Hospital San Rafael

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 605 (N.L.R.B. 1992)

605
308 NLRB No. 86
HOSPITAL SAN RAFAEL
1 The judge found that CMT was and is doing business as
TMCLP, which in turn does business as HIMA. In addition, the
judge found that CHA (which manages HIMA) is a joint employer
with CMT and its subsidiaries TMCLP and HIMA. There were no
exceptions to these findings.
Hospital San Rafael, Inc.; and Centro Medico del
Turabo, Inc. and Joaquin Rodriguez d/b/a
Turabo Medical Center Limited Partnership
d/b/a Hospital Interamericano de Medicina
Avanzada and Union Nacional de Trabajadores
de la Salud, 1199, affiliated with National
Union of Hospital and Health Care Employees,
AFL–CIO
Centro Medico del Turabo, Inc. and Joaquin
Rodriguez d/b/a Turabo Medical Center Lim-
ited Partnership d/b/a Hospital Interamericano
de Medicina Avanzada; and Caribe Hospital
Affiliates, Inc. and Union Nacional de
Trabajadores de la Salud, 1199, affiliated with
National Union of Hospital and Health Care
Employees, AFL–CIO. Cases 24–CA–5646, 24–
CA–5722, 24–CA–5886, 24–CA–5889, 24–CA–
5949, and 24–CA–6030
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 19, 1991, Administrative Law Judge
George F. McInerny issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, the Charging Party filed exceptions, and the Re-
spondents filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Re-
spondents’ exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified below and to adopt the rec-
ommended Order as modified and as set forth in full
below.
As more fully discussed in the judge’s decision, Re-
spondent Hospital San Rafael, Inc. (HSR) operated a
general hospital in Caguas, Puerto Rico, from approxi-
mately 1933 until November 14, 1988. In 1978, HSR
was experiencing significant financial problems and
was unable to comply with certain medicare require-
ments, mainly because of an antiquated physical facil-
ity. In view of these difficulties, the principals of HSR
decided to build an entirely new hospital facility.
In August 1978, Respondent Centro Medico del
Turabo, Inc. (CMT) was organized to plan and eventu-
ally to build a new facility to replace the facility oper-
ated by HSR. In 1980, Respondent Turabo Medical
Center Limited Partnership (TMCLP) was established
to act as CMT’s operating arm in the planning, financ-
ing, and construction of this new facility, and to oper-
ate the new facility once it opened for business. In
1983, after CMT obtained the requisite permission
from the department of health in Puerto Rico, HSR
agreed to surrender its operating license for the exist-
ing facility on CMT’s opening the new facility. Con-
struction on this new facility, later known as Hospital
Interamericano de Medicina Avanzada (HIMA), was
eventually completed in 1988. At that time, Respond-
ent Caribe Hospital Affiliates, Inc. (CHA) was con-
tracted to manage the day-to-day operations of Re-
spondent HIMA.
Throughout this 10-year period, day-to-day oper-
ations at HSR were maintained. On November 19,
1988, 5 days after the HSR facility closed, HIMA
opened for business.
Since January 30, 1984, the Union Nacional de
Trabajadores de la Salud, 1199, has been the certified
collective-bargaining representative of two separate
units of HSR employees: a professional-employees unit
of registered nurses and pharmacists and a technical-
employees unit which includes licensed practical
nurses. Following certification, the Union and HSR ne-
gotiated a collective-bargaining agreement for both
units effective from September 1, 1984, to August 31,
1987. Article XXIII, section 3, of this agreement pro-
vides that the contract ‘‘will remain in full force and
effect until the promulgation of a new Agreement.’’ In
May 1987 both the Union and HSR requested negotia-
tions for a successor contract. On July 20, 1987, the
Union submitted bargaining proposals that included
CMT in the new contract’s coverage. HSR refused to
negotiate and insisted on the deletion of CMT from the
Union’s contract proposals.
The Union filed several unfair labor practice charges
alleging, inter alia, that HSR refused to bargain in
good faith during the 1987 contract negotiations. On
May 19, 1988, these charges were settled. The Union
withdrew them, but their withdrawal was conditioned
on the Respondents’ compliance with two written non-
Board settlement agreements. One of these documents
was signed by the Union and HSR, and the other doc-
ument was signed by the Union and CMT. Thereafter,
both the Union and the General Counsel requested that
the previously withdrawn charges be reinstated and
consolidated with charges filed by the Union against
the Respondents after May 19, 1988. The new charges
alleged further violations of Section 8(a)(1), (3), and
(5) by the Respondents.
The judge found that HSR and CMT1 constitute a
single employer and are alter egos, and, alternatively,
found that CMT is a successor employer to HSR. In
light of his single employer and alter ego findings, the
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 We do not rely on the judge’s finding in fn. 31 of his decision
that HSR and CMT were not actual employers at the same time.
Contrary to the judge, the record reveals that CMT was in existence
and operating over a significant period of time before HSR officially
closed for business on November 14, 1988. In mid-1988, CMT
began its hiring process for HIMA employees by distributing job ap-
plications and by interviewing and screening prospective applicants.
In addition, the transition of operations from HSR to HIMA com-
menced November 13, 1988, as found by the judge.
3 We disavow the judge’s reliance on Auto Bus, Inc., 293 NLRB
855 (1989), and NLRB v. Northern California District Council, 389
F.2d 721 (9th Cir. 1968), because those cases are not germane to
the settlement agreement issues under consideration here.
In refusing to vacate the non-Board settlement agreement executed
by HSR, our dissenting colleague ignores the judge’s underlying
findings which, in our view, are clearly supported by the record. As
the creation of HSR, CMT came into existence long before the non-
Board settlement was reached, and it operated, at all times during
that 10-year period, to achieve a new facility to replace the HSR fa-
cility. As found by the judge, CMT and HSR knew that they had
common ownership, common management, common supervision,
common business purpose and customer base, and shared control of
labor relations. As the judge also found, ‘‘CMT continuously and
adamantly refused to admit its relationship with HSR to the Union.’’
The Respondents’ action in this regard provide further support for
the judge’s finding, which we adopt, that HSR never intended to
comply with the settlement agreement by bargaining in good faith,
because it never intended to bargain with the Union on behalf of
CMT.
Contrary to our colleague, the Union’s having signed separate set-
tlement agreements with HSR and CMT, covering different subjects,
and the fact that CMT was not fully operational until months later,
do not require a different result. Clearly, given the Respondents’
continuing efforts to appear to be unrelated enterprises, their signing
separate agreements can hardly be taken as positive evidence of their
good faith. That CMT had not begun treating patients at the time
the settlement agreements were concluded is neither here nor there;
as the thinly disguised continuance of HSR, CMT did not have to
be fully operational to be HSR’s alter ego. See, e.g., Magnet Coal,
Inc., 307 NLRB 444 (1992). HSR thus had a duty to bargain for
CMT, to the extent meaningful bargaining could take place, even
though CMT had not yet become fully operational. In these cir-
cumstances, we are unwilling to allow this hospital entity, whether
the Respondents use the name HSR or CMT, to escape the bargain-
ing obligations flowing from their single employer/alter ego status.
4 Consistent with our adoption of the judge’s single employer and
alter ego findings, we shall order the Respondents to recognize and
bargain with the Union concerning both the professional employees
unit (unit A) and the technical employees union (unit B). Contrary
to the judge, we do not find that the General Counsel or the Union
ever abandoned their contention that unit A is represented by the
Union.
5 The General Counsel requests that the Board modify the judge’s
remedy to include an order not only requiring the Respondents to
rescind the unilateral changes but also to abide by its prior 1984–
1987 collective-bargaining agreement with the Union, which con-
tained an automatic renewal clause. We have included this modifica-
tion in our Order because we agree that the record shows that the
Respondents also failed to honor the 1984–1987 agreement which,
by its own terms, remains effective until a successor contract is
reached. See McAllister Bros., 278 NLRB 601 (1986).
6 Because we view the judge’s remaining ground as cumulative,
we find it unnecessary to pass on it.
7 The Respondents except to the judge’s finding that Isabel Arriaga
was a union delegate. Whether Arriaga actually served as a union
delegate is not significant since information supplied to the Respond-
ents in the Union’s letter dated April 13, 1987 (G.C. Exh. 97), indi-
judge set aside paragraphs 1, 2, and 3 of the May 19,
1988 non-Board settlement agreement with the Union
signed by HSR, and he reinstated the corresponding
portions of the previously withdrawn charges and com-
plaints alleging that HSR had refused to bargain in
good faith during the 1987 contract negotiations with
the Union. We agree with the judge’s determination
that the evidence establishes both single employer and
alter ego status for the Respondents2 and that it war-
rants partially setting aside the settlement agreement as
he sets forth.3 For this reason, we find it unnecessary
to pass on the judge’s alternative successorship find-
ings, conclusions, and proposed remedy.4
The judge found numerous violations of Section
8(a)(5) and (1) of the Act committed by the Respond-
ents. He found that HSR had unlawfully insisted on
the deletion of CMT’s name from the Union’s 1987
bargaining proposals and on the exclusion of CMT
from the 1987 bargaining process. He also found viola-
tive the January 14, 1988 statement by Felix Ortiz
Collazo, then director of human resources and indus-
trial relations at HSR, indicating that the Respondents
would no longer recognize the Union and adhere to
their last contract with the Union. The judge found an-
other violation of Section 8(a)(5) occurred after the
execution of the May 19, 1988 settlement agreements
when the Respondents refused to bargain further on
September 14, 1988, unless the Union agreed to a con-
tract clause limiting the scope of the successor contract
to HSR and excluding CMT from its coverage. The
judge found additional 8(a)(5) violations committed on
various dates between October 25, 1988, and January
5, 1989, in connection with the Respondents’ refusal to
recognize the Union as the exclusive bargaining rep-
resentative for employees working at the new hospital
facility. Finally, the judge found that the Respondents
unilaterally changed wages, hours, and working condi-
tions of unit employees in violation of Section
8(a)(5).5 For the reasons given by the judge, we adopt
all these findings.
The judge also found that the Respondents, in re-
sponse to the Union’s bargaining demands following
the August 8, 1989 order of the district court, violated
Section 8(a)(5) and (1) by (1) initially refusing to bar-
gain because they intended to appeal the court order;
(2) refusing to meet after August 24, 1989, until the
Union submitted a full contract proposal; and (3) dis-
playing an intent to delay negotiations through the to-
tality of their conduct from August 10 through October
10, 1989. Relying on the judge’s first and second
grounds only, we find that the Respondents unlawfully
refused to bargain with the Union after August 8,
1989.6
We now turn to the 8(a)(3) allegations. Five known
union supporters—Milton Suarez, Carmen Merced, Isa-
bel Arriaga,7 Norma Flores, and Delia Diaz—applied
607HOSPITAL SAN RAFAEL
cates that Arriaga had delegate status. Moreover, the record shows
that Arriaga engaged in other open union activity which is described
in sec. III,D,5,B of the judge’s decision.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). This case was approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
9 The form was a one-page document to be complied by the appli-
cant’s previous employer and then submitted to HIMA. The form fo-
cused on obtaining information pertaining to the applicant’s employ-
ment history (e.g., attendance record, discipline, and commendations)
of the prior 2 years.
10 In view of this assertion, we find that whatever other informa-
tion about the applicant’s employment record the Respondents may
have possessed was not a factor in HIMA’s hiring considerations.
11 In addition, the Respondents contend that Flores and Merced
would have been rejected in any event because they had applied
only for positions which had existed at HSR but did not exist at
HIMA. The judge rejected this contention. We agree. As found by
the judge, Veintidos never informed Flores and Merced that they
were seeking nonexistent positions nor did she apprise them of other
available registered nurse positions at HIMA.
12 The Respondents claim that Arriaga also forgot to give a blood
transfusion to a patient in June 1988, an incident not described in
Arriaga’s verification form. We find that Veintidos, who testified
that she relied solely on the applicant’s verification form for infor-
mation about the applicant, was not aware of this purported incident
when she decided to effectively terminate Arriaga’s employment.
for various jobs at HIMA prior to its opening for busi-
ness on November 19, 1988. All five individuals had
been long-term employees of HSR, and each one was
denied employment at HIMA by Arelis Veintidos, the
assistant director of human resources at HIMA. The
judge found violations of Section 8(a)(3) and (1) with
respect to Suarez, Merced, Arriaga, and Flores, but dis-
missed a similar allegation pertaining to Diaz. The Re-
spondent and the Charging Party filed exceptions. For
the reasons discussed below, we adopt the judge’s
findings of 8(a)(3) violations, but we reverse his dis-
missal of the Diaz allegation.
In Wright Line,8 the Board set forth its causation
test for cases alleging violations of the Act which turn
on employer motivation. The General Counsel must
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. The burden then
shifts to the employer to demonstrate that the same ac-
tion would have taken place notwithstanding the pro-
tected conduct. In rebutting the General Counsel’s
case, the employer cannot simply present a legitimate
reason for its action, but must also persuade by a pre-
ponderance of the evidence that the same action would
have taken place even in the absence of the protected
conduct. Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984).
Applying the principles of Wright Line, we adopt
the judge’s findings that Suarez, Merced, Arriaga, and
Flores were unlawfully denied employment at HIMA
because of their union activities. The General Counsel
made the requisite prima facie showing that the Re-
spondents’ actions were motivated by unlawful consid-
erations. As found by the judge, the Respondents’
antiunion animus was manifested in several different
ways, including their maintaining a facade of two sep-
arate entities, designed, at least in part, to impede
union representation at HIMA. Relying on this strong
evidence of antiunion animus, the judge found that the
hiring process for HSR employees was a sham and that
the ‘‘Verification of Employment References’’ forms9
assertedly used by Veintidos as the sole basis for her
hiring decisions at HIMA were not the sole criterion
for hire. He further found that the verification forms
were poorly prepared, were incomplete in critical
areas, and failed to explain ambiguous and unintelli-
gible remarks about the individual employee’s work
history which were never clarified by Veintidos. In this
regard, Veintidos admittedly never investigated nor in-
quired about any of the incidents, discipline, and com-
ments described in the verification forms. In addition,
Veintidos was unable to explain satisfactorily why she
had rejected Suarez, Merced, Arriaga, and Flores while
hiring other applicants whose verification forms con-
tained examples of similar work deficiencies and dis-
cipline. In these circumstances, the judge found that
the asserted reasons for the denial of employment at
HIMA to Suarez, Merced, Arriaga, and Flores were
pretextual and that these employees were denied em-
ployment because of their union activities at HSR,
which were known by Veintidos.
We further find that the Respondents have failed to
demonstrate that they would have taken the same ac-
tion against Suarez, Merced, Arriaga, and Flores in the
absence of their union activity. In their exceptions, the
Respondents renew their assertion that the verification
forms were the sole criterion used10 and that they jus-
tify Veintidos’ decision not to hire these employees. In
this respect, they argue that Flores, Merced, and
Suarez had serious absenteeism problems and were dis-
ciplined for such conduct and that Merced had also
been disloyal by telling patients that she would not
want to be hospitalized at HSR. We, however, observe,
as did the judge, that other job applicants were hired
or remained employed by the Respondents notwith-
standing similarly poor work records reflected by their
verification forms, yet Veintidos was unable to explain
satisfactorily the reason for the apparent disparate
treatment.11
With respect to Arriaga, the Respondents also con-
tend that her professional competence as a registered
nurse is questionable because she was disciplined for
altering patient records.12 We also reject this expla-
nation. The record shows that before Arriaga submitted
her application at HIMA the Respondents did not con-
sider her conduct at HSR sufficiently serious as to jus-
tify her dismissal. Rather, Arriaga was simply placed
on a 15-day suspension in June and thereafter returned
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Cf. New York Telephone, 300 NLRB 894 (1990), enfd. mem.
940 F.2d 648 (2d Cir. 1991). In that case, the Board found that the
employer had not unlawfully refused to rehire an employee who had
voluntarily resigned 2 years earlier. The employer considered the
employee ineligible for rehire because of his poor attitude displayed,
inter alia, on the job and by certain statements made in his resigna-
tion letter. In finding no intent to discriminate against the employee
on the part of the employer, the Board took into account that the
employee’s prior voluntary resignation had provided the employer
with an opportunity to reevaluate him notwithstanding the fact that
his poor work attitude had been previously tolerated by the employer
prior to his resignation and that the employer relied, in part, on the
statements in his resignation letter.
14 Maldonado did not testify at the hearing.
15 The judge inferred that Maldonado had been confused by her
conversations with Diaz. We find any such confusion irrelevant be-
cause Veintidos did not testify that she considered any of these mat-
ters in rejecting Diaz for employment at HIMA.
to work and remained employed, apparently without
any further incident, until HSR officially closed in No-
vember.13
Accordingly, we find that the Respondents’ excep-
tions regarding Suarez, Merced, Arriaga, and Flores
lack merit and that the Respondents did not meet their
Wright Line burden.
On the other hand, we find that the Charging Party’s
exception concerning Diaz has merit. The General
Counsel alleged that since April 4, 1989, the Respond-
ents have refused to employ Delia Diaz as a medical
records technician at HIMA. The judge found that two
other individuals were instead hired for that type of
position at HIMA in April and June 1989. He found
that Diaz was not hired by the Respondents because
Veintidos ‘‘logically assumed that Diaz was not work-
ing for [HSR], and was not on a list of people either
coming to HIMA or being laid off at HSR.’’ On the
basis of this assumption, the judge found no violation
of the Act. We reverse.
Contrary to the judge’s findings, Veintidos
uncontrovertedly testified that she did not employ Diaz
at HIMA because she assumed that Diaz had a job at
HSR. However, in light of the circumstances, reflected
in uncontroverted testimony, more fully described
below, even this assumption held by Veintidos does
not justify the Respondents’ actions towards Diaz.
Diaz was an active union supporter who had worked
as a medical records technician at HSR for 6 years. In
a late-summer 1988 interview with Veintidos, Diaz
showed interest in working for the Respondents at
HIMA and accepted a job application which she later
completed and returned. This application, dated Octo-
ber 13, 1988, indicates that Diaz preferred a medical-
records-technician position at HIMA.
Diaz was never contacted about her pending applica-
tion at HIMA. In late October 1988, she telephoned
Veintidos to assertain the status of her application.
Veintidos never returned these telephone calls from
Diaz, who continued to work in the medical records
department at HSR.
After Diaz received a termination letter from HSR
on November 7, 1988, Diaz spoke with Elsa
Maldonado, her supervisor at HSR,14 who told her to
disregard the letter because it was a mistake. At the
end of November 1988, Diaz again approached
Maldonado to see if she knew when her transfer to
HIMA would occur. Diaz indicated that if she was not
offered a job at HIMA soon that she could no longer
remain at HSR where the work was winding down.
