rodriguez said, was they were going to take over the medical benefits.
Number 2 was they couldn't do any favors for anyone. Harryram answered that he was not
getting any favors anyway. Rodriguez continued, saying that they had to get rehired and that
Harryram should make sure the union wrote all the promises they were making on paper. He
concluded "well, all this I['m] just telling you it [is] going to be a lot harder for you and you know
you need your medical." Harryram asked if he could leave. Rodriguez hesitated for a moment
and then said okay. These facts are again based on Harryram’s credible testimony. Rodriguez
admitted that he summoned Harryram to his office and talked about the Union. He denied he
threatened any loss of benefits and claimed only that he spoke of his experiences while working
at another employer. Again, Rodriguez’s demeanor was not convincing. And assessing this in
light of my earlier credibility resolutions I again do not believe that Rodriguez was so
circumscribed in his discussion with Harryram.
Analysis
Viewed in its entirety Rodriguez made it clear in his conversation with Harryram that
Harryram would lose benefits if the Union succeeded in organizing Citrus Valley. In its brief
Citrus Valley refers me to NLRB v. Gissel Packing, 395 U.S. 575 (1969). But in that case the
Supreme Court cautioned that statements made by an employer to employees concerning the
consequences of unionization must be based on demonstrably probable consequences beyond
the employer’s control. Citrus Valley has made no such showing in this case. By threatening
employees with loss of benefits if the Union becomes the collective-bargaining representative of
the employees, Citrus Valley violated Section 8(a)(1).
Finally, the complaint alleges that on July 20 Citrus Valley gave a written warning to
Harryram because he supported the Union. This was the same day that de la Torre was
unlawfully disciplined and occurred two days after de la Torre and Harryram were together in
the cafeteria, as more fully described above. After de la Torre left the office he told Harryram of
the warning he had just received. Harney and Rodriguez then appeared and summoned
Harryram to the office. There Rodriguez informed Harryram that he had just received an email
message complaining that Harryram told the complainant that she was not attractive enough
and that Harryram refused to serve her. Harryram asked what they were talking about.
Rodriguez replied that the person complained that Harryram was rude and obnoxious. Harryram
protested that it was not him and that Rodriguez knew him for about a year and knew his
character. Then Harryram argued that he was going to get written up for just one complaint.
Rodriguez countered that he had received another complaint from a male who complained that
Harryram was rude to him and that if male had been a female Harryram would have treated him
a lot better. Harryman claimed that the complaints were contradicting each other because one
was from a woman who complained Harryram was rude to her and another was from a male
who claimed Harryram treated females better than males. At some point Rodriguez said that
one complaint was in the morning and the other in the evening. Harryram exclaimed "This is
bullshit." He asked if Rodriguez could tell him who the complainants were but Rodriguez replied
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that it was confidential. Harryram again proclaimed his innocence. Rodriguez offered Harryman
a written warning dated that read:
Problem:
On Wednesday, July 18, 2007, at 9:30 a.m. a complaint was filed with the Food
Service Director, All Rodriguez regarding bad customer service from Mr. Ravi
Harryram. The complaint was about how Mr. Harryram, is not friendly with staff
members, gives dirty looks and only helps out "attractive females." The employee
also stated that he feels that "Mr. Harryram is being forced to cook for us, like he
is doing us a favor."
Plan of Action:
This violation will result in a written warning, based on unsatisfactory job
performance.
The issue was addressed on the last performance appraisal under Core Value
Integrity on treating everybody fairly. It is also the hospital expectation on how
under the GIFT program which states to treat others like you would like to be
treated and to conduct yourself appropriately for a work place and be aware of
what others may see.
Consequences:
If the problem continues, more severe corrective action may result, up to and
including termination.
Harryram became angry and refused to sign the warning. Because he refused to sign,
Rodriguez did not give him a copy of the written warning. The facts in preceding paragraph are
based on the credible portions of Harryram's testimony. Rodriguez testified that an employee
called him and complained that he had asked Harryram to prepare an omelet but Harryram told
the customer that the grill was closed. The grill closes at 10 a.m. and according to Rodriguez,
the customer claimed he requested the food at 9:30 a.m. Harryram told the customer that he did
not have time to prepare the omelet, according to Rodriguez. The customer was upset because
he had to eat cereal instead. Rodriguez continued describing the customer's call:
So, he called me up and said, "You know, this isn't the first time this happened.
Anytime I ask him for something, he says he is too busy, or he doesn't have time,
but if an attractive female comes by, right away, he will drop everything and he
will cook for her, and even times that he did cook omelets or whatever was
requested, it seemed like he was forced to cook for them."