Maldonado told Diaz that she knew nothing about
Diaz’ situation. Then by letter dated November 30,
1988, Maldonado asked Diaz to verify within the next
5 working days that she wanted to continue working
at HSR.
On December 9, 1990, Diaz contacted Maldonado
about the November 30 letter. Diaz went to the HSR
facility and discovered that the medical records depart-
ment had been closed and that Maldonado was already
working at HIMA. She telephoned Maldonado there.
In that conversation, Diaz told Maldonado that she was
not refusing to work at HSR but that she wanted some
job security at HIMA because there was no more work
left at HSR.15
We find that the General Counsel has presented a
prima facie showing that Diaz’ union activities were a
motivating factor in the Respondents’ decision not to
hire her at HIMA and that the Respondents have failed
to meet their Wright Line burden. The Respondents
were aware that Diaz was an active union supporter,
and they harbored a strong animus towards union ac-
tivities. Veintidos knew that Diaz was seeking work at
HIMA. Diaz wanted a medical-records-technician posi-
tion for which she was apparently well qualified in
light of her long tenure at HSR. Contrary to the
judge’s findings, Veintidos testified that she did not
employ Diaz at HIMA based on an assumption that
Diaz had a job at HSR. Veintidos, however, offered no
explanation as to (1) why employment at HSR made
Diaz, and not others, ineligible for work at HIMA and
(2) how Diaz could be still working at HSR in April
1989 many months after the closing of HSR and its
medical records department. Under these cir-
cumstances, we find that a violation of Section 8(a)(3)
and (1) was established under the Wright Line test. Ac-
cordingly, we conclude that the Respondents unlaw-
fully denied employment to Diaz as alleged by the
General Counsel.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 7,
10, 12, and 13 of the judge’s decision.
‘‘7. By failing and refusing to bargain collectively
and in good faith with the Union from about July 29,
1987, to November 14, 1988, and by violating the
terms of a settlement agreement entered into on May
609HOSPITAL SAN RAFAEL
19, 1988, Hospital San Rafael, Inc. and Centro Medico
del Turabo, Inc., as a single employer and alter egos
of each other, violated Section 8(a)(5) and (1) of the
Act.
‘‘10. By unilaterally and without notification to or
consultation with the Union changing wages, hours,
and conditions of employment of employees in the
units described below, Centro Medico del Turabo, Inc.,
as the alter ego of Hospital San Rafael, Inc., violated
Section 8(a)(1), (3), and (5) of the Act.
‘‘12. By refusing to rehire or to continue to employ
Milton Suarez, Carmen Merced, Isabel Arriaga, Norma
Flores, and Delia Diaz, Centro Medico del Turabo, Inc.
violated Section 8(a)(3) and (1) of the Act.
‘‘13. By failing and refusing to bargain in good faith
with the Union as the representative of its employees
in both units A and B, described above, on and after
August 8, 1989, and until October 20, 1989, Centro
Medico del Turabo, Inc. violated Section 8(a)(5) and
(1) of the Act.’’
Delete Conclusions of Law 4 and 9 of the judge’s
decision and renumber the subsequent paragraphs.
THE REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
Specifically, in view of our findings of single em-
ployer and alter ego status, we shall order the Re-
spondents to bargain in good faith with the Union con-
cerning the wages, hours, and other terms and condi-
tions of employment for unit employees in units A and
B and embody the terms of any such agreement
reached with the Union in a signed written document.
The Respondents shall also maintain in full force and
effect the 1984–1987 collective-bargaining agreement
with the Union. However, we shall not require the Re-
spondents to rescind any changes in terms and condi-
tions of employment, although previously made unilat-
erally, that are beneficial to unit employees, except on
request by the Union. We also shall order the Re-
spondents to make unit employees whole for any
losses incurred because of the Respondents’ unlawful
unilateral changes or because of the Respondents’ fail-
ure to abide by the 1984–1987 agreement as prescibed
in Ogle Protection Service, 183 NLRB 682 (1970),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
We also shall order the Respondents to offer to Mil-
ton Suarez, Carmen Merced, Isabel Arriaga, Norma
Flores, and Delia Diaz immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without prej-
udice to their seniority or any other rights or privileges
previously enjoyed. The Respondents are further re-
quired to make each of these individuals whole for any
loss of earnings incurred by reason of the Respond-
ents’ discrimination against them, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as computed in New Horizons for the Retarded,
supra. We shall also require the Respondents to ex-
punge from their files any reference to their failure to
rehire or employ Suarez, Merced, Arriaga, Flores, and
Diaz, and to notify them in writing that this has been
done and that evidence of this unlawful conduct will
not be used as a basis for future personnel actions
against them. See Sterling Sugars, 261 NLRB 472
(1982).
Because of the serious nature of the violations and
the Respondents’ egregious misconduct, demonstrating
a general disregard for the employees’ fundamental
rights, we find it appropriate to issue a broad order, re-
quiring the Respondents to cease and desist from in-
fringing in any other manner on rights guaranteed em-
ployees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
ORDER
The National Labor Relations Board orders that the
Respondents, San Rafael Hospital, Inc. and Centro
Medico del Turabo, Inc. and its subsidiaries, Turabo
Medical Center Limited Partnership and Hospital
Interamericano de Medicina Avanzada, Caguas, Puerto
Rico, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition of Union Nacional de
Trabajadores de la Salud, 1199, affiliated with Na-
tional Union of Hospital and Health Care Employees,
AFL–CIO, as the exclusive representative of their em-
ployees in units A and B described below.
(b) Failing and refusing to recognize and bargain
collectively with the Union as the exclusive representa-
tive of their employees in units A and B.
(c) Failing and refusing to abide by the 1984–1987
collective-bargaining agreement applicable to the em-
ployees in units A and B.
(d) Unilaterally changing the wages, hours, and
working conditions of their unit employees without
prior notice to the Union and without first affording
the Union an opportunity to meet and bargain concern-
ing such matters.
(e) Failing and refusing to employ or recall for em-
ployment or otherwise discriminating against employ-
ees who support the Union.
(f) In any other 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.
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 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.’’
(a) On request, bargain in good faith with the Union
concerning the wages, hours, and other terms and con-
ditions of employment for the employees in the follow-
ing appropriate units and, if an agreement is reached,
embody the terms of the agreement in a signed written
document:
Unit A
Included: All registered nurses and pharmacists
employed by the Respondents at their hospital lo-
cated in Caguas, Puerto Rico.
Excluded: All other employees, office clerical em-
ployees, guards and supervisors as defined in the
Act.
Unit B
Included: All licensed practical nurses and techni-
cians employed by the Respondents at their hos-
pital located at Caguas, Puerto Rico, including es-
corts; EKG technicians; Respiratory Therapy tech-
nicians; X-Ray technicians; Operating Room
Technicians; Dietary Technicians; Medical
Records Technicians; Admission Clerks; Record
Room Clerks; X-Ray Clerks; Diet Department
Clerks; Respiratory Therapy Clerks; Pharmacy
Clerks; Operating Room Clerks; Emergency
Room Clerks; Ward Clerks; and Pharmacy Auxil-
iaries.
Excluded: All other employees, office clerical em-
ployees, professional personnel, guards and super-
visors as defined in the Act.
(b) Maintain in full force and effect the 1984–1987
collective-bargaining agreement applicable to both
units A and B; however, adhere to any changes in
wages, benefits, or other terms and conditions of em-
ployment for unit employees which were unilaterally
instituted, but are superior to those set forth in the
agreements, except on request by the Union.
(c) Make unit employees whole for any losses that
they may have suffered because of any unilateral
changes in wages, hours, and working conditions or
because of the Respondents’ failure to abide by the
1984–1987 collective-bargaining agreement with the
Union, in the manner set forth in the remedy section
of this decision.
(d) Offer to Milton Suarez, Carmen Merced, Isabel
Arriaga, Norma Flores, and Delia Diaz immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make each of
them whole for any loss of earnings that they may
have suffered by reason of the discrimination against
them, in the manner set forth in the remedy section of
this decision.
(e) Remove from its files any references to the un-
lawful refusals to rehire or employ Milton Suarez, Car-
men Merced, Isabel Arriaga, Norma Flores, and Delia
Diaz and notify each of them in writing that this has
been done and that the refusals to rehire or employ
will not be used against them in any way.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at their facility in Caguas, Puerto Rico, cop-
ies of the attached notice marked ‘‘Appendix.’’16 Cop-
ies of the notice, in both English and Spanish, on
forms provided by the Regional Director for Region
24, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondents has taken to comply.
MEMBER OVIATT, concurring in part and dissenting in
part.
In finding that the settlement agreements of May 19,
1988, should be set aside, the judge reasoned that
HSR’s settlement with the Union necessarily included
a committment to bargain on behalf of CMT as to who
would be the named Employer, as well as coverage,
etc., and that by declining to include CMT, HSR
showed it never had any intention of bargaining in
good faith. I disagree.
In my view, the judge’s conclusion that the settle-
ment agreements ‘‘necessarily included’’ the
committments he projected is simply incorrect. In view
of the Union’s entirely separate agreements with HSR
and CMT, the differing provisions of those agree-
ments, and that CMT was not even to open until sev-
eral months later, it seems to me that the settlements
cannot logically be construed as the judge hypoth-
esized.
Accordingly, I would not set aside the May 1988
settlement agreements.
I agree, however, with the judge’s alternate
successorship findings, and I concur with my col-
leagues in the other violations found.
611HOSPITAL SAN RAFAEL
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT withdraw recognition of Union
Nacional de Trabajadores de la Salud, 1199, affiliated
with National Union of Hospital and Health Care Em-
ployees, AFL–CIO, as the exclusive representative of
our employees in units A and B described below.
WE WILL NOT fail and refuse to recognize and bar-
gain collectively with the Union as the exclusive rep-
resentative of our employees in units A and B.
WE WILL NOT fail and refuse to abide by the 1984–
1987 collective-bargaining agreement applicable to our
employees in units A and B.
WE WILL NOT unilaterally change the wages, hours,
and working conditions of our unit employees without
prior notice to the Union and without first affording
the Union an opportunity to meet and bargain concern-
ing such matters.
WE WILL NOT fail and refuse to employ or recall for
employment or otherwise discriminate against employ-
ees who support the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union concerning the wages, hours, and other terms
and conditions of employment for the employees in the
following appropriate units and, if an agreement is
reached, embody the terms of such agreement in a
signed written document:
Unit A
Included: All registered nurses and pharmacists
employed by the Respondents at their hospital lo-
cated in Caguas, Puerto Rico.
Excluded: All other employees, office clerical em-
ployees, guards and supervisors as defined in the
Act.
Unit B
Included: All licensed practical nurses and techni-
cians employed by the Respondents at their hos-
pital located at Caguas, Puerto Rico, including es-
corts; EKG technicians; Respiratory Therapy tech-
nicians; X-Ray technicians; Operating Room
Technicians; Dietary Technicians; Medical
Records Technicians; Admission Clerks; Record
Room Clerks; X-Ray Clerks; Diet Department
Clerks; Respiratory Therapy Clerks; Pharmacy
Clerks; Operating Room Clerks; Emergency
Room Clerks; Ward Clerks; and Pharmacy Auxil-
iaries.
Excluded: All other employees, office clerical em-
ployees, professional personnel, guards and super-
visors as defined in the Act.
WE WILL maintain in full force and effect the 1984–
1987 collective-bargaining agreement applicable to
both units A and B; however, WE WILL adhere to any
changes in wages, benefits, or other terms and condi-
tions of employment for unit employees which were
unilaterally instituted, but are superior to those set
forth in the agreement, except on request by the Union.
WE WILL make unit employees whole for any losses
that they may have suffered because of any unilateral
changes in wages, hours, and working conditions or
because of our failure to abide by the 1984–1987 col-
lective-bargaining agreement with the Union.
WE WILL offer to Milton Suarez, Carmen Merced,
Isabel Arriaga, Norma Flores, and Delia Diaz imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or any
other right or privilege previously enjoyed, and
WE WILL make each of them whole for any loss of
earnings that they may have suffered by reason of our
discrimination against them, with interest.
WE WILL remove from our files any references to
our unlawful refusals to rehire or employ Milton
Suarez, Carmen Merced, Isabel Arriaga, Norma Flores,
and Delia Diaz and notify each of them in writing that
this has been done and that the refusals to rehire or
employ will not be used against them in any way.
HOSPITAL SAN RAFAEL, INC. CENTRO
MEDICO DEL TURABO, INC. AND ITS
SUBSIDIARIES, TURABO MEDICAL CEN-
TER LIMITED PARTNERSHIP AND HOS-
PITAL INTERAMERICANO DE MEDICINA
AVANZADA
Raymond E. Morales, Esq., Efraim Rivera Vega, Esq., and
Mori Pam Rubin, Esq., for the General Counsel.
Godwin Aldarondo Girard, Esq., of Hato Rey, Puerto Rico,
for Respondent Hospital San Rafael, Inc.
Herber E. Lugo Rigau, Esq. (Ledesma, Palou and Miranda),1
of Hato Rey, Puerto Rico, for Respondents Centro Medico
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Lugo was associated with the firm of Lespier and Munoz Noya,
of San Juan, Puerto Rico, until October 13, 1989, when he joined
the firm of Lelesma, Palou & Miranda. Associated with Lugo up to
October 13, 1989, in this matter was Raquel M. Dulzaides, Esq., of
Lespier and Munoz Noya.
2 All of these complaints and amendments were duly answered by
counsel for HSR and SRP, and counsel for CMT and TMC, who de-
nied the commission of any unfair labor practices, and denied further
that these two groups of employers were alter egos of each other,
or a single employer for purposes of the Act.
3 As requested by the General Counsel these actions were condi-
tioned upon compliance by the parties with the terms and conditions
of the settlement agreements.
4 This complaint was amended, for technical reasons, on April 5,
1989, and to include additional explanatory material, on April 19,
1989.
del Turabo, Joaquin Rodriquez, Turabo Medical Center
and Hospital Interamericano de Medicina Avanzada.
Sr. Luis Alvarez Colon, of Caguas, Puerto Rico, and Jorge
Farinacci, Esq., of Hato Rey, Puerto Rico, for the Charg-
ing Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. This
matter began with the filing of a charge by Union Nacional
de Trabajadores de la Salud, 1199 (the Union), on September
21, 1987, alleging that Hospital San Rafael, Inc. (HSR), or
together with other employers named later, as Respondent,
had violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). This charge, Case 24–CA–
5646, was amended on October 7, 1987, and further amend-
ed on November 30, 1987, to include as Respondents San
Rafael Planning, Inc. (SRP) and Centro Medico del Turabo,
Inc. (CMT).
Additional charges were filed by the Union against HSR
on October 28, 1987, in Case 24–CA–5675, amended on No-
vember 30, 1987, to include SRP and CMT as Party Re-
spondents. Also on November 30 the Regional Director for
the Region 24 of the National Labor Relations Board (the
Regional Director, and the Board), issued a complaint and
order consolidating cases in Cases 24–CA–5646 and 24–CA–
5675 alleging that HSR, SRP, and CMT are alter egos of
each other, and a single employer, within the meaning of the
Act; that these Employers, the Respondent had refused to
bargain in good faith with the Union as the certified collec-
tive-bargaining representative of certain of its employees in
two appropriate bargaining units; that the Respondent had
failed to allow access to its premises to union representa-
tives; and had refused to apply the terms of a collective-bar-
gaining agreement to a number of employees who were enti-
tled to be covered by that agreement.
Another charge was filed by the Union on November 30,
1987, in Case 24–CA–5697 alleging further instances of un-
lawful refusal to bargain, and on January 12, 1988, the
Union filed a charge in Case 24–CA–5722, containing still
more allegations of unlawful unilateral actions. This last
charge was amended on February 12, 1988.
On February 26, 1988, the Regional Director issued a new
order consolidating Cases 24–CA–5646, 24–CA–5675, 24–
CA–5697, and 24–CA–5722 and a consolidated complaint al-
leging the alter ego status of Respondent and a number of
instances of refusal to bargain, unilateral actions, and harass-
ment of union agents, as unfair labor practices.
A new charge containing the same type of allegations was
filed by the Union on March 28, 1988, against the same Re-
spondents, and amended on April 20, 1988. On April 21, the
Regional Director issued a separate complaint in Case 24–
CA–5765, alleging the alter ego status of the Respondents;
failure to continue in force the terms of a collective-bargain-
ing agreement, refusing to discuss grievances, and the impo-
sition of new and different benefits without consulting the
Union. Also on April 21, the Regional Director ordered this
case consolidated with the other four for hearing.
The complaints in Case 24–CA–5765 and in Cases 24–
CA–5646, 24–CA–5675, 24–CA–5697, and 24–CA–5722
were amended by separate documents on April 29, 1988, pri-
marily to include the name of another Respondent, Turabo
Medical Center Limited Partnership (TMCLP) as a Party Re-
spondent and alter ego, along with HSR, SRP, and CMT.2
It was in this procedural status that the matter came before
me for hearing on May 17, 1988, at Hato Rey, Puerto Rico.
After some preliminary activity on the record, including the
filing of formal papers, an opening statement by the General
Counsel, and the allowance of a motion by the General
Counsel to further amend the complaints, the parties began
to discuss an informal settlement of the issues. These discus-
sions continued until the afternoon of May 19 when the par-
ties finally agreed on settlement of the issues in the case
through two non-Board agreements, one between the Union
and HSR, and the second between the Union, CMT, and
TMCLP. The written settlement documents were received
into evidence, whereupon the Union withdrew all the charges
it had filed in these cases, and the General Counsel withdraw
the complaints herein. I accepted the withdrawal of the
charges, and granted the motion to withdrew the complaint.3
The hearing was then closed.
The situation was not settled, however, and on October 18,
1988, the Union filed with me an ‘‘Urgent Petition Request-
ing Order Vacating Non Board Settlement Agreement.’’ This
document alleged that HSR had violated several sections of
the May 19 settlement agreement and requested that the
charges against HSR be reinstated.
In addition, further charges were filed by the Union
against HSR and CMT on December 2, 1988, in Case 24–
CA–5886, amended on December 13 to include TMC as a
Party Respondent and further amended on February 17,
1989, and alleging refusals to bargain, and on December 13
in Case 24–CA–5889, alleging that TMC doing business as
Hospital Interamericano de Medicina Avanzada (HIMA) had
refused to hire certain individuals because of their union ac-
tivities. This charge was amended on February 17, 1989.
Based on the charges in Cases 24–CA–5886 and 24–CA–
5889, the Regional Director issued a consolidated complaint
on February 28, 1989, alleging that HSR, CMT, and Joaquin
Rodriguez, d/b/a TMC d/b/a HIMA had violated Section
8(a)(1), (3), and (5) of the Act.4 The issuance of this new
complaint was followed on March 6, 1989, by a motion by
the General Counsel in Cases 24–CA–5646, 24–CA–5675,
24–CA–5697, 24–CA–5722, and 24–CA–5765. After re-
capitulating the history of the settlement negotiations and
agreement; the Union’s urgent request of October 18, 1988;
the charges and amendments in Cases 24–CA–5886 and 24–
613HOSPITAL SAN RAFAEL
5 Citing Norris Concrete Materials, 282 NLRB 289 (1986).
6 The General Counsel stated that since the allegations in the com-
plaint in Case 24–X–5765 were substantially remedied by the settle-
ments, he would not move to reinstate that complaint.
7 Including hearing dates made necessary by the filing of new
charges and a lost portion of the transcript.
CA–5889; and the consolidated complaint in these latter two
cases, the General Counsel alleged that some of the provi-
sions of the May 19, 1988 settlement agreement between the
Union and HSR were also violated. The General Counsel
stated that ‘‘the unremedied portions of the charges and of
the previously issued amended consolidated complaint (of
February 26, 1988) should be reinstated and the unremedied
portions of the non-Board settlement should be set aside.5
Specifically, the General Counsel argued that those por-
tions of the charges in Cases 24–CA–5646 and 24–CA–5722,
dealing with the alleged conditioning of bargaining by HSR
on the deletion from the Union’s proposals of references to
CMT, and the withdrawal of recognition of the Union by
HSR, should be reinstated. The remaining allegations in
Cases 24–CA–5646 and 24–CA–5727, as well as all the alle-
gations in Cases 24–CA–5675, 24–CA–5697, and 24–CA–
5765 were specifically not included in the General Counsel’s
motion.
The General Counsel also moved to reinstate the amended
consolidated complaint in Cases 24–CA–5646, 24–CA–5675,
24–CA–5697, and 24–CA–5722, stating that he would move
to amend this reinstated complaint to delete any alleged vio-
lations which were remedied by the settlement agreements.6
Finally, the General Counsel moved to consolidate the re-
instated complaint with the new complaint, issued on Feb-
ruary 26, 1989, in Cases 24–CA–5886 and 24–CA–5889 in
order to try all of the cases, still living, at a single hearing.
All of these matters having been referred to me, and in
light of a trial date set for May 30, 1989, and without taking
any testimony and documentary evidence on the merits of the
numerous allegations presented here, I did not feel that I was
able to distinguish between those areas of the complaints and
charges (involved in the settlement agreement) which were to
be reinstated and which were not. Accordingly, on May 4,
I issued an order explaining in more detail what I have just
said here, and ordering that the May 19, 1988 settlement
agreements be set aside, that the amended consolidated com-
plaint in Cases 24–CA–5646, 24–CA–5675, 24–CA–5697,
24–CA–5722, and 24–CA–5765 be reinstated and consoli-
dated with the complaint in Cases 24–CA–5886 and 24–CA–
5889 for trial, beginning on May 30, 1989.
During the course of the hearing new charges were filed
in Cases 24–CA–5949 on May 3, 1989, and 24–CA–6030 on
October 6, 1989. A motion to further amend the amended
consolidated complaint and to consolidate Case 24–CA–5949
with the prior cases herein, was presented by the General
Counsel on July 10, 1989. This motion was allowed, adding
Norma Flores and Delia Diaz to the names of alleged
discriminatees, and the new Case 24–CA–5949, to the cap-
tion.
Two collateral proceedings came on to decision during the
summer of 1989, both of which had some effect on the
course of this hearing, and on the actions of the parties in-
volved here. First, on June 16, Hospital San Rafael, which
by this time had closed its doors to patients and was winding
down its affairs, filed a Petition under Chapter 11 of the
Bankruptcy code (in Bankruptcy, No. 89-02549, Ch. 11,
United States Bankruptcy Court, District of Puerto Rico). On
July 14, HSR, by its attorneys, filed a motion with the Bank-
ruptcy Court for an order enjoining this Board from continu-
ing to process the instant matter. On July 20 the Bankruptcy
Court (Enrique S. Lamoutte, J.) denied this motion. There-
after, nothing further was heard of the bankruptcy matter in
this proceeding.
The second matter impinging on the instant case was an
order in a petition for an injunction filed by the Regional Di-
rector for Region 24 in the United States District Court for
the District of Puerto Rico, Civil 89-0490CC, under Section
10(j) of the Act (29 U.S.C. § 160j) against CMT and Joaquin
Rodriguez, d/b/a TMCLP d/b/a HIMA. The subject matter of
this 10(j) action reflected some of the issues which were be-
fore me at that time.
After discussing the issues in a comprehensive and schol-
arly opinion issued on August 8, 1989, the Court (Carmen
Consuelo Cerezo, J.) ordered the Respondents to refrain from
recognizing and bargaining with the Union (Union Nacional
de Trabajodores de la Salud, 1199, a/w National Union of
Hospital and Health Care Employees, AFL–CIO) as the rep-
resentative of its licensed practical nurses and technicians,
and from refusing to offer employment to individuals be-
cause of their activities on behalf of the Union. The court
further ordered the Respondents to bargain in good faith with
the Union, and to reinstate Milton Suarez to his former posi-
tion.
On October 4, the General Counsel filed a motion to
amend the existing amended consolidated complaint restat-
ing, as the General Counsel explained, those allegations in
the prior amended consolidated complaint where he believed
the Respondents were not in compliance with the May 19,
1988 settlement agreements, and to inform the parties which
allegations the General Counsel is in fact litigating. This mo-
tion was allowed on October 16, 1989.
Finally, on October 6, 1989, the Union filed a new charge
in Case 24–CA–6030, alleging that Respondents CMT and
Joaquin Rodriguez d/b/a TMCLP d/b/a HIMA had violated
Section 8(a)(1), (3), and (5) of the Act. This charge was
amended on October 26, and again on December 12, 1989.
As the result of these charges, a complaint issued on Decem-
ber 15, 1989, alleging a continued refusal to bargain in good
faith from August 11, to October 10, 1989, had issued a
written warning to Milton Suarez, and had threatened its em-
ployees because of their union activities. The General Coun-
sel moved on December 19, 1989, to consolidated this case,
Case 24–CA–6030 with the other cases heretofore men-
tioned, and to add as a Party Respondent, Caribe Hospital
Affiliates, Inc. (CHA) which has contracted with Respondent
CMT to operate the new hospital, HIMA.
The case came on to be heard on May 30, 1989, and con-
tinued at various dates until May 21, 1990.7 At the hearing
all parties were represented by counsel, and all had the op-
portunity to present testimony and documentary evidence, to
examine and cross-examine witnesses, and to argues orally.
After the hearing the Respondents and the General Counsel
submitted briefs which have been carefully considered.
Based upon the entire record, including my observations of
the witnesses, and their demeanor, I make the following
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Several of the answers filed on behalf of Centro Medico del
Turabo (CMT) and CMT with Juaquin Rodriguez, as partners in
Turabo Medical Center, a Limited Partnership (TMCLP) d/b/a Hos-
pital Interamericano de Medicina Avanzada (HIMA) denied that
HSR was engaged in commerce within the meaning of the Act. I
find that these responses are disingenuous as well as frivolous, and
they are striken from those answers.
9 As in the case of HSR, I find that the answers to several of the
complaints here, denying that CMT, or TMCLP were or are engaged
in commerce, are disingenuous as well as frivolous and those denials
are stricken.
FINDINGS OF FACT
I. JURISDICTION
A. Hospital San Rafael closed on November 14, 1988. Be-
fore that date, and during periods covered by the allegations,
HSR maintained and operated a general hospital in the city
of Caguas, Puerto Rico. In the normal course of its business,
HSR annually derived gross revenues in excess of $250,000
and purchases and received goods and services valued in ex-
cess of $50,000 directly from points located outside the
Commonwealth of Puerto Rico. These facts were admitted in
answers filed by HSR to the original complaint in Cases 24–
CA–5646 and 24–CA–5675 which issued on November 30,
1987, and to subsequent amendments and consolidations to
this complaint, up to February 1989, when, after HSR had
closed, it denied, in its answer to a complaint dated February
28, 1989, that it was an employer engaged in commerce.
There was no denial, however, that during the times when
it was alleged that HSR committed unfair labor practices
HSR was subject to the Board’s jurisdiction.8
I find that HSR is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
B. San Rafael Planning (SRP) was named as a Party Re-
spondent in the original complaint in Cases 24–CA–5646 and
24–CA–5675, but its name was dropped from the caption by
the time the complaint issued in Cases 24–CA–5886 and 24–
CA–5889 in February 1989. Both HSR and CMT have de-
nied that SRP was an employer in commerce within the
meaning of the Act.
I note that the original complaint in Cases 24–CA–5646
and 24–CA–5675, issued on November 30, 1987, does not
allege that SRP is an employer engaged in commerce, but
only that it is a corporation duly organized under, and exist-
ing by virtue of, the laws of the Commonwealth of Puerto
Rico; that it had its office and place of business in the city
of Caguas, and that it was engaged in the operation of Hos-
pital San Rafael.
The undisputed evidence shows that these allegations were
and are accurate. SRP is a Puerto Rico corporation and was
during all times material here the owner of approximately 87
percent of the stock of HSR. SRP had no employees, and
conducted no other business or trade during times material
here. The evidence, rather, indicates that at least after the
formation of Centro Medico del Turabo in 1978 or 1979,
SRP took no part in the management of SRH, or in the ac-
tivities which led to the development and construction of
HIMA.
I find that SRP is the parent company of HSR, and, in
fact, was doing business as HSR during all times relevant to
the issues in this case.
C. Centro Medico del Turabo, like San Rafael Planning,
is basically a holding company rather than itself an em-
ployer. Indeed, the uncontradicted evidence shows that CMT
was organized by the shareholders of SRP to plan and even-
tually to build a hospital to replace HSR. Like SRP, CMT
had no employees, but unlike SRP, it had a full complement
of officers and directors. CMT also was and is the general
partner in Turabo Medical Center, a Limited Partnership or-
ganized in 1980 under the laws of the State of Delaware.
While both HSR and CMT in their answers to early formal
documents in this matter denied that CMT was an employer
engaged in commerce within the meaning of the Act, the
most recent answer by CMT, to the consolidated complaint
issued on February 28, 1989, in Cases 24–CA–5886 and 24–
CA–5889, admitted that CMT was an employer so engaged,
under Section 2(2), (6), and (7) of the Act.
I find that CMT is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
D. Turabo Medical Center Limited Partnership was estab-
lished by CMT in 1980 to act as the operating arm of CMT
in the planning, financing, and construction of a new hos-
pital, and to operate that hospital when it was built and open
for business. CMT was and is the general partner, and, for
a number of reasons, including revisions of United States tax
laws, the plan for sale of limited partnerships did not go
through, leaving only one limited partner, Joaquin Rodriguez,
up to the time of this hearing. In its answer to the February
28, 1989 complaint, mentioned above, CMT did not deny
that TMCLP was as described here, a Delaware Limited
Partnership, and that it does operate a hospital, Hospital
Interamericano de Medicina Avanzada (Interamerican Hos-
pital for Advance Medicine or HIMA), has a usual place of
business in Caguas, Puerto Rico, and HIMA is anticipated to
derive gross revenues in excess of $250,000, and to receive
goods valued at over $50,000 directly from points outside the
Commonwealth of Puerto Rico.
I find that CMT was and is doing business as TMCLP,
which in turn is doing business as HIMA, the combined en-
tity constituting an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.9
E. Caribe Hospital Affiliates, Inc. (CHA) according to the
credible and undenied testimony of Carlos M. Pineiro
Crespo, who was administrator of HIMA from October 1988
to September 30, 1989, was hired under a contract with
TMCLP to manage the day-to-day operations of HIMA.
CHA is a Puerto Rican corporation which has its head-
quarters at Bayamon, Puerto Rico, and operates at various
hospitals and other locations in Puerto Rico and in the Virgin
Islands. The Company was notified of this hearing but failed
to appear or answer allegations that it is an employer en-
gaged in commerce, an agent of, and a joint employer with
TMCLP. While the complaint in Case 24–CA–6030 alleged
that CHA is an employer engaged in commerce, there are no
allegations in the complaint specifying amounts of business
or interstate transport of goods, supplies, and materials pur-
chased by CHA. The management agreement between CHA
and TMCLP provides for a management fee of at least $8000
and up to $35,000 per month together with unspecified costs
of salaries and fringe benefits for an executive director, an
assistant, and a chief financial officer, together with all nec-
essary expenses. In view of the size of this hospital, I think
615HOSPITAL SAN RAFAEL
10 These negotiations will be discussed at length below.
11 CMT was mentioned in the caption to this motion, but there was
no prayer in the motion to set aside the settlement agreement be-
tween the Union and CMT, or to reopen the hearing as to CMT. The
record shows that as of October 18, HIMA had still not hired any
employees, or opened its doors for business.
12 These allegations were ‘‘new’’ in the sense that the actions
complained of occurred after the date of the settlement agreements.
it can be fairly inferred that CHA, which also has a number
of similar agreements both in Puerto Rico and the Virgin Is-
lands, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. I further note
that CHA was not involved in any of the alleged unfair labor
practices here, but the contract between it and TMCLP
shows that it is the agent of, and a joint employer with CMT
and its subsidiaries.
II. THE LABOR ORGANIZATION INVOLVED
The various complaints allege, the answers admit, and I
find that Union Nacional de Trabajadores de la Salud, 1199,
a/w National Union of Hospital and Health Care Employees,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Settlement Agreements
As I have described above in the narration of procedures
in this matter, the parties reached settlements of the issues
set out in the complaints in Cases 24–CA–5646, 24–CA–
5675, 24–CA–5697, 24–CA–5722, and 24–CA–5765 on May
19, 1988. There were two settlements, the first of which, be-
tween HSR and the Union, provided that ‘‘It is understood
by the parties that this agreement is entered into by HSR in
order to avoid protracted, lengthy and costly litigation and
does not constitute nor may it be so construed, an admission
by HSR of having violated any applicable laws.’’
The agreement stated that HSR recognized the Union as
the exclusive representative of its employees in the units cer-
tified by the Board; that HSR and the Union agreed to con-
tinue negotiating in good faith; that HSR would continue to
honor the terms of the parties’ collective-bargaining agree-
ment; that HSR would pay $2620 to the Union for uncol-
lected dues no later than May 23, 1988; that certain named
employees were included within the bargaining units, and
that certain other named employees were not; that the parties
would continue to process grievances, and that the parties
would negotiate the terms and conditions of the part-time
employees in the bargaining units; that HSR would com-
pensate with retroactive pay and benefits the employees
newly included in the bargaining units; and in consideration
of all of this, the Union agreed, conditionally, to withdraw
the charges in Cases 24–CA–5646, 24–CA–5675, 24–CA–
5697, 24–CA–5722, and 24–CA–5765.
This agreement was signed by Luis Alvarez Colon for the
Union, and by Carlos M. Pineiro, executive vice president,
and Eladio Cartagena, corporate counsel, for the Company.
The concurrent agreement between CMT, TMCLP, and the
Union contained the same statement that the agreement was
entered into by CMT and TMCLP ‘‘in order to avoid pro-
tracted, lengthy and costly litigation’’ and did not constitute
an admission by either Respondent that it had violated any
law, nor a recognition of any labor organization as represent-
ative of employees of CMT or TMCLP.
Specifically, the agreement stated that CMT and TMCLP
made a commitment to employ, at HIMA, a minimum of 95
percent of the employees employed by HSR at the time that
HIMA was to begin its operations as a hospital; that all em-
ployees who are employed by HSR at the time HIMA begins
its operations, and who are employed by HIMA will be
deemed to have been hired on the first day of operation of
HIMA; that all other employees hired by HIMA will be
deemed to have been employed as of the second day of oper-
ations at HIMA, or later, depending on date of hire; and that
CMT and TMC agree to hire and employ on a nondiscrim-
inatory basis, and not to condition employment on member-
ship or nonmembership in a labor organization.
In consideration of these undertakings, the Union agreed,
conditionally, to withdraw the charges in Cases 24–CA–
5696, 24–CA–5675, 24–CA–5697, 24–CA–5722, and 24–
CA–5765.
This agreement was signed by Alvarez for the Union, and
by Joaquin Rodriguez, as president on behalf of CMT and
TMCLP.
As a result of these agreements, the General Counsel
moved, on May 19, 1988, to withdraw the complaints there-
tofore issued with the understanding that ‘‘upon non-compli-
ance with the terms of these agreements the parties will—
file a motion—for reinstatement of the charges’’ and the
complaints. I granted the motions to withdraw the charges
and the complaints and the matter was closed.
After this the Union and HSR did sit down to negotiate,
but the efforts of the parties to find a common ground
foundered on the question of the inclusion of CMT—
TMCLP as a Party Employer.10 On September 14, 1988,
HSR, acting through its attorney and chief negotiator, God-
win Aldarondo Girard, withdrew from the negotiations be-
cause of the Union’s insistence on the inclusion of CMT in
the preamble (or ‘‘appearance’’) clause. Aldarondo stated
that there would be no discussion of any other articles until
this preamble was straightened out; that there would be no
inclusion of CMT, which was not a party to these negotia-
tions, and that he was going to take the matter to the Board.
There were no further discussions between HSR and the
Union after September 14. Meanwhile, the time was drawing
nigh for Hospital San Rafael to close and for the new Hos-
pital Interamericano de Medicine Avanzada to open. These
facts prompted the Union to have its Attorney (at this time
Raul Santiago Melendez of the firm of Bufete, Periz Munoz
and Santiago Melendez) to file an ‘‘Urgent Petition Request-
ing Order Vacating non Board Settlement’’ on October 18,
1988, requesting that the charges and complaints against
HSR be reinstated, and that the hearing be reopened.11
While this motion was under study by the Board’s Re-
gional Office, two charges were filed by the Union on De-
cember 2 and 13, 1988, alleging new violations12 of Section
8(a)(5) of the Act by HSR and CMT, and violations of Sec-
tion 8(a)(1) and (3) by CMT. These charges were the subject
matter of a new consolidated complaint dated February 28,
1989, alleging violations of Section 8(a)(5) by HSR and
CMT and of Section 8(a)(3) by CMT.
On March 6, 1989, the General Counsel filed with me a
motion asking that portions of the charges in Cases 24–CA–
5646 and 24–CA–5722 which were not remedied by the set-
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Indeed, counsel for CMT had not received a copy of the
Union’s motion at all, and had submitted no position before the
hearing reopened on May 30, 1989.
14 Subject to reconsideration after the receipt of all material evi-
dence submitted by the parties.
15 Neither the General Counsel nor the Respondents introduced
any evidence on those issues in the original complaints where there
had been compliance with the settlement agreements.
tlement agreements, be reinstated, and that the unremedied
portions of the complaints in Cases 24–CA–5646, 24–CA–
5675, 24–CA–5697, and 24–CA–5722 be reinstated. The
General Counsel also moved to consolidate the reinstated
consolidated complaint with the new consolidated complaint
in Cases 24–CA–5886 and 24–CA–5889 in order to combine
the whole matter for trial at a single hearing.