Rodriguez claimed that he received the call around 9:30 a.m. on July 18, but he testified
that he could not remember the name of customer who made the complaint. Rodriguez testified
that he made notes of the call, but he did not remember what he did with the notes; the General
Counsel subpoenaed the notes but none were provided. Based on these suspicious
occurrences and my observation of Rodriguez’s demeanor, especially in light of my other
concerns about his credibility, I am not at all certain any such call was received by Rodriguez on
the July 18. In any event, Rodriguez admitted that he had received similar calls concerning
Harryram in the past but had not disciplined him for them. Rodriguez claimed that he asked
Harryram for his version of the events and that Harryram claimed that he did not have time to
prepare the food "which was a lie, because I got to tell you, one thing with [Harryram], he has
spent more time in our dining area, than he did behind the grill." Again, this strikes me as an
exaggeration to say the least.
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Analysis
I apply Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied, 445 U.S. 989 (1982). See also Manno Electric, 321 NLRB 278 (1996). Harryram was a
leading and persistent union supporter. Citrus Valley was well aware of this support. Citrus
Valley has shown its hostility to union activity by violating the Act in the many ways I have
described in this decision; Harryram himself had been the subject of this unlawful conduct.
Harryram’s discipline occurred in the midst of the organizing effort. More particularly, the
discipline came only two days after he and de la Torre were seen together with the union
organizers in the cafeteria and only moments after Citrus Valley had unlawfully disciplined de la
Torre. The General Counsel has amply met his burden under Wright Line. I now examine
whether Citrus Valley has met its burden to show that it would have disciplined Harryram
anyway. I have concluded that Citrus Valley has not shown that there really was a customer
complaint on July 18 as claimed. The evidence also shows that such complaints have been
made in the past but Citrus Valley had not disciplined Harryram. I conclude that Citrus Valley
has not met its burden. It follows that by disciplining Ravi Harryram because he supported the
Union, Citrus Valley violated Section 8(a)(3) and (1).
Conclusions of Law
1. Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
(a) Coercively interrogating employees concerning their union sentiments.
(b) Engaging in surveillance of the union activities of employees.
(c) Giving the impression to employees that it was monitoring their union activity.
(d) Maintaining and enforcing a no-loitering rule that forbids employees from having
full access to parking areas in order to engage in union activities.
(e) Preventing employees from using its cafeterias to engage in union activities,
(f) Forbidding off-duty employees to talk about the Union while allowing employees
to talk about other non-work related subjects.
(g) Threatening employees with loss of benefits if the Union becomes the collective-
bargaining representative of the employees.
2. Respondent has engaged in unfair labor practices affect commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by disciplining Eric de la
Torre and Ravi Harryram because they engaged in union activity.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall require Respondent to rescind the no-loitering rule to
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the extent that it forbids employees from having full access to parking areas in order to engage
in union activities.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.
ORDER8
The Respondent, Citrus Valley Medical Center, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their union sentiments.
(b) Engaging in surveillance of the union activities of employees.
(c) Giving the impression to employees that it was monitoring their union activity.
(d) Maintaining or enforcing a no-loitering rule that forbids employees from having
full access to parking areas in order to engage in union activities.
(e) Preventing off duty employees from using its cafeterias to engage in union
activities,
(f) Forbidding employees to talk about the Union while allowing employees to talk
about other non-work related subjects.
(g) Disciplining or otherwise discriminating against any employee for supporting the
Service Employees International Union, United Healthcare Workers-West or any
other union.
(h) Threatening employees with loss of benefits if the Union becomes the collective-
bargaining representative of the employees.
(i) 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 the no-loitering rule to the extent that it forbids employees from having
full access to parking areas in order to engage in activities protected by the Act.
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful disciplines, and within 3 days thereafter notify the

8 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 purposes.
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employees in writing that this has been done and that the disciplines will not be
used against them in any way.
(c) Within 14 days after service by the Region, post at its facilities in Covina and
West Covina, California, copies of the attached Notice marked “Appendix.”9
Copies of the Notice, on forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where Notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the Notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the Notice to all current employees and former employees employed by
the Respondent at any time since March 3, 2007.
(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., October 17, 2008.
____________________
William G. Kocol
Administrative Law Judge

9 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 National 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 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 coercively interrogate employees concerning their union sentiments.
WE WILL NOT engage in surveillance of the union activities of our employees.
WE WILL NOT give the impression to employees that we are monitoring their union activity.
WE WILL NOT maintain or enforce a no-loitering rule that forbids employees from having full
access to parking areas in order to engage in union activities.
WE WILL NOT prevent employees from using our cafeterias to engage in union activities.
WE WILL NOT forbid employees from talking about the Union while allowing employees to talk
about other non-work related subjects.
WE WILL NOT threaten employees with loss of benefits if the Union becomes the collective-
bargaining representative of the employees.
WE WILL NOT discipline or otherwise discriminate against any employee for supporting the
Service Employees International Union, United Healthcare Workers-West or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the no-loitering rule to the extent that it forbids employees from having full
access to parking areas in order to engage in activities protected by the Act.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful disciplines of Eric de la Torre and Ravi Harryram, and within 3 days
thereafter notify the employees in writing that this has been done and that the disciplines will not
be used against them in any way.
CITRUS VALLEY MEDICAL CENTER, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 213-894-5229.