In ruling on these motions, I considered the difference be-
tween the positions of the Union and the General Counsel;
the fact that at the time I was called upon to make the ruling
I had not seen the positions of Respondents on the issues;13
the fact that determinations of which parts of the old com-
plaints should be reinstated and which should not would nec-
essarily depend upon evidence to be adduced at the reopened
hearing; and simple fairness to all parties. Having done all
that, I ordered that the settlement agreements be set aside,14
the prior complaints be reinstated, and that these complaints
be consolidated with the new consolidated complaint in
Cases 24–CA–5886 and 24–CA–5889 for purposes of hear-
ing.
During the hearing, questions were raised by the General
Counsel concerning my ruling insofar as it reinstated the
original complaints in their entirety; and by Respondents is
that my ruling set aside the settlement agreements them-
selves. Respondents argued, in effect, that by entering into
the agreements, the Union had waived any arguments it may
have advanced that HSR and CMT were a single employer,
or alter egos and that the single employee issue was settled
for all time by the settlement agreements. The General Coun-
sel felt that I had gone too far in reinstating the original
complaints, because most of the allegations in those com-
plaints which were included in the settlement agreements had
been remedied by the Respondents. What was left, after com-
paring what the Respondents did to live up to the settle-
ments, was an alleged violation of the HSR agreement in that
HSR continued to refuse to bargain in good faith by failing
and refusing to bargain with the Union for a contract cover-
ing employees of CMT as well as those of HSR.15 This al-
leged violation, of course, is dependent upon whether, as a
matter of law, HSR and CMT are a single employer, or
whether CMT is merely an alter ego, or a disguised continu-
ance of HSR. The alleged violations of the CMT agreement
concerned a provision therein that CMT would not discrimi-
nate in hiring on account of union membership, or concerted
activity by prospective employees. Of course, CMT had no
employees in May 1988, when the settlement agreement was
executed. Its obligation to refrain from discrimination in hir-
ing was prospective only, and its obligations under the Act
as an employer were, at that time, dependent upon the exist-
ence of its single emplolyer, alter ego, relationship with
HSR.
Since the issue of whether the Respondents had violated
the terms of their settlement agreements turned upon the
question of the relationship between them, I did not think it
was appropriate for me to rule on the settlement issue until
all parties had had the opportunity to present evidence bear-
ing on the single employer–alter egos issue. My decision
finding that HSR, CMT, and TMCLP are a singel employer
and alter ego is set out below. Thus, it is appropriate now
for me to decide the questions of violations of the settlement
agreements.
In this case HSR and CMT had knowledge of their inter-
nal relationships, and knew, or should have known, of the
legal effect of these internal relationships. They knew who
owned the companies, who managed them, who controlled
the companies’ labor relations, and what was the interrelation
of operations between them. If they knew these things, they
knew, or should have known that they constituted a single
employer and alter egos within the meaning of the Act. It
follows that an agreement by HSR to bargain in good faith
with the Union would necessarily include a commitment to
bargain on behalf of CMT on the question of the preamble,
i.e., who was to be named as an employer in the negotia-
tions, and about coverage and the term of the collective-bar-
gaining agreement under consideration.
By entering into the May 19, 1988 settlement agreement
with the Union, and agreeing in that agreement to bargain in
good faith, then by refusing, in September of that year, to
bargain further because of the Union’s insistence on the in-
clusion of CMT as a Party Employer, HSR has shown that
it never had any intention of bargaining in good faith on that
issue or of complying with that provision of the settlement
agreement. The consistency between its conduct in 1987
which gave rise to the original charges of refusal to bargain,
and in 1988 after the execution of the settlement agreement
show that the Respondent HSR never had any intention of
complying with the terms of the settlement agreement, argu-
ing, rather, that the fact that the Union did not insist on in-
cluding in the agreement a statement or admission that HSR
and CMT were alter egos constituted a waiver of that posi-
tion by the Union. I thus infer and find that HSR entered
into the settlement agreement in bad faith and had no intent
to comply with the agreement as it bound CMT and HSR as
alter egos, Norris Concrete Materials, 282 NLRB 289
(1986); Jordan Graphics, 295 NLRB 1085 (1989). See also
Quinn Co., 273 NLRB 795 (1984), and the Board’s com-
ments in Auto Bus, Inc., 293 NLRB 855 (1989).
I find that Respondent HSR has failed to comply with
paragraphs 1, 2, and 3 of the May 19, 1988 settlement agree-
ment. Those paragraphs of that agreement are rescinded, the
underlying charges in Cases 24–CA–5646, 24–CA–5675, 24–
CA–5697, 24–CA–5722, and 24–CA–5765 are reinstated in-
sofar as they alleged a refusal to bargain collectively and in
good faith with the Union; and the complaints in Cases 24–
CA–5646, 24–CA–5675, 24–CA–5697, and 24–CA–5722 are
reinstated insofar as those complaints alleges that Respondent
HSR has failed and refused to bargain collectively and in
good faith with the Union. Davis Electrical Contractors, 291
NLRB 115 (1988); NLRB v. Northern California District
Council of Hod Carriers, 389 F.2d 7212 (9th Cir. 1968).
With regard to CMT, I note that the evidence in this case
shows that while CMT was and is an alter ego with HSR
and TMCLP, CMT employed no employees in the period be-
fore the signing of the May 19, 1988 settlement. CMT’s
promises to hire 95 percent of the employees from the HSR
bargaining unit for new positions at HIMA, and its undertak-
617HOSPITAL SAN RAFAEL
16 The findings in this section are taken from the uncontradicted
testimony of Joaquin Rodriguez Garcia, and from documents pro-
duced by the Respondents under subpoena. I cannot say that I am
convinced that Rodriguez was entirely credible in his testimony here,
but in this area, at least, I have no problems with his candor and
his memory.
17 Pineiro received his shares as the result of a longstanding ar-
rangement between himself and Rodriguez to share equally in all
their endeavors. There is no evidence of this in the record beyond
Rodriguez’ own statement, but it is of no consequence to the events
in this case.
18 One Jorge M. Azize also served as a director between July 1987
and January 1989.
ing to guarantee preference in seniority at HIMA to those
employees were prospective, and were carried out. The
promise by CMT to refrain from discrimination against new
hires was also prospective in nature and, indeed, was no
more than CMT was obliged under the law to do and to re-
frain from doing. CMT did not, as the evidence here shows,
live up to this last promise, but whatever discrimination did
occur was the subject matter of the charges and complaints
in Cases 24–CA–5886, 24–CA–5889, and 24–CA–6030.
Since CMT did not promise in the settlement to bargain in
good faith, and since there were no allegations in the prior
complaints specifically alleging discrimination against indi-
viduals. I see no useful purpose to be served by setting aside
the settlement agreement between CMT and the Union. The
remedy I have recommended below will adequately address
the violations found as the result of allegations in the new,
postsettlement, complaints.
B. The Companies Involved
1. Hospital San Rafael
The hospital was established, apparently in 1933, as an in-
stitution privately owned by a group of physicians. Some
time around 1978 the equity in the hospital was purchased
by two individuals, Dr. Jaime A. Soler Zapata and Dr. Jose
A. Badillo Quinones.16 Soler and Badillo took title to the
hospital through a holding company, San Rafael Planning, of
which Dr. Soler owned 70 percent and Dr. Badileo 30 per-
cent of San Rafael Planning, in turn, owned about 87 percent
of the shares of Hospital San Rafael, with the remainder di-
vided up among a number of other physicians.
Joaquin Rodriguez did not recall much about SRP, except
that he was its president from about 1978 onward. There
were no other offices or directors as far as he knew. He him-
self was never a shareholder, and the Company acted merely
as a holding operation for the HSR stock which it owned.
In the period 1982 through 1988, Drs. Soler and Badillo
continued to own 100 percent of the stock of SRP, which in
turn owned about 87 percent of the stock of HSR. In this
same period the Directors of HSR were:
Dr. Jaime Soler Zapata, Chairman
Dr. Jose A. Badillo Quinones, Secretary-Treasurer
Joaquin Rodriguez, Director
In this same time period the officers of HSR were:
Joaquin Rodriguez, President—January 1982–No-
vember 1988
Enique Baguero, Administrator—January to June,
1982
Sonia Neives Arnau, Comptroler—January–May
1982
—Vice President May 1982–February 1985
Simon Irizarry, Director, Auxiliary Services—Janu-
ary–March 1982
Fernando Rodriguez, Vice President—Operations
1982–1988
Luis Baiz, Vice President, Auxiliary Services—April
1982–1988
Maria T. Dominguez, Administrater—July 1982–
1988
Carlos M. Pineiro, Vice President, Finance—October
1984–July 1985
Executive Vice-President—July 1985–1988
Irma Belavel, Comptroller—May 1987–1988
Cyril Olivierre, Vice President, Finance—January
1987–1988
2. Centro Medico del Turabo
Centro Medico del Turabo was established on August 30,
1978. At the beginning the principal shareholders of CMT
were Dr. Soler, with 40 percent, Dr. Badillo with 20 percent,
and Joaquin Rodriguez with 20 percent. Later, these amounts
were reduced because of financial needs. As of May 16,
1988, Dr. Soler still held 37.8754 percent of the shares
which had been issued, Dr. Badillo, Rodriguez, and Carlos
Pineiro17 each held 18.9377 percent of the issued shares, a
total of almost 95 percent of the outstanding shares. There
was, in May 1988, an agreement between these shareholders
and Kidder Peabody and Co. for the issuance of a number
of additional shares which, if implemented, would have re-
duced the percentage of ownership in the four named share-
holders to what I compute to be about 71 percent. Rodriguez
testified that, although a prospectus was prepared for the sale
of these additional shares, they never were sold, the percent-
ages of ownership remained the same down to the time of
this hearing in the summer of 1989.
During the times covered by the complaints in this case,
the directors of CMT were:
Joaquin Rodriguez, Chairman
Dr. Jaime A. Soler Zapata, Vice Chairman
Dr. Jose A. Badillo Quinones, Director
Carlos M. Pineiro Crespo, Director
Sometime later, Rodriguez was not sure of the dates, two ad-
ditional directors were appointed, Rene Santos and Juan A.
Chavez Abreu. Another directorship, to be filled by a mem-
ber of the staff of the new hospital was also to be appointed,
but this had not been done at the time of the hearing.18
The officers of CMT during the times material here were:
Joaquin Rodriguez, President
Carlos Pineiro, Executive Vice President and Treas-
urer
Jose A. Badillo, Secretary
Belinda Badillo, Assistant Secretary
Jose J. Vargas Cordero M.D., Vice President, Medi-
cal
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 This arrangement apparently was to be expanded through the
sale of additional limited partnerships, but like the Kidder Peabody
stock sales noted above, this one did not work out either. There is
a lot of evidence in this record on the devices used by Rodriguez
and the various corporate entities here to raise money for the con-
struction of the new hospital. It eventually was done but not without
considerable pain, aggravation, and suffering.
20 I found Rodriguez to be highly intelligent, and intimately famil-
iar with the corporations involved here, and the overall financial ar-
rangements which eventuated in the construction of the new hospital.
He was not so good on details or sequences of events, but I do not
believe that affects his testimony on these preliminary matters. I,
therefore, rely on his testimony, and the exhibits dealing with the fi-
nancial history and dealing of HSR, CMT, and the TMC Limited
Partnership as set out in these findings.
21 Based upon HSR’s promises to build a new hospital, the sec-
retary of health of Puerto Rico, who administers the Medicare pro-
gram, agreed to waive, temporarily, the deficiencies at HSR, and al-
lowed the latter to continue to operate for, as it turned out, over 10
years.
Maria T. Dominguez, Vice President, Patient Serv-
ices
Fernando A. Rodriguez, Vice President, Support
Services
3. Turabo Medical Center Limited Partnership
Turabo Medical Center Limited Partnership was formed on
June 10, 1980, under the laws of the State of Delaware. The
general partner in this partnership is CMT and the sole lim-
ited partner is Joaguin Rodriguez.19 There have been no
changes in the make up of the partnership since its forma-
tion. It does, of course, operate the new hospital under the
name and style of Hospital Interamericano de Medicina
Avanzada.
4. The relationship between the companies
a. Background
When HSR was brought by Drs. Soler and Badillo in 1978
they found a serious financial situation. An audit showed that
the hospital was losing money and was in danger of going
into bankruptcy. The Doctors then called in Joaquin
Rodriguez as a financial consultant.20 When he became
aware of the depth of the financial hole they were in, he
wanted to resign, but was dissuaded with an offer to become
the manager of the hospital. At this time it is not entirely
clear, but I infer and find that Rodriguez became the Presi-
dent of HSR, and probably of SRP at the same time.
The hospital’s money problems became further com-
plicated when, about 6 months after Rodriquez took over, a
Medicare inspection determined that the hospital did not
comply with Medicare requirements, mainly because of an
antiquated physical plant. The hospital was housed in five
different buildings which had been combined. One of these
buildings had been a supermarket, another a hotel. There
were serious problems with the width of corridors, elevators,
wiring, and what Rodriguez described as ‘‘a long list’’ of
physical deficiencies. If the hospital failed to remedy these
deficiencies, it would no longer be eligible to receive pay-
ments for treatment of Medicare patients, who, at that time,
represented 44 percent of the occupants of the hospital.
The physical requirements imposed under Medicare rules
would, according to Rodriguez, have made it necessary to
tear down the whole place and rebuild from scratch. The
management of HSR, accordingly, made a determination to
build an entirely new facility. This decision apparently was
made in 1978, and the initial planning was done by HSR
itself, with the idea of continuing the same corporate entity
into a new structure as Hospital San Rafael.21
By January or February 1981, Rodriquez testified that he
felt he was doing all the work in the planning for the new
hospital (as well as managing the existing hospital); the doc-
tors (resumably Soler and Badillo) were not putting any
money into the planning endeavors; and there was no money
available from HSR to meet planning expenses. In these dis-
couraging circumstances, somewhat surprisingly, Rodriguez
decided that he wanted an ownership interest in the new hos-
pital. The minutes of a directors’ meeting of CMT on June
18, 1981, corroborate Rodriguez’ account of his acquisition
of 40 percent of the stock in CMT at about the time men-
tioned by Rodriguez in this testimony.
On March 15, 1982, two new agreements were made be-
tween Rodriguez and the two corporations, HSR and CMT,
calling for increased wages and benefits for Rodriquez, as
president and chairman of CMT and president of HSR. The
1982 agreements, which are practically identical save for the
amounts granted, and the names of the companies, listed the
salary and benefits which Rodriguez was to receive from
each of the companies, and outline the duties he was to per-
form in consideration of that compensation. Rodriguez was
to have ‘‘full responsibility,’’ as chief executive officer of
both CMT and HSR, to supervise day-to-day operations of
the corporations subject to overall policy decisions by the
board of directors.
On October 10, 1982, the board of directors of CMT voted
to offer the shareholders of HSR the opportunity to purchase
at a nominal $1 per share, an equal amount of shares in
CMT to the shares they already owned in HSR. These
amounts were minor. By January 25, 1983, only six share-
holders of HSR had become shareholders of CMT, represent-
ing only 5.32 percent of the stock. But this action does add
to the evidence showing the close relations between the two
corporations.
b. The Connection between HSR and CMT
In conjunction with his bid to obtain a share in the owner-
ship of the Company which employed him. Rodriguez argued
to Drs. Soler and Badillo that they could not use HSR as a
vehicle to move the new hospital project forward. As he put
it, ‘‘we cannot use San Rafael, this cannot be a substitution
of San Rafael, I want to have an interest in San Rafael, in
the new hospital, and that means creating a separate corpora-
tion or something apart from San Rafael because no bank
would lend money to San Rafael and no bank—and the HHS
(U.S. Department of Health and Human Services) in particu-
lar would not guarantee a loan, which is a condition that is
essential to the building a hospital in Caguas—.’’
This explanation of the reason for the creation and exist-
ence of a new entity, which came to be CMT, was repeated
in HSR’s Domestic Corporation Report to the Common-
wealth Department of State in April 1983, where in a section
entitled ‘‘continuation of the Hospital as a going concern’’
the accounting firm responsible for the statement described
619HOSPITAL SAN RAFAEL
22 In the amount of $379,000 as of October 31, 1982.
23 For some time in 1981 and 1982 there was another group in
Caguas which was interested in building a new hospital to be known
as ‘‘Caguas Doctors’ Hospital.’’ The two groups eventually worked
out their differences and CMT bought out the Caguas doctors’ group
by a payment of $800,000.
24 This offer was apparently accepted, but not until July 1987. The
CMT board at that time voted to postpone acceptance of the offer
and no more on the matter appears in the records offered in evidence
here.
25 This proposal sank from sight without a trace. Nothing more ap-
pears in the record on the matter.
Centro Medico del Turabo, a debtor22 to HSR, as having
been ‘‘organized by the shareholders of the Hospital’s (HSR)
parent (SRP) to build up a hospital to eventually replace the
hospital’s operations,’’ continuing on to note that ‘‘subse-
quently Centro Medico transferred to an affiliated limited
partnership the obligation of building and operating such
Hospital, except that Centro Medico will be the only general
partner and as such will have complete control of its oper-
ations.’’
The relationship between HSR and CMT occupied the at-
tention of the HSR board of directors at its meetings in Janu-
ary 23, 1980, when Rodriguez notified his fellow directors,
Soler and Badillo, of his efforts to get a series of notes ap-
proved which would assist in the financing of the new hos-
pital and to allow HSR to recover advances made to CMT;
on June 18, 1981, when there was considerable discussion on
Rodriguez’ salary and compensation, together with mention
of a ‘‘contract’’ between HSR and CMT. If there ever was
such a contract it was not introduced at this hearing. Thus,
I must conclude that there was no formal agreement between
the two, but that their relations were determined by the needs
of CMT for advances to further the new hospital construction
and the ability of HSR to fend off its continuing deficit and
the threat of closure because of noncompliance with Medi-
care rules. Apparently HSR could remain open, under waiv-
ers, provided CMT contained to make progress in the con-
struction of the new facility.
As far as contacts between the two, their boards of direc-
tors were the same three people, and their chief executive of-
ficers were the same person, Joaquin Rodriguez.
At a meeting of the HSR board of directors on February
1, 1982, a resolution was passed concerning some doctors
who practiced or had privileges at HSR who were at the
same time opposed to the new hospital.23 After stating that
HSR was ‘‘taking all steps regarding the construction of new
facilities which would be the Centro Medico del Turabo
project,’’ the resolution went on to state that any physician
who engaged in the promotion and development of compet-
ing projects of CMT is caring out an activity,’’ harmful to
the best interests of Hospital San Rafael,’’ and that such ac-
tivity could result in their loss of hospital privileges at HSR.
Through this period, at least, it appears that Rodriguez,
Soler, and Badillo, among themselves, as directors of both,
viewed HSR and CMT as a single entity for purposes of in-
ternal dealings.
This view of CMT as ‘‘related’’ to HSR is reflected also
in the financial statements submitted annually by HSR’s
auditors to the secretary of State of the Commonwealth.
Under the heading of amounts due HSR from ‘‘related par-
ties’’ in each of those reports for the fiscal years ending Oc-
tober 31, 1982, to October 31, 1987, show an amount owed
to HSR by CMT, beginning in the 1982 fiscal year, of
$379,307 to $1,052,309 in fiscal 1987. Rodriguez testified
that there was no interest paid on these advances. Indeed,
there is no evidence in this record that those moneys were
ever repaid at all.
Added to these advances from HSR to CMT was the sum
of $1 million, representing compensation due HSR an ac-
count of HSR’s agreement to relinquish its license, or fran-
chise, to operate a hospital, so that TMCLP could obtain its
own license to open and operate the new hospital. An agree-
ment between HSR and TMCLP to this effect was executed
on October 31, 1983. This transaction had been authorized
by the shareholders of HSR at a meeting on June 28, 1983,
the shareholders, expressly voting to relinquish the license
for $1 million in cash. The license was duly surrendered, and
the new hospital obtained its license to open. An agreement
between HSR and CMT containing a schedule of repayment
for a total debt of $41,370,698.56, including the $1 million
due for the franchise, was executed on March 30, 1989, but
there is no evidence that any money was actually paid. HSR
went into bankruptcy on June 16, 1990.
The minutes of directors’ and stockholders’ meetings of
CMT also show a concern for the relationship with HSR. At
a directors’ meeting on October 18, 1982, it was voted to
offer shares in CMT to current shareholders of HSR in
amounts equal to shares they then held in HSR.24 At a meet-
ing on May 20, 1983, the CMT Board voted to guarantee a
loan to HSR in the amount of $300,000, and on June 24,
1983, the board voted favorably on a motion to ‘‘convert’’
HSR to a wholly owned subsidiary of CMT by purchasing
all of the outstanding stock and convertible debentures of
HSR.25
In the HSR house newsletter ‘‘Hablemos’’ (‘‘Let’s talk’’),
articles written by Rodriguez during 1983 and 1984 speak of
the new hospital in terms of ‘‘we’’ or us and identifying the
new construction with the existing structure and its employ-
ees.
When communicating with a local bank an impression was
given that HSR and the new hospital projects were part of
the same enterprise. In a letter from Rodriguez on HSR sta-
tionery and dated March 25, 1980, addressed to Jose A. Luis
Catto, assistant vice president of Banco De Ponce, in connec-
tion with additional financing, the letter swings from a run-
down of HSR’s balance sheet for the year 1979, to projec-
tions for the year 1980 and beyond, to a discussion of the
new hospital, pointing out that ‘‘we are almost ready to sub-
mit our preliminary application—’’ (emphasis added). In an-
other letter to Cotto, also on HSR stationery, and dated Au-
gust 25, 1981, Rodriguez proudly announced that: ‘‘[Hospital
San Rafael is going through a major expansion of its facili-
ties. It will become Centro Medico del Turabo and it will be
housed in a most modern and sophisticated medical facility
to be constructed in Caguas—.’’ On February 16, 1982,
Rodriguez wrote to Juan A. Muntaner, also a vice president
with the Banco de Ponce, describing a proposed sale by HSR
of the hospital buildings so that they could ‘‘Transfer Hos-
pital’s physical asset to a corporation which is able to de-
velop it when the Hospital is transferred to Centro Medico
del Turabo.’’ (Emphasis added.)
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 There was no director at the time of this hearing, so Veintidos
was actually running the department.
27 This does not, of course, include the registered nurses, Norma
Flores, Isabel Arriaga, and Carmen Merced, alleged discriminatees
who were not hired by HIMA, and whose situations will be consid-
ered herein.
These letters show that attempts to obtain credit portrayed
HSR and CMT to the lender as one and the same aspiring
debtor.
c. Managers and employees
The boards of directors of HSR and CMT were, during
most of the period relevant to the issues here, composed of
the same three people, Joaquin Rodriguez, a director of HSR
and chairman of the board of CMT, Dr. Jaime A. Soler Za-
pata, chairman of HSR and a director of CMT, and Dr. Jose
A. Badillo Quinones, a director of both companies. At some
later time Carlos M. Pineiro Crespo was named a director of
CMT, and still later, two others were appointed.
The management of both HSR and CMT was headed, dur-
ing the whole period covered by these cases, by Rodriguez.
Pineiro began at HSR as vice president for finance in Octo-
ber 1984, then was appointed executive vice president, where
he remained until late 1988 when the assumed the job of ex-
ecutive vice president at CMT and ran the operations of
HIMA until the contract with CHA became effective at the
end of October 1989.
The next level of management consisted of Cyril Olivierre,
vice president for finance and HSR from January 1987, then
became senior vice president for finance and administration
for CMT; Maria T. Dominguez, administrator (for day-to-day
operations) of HSR from July 1982, then vice president in
charge of patient services at CMT; Fernando A. Rodriguez,
vice president for operations at HSR, and vice president for
support services at CMT.
Others who made the transition were Felix Ortiz Collazzo,
director of human resources and industrial relations at HSR,
who became the general administrator at HIMA; Eladio
Cartagena, house counsel at HSR, and then at HIMA; and
Arelis Veintidos, who was a secretary at HSR, became exec-
utive secretary to Carlos Pinerio at HSR, then left HSR, went
to work for Triangle Engineering, the construction manager
for HIMA, where she was in charge of receiving all applica-
tions for employment at HIMA, then screening and inter-
viewing applicants and recommending that they be, or not
be, hired. When HIMA opened, Veintidos became assistant
director of the department of human resources at HIMA.26
A list of management and supervisory people at HIMA
was stipulated to by the parties and entered into evidence
here. Of the 102 names on this list, including the manage-
ment people named above, 85 were employed at HSR before
joining HIMA.
At the professional level (not involved in the professional
unit of registered nurses) the physicians working at HIMA in
1989, shows them to be substantially the same persons who
were attending patients at HSR in 1988.
Finally, from a list of employees in the two bargaining
units here, prepared by HIMA as of October 17, 1989, I have
calculated that as of December 31, 1988, a total of 138 em-
ployees has been hired by HIMA in jobs contained within
those units, of whom 92 had previously worked for HSR.
Breaking it down to the separate units, I find that of 58 per-
sons hired in the registered nurse unit, 31 were former San
Rafael employees.27
d. Labor relations
Carlos Pineiro testified that during the 1987 negotiations
between HSR and the Union he, as executive vice president
of HSR was delegated by the board of directors the function
of establishing policy in this area. He then went on to de-
velop and implement labor relations policies. There is no di-
rect testimony that Pineiro was assigned the policy function
for labor relations at CMT, but during 1988 he was also the
executive vice president for CMT. He was responsible for
placing Arelis Veintidos, his secretary, who had obtained a
Master’s degree in industrial relations, first in a position at
Triangle Engineering where she received and screened all ap-
plications for employment at the new hospital, and then,
when HIMA opened, she was transferred there as assistant
director of the department of human resources. While in this
last position, the record here shows that she handled most if
not all personnel and employee relations functions. Pineiro
was at least up to the effective date of the contract with
Caribe Hospital Affiliates, the executive vice president of
CMT and in charge of all management operations at HIMA.
He was also, concurrently, a member of the board of direc-
tors of CMT. Thus, I think an inference is warranted that
Pineiro continued to set policy, subject to approval by a ma-
jority of his fellow directors, for CMT and its subsidiaries,
TMCLP and HIMA.
e. Conclusions
The Third Circuit has set out the essence of the single em-
ployer doctrine in stating:
A ‘‘single employer’’ relationship exists when two
nominally separate entities are actually part of a single
integrated enterprise so that, for all purposes, there is
in fact only a ‘‘single employer.’’ The question in the
‘‘single employer’’ situation iswhether the two nomi-
nally independent enterprises, in reality, constitute only
one integrated enterprise. [NLRB v. Browning-Ferris In-
dustries of Pennsylvania, Inc., 691 F.2d 1117, 1122 (3d
Cir. 1982).]
Over the years the Board has established criteria to be
used in determining whether a single employer relationship
exists. As affirmed by the Supreme Court in Broadcast Tech-
nicians Local 1264 IBEW v. Broadcast Service of Mobile,
380 U.S. 255 (1965), the criteria are ‘‘interrelation of oper-
ations, common management, centralized control of labor re-
lations and common ownership.’’
The General Counsel has alleged that CMT and HSR are
alter egos, and the former is in fact, a disguised continuation
of the latter enterprise. Like the single employer question
discussed above factors to be considered are (1) interrelations
of operations; (2) common management; (3) common owner-
ship; and (4) common control of labor relations. The Board
has generally found alter ego status where the two enterprises
621HOSPITAL SAN RAFAEL
28 The fact that HIMA is larger, more elaborate, more modern and
better equipped makes a difference in degree, but not in kind, of the
services offered.
29 Letter of Felix Ortiz to Luis Alvarez dated July 29, 1987.
30 CMT was incorporated in 1978; some 5 years before the Union
came into the picture at HSR.
31 At the same time the fact that these two companies were not
actual employers at the same time does not affect the conclusion that
they are a single employer within the meaning of the Act. Overton
Markets, 142 NLRB 615, 619 (1963).
involved are found to have substantially identical manage-
ment, business purposes, operations, equipment, customers,
and supervision, as well as ownership. Crawford Door Sales
Co., 226 NLRB 1144 (1975); Denzil S. Alkire, 259 NLRB
1323 (1982); Advance Electric, 268 NLRB 1001, 1002
(1984). In this last case, the Board stated clearly that ‘‘we
generally have found alter ego status where two enterprises
have ‘substantially identical’ management, business purpose,
operation, equipment, customers and supervision, as well as
ownership.’’
A further, and critical, consideration to the finding of alter
ego status, is whether the new company was created ‘‘to
evade responsibilities under the Act.’’ Fugazy Continental
Corp., 265 NLRB 1301 (1982). As the Third Circuit stated
in NLRB v. Al Bryant, Inc., 260 NLRB 128 (1982), enfd. 711
F.2d 543 (3d Cir. 1983), cert. denied 464 U.S. 1039 (1984),
while the focus of the single employer doctrine is the ab-
sence of an arm’s-length relationship between companies, the
focus of the alter ego doctrine is ‘‘the existence of a dis-
guised continuance or an attempt to avoid the obligations of
a collective-bargaining agreement through a sham transaction
or a technical change in operations.’’
It does not appear to me that there is a real question of
fact concerning any of these standards.
There is common ownership in that the two doctors, Soler
and Badillo own 87 percent of the stock in HSR, along with
some minority shareholders. The same two doctors own
about 60 percent of the stock in CMT, with some larger
holdings, a little over 18 percent each by Joaquin Rodriguez
and Carlos Pineiro, with, again, some minority shareholders.
Thus, the doctors control a majority of shares in both cor-
porations. TMCLP and HIMA are, of course, instruments of
CMT.
There is common management. Since 1978 Joaquin
Rodriguez has exercised executive control over both HSR
and CMT. This conclusion is based upon Rodriguez’ own
testimony about how he took charge of HSR in 1978; was
responsible for the creation of CMT at that time; and acted
as president and chief executive officers of both HSR and
CMT during all of the period covered by this case. The cor-
respondence and documents entered here are either from or
to these corporations is mainly directed to or signed by
Rodriguez, except in a few instances. The testimony of union
officials Alvarez and Gonzalez, employee Milton Suarez, and
Managers Pineiro, Ortiz and Cartagena, all shows that
Rodriguez was and is the boss and all policy is determined
by him, or by him with his managers.
There is common supervision. As I have already noted, the
same management people from the top level, Rodriguez and
Pineiro, the middle level, Ortiz, Veintidos, Cartagena; and
the lower level, the 85, more or less, out of 102 supervisors
and department heads, all moved from HSR, as it was clos-
ing, to the new hospital.
There is a common business purpose and customer base.
While at a hospital patients come and go, HIMA is located
in the city of Caguas, and was built and designed to serve
the same, maybe a somewhat larger area. The type of service
and the area in which it is performed remain basically the
same.28
The operations of the two hospitals were not interrelated
in the sense that they functioned as a team, is or a syn-
chronized manner. It is true that HIMA did purchase equip-
ment from HSR, and that equipment was transferred to
HIMA along with management, administrators, professional,
technical and nonprofessional employees, but these transfers
were not made in a context of continuing coordinated or inte-
grated operations, but on account of the discontinuance of
operations by the one, and assumption of operations by the
other.
In this case, despite the facts I have found above concern-
ing its relations with HSR made to its offices and directors,
its employees and to outsiders, CMT continuously and ada-
mantly refused to admit its relationship with HSR to the
Union. In a letter of April 15, 1987, responding to a request
by union delegates at HSR, Rodriguez parried the delegates’
request to discuss the transfer to CMT by referring them to
Pineiro and stating that it was premature to talk about CMT
since they had not yet secured their financial requirements.
Later, as the 1987 negotiations began, the representatives of
HSR refused to discuss the application of any contract to
CMT,29 and that refusal was reflected in the conversation be-
tween Pineiro and Gonzalez on October 27, 1987.
As I have noted above in connection with the setting aside
of the settlement agreement, the Respondents here were in a
position to know all of the facts about their relationship. The
development of the new hospital was ongoing for at least 10
years, from 1978 to 1988. Both HSR and CMT have em-
ployed learned and skillful labor counsel during this period.
It thus seems to me clear that the Respondents knew, or rea-
sonably should have known what the legal effect of that rela-
tionship was and is. To continue to insist that these two cor-
porations are, in effect, strangers to each other leads me to
the conclusion that the new company, even though it may
have been created initially in order to avoid the credit prob-
lems encumbering HSR,30 became a ‘‘device to evade re-
sponsibilities under the Act;’’ Fugazy Continental Corp.,
supra. Therefore, I find that HSR and CMT are a single em-
ployer and alter egos used in this case to attempt to avoid
continuing bargaining obligations under the Act.31
f. The successorship issue
The General Counsel has maintained throughout this pro-
ceeding that if it is found that HSR and CMT are not a sin-
gle employer, or alter egos, then, in the alternative, CMT is
a successor employer to HSR, and is obliged to bargain with
the Union as the representative of its employees who were
formerly employed at HSR in the previously certified appro-
priate bargaining units.
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 For some reason not explained in the record, the judge’s find-
ings were based only on the ‘‘technical’’ unit, leaving out any men-
tion of the ‘‘professional’’ unit of registered nurses. The inclusion
or exclusion of the professional unit, however, does not change the
facts of the successorship question as found by the Judge or as found
here.
33 The Respondents have denied that these units are appropriate
herein. However, Respondents have the burden to show that the
units are no longer appropriate and have failed to do so. Indianapolis
Mack Sales & Service, 288 NLRB 1123 fn. 5 (1988). Cf. New Lon-
don Convalescent Home, 274 NLRB 204 (1985), enfd. 815 F.2d 517
(2d Cir. 1987), cert. denied 108 S.Ct. 140.
It was in pursuit of this theory that the Regional Director
for Region 24 filed a petition with the United States District
Court for the District of Puerto Rico under Section 10(j) of
the Act seeking to enjoin CMT (and Joaquin Rodriguez)
from refusing to bargain with the Union and from failing to
employ one Milton Suarez, a former employee of HSR. As
I have noted, above, in the introduction, the judge, Honorable
Carmen Consuelo Cerezo, issued her opinion and order on
August 8, 1989, ordering the Respondents CMT, Rodriguez,
TMCLP, and HIMA, pending the final determination of these
matters before the Board, to refrain from failing and refusing
to recognize and bargain with the Union as the bargaining
representative of a unit of licensed practical nurses and tech-
nicians,32 and that the employers bargain in good faith with
the Union and reinstate Milton Suarez to his former or sub-
stantially equivalent position.
The facts as found by the Judge, based on affidavits filed
with the court are entirely consistent with the facts I have
found here, based upon the testimony of witnesses and from
documents introduced by the parties. As the judge pointed
out:
In Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 107 S.Ct. 2225 (1987), the Supreme Court
recently clarified its earlier ruling in the area of
successorship in the case of NLRB v. Burns Inter-
national Security Services, 406 U.S. 272 (1972). Ap-
proving the Board’s approach to these cases, the Su-
preme Court stated that the focus is on whether there
is ‘‘substantial continuity’’ between the enterprises,
which depends on (1) whether the new company has
acquired substantial assets of its predecessor; (2) wheth-
er the business of both employers essentially the same;
(3) whether the employees of the new company are
doing the same jobs in the same working conditions
under the same supervisors; and (4) whether the new
company has the same production process, produces the
same products, and has basically the same body of cus-
tomers. Fall River, 406 U.S. at 43. Of Paramount im-
portance in making this determination is whether, from
the employees’ perspective, their job situation remains
essentially unchanged. Id. (TMCLP)
In the instant case, Respondent acquired from the
predecessor (HSR) the right to operate a hospital in the
Caguas area through the License Surrender Agreement
for a consideration of $1 million, $242,602 worth of
equipment, and the lease of the PMX Mobile X-Ray
Unit. The License Surrender Agreement in particular,
represents the acquisition by Respondent of a signifi-
cant asset. Although Respondent did not purchase the
predecessor’s deteriorating physical plant and out dated
equipment, it nevertheless acquired sufficient assets
from San Rafael to meet the first test. See Landhill
Press, 282 NLRB 378 (1986).
Petitioner [Regional Director] has also shown, and
Respondent does not seriously contest, that HIMA
meets the remaining criteria for successorship. Both San
Rafael and Respondent are hospitals and health care in-
stitutions and, as such, operate the same business. Re-
spondent also provides health care services to the same
community previously served by Hospital San Rafael,
and its employees are doing the same jobs under the
same working conditions and supervisors.
The ‘‘substantial continuity’’ between these institu-
tions is particularly established in the instant case by
the fact that HIMA was conceived from the beginning
as a replacement for Hospital San Rafael. The employ-
ees of San Rafael were informed of that fact throughout
the regular updates on the on the plans for the new fa-
cility contained in the publication ‘‘Hablemos.’’ Since
Respondent made a commitment to the Union hire 95%
of the San Rafael employees at HIMA and give them
preferential seniority over other employees, it is reason-
able to conclude that, from these employees’ perspec-
tive, their job situation at HIMA remains unchanged. In
view of the above, this Court finds that there is reason-
able cause to believe that Respondent is the legal suc-
cessor to Hospital San Rafael. [Asseo. v. Centro Medico
del Turabo, Inc. et al., U.S.D.C. Puerto Rico Civil 89-
0490CC, Aug. 8, 1989, pp. 12–13.]
While I am not precluded from making findings contrary
to those the judge has made here, my own independent eval-
uation of the evidence here has led me to the same findings
and conclusions.
I can add to this only my finding that these facts show that
CMT, and its subsidiaries TMCLP and HIMA, are the suc-
cessor employer to Hospital San Rafael.
C. The Alleged Unfair Labor Practices
1. The refusal to bargain, 1987
All of the preceding has been necessary to establish the
somewhat complicated procedures which took this case
through the initial charges, the first 2 days of hearing and the
May 19, 1988 settlement agreements; the alleged violations
of the settlement agreement and the filing of new charges;
identification and delineation of the several corporate, part-
nership and subsidiary parties to the proceeding; and the
legal relationships between these parties. Having now set out
what I find these relationships to be, I can proceed to narrate
the facts surrounding the alleged unfair labor practices.
The Union organized the employees of Hospital San
Rafael during 1983 and on January 20, 1984, a majority of
HSR employees in the following two units selected the
Union as their collective-bargaining representative. These
units were certified by the Regional Director on January 30,
1984:33
(A) Included: All registered nurses and pharmacists em-
ployed by Respondent at its hospital located in Caguas,
Puerto Rico.
623HOSPITAL SAN RAFAEL
34 This proposed contract consisted of 37 articles in 52 pages. I
have not compared this document to the 1984–1987 contract, but as
matters turned out, the content of the new contract proposals is not
important.
35 After receiving the August 10 letter, the Union revised its pro-
posals to delete references to CMT. But at the first negotiating ses-
sion, held on August 14, 1987, the Union wanted to talk about a
3-year agreement, and HSR wanted to talk about the effects of its
closing in 1988. In October, the Union, in a letter to Joaquin
Rodriguez, president of both HSR and CMT, reiterated its position
on a 3-year contract. Rodriguez replied that CMT would not partici-
pate in any negotiations nor would it recognize the Union. In this,
too, I find that HSR has violated Section 8(a)(1) and (5).
36 Two decertification petitions had been filed by an individual in
the two units here, Cases 24–RD–350 and 24–RD–351, about Janu-
ary 13, 1988. Because of the pendency of Unfair labor practice
charges the Regional Director dismissed the Petitions. This action
was upheld by the Board under date of April 6, 1988. During the
hearing in this case, counsel for Respondents objected to the fact
that these petitions were not further processed after the settlement
agreements had been executed on May 19, 1988. But, ‘‘where an
employer, pursuant to a settlement agreement, has agreed to bargain
with the union, the employer must bargain with the Union for a rea-
sonable time, and no question concerning representation can be
raised during this period; Shangri-La Health Care Center, 288
NLRB 334 (1988); Poole Foundry & Machine Co, 95 NLRB 34, 36
(1951); Freedom WLNE-TV, 295 NLRB 634 (1989). Thus, no decer-
tification petition could have been entertained in the period between
the signing of the settlement agreements in May, and the subsequent
refusal to bargain in September 1988.
Excluded: All other employes, office clerical employ-
ees, guards and supervisors as defined in the Act.
(B) Included: All licensed practical nurses and tech-
nicians employed by Respondent at its hospital located
at Caguas, Puerto Rico, including escorts: EKG techni-
cians; Respiratory Therapy technicians; X-Ray techni-
cians; Operating Room Technicians; Dietary Techni-
cians; Medical Records Technicians; Admission Clerks;
Record Room Clerks; X-Ray Clerks; Diet Department
Clerks; Respiratory Therapy Clerks; Pharmacy Clerks;
Operating Room Clerks; Emergency Room Clerks;
Ward Clerks; and Pharmacy Auxiliaries.
Excluded: All other employees, office clerical em-
ployes, professional personnel, guards and supervisors
as defined in the Act.
Following the certification the Union and HSR negotiated
a collective-bargaining agreement to be in effect from Sep-
tember 1, 1984, to August 31, 1987.
On August 28, 1985, Luis Alvarez Colon, vice president
of the Union Nacional de Trabajadores de la Salud, wrote to
Felix Ortiz Collazo, director of personal of HSR informing
him of the names of the delegates (or stewards) for the
Union at HSR. The general delegate was Milton Suarez, who
worked in the X-Ray department. Also included as delegates
were Norma Flores, Carmen Merced, and Delia Diaz, with
14 other employees in various departments.
On May 15, 1987, Henry Nicholas, president of the Union,
wrote to Ortiz informing him that it was the intention of the
Union to enter into negotiations for a new contract and re-
questing a meeting as soon as possible. On May 27, Ortiz,
in turn, wrote to Alvarez expressing the interest of the hos-
pital in negotiating a new contract and requesting that Alva-
rez send him a copy of the Union’s proposals for study.
Ortiz concluded by stating that the Company would study the
proposals, and then communicate with the Union about a
date to negotiate. Alvarez replied on July 20, enclosing a
proposed contract and suggesting July 24 for a meeting.34
When the Union’s proposals were received, Ortiz was ap-
parently on vacation, so Carlos M. Pineiro, executive vice
president of HSR, replied on July 22, asking for more time
to study the proposals, and suggesting August 4 for a meet-
ing. On July 29, Ortiz, back from vacation, had gone over
the proposals and wrote the Alvarez complaining that the
proposals were unreasonable, unacceptable, made in bad
faith, and economically unrealistic. Further, Ortiz stated ‘‘We
want to establish clearly that Hospital San Rafael is not
going to negotiate, and cannot negotiate for, or in representa-
tion of, Centro Medico del Turabo. If you have any claim
with any other organization, you should address that organi-
zation.
‘‘Your certification as a union representative, as far as we
are concerned, is only for Hospital San Rafael purposes. If
you or your organization seriously desire to negotiate with
Hospital San Rafael, you should start by submitting a pro-
posal to this entity without including third parties.’’ Ortiz re-
turned the Union’s proposal and informed Alvarez that he
would wait for a new proposal to schedule a meeting date.
There was further correspondence during August, culminat-
ing in a letter from Ortiz to Miguel Gonzalez Vargas, who
was then representing the Union, stating that HSR would not
negotiate if the Union continued in its effort to negotiate
with CMT mentioned in the contract.
This (along with some other matters which were settled in-
formally by the May 19, 1988 agreements) led to the filing
of charges and to the first days of hearing in this matter at
which time the May 19, 1988 settlement agreements were
executed.
I have set aside the settlement agreement between HSR
and the Union, and reinstated the charges and the complaint
alleging that HSR had refused to bargain in good faith by
refusing to bargain unless the Union deleted references in its
proposals to CMT.
I have found that HSR and CMT were and are alter egos,
basically the same person for purposes of labor relations law.
I, therefore, find that HSR, by insisting upon the deletion
of the name of its alter ego from the Union’s bargaining pro-
posals, and by insisting on the exclusion of the alter ego
from the bargaining process, HSR has violated Section
8(a)(1) and (5) of the Act. Preterm, Inc., 240 NLRB 654
(1979).35
Finally, on January 14, 1988, in a conversation with Gon-
zalez, Ortiz stated that the hospital no longer recognized the
collective-bargaining agreement (which had expired on Au-
gust 31, 1987) and would in effect, no longer recognize the
Union. I find this also to be a violations of Section 8(a)(1)
and (5) of the Act.36
2. The refusals to bargain, 1988
After the execution of the settlement agreements on May
19, 1988, the Union and HSR met again to continue bargain-
ing for a new contract to replace the agreement which had
expired on August 31, 1987. The first session was held on
June 15, 1988, at the Governmental Center in Caguas. Rep-
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Attorney Cartagena testified about a short meeting which was
held on June 7, at which an attorney for the Union named Santiago
asked the hospital representatives to bring in (proposals on) some
points which he then discussed.
38 It sounds better in the original Spanish: ‘‘Cuyos destinos son
como lineas paralelas.’’
39 See discussion, above, and D.I.C. Mfg. Co. 294 NLRB 426
(1989).
40 Testimony on this came from Pineiro, but at no time was any
reason given to explain why Veintidos was working for Triangle.
Pineiro said that she had obtained a Master’s degree in industrial re-
lations and did not want to be a secretary any more. But that does
not explain why she left what must have been a very responsible po-
sition at HSR to go to work at what must have been a clerical job,
of a temporary nature, in a construction trailer on the HIMA job site.
Veintidos testified in this proceeding, and impressed me as ex-
tremely alert and capable. She could have handled the office man-
ager job in the trailer, or any other job, but it is more likely that
her separation from HSR and CMT and her involvement in the hir-
ing process for HIMA while ostensibly working for Triangle was to
try to avoid any link between HSR and CMT in that hiring process.
I, therefore, infer and find that Veintidos was assigned to Triangle
as an agent for both HSR and CMT to control the hiring process
at CMT-HIMA without ascribing responsibility to HSR.
resenting HSR were Attorney Godwin Aldarondo Girard, At-
torney Eladio Cartagena Colon, and Felix Ortiz Collazo, and
present for the Union were Miguel Gonzalez Vargas, Milton
Suarez Collazo, Delia Diaz Gonzalez, and possibly Carmen
Merced Baez, Ernesto Rivera, and Attorney Perez Munoz.
According to Miguel Gonzalez, the Union attempted to
steer the discussion to a 3-year contract which would carry
over to the new hospital, and the Company wanted to talk
about the closing of HSR. They did discuss some of the
issues left over from previous meetings, but came to no
agreements, even though, in Gonzalez’s words, they were
‘‘getting near’’ on some of them.37
A second, or third, meeting was held on September 14
again at the Governmental Center in Caguas. This was a
longer meeting and we have in evidence a transcript, in
Spanish and English, of a tape recording made by Respond-
ent at the meeting. Almost the same cast was present.
Aldarondo, Cartagena, and Ortiz for the Company, Gonzalez,
Suarez, and Merced, with one Nestor Rivera, for the Union.
After some considerable discussion the discussions again
broke down over the question of including CMT in the
agreement as a party employer. At the end, HSR insisted that
the question be settled before anything else could be dis-
cussed. Attorney Aldarondo insisted that it was ‘‘essential in
that the Union admits in the Agreement that the employer is
the Hospital San Rafael, Incorporated’’—‘‘and is the only
employer in this case.’’ With that, Aldarondo stated that he
was going to take up the matter with the Board, and he bade
the Union a ‘‘good afternoon.’’ There were no further meet-
ings between the Union and representatives of HSR.
There was, however, additional correspondence. On Sep-
tember 16, 1988, Alvarez sent a letter to Joaquin Rodriguez
as chairman of the boards of both HSR and CMT inquiring
about the opening of the new hospital and the promised hir-
ing of 95 percent of the employees at HSR. Receiving no an-
swer to this, Alvarez sent a reminder on October 14, request-
ing that Rodriguez furnish the information requested on Sep-
tember 16.
On October 25, Rodriguez replied to the October 14 letter,
on a CMT and TMCLP letterhead. He reiterated the view
that ‘‘this limited partnership (TMCLP) and the corporation
owner of Hospital San Rafael are two entirely separate and
independent entities.’’ Then, waxing poetical, ‘‘whose des-
tinies are like parallel lines.’’38 Rodriguez pointed out that
the Union, and Alvarez himself, had acknowledged this fact
at the Labor Board. He then referred Alvarez to Pineiro for
any discussion of matters concerning HSR. Rodriguez did in-
dicate that CMT would honor its promise to hire the 95 per-
cent of unit employees, and said that CMT was engaged in
obtaining permits in order to open.
With respect to Pineiro’s position, I note that 2 days after
the October 25 letter was dated, Gonzalez and Milton Suarez
visited the new hospital where they met Pineiro. He invited
them into an office, where, in response to a question from
Gonzalez, about working conditions there at the new hos-
pital, he replied that the hospital did not recognize any union,
and that there was no relationship between this hospital and
HSR. Gonzalez then asked Pineiro if he was speaking for
CMT, and Pineiro replied that he was not working for CMT
and that he was there, like them, as a ‘‘visitor.’’
On December 19, 1988, Alvarez wrote to Rodriguez, as
president of HIMA, requesting a negotiating meeting, and
protesting the refusal to recognize the Union, changes in
working conditions, and the refusal to recall union delegates
to positions at HIMA. Rodriguez replied to this letter on Jan-
uary 5, 1989, reiterating his position that the settlement
agreement had put the question of recognition to rest. On the
same date Attorney Heber Lugo Rigau also wrote to Alvarez,
adding his opinion that the matter of recognition of the
Union by CMT and its subsidiaries was settled in May 1988
by the settlement agreements reached at that time.
Since HSR and CMT are alter egos, I find violations of
Section 8(a)(1) and (5) here in the refusal by the ‘‘HSR’’ ne-
gotiators to bargain further on September 16, 1988, unless
the Union agreed to a clause which limited the scope of the
agreement to HSR, and did not include CMT. I find further
violations in the refusals by Rodriguez in his letters of Octo-
ber 25 and January 5, Lugo’s letter of January 5, and
Pineiro’s refusal in person on October 27 to recognize the
Union as bargaining representative for employees of the new
hospital, HIMA.39
3. The transition and hiring process
The transition from Hospital San Rafael to Hospital
Interamericano de Medicina Avanzada took place on Novem-
ber 13 and 14, 1988. By November 14, almost all the em-
ployees of HSR, save a few in medical records who were in
the units involved here, and others concerned with closing
down the facility, who were not involved in these cases, had
either been laid off, or had transferred to the same or similar
positions at HIMA.
The movement of HSR employees to HIMA, even where
they merely moved their location, but continued to perform
the same functions, was not automatic. For some months be-
fore the move, Arelis Veintidos, who had been the secretary
to Carlos Pineiro, executive vice president of HSR, was
working as office manager for the Triangle Engineering, con-
struction manager at the HIMA jobsite. While she was
there40 Pineiro noted that she was performing well, and he
625HOSPITAL SAN RAFAEL
41 At this time, of course, Pineiro was still executive vice president
of HSR. The fiction of the separation of HSR and CMT is apparent
here.
42 My figure, based on an exhibit prepared by Respondent CMT
and introduced by the General Counsel as G.C. Exh. 130, shows 64
people employed in the technical unit as of November 19, 1988, and
112 (from R. CMT Exh. 10) employed in this unit on April 15,
1989. The percentage in that case would be 57 percent. My figures
may not be accurate, because the parties stipulated that as of No-
vember 19, 1988, HIMA employed 69 people in unit B, of whom
51 were former HSR employees. Since this is what the parties say
is so, I will use this figure in computing the percentage of former
HSR employees as of that date.
43 I would note that as of December 31, 1988, there were 58
nurses in the unit, and 31 former HSR employees. Between then and
April 15, 52 more were hired, but only three former HSR nurses.
There were no allegations of discrimination, except for three nurses
whose situations will be considered herein, so it would seem that
they just ran out of former HSR nurses because of the proposed in-
crease from 102- to 300-bed capacity, or because of higher standards
for care, requiring, proportionally, more RN’s to attend to the patient
care required.
talked to her about a human relations position at HIMA.41
It was then arranged that Veintidos would hand out applica-
tions for people interested in employment at HIMA. Later,
on August 1988, this assignment was broadened to include
interviews and screening of applicants. After HIMA opened,
another person was hired to handle applications and,
Vientidos moved out of the trailer and into the position of
assistant director of human resources. She continued, accord-
ing to Pineiro, to screen and review applications from former
HSR employees.
4. Substantial and representative complement
Under the General Counsel’s alter ego theory, with which
I agree, with the opening of the new hospital, the bargaining
obligation which existed between the Union and HSR contin-
ued undiminished. The new hospital was obliged to maintain
at least the same level of wages and benefits, and it was re-
quired to negotiate with the union any changes in wages,
hours, or working conditions: C.E.K. Industrial Mechanical
Contractors, 295 NLRB 635 (1989).
The General Counsel’s alternative theory that CMT is the
successor employer to HSR I have already found to be valid.
Having found that, I must also find that CMT employed a
majority of former HSR employees in order to further find
an obligation on CMT to bargain with the Union. Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). The Board has
determined that this majority must be shown to have existed
when hiring of the successor operation has reached a ‘‘Sub-
stantial and representative complement’’ of ultimate em-
ployee complement.
The new hospital opened on November 19, 1988, with 50
beds available. By November 19, as the district court found
in the 10(j) case cited above, the job classifications for
HIMA were substantially filled, at a time when most of the
former HSR employees had been hired. The court further
found that the total number of employees in the technical
unit had reached 73 percent of the total number the hospital
expected to hire when it reached a 150-bed level of oper-
ations. The judge found this number to be equivalent to the
first shift, used as a benchmark by the Supreme Court in Fall
River, 482 U.S. at 52. While this projection by the hospital
turned out to be unrealistic, the judge found that the tech-
nical employees hired by November 19, 1988, still rep-
resented 64 percent of the actual number of employees hired
by April 15, 1989, when it was close to the 150-bed level
of operations.42 I concur with the court’s view that ‘‘it is
reasonable to conclude that Respondent (HIMA) had reached
normal operations by November 19, 1988. Compare Hospital
San Francisco, 293 NLRB 171, 172 (1989), with Myers Cus-
tom Products, 278 NLRB 636 (1986).
Since CMT employed 69 people in the technical unit as
of November 19, out of which 51, or 74 percent were former
HSR employees the Union is entitled to a rebuttable pre-
sumption among those employees in that unit.
For some reason which is not clear to me in this record,
there are no references in the judge’s decision, nor in the
General Counsel’s brief, to unit A, the professional unit of
registered nurses in the analyses by the judge and the Gen-
eral Counsel of the Union’s majority status as of November
19, 1988. Of course, if the Board adopts the alter ego theory
discussed herein, Union does not need a majority in the pro-
fessional unit, but if the Board chooses to proceed on the
successorship theory then there is a question of whether the
Union had a majority at a time when a substantial and rep-
resentative complement of registered nurses had been hired.
Using the criteria established in her case by Judge Cerezo,
and argued by the General Counsel, and drawing the data
from General Counsel’s Exhibit 130, I find that as of No-
vember 19, 1988, CMT had hired 36 registered nurses for
HIMA, of when 30 were former HSR employees.43 If the
same standards are followed here, as with the technical unit,
it appears that the Union did achieve a majority in a substan-
tial and representative complement by the November 19 date.
The Union here, by personal request from Gonzalez to
Pineiro on October 27, and by letter from Alvarez to
Rodriguez on October 14, requested that CMT recognize the
Union. The failure of CMT to recognize and bargain with the
Union constitute further violations of Section 8(a)(1) and (5).
In addition, CMT, by unilaterally imposing new and dif-
ferent working conditions on its employees further violated
Section 8(a)(1) and (5).
5. The individual discriminatees
a. Milton Suarez
Milton Suarez began work as an X-Ray technician at HSR
in 1980. In 1983, Suarez contacted the Union and began to
organize the technical and professional employees at the hos-
pital. In July 1983 Suarez was discharged. He went to see
Eladio Cartagena, who at that time was temporarily filling
the job of personnel director, Cartagena told him that he was
being fired ‘‘for organizing meetings to bring the union to
the . . ., with the employees to bring the union in to the hos-
pital.’’ After this Suarez continued his organizing efforts out-
side of the hospital and served as a union observer at the
election in January 1984. Later, after charges had been filed
with the Board, a settlement was reached and Suarez was re-
instated in his job at the hospital. He participated in the ne-
gotiations which resulted in the 1984–1987 contract, and was
selected by the Union as general delegate (chief steward) for
the hospital.
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 This does not refer to a tropical storm, but to one Rudy
Castellon, a former owner of the hospital, whom Rodriguez blamed
for many of its financial problems at the time he took over.
Suarez also participated in the negotiations with the hos-
pital during 1987 and 1988, and in protest meetings and
picketing while these negotiations were going on. At one of
these demonstrations, an unsuccessful effort in October 1988
to persuade a number of employees to picket in front of
HSR, Suarez, together with Norma Flores, Isabel Arriaga,
and Carmen Merced, were observed by hospital managers
and supervisors including Felix Ortiz, Ellen Keiser, director
of nursing, Efren Martinez, medical director, Eladio
Cartagena, and others. According to Suarez, and Merced and
Flores who also testified about this incident, some hospital
employees were frightened by the supervisors watching them,
and did not participate in the demonstration. In the end, only
those four participated in this demonstration.
Suarez testified that he became aware of the plans for a
new hospital in 1981 or 1982. He did not indicate that this
had anything to do with his organizing efforts in 1983, but
it is clear from the record that the employees of HSR were
concerned about what would happen to them when HSR
closed and the new hospital opened. After the certification of
the Union in January 1984 and the execution of the first col-
lective-bargaining agreement later that year, that concern be-
came an institutional as well as a personal matter. By the
summer of 1985 relations between management, the Union
and the employees became strained. On August 30 Rodriguez
addressed a memorandum to the employees of HSR attacking
Milton Suarez and the Union. The memorandum is important
enough in illustrating Rodriguez’ feelings toward the Union
and its activities to warrant including it in its entirety here:
The famous ‘‘UNTS,’’ under the director of ‘‘Mr.
Knows it all’’ Milton Suarez, Head Steward of that
Union, has begun a campaign against the Hospital and
now they say that the Hospital is the one which has
started a ‘‘Destructive Campaign toward the workers’’
unity. As I do know what their purpose is, other than
the patients be admitted to another hospital—some-
where else—in which case the employees of San Rafael
will need to be sent to that other place—, I want to
clarify other lies that they are saying.
Lie # 1—THAT WE WANT TO DESTROY THE
WORKERS’ UNITY
I ask myself, are the workers united to scare away
the patients from the Hospital so they go to other hos-
pitals? You do not have to be a genius to know that
if the Hospital is accused in public that the patients are
being given a deficient service (something that you
know is a lie). the [sic] only thing achieved is to de-
stroy the Hospital’s image: an image that has taken us
too long to recover after the Hurricane Castellon.44
TRUE: What we do not want is that there be ‘‘unit
of workers’’ to mess up the table where ALL OF US
eat. We do not need this and if that is what the UNTS
is . . . . we do not want it.
LIE # 2—THAT WHEN THE EMPLOYEES OF
HOSPITAL SAN RAFAEL ARE TRANSFERRED TO
THE VERY NEW ONE THEY ARE GOING TO LOSE
THE BENEFITS THAT THEY NOW HAVE.
TRUE: In order to clarify once and for all this myth,
I tell you, on behalf of Hospital San Rafael and of
Centro Medico del Turabo—in which neither Milton
nor the UNTS have put one even one—that your jobs
are secure. That you are going to be transferred without
further ado . . . with the same salary (or more, because
by then you must have had several additional raises,
that the Hospital will pay you and not the UNTS and
much less Milton), without probationary period and
with all the same benefits.
Already in a previous occasion, I made a similar
promise. You will remember that in 1982 I promised
every one who was going to be affected by the
instalation [sic] of the computers that nobody would be
left without a job. I ask you; was someone dismissed?
Who are you going to believe, Milton, the UNTS, or
me?
We suspended Milton and Berrios because they were
distributing leaflets in the Hospital as if we were still
in an election campaing [sic] and violating a specific
disposition which was known to every one. How much
longer are we going to tolerate the UNTS to do what-
ever they want to in the Hospital? We have been liberal
enough. We have let them distribute all kinds of com-
munications while they have been in campaign (as ap-
proved in the NO SOLICITATION, NO DISTRIBUTION
rule) but, why do we have to do it now?
The UNTS is bleeding from its wound. They were
upset because they did not win the elections for the
units of sanitation, diets and maintenance. They have
harassed their co-workers and they have accused them
of being stupid because they voted giving a vote of
confidence to the Hospital Management. For how long
do we have to put up with so much banditry? Why do
they have to continue their campaign? Get on with your
work and stop pestering us.
Last Wednesday almost all the Union delegates met
in my office and Mr. Luis Alvarez, their President, re-
quested on behalf of every one, that I should reduce the
suspension of the suspended co-workers only to two (2)
days and that, in addition, we let them charge the days
lost to regular vacations. I requested one day to answer
their petitions. I consulted with my pillow and I was
going to agree with their petitions. However, the next
day, on Thursday, first thing in in the morning they
again distributed another leftlet [sic] challenging the
Hospital. How good one can be short of becoming an
as . . .? How it is possible that we should accept a pe-
tition that is within out [sic] authority to grant? We
have run out of checks to be slapped at.
To our unionized co-workers—both those unionized
by their own decision, as well as those that had no
other choice—I ask you: Do you agree that the Union
should blemish the Hospital’s image? I am sure that the
majority will answer NO. Then, make your voice be
heard; do not let that an immature person decide for all
of you.’’
Rodriguez expressed regret, in his testimony on July 14,
1989, for having written this memorandum, but he blamed it
on ‘‘all kinds of lies’’ the Union was spreading around, dis-
paraging the hospital. However, the sentiments expressed in
627HOSPITAL SAN RAFAEL
45 The various charges filed here range from 400 to 300 employ-
ees, but I think those figures reflect estimates of total employment,
rather than employment in the relevant units.
46 By this time, as testified to by Carlos Pineiro, and noted pre-
viously, about 100 people had been hired in the two units concerned
here, of whom 89 were former HSR employees. According to
Pineiro this figure represented almost all of the former HSR employ-
ees who were hired for HIMA.
that memorandum show a deep and abiding dislike and dis-
trust of the Union and its agents, particularly Milton Suarez,
which is reflected in efforts made by HSR and CMT to avoid
the transfer of Union obligations from HSR to CMT. In my
own opinion, the memorandum more accurately reflects
Rodriguez’ real sentiments than his mea culpa at this hear-
ing. There is no indication that he ever issued any apology
or confession of error to the employees of HSR or of HIMA.
Moreover, the memorandum is consistent with Cartagena’s
statements to Suarez when he fired him in 1983, and also
with the words of Arelis Veintidos in a conversation with
Suarez early in 1988 when she told Suarez that she wanted
to make the new hospital ‘‘work as really a hospital should
work.’’ When he asked about labor problems she replied that
she could not direct a hospital with a labor problem, but it
was ‘‘like fashion, that matters pass but everything goes back
to normal.’’
All of this demonstrates to me an attitude of antiunion ani-
mus on the part of the Respondents here, and a determination
by management to eliminate the Union as a ‘‘problem’’ in
its operation of HIMA. This last point is borne out, as I have
found, by the efforts made by Rodriguez, Pineiro, Cartegeno,
Ortiz, and Veintidos to build a corporate wall between HSR
and CMT, and to continue to argue this issue to the present
time, despite the overwhelming weight of contrary evidence.
A part of any campaign to keep the Union out of the new
hospital could well be the refusal to rehire union activists.
If CMT had in mind to do this, there were problems, first
with the pledge Rodriguez included in his August 30, 1985
memorandum to all employees, and, second, the settlement
agreement of May 19, 1988, in which CMT committed to
employ a minimum of 95 percent of the employees employed
by HSR at the time that HIMA began its operation as a hos-
pital. while we have no figures on the number of people em-
ployed by HSR in the two units involved here, in November
1988, I would estimate from the numbers who were actually
hired by CMT, that there were about 100.45 This is not
enough on which to base a finding, but might hint at a rea-
son why only five union delegates and officers were not
hired at CMT.
Turning to Suarez’ individual situation, he went to the
HIMA construction site early in 1988, and had a conversa-
tion with Arelis Veintidos, described above. Suarez did not,
however, make out and file an application for employment
until October 27, when he accompanied Miguel Gonzalez to
the now almost completed HIMA, where they met and con-
versed with Carlos Pineiro. While they were at the new hos-
pital Suarez handed in an application for employment.
On November 14, Suarez returned to HIMA and talked
with Veintidos. He asked if he was going to be hired, and
she replied that she did not know. He returned on November
23 and was told by Veintidos that the hiring process was
‘‘slow.’’46 She said she was willing to talk about his applica-
tion, and his employment, but she did not mention any prob-
lems with his employment at HSR. Suarez heard no more
from Veintidos, or anyone at HIMA, and was not hired.
Felix Ortiz testified that Suarez had a lengthy record of in-
subordination, absenteeism and suspensions from 1984 down
to August 1988. He did not mention the 1983 discharge, nor
the August 30, 1985 memorandum from Rodriguez. How-
ever, the only document communicated from Ortiz’ office at
HSR to Veintidos at HIMA was a form entitled ‘‘Verifica-
tion of Employment References’’ showing absences in 1987
of no days, and absences in 1988 of 9 days for illness and
6 days of vacation in the period January to August. The form
showed a 20-day suspension in 1987 for ‘‘violations of ad-
ministrative rules.’’ Although there is no indication of any
days of absence in 1987, the form states that there was an
‘‘absenteeism pattern on Mondays and Fridays during the
year 1987.’’ This document bears a symbol showing that it
was approved by Ortiz, and was sent to HIMA.
Veintidos testified that she made the decision not to hire
Suarez based upon ‘‘a consistent pattern’’ pointed out in the
verification form, in the last 2 years, of absenteeism includ-
ing employment and salary suspensions for violations of ad-
ministrative rules. As she stated, ‘‘An employee or employee
candidate with that employment reference is not the best can-
didate for employment.’’
Veintidos testified that she had never consulted with Ortiz
about Suarez or any of the employees who had applied from
HSR. I found Veintidos to be articulate and highly intel-
ligent, and I am sure she will not be surprised that I do not
believe that she did not contact Ortiz, or her old boss,
Pineiro, or even Rodriguez, with respect to hiring of certain
individuals. After all, she had worked for Pineiro in a re-
sponsible position at HSR. She must have known and
worked closely with Ortiz in her years at HSR. She must
have known of the perceived problems which Rodriguez and
other managers of HSR had had with the Union, with Suarez
(‘‘Mr. knows it all’’) and with those who were close to
Suarez in the leadership of the Union. She first denied that
she had any knowledge about Suarez other than the verifica-
tion form, then admitted that she had known Suarez, and
about his union activities.
But, even if I do not specifically discredit Vientidos’ testi-
mony on this point, I find that she herself knew all these
people and their opposition to management policies, their
passing out of literature, their aborted attempt to persuade
other employees to picket, and their other actions which
would impede Veintidos, as a loyal agent of management, in
her effort to make the new hospital work ‘‘as really as a hos-
pital should work.’’
Thus, Veintidos was not limited to the rather sketchy
‘‘Verification’’ form transmitted by Ortiz. If she had been so
limited she would not have seen much difference between a
number of similar forms submitted by the General Counsel
concerning employees who were hired by Veintidos, some of
whom worked for HSR, and some from other employers. It
is significant that when asked about one such applicant,
whose verification form portrayed an appallingly poor work
record, Veintidos admitted that she had not seen the verifica-
tion form before the applicant was hired.
From an examination of these verification forms, it is clear
that the forms themselves were not the sole criterion for hire.
Some applicants had interviews with Veintidos, and were
shown around the new hospital when it was open. Milton
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 This was early in 1988, Arriaga’s application is dated February
3 (or March 2, depending on which position the month it in where
is says 2/3/88 on the form).
Suarez was not accorded an interview and was not hired.
Hildargis Rodriguez Colon, an employee in the medical and
surgery department at HSR filed an application in October
1988 at HIMA, but was not given an interview. Her verifica-
tion form showed attendance problems in 1987 and 1988,
and an interview (warning) in September 1987 on account of
‘‘problems with patients.’’ Rodriguez was notified by her su-
pervisor on November 13 that she would be working at
HIMA the next day. She started to work there and was still
employed at HIMA as of July 19, 1989.
It seems to me that this whole hiring process as it applied
to HSR employees was really only a sham. To require long-
time employees of HSR to fill out a lengthy application, and
submit to verification and interviews with a person they had
worked with there at HSR was needless and useless. Ninety
five percent were going to be hired anyway, so why could
Veintidos not have gone over to HSR (or not left there in
the first place), picked up the personnel folders of the 95
percent, then brought them all over with the employees when
HIMA opened. The reason why that was not done was a
continuing effort by the employer here to make everyone be-
lieve that there was not one employer here, but two.
Suarez’ employment record was not good, but so were not
a lot of others. Respondent has not advanced any compelling
reason why Suarez, looking at his verification form, and
comparing it with many others who were hired, was not
hired himself. The answer is in his active and militant role
with the Union and in the expressed resentment to that role
by management. I find that the failure to hire Suarez by No-
vember 14, 1988, is a violation of Section 8(a)(1) and (3) of
the Act. Grede Foundries, 211 NLRB 710 (1974).
b. Isabel Arriaga
Isabel Arriaga Garcia was employed by HSR on August
18, 1986, as a registered nurse. She was a union delegate,
and was one of the 21 people who signed a letter to Joaquin
Rodriguez on April 13, 1987, asking for discussions on the
move to CMT, and about Rodriguez’ antiunion letter of Au-
gust 30, 1985. Arriaga also participated in the abortive picket
line in front of HSR in October 1988, where employees were
frightened away by the sight of supervisors gathered in front
of the hospital and watching the prospective pickets. There
never was any actual picketing at that time, but the four
union people who were there, Suarez, Arriaga, Carmen
Merced, and Norma Flores, were not hired by HIMA when
it opened a few weeks later.
Arriaga obtained an application for employment at HIMA
from Milton Suarez. While she was filling it out she had
some questions about some of the requested information, so
she called Arelis Veintidos. Veintidos asked her where she
got the application, and when Arriaga told her that she got
it from the Union, Veintidos said that she could not receive
that application because she, Veintidos, was the only one
who could hand out applications. She instructed Arriaga to
call her secretary and make an appointment so she could pick
up a proper application.
So Arriaga made an appointment and went to the trailer
on the HIMA job site,47 Veintidos interviewed Arriaga at
that time, and they had a general discussion about the job.
Arriaga never heard from Veintidos about her application.
She finally called HIMA about 8:30 p.m. on the evening of
November 13, when HSR was closing down, and Veintidos
told her that her application was ‘‘under evaluation.’’ Arriaga
finished her shift and went home. She did not hear from
HIMA about her application, or about the reason or reasons
why she was not hired.
Arelis Veintidos testified that she rejected Arriaga’s appli-
cation for employment because of information contained in
the verification of employment references form sent to her
from Ortiz at HSR, without any inquiry or investigation from
Ortiz, or anyone else at HSR, or from Arriaga herself. The
form contain records of two disciplinary actions, one on June
7, 1988, and the other on June 14, 1988. The first action is
described as being for ‘‘Attempt to alter patient’s record,’’
and the second, a 15-day suspension without pay, and a
verbal admonishment for ‘‘altering patient’s record incongru-
ent entries in maintenance of patient’s record.’’ It is apparent
even from the verification form, that these two instances are
really one. Beyond that, as in Suarez’ case, there is a failure
to exercise elementary prudence and fairness to find out what
the reason was for the discipline administered to Arriaga.
Moreover, as in Suarez’ situation, there are other applicants
in the group of verifications placed in evidence, with similar
deficiencies but who were hired.
I find, as with Suarez, that the explanations advanced by
the Respondents here are a pretext, and the real reason for
the failure to hire Arriaga was her activity on behalf of the
Union, particular in that abortive picketing situation in Octo-
ber 1988. I find, therefore, that Respondent has violated Sec-
tion 8(a)(1) and (5) by refusing to hire Isabel Arriaga by No-
vember 14, 1988.
c. Carmen Merced
Carmen Merced Baez had worked at HSR since 1976. She
started as an LPN and in 1981 received an Associates’ de-
gree in nursing and was reclassified as an RN. She worked
as an RN in emergency, surgery, medicine, pediatrics, and in
the laboratory. In 1986, she was awarded a job in the initial
testing section of the laboratory and held that job until the
hospital closed.
Merced was active in the Union from the beginning of the
organizational campaign in 1983 and 1984. She passed out
union literature, collected union authorization cards, and or-
ganized meetings at the homes of employees. In January
1984, Merced was the cosignatory, with Juan Garcia, of an
open letter to employees urging that they vote for the Union.
At the election Merced served as an observer for the Union,
and afterwards she became a delegate for the surgery depart-
ment at HSR, and a member of the Union’s negotiating com-
mittee from 1986. In 1988 she participated in a march in
May, and in the demonstration in October, when she, with
Suarez, Flores, and Arriaga gathered in the view of manage-
ment representatives and attempted without success to orga-
nize picketing by employees.
629HOSPITAL SAN RAFAEL
48 I rejected a request by the General Counsel to call Aurora Diaz,
the secretary who received the original message. I refused to recon-
sider that decision at the hearing, and in view of my decision here,
I see no need to reconsider it now.
49 Veintidos did not base her decision on Merced’s reluctance to
work rotating shifts. I note also that in this case, as well as that of
Norma Flores, discussed below, Veintidos did not inform these ap-
plicants that there were no jobs in the positions they were seeking,
nor did she offer them other opportunities in their profession as reg-
istered nurses, in which category there were many positions avail-
able.
Merced filed an application for employment at HIMA on
October 21, 1988. She talked with Arelis Veintidos at the
time she filed, and they had a discussion about rotating
shifts. Merced insisted that she could not work on rotating
shifts. Merced again visited HIMA on November 14 and was
informed by Veintidos that her application was ‘‘still in the
evaluation process.’’
A verification report was submitted by Ortiz to Veintidos
on Merced. The report was undated, and reported a number
of absences due to illness, personal problems and union
leave, negotiations, illness of daughter, and annual leave.
These instances all took place in 1987 and 1988 but no dates
are given. There was an ‘‘incident and interview’’ on ac-
count of personal business during working hours, and a com-
ment that ‘‘This employee is not loyal to the institution,
since she reaches the point of telling patients that if it were
up to her, she would not hospitalize herself in this Institu-
tion.’’
In addition to Merced’s application form, a paper was in-
troduced by Respondent CMT which, according to Veintidos,
was attached to Merced’s application. This was a note from
Veintidos’ secretary reporting a telephone message allegedly
given by Merced to another secretary in which Merced said
that she wanted to work ‘‘only in the laboratory.’’48 In her
direct examination Veintidos stated that there was no posi-
tion for a nurse in the laboratory and that was the reason
Merced was not hired.49 Later, on cross-examination,
Veintidos stated that the decision was based ‘‘exclusively’’
on the verification form itself.
This shift in the reasons for the decision not to hire
Merced gives rise to a proper inference that the real reason
for failure to hire was Merced’s union activity. DeLorean
Cadillac, 218 NLRB 1362 (1975). I think it must be clear
from an evaluation of the haphazard manner in which the
verification forms were prepared; no dates on the documents;
no dates for alleged deficiencies or offenses; no investigation
by Veintidos of ambiguous or unintelligible allegations about
employees; discrepancies between those who were hired,
with poor attendance records, and these with poor attendance
records who were not hired; the lumping together of permis-
sible absences due to illness or vacation with improper ab-
sences or tardiness; that the evaluation process, and the hir-
ing process itself, was a sham. The verification forms were
poorly prepared, the screening of the forms was at best hap-
hazard and spotty, sometimes not even examined before hir-
ing decisions were made. In this kind of clutter, any decision
could have been made about anyone. In view of Respond-
ents’ union animus, discussed above, decisions about union
activist are bound to be tainted by the antiunion feelings and
personal dislike shown by management toward union activ-
ists. I find that the refusal to hire Merced was based on her
union activities, and violated Section 8(a)(1) and (3) of the
Act.
d. Norma Flores
Norma Flores Baez began working at HSR in May 1982
as a registered nurse. She was assigned as a floor nurse, then
went to the emergency room then, in 1983 or 1984 she be-
came an epidemiology nurse where she remained until HSR
closed in November 1988.
Flores had participated on the Union’s bargaining commit-
tee in 1984, and was a union delegate. She participated in
a march and vigil in March 1988 on behalf of the Union, and
she was one of the four union supporters at the aborted Octo-
ber 1988 picketing demonstration. Along with Suarez,
Arriaga, and Merced, she was seen by the management offi-
cials who were watching as these four people tried to per-
suade others to join their demonstration in front of Hospital
San Rafael. After this, Flores participated with Suarez,
Merced, and Elia Diaz in distributing a union flyer outside
HSR at the end of October. Flores’ name, together with no-
tice of a meeting at her house, was printed on this flyer.
At the beginning of September 1988, Flores’ supervisor,
Rosuara Rodriguez, told Flores and the other employees in
her department that management was going to give priority
in employment at HIMA to present employees of HSR, and
told them to make appointments to see Arelis Veintidos at
HIMA. Flores received an appointment and went to see
Veintidos, who was still located in the Triangle Engineering
trailer. Veintidos explained all the things the new hospital
was going to have in new facilities, and asked Flores what
position she was going to apply for. Flores replied that she
was going to apply for the job of epidemiological nurse, just
as she was at HSR. There was some further discussion about
fringe benefits and an advanced course that Flores wanted to
take, then Flores filled out the application and left.
After this, all the other employees in Flores’ department
were invited to visit HIMA to become familiar with the
physical layout, but Flores was not invited. On November 3,
before HSR was closed, Supervisor Rosuara Rodriguez asked
Flores for the hospital’s disease control manual, and all pro-
tocols for control departments. She explained to Flores that
they needed this material for some areas at HIMA. However,
by November 11 Flores addressed a memorandum to
Rodriguez explaining that the manual had not been returned
from HIMA.
Flores received a form letter dated November 7 from Ortiz
advising her that HSR was closing as of November 13,
thanking her for her dedication and loyalty, and wishing her
success in all future endeavors. Flores heard no more from
Veintidos concerning her application, nor any reasons why
the application was rejected.
In March 1989 Flores noticed advertisements in the news-
papers for registered nurses at HIMA. On March 2, she filled
out a new application for registered nurse provision and filed
it with Iris Rosario in the personnel office at HIMA. Flores
called the next week and was told that the application was
‘‘in process of evaluation.’’ She called again 2 weeks later
and was told again that the application was ‘‘in process of
evaluation.’’ Flores made no further calls, and received no
letter or acknowledgement from HIMA.
Arelis Veintidos testified that Flores was not hired in No-
vember 1988 because she had applied for a position as an
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 The date of this conversation is uncertain. Diaz was not asked
about the date, and Maldonado did not testify.
epidemiological nurse, and that position did not exist at
HIMA. Veintidos stated that the Department of Health and
Human Services required that the position of Infection Con-
trol Coordinator be at a supervisory level, and involved many
skills and functions which Flores did not possess.
Again I note that Veintidos made no explanation to Flores
in their discussion in September about a position at the new
hospital. Veintidos knew, because she knew Flores and Flo-
res had told her, what position Flores was in, and what posi-
tion she was applying for. But Veintidos must also have
known about the HHS requirements, and the table of organi-
zation of HIMA. Yet she said nothing and merely let Flores
file the application and leave.
Nor did Veintidos ever talk to Flores about the verification
form supplied by Ortiz, which, she used as the reason why
she did not hire Flores on her second try for employment in
March 1989. This form, also undated, shows that Flores had
time off, none of which appears to be unauthorized, except
for possibly an hour and three-quarters lateness, and two dis-
ciplinary actions for, first, a meeting held on account of Flo-
res’s having been outside of her working area on January 9,
1988, during working hours, and the second, a cryptic state-
ment dated only ‘‘87’’ showing a meeting held, with no dis-
cipline imposed, on account of ‘‘fraudulent attitude.’’
This apparently was the reason advanced by Respondents
for denying Flores a job in 1989. No one attempted to ex-
plain what a ‘‘fraudulent attitude’’ is. Veintidos said she did
not check this verification, or, indeed any of the others, with
anyone, certainly not Ortiz, the Author, or Flores, the sub-
ject.
Here, again, I find that the reasons advanced by Respond-
ents are not logical, nor reasonable, nor based on anything
but vague, unsubstantiated allegations, or translation of al-
lowable absences into excessive absenteeism. I find as in the
above cases, that the failure to hire Norma Flores in Novem-
ber 1988, and again in 1989, were based upon her union ac-
tivities and are violations of Section 8(a)(1) and (3) of the
Act.
e. Delia Diaz
Delia Diaz Gonzalez worked at HSR as a medical records
technician from July 1982 until after the hospital closed in
November 1988. Diaz was a member of the Union, she was
the alternate delegate for the medical records department at
HSR, and she had participated in the negotiations in 1987,
in the protest march and vigil in the spring of 1988 and had
handed out union buttons and literature during the negotia-
tions in 1987 and 1988.
Diaz applied for a position at HIMA by an application
dated October 13, 1988. She had had an interview with
Vientidos earlier, in August or September, at which
Veintidos told Diaz about the new hospital. After she had
filled out the application Diaz called Veintidos about the end
of October. She did not call back so Diaz called a second
time. Again she left a message, but Vientidos did not return
her calls.
About November 7 Diaz received one of the form letters
telling her that the hospital was closing, thank you and good-
bye. Diaz’ supervisor, Elsa Maldonado told her that the letter
was a mistake, and to disregard the letter. Maldonado told
Diaz that she had talked to Cyril Ollivierre, vice president
for finance and administrator at HIMA, and he had told her
that the employees in medical records were to work until the
work was finished, or they heard from HIMA. Diaz contin-
ued to work until she finished her analysis work. She then
told Maldonado that she was going to look for a job.
Maldonado told her to take 2 weeks vacation and then to
come back if she wanted to come back.50
About the end of November Diaz returned and spoke to
Maldonado. Diaz said that she told Maldonado that she had
not heard anything from HIMA, and that if she was not of-
fered a job there she could not stay at San Rafael.
Maldonado told her that if she was in her place she would
have done the same thing. Maldonado told Diaz she had
heard nothing about her situation. Diaz then left.
This conversation must have confused Maldonado, because
she wrote a letter to Diaz dated November 30 in which she
conveyed to Diaz her understanding from their conversations
that Diaz was no longer interested in working at HSR. She
went on to assure Diaz that as long as there was a job in
that department Diaz could go on working in her present po-
sition. Maldonado asked Diaz to reply within the next 5
working days or she would ‘‘understand that you do not wish
to continue working for Hospital San Rafael.’’
Diaz claimed in her testimony that she did not receive this
letter until December 9, 9 days after it was written, and 2
days after the expiration of the 5 business day deadline con-
tained in the letter. Diaz had no explanation of why she did
not get the letter, but did say it was in her mailbox but she
thought it was peculiar, because the stamp was not cancelled.
When she read the letter on December 9, Diaz went to the
old hospital and found that the medical records department
was closed. Diaz then called Maldonado at HIMA and ex-
plained that she had just received the letter, and that she was
not refusing to work at HSR but she wanted to have some
job security at the new hospital because HSR was closed.
Maldonado could not give her any satisfaction so they talked
for a while and then said goodbye. Diaz received nothing
further from HIMA.
Now, at this point I must point out that the General Coun-
sel is not claiming any violations of law in Diaz’ case arising
from anything which I have just described. It was not dis-
puted that at least two other employees in the medical
records department were transferred to HIMA in November
1988, but they had more seniority than Diaz. Another one or
two employees in the department were not technicians, and
thus in different job categories. What the General Counsel is
claiming is that a person named Belen Guadelupe Diaz was
hired in April 1989, who was not a prior employee of HSR,
and another employee, Virginia Lebron, also not a former
HSR employee, was hired on June 12, 1989, and that Delia
Diaz should have been hired before these two employees.
Thus, the date of the alleged violation in the failure to hire
Diaz was, according to the General Counsel, April 4, 1989.
I have some difficulty with this. The General Counsel’s
theory is not clear, either in the record or the brief. But on
the facts as I see them, Diaz was treated well and fairly by
Maldonado, her supervisor. That Maldonado wrote the letter
of November 30. I have no doubt, even though she did not
testify. There is no evidence of an ulterior purpose in delay-
ing the delivery of the letter, and no logical reason why Re-
631HOSPITAL SAN RAFAEL
51 There was no formal disclaimer of interest or abandonment of
the registered nurses covered by unit A, but it is clear from this, and
from the General Counsel’s brief, that unit A is no longer considered
as represented by the Union. I will adjust my recommended remedy
and order accordingly.
52 The letter stated ‘‘August 5,’’ but that was obviously a typo-
graphical error.
53 Some of these letters were hand delivered so they could be an-
swered on the same day.
spondent should have done it. Thus, I find that Diaz must
have been negligent in some way, or the Postal Service
failed in some way. This being so, then Respondent would
be entitled to assume, hearing no reply within the time limit
set in the letter, that Diaz was no longer interested in work-
ing for San Rafael.
This could explain why Vientidos could have logically as-
sumed that Diaz was not working for San Rafael, and was
not on a list of people either coming to HIMA or being laid
off at HSR.
Thus, I find no violations of the law in the case of Delia
Diaz.
6. After the injunction
a. The alleged refusal to bargain
After Judge Cerezo’s Decision and Order on August 8,
1989, the Union attempted to start up the bargaining process
directed by the Order. On August 10, Luis Alvarez Colon
wrote to Carlos Pineiro, executive vice president of HIMA
requesting that the hospital recognize and bargain with the
Union as the representative of its employees in unit B.51 Al-
varez requested a meeting for Thursday, August 17 at the
‘‘Conciliation and Arbitration bureau’’ in Hato Rey.
Pineiro was on vacation, so Alvarez’ letter was answered
by Joaquin Rodriguez, president of HIMA, on August 18.
Rodriguez pointed out that there was a 30-day appeal period
from the judge’s order, expressed the Hospital’s intention to
appeal, and to request therein a stay of the order, and indi-
cated that if the stay was denied, they could begin any time
after September 7 at a mutually convenient date, time and
place. Apparently Rodriguez was in error as to his under-
standing of the legal status of Judge Cerezo’s order, because
on August 24 he wrote again to Alvarez recognizing the
Union as the bargaining representative of the employees in
the LPN and technicians unit (unit B) and asking the Union
to send its proposals for a contact. Rodriguez said they
would study the proposals and submit a counter proposal,
then they could set a date to begin the negotiations.
Alvarez replied to this on August 28, asking for a meeting
to set ‘‘rules’’ for the negotiations on September 5, 1989,52
at the Conciliation and Arbitration Bureau. On September 1,
Arelis Veintidos answered this letter, insisting that the hos-
pital must receive the Union’s proposals, study them, prepare
and send counterproposals before any meeting could be
scheduled. On the same day53 Alvarez wrote to Vientidos
again requesting an initial meeting to discuss the rules. He
suggested Monday, September 11 at 10 a.m. at the Concilia-
tion and Arbitration office in Hato Rey.
On September 11, there was some dispute about who
showed up for this meeting, and when. Vientidos wrote to
Alvarez on September 11 stating that representatives of
HIMA were at the Conciliation and Arbitration Bureau on
that morning at 10 a.m., but they could not meet with Alva-
rez because he was in another meeting for another hospital
at the time.
Alvarez claimed that he was at the Conciliation and Arbi-
tration office, but was never notified that Vientidos and her
Attorney Heber Lugo Rigau, were looking for him there.
There was a lot of testimony about this contretemps and a
copy of the building security log showing that Veintidos and
Lugo did come in that morning, but I consider this to be just
an accident, some secretary forgetting to deliver or relay a
message, and I attach no significance to the incident.
At this point I can take official notice that around the mid-
dle of September Puerto Rico was struck by a tropical storm,
Hurricane Hugo, a real hurricane this time, which, while
mainly confined to the north east part of the Island, including
the San Juan area, did disrupt activities throughout the Com-
monwealth for some days.
After the hurricane, the next communication in this matter
was a letter from Alvarez to Vientidos dated September 26
in which the Union requested certain information necessary
for the drafting of ‘‘a serious and responsible proposal for
the negotiation of a agreement. The information requested
was a list of all employees with names, salaries, positions
and hiring dates, and a list of all fringe benefits. Another let-
ter, written on the same date, concerned Milton Suarez’ sal-
ary and his treatment by Veintidos. Alvarez delivered these
two letters in person to Veintidos. They discussed the miss-
ing connection at the September 11 meeting, each, of course,
blaming the other.
The parties finally got together on a meeting at the Concil-
iation and Arbitration Bureau on October 10 at 9 a.m.
The parties stipulated that at the October 10 meeting they
negotiated some rules for the bargaining sessions. There was
no testimony on further meetings between the parties before
this hearing closed on May 21, 1990.
The refusal by Respondents to comply with Judge
Cerezo’s order between the time of the Union’s demand for
recognition, August 11, 1989, and Rodriguez’ letter extend-
ing recognition on August 24 was unlawful. See Maness v.
Meyers, 419 U.S. 449 (1975); San Antonio Telephone v.
A.T.T., 529 F.2d (5th Cir. 1976). The refusal by Respondents
to meet until the Union submitted a full contract proposal,
the Respondents had time to study the proposal, and then
themselves prepared counterproposals, was an unlawful con-
dition in violation of Section 8(a)(1) and (5) of the Act, and
the court’s order. Chemung Contracting Corp., 291 NLRB
773 (1988); Fountain Lodge, Inc, 269 NLRB 674 (1984).
I agree with the General Counsel that the totality of Re-
spondents’ actions in the August 10–October 10 period dis-
plays an intent to delay negotiations just as their similar con-
duct in 1987 tended to stall and string out negotiations. Re-
spondents have thus violated Section 8(a)(1) and (5) of the
Act.
b. The disciplining of Milton Suarez
Milton Suarez testified on January 22, 1990, about his re-
instatement and subsequent employment problems. His direct
testimony was, somehow, not recorded at the hearing and
does not appear in the transcript for that date. When they be-
came aware of this the parties moved to reopen the hearing
to recall Milton Suarez and receive the missing testimony. I
granted their joint motion and the hearing was reopened on
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 This and subsequent actions indicate that Veintidos did not un-
derstand that the judge’s order called for ‘‘immediate reinstate-
ment,’’ not a leisurely process of hiring as if Suarez were a new em-
ployee.
May 21, 1990, to accomplish this. Suarez did testify at that
time in the same manner as he had in his appearance on Jan-
uary 22.
In order, hopefully, to avoid confusion as to this testi-
mony, the reader of the record is referred to Suarez’ direct
testimony on pages 2226 through 2264, then to cross-exam-
ination by Lugo Rigau, counsel for Respondents CMT,
TMCLP, and Joaquin Rodriguez beginning on page 1998 of
the transcript, running through page 2028.
I would also note that there is no reference in the record
to the receipt of General Counsel’s Exhibits 203 through
213, which were introduced through Suarez. I, therefore, offi-
cially receive these numbered exhibits into evidence at this
time, except for General Counsel’s Exhibits 203(a) and (b)
which was rejected and which appears in the rejected exhibit
file.
The order of the district court directed the Respondents to
‘‘Reinstate Milton Suarez to his former position immediately,
or if such position does not exist, to a substantially equiva-
lent position in the unit of licensed practical nurses and tech-
nicians.’’ (Emphasis added.)
After the order was issued Milton Suarez advised Arelis
Veintidos that he was ready to start working in the X-Ray
department beginning on the next Monday, August 14. This
letter was answered by Joaquin Rodriguez under date of Au-
gust 15, and informed Suarez that ‘‘As soon as the order
issued by Honorable Judge Carmen Vargas De Cerezo is
firm and final, we will accept you to start working as X-Ray
technician or in a substantially equivalent position, in the al-
ternative that there is no X-Ray technician position avail-
able’’ (emphasis in original).
As a result of sober second thoughts, or perhaps legal ad-
vice, this communication was followed on August 24 by a
letter from Veintidos to Suarez asking him to come to a
meeting with her on August 29 or 31, or September 1 ‘‘to
start expediting the procedures related with your hiring.54
Veintidos and Suarez met on August 31. According to
Suarez, Veintidos said that in order to reinstate him she
needed the documents ‘‘that she had requested from the rest
of the employees to proceed with my appointment.’’
Veintidos sent a confirmation letter on September 1 listing
the documentation, as she put it, ‘‘required by law’’ in order
to ‘‘proceed with your employment contract.’’ These docu-
ments were a health certificate; good conduct certificate;
birth certificate; current professional license; evidence of
continued formal education, including CPR; identification
with photograph; and Social Security card.
On September 5, Suarez took the documents to HIMA and
gave them to Veintidos secretary, Loraido Rivero. She gave
him a ‘‘document of appointment.’’ Suarez read it over, and
noticed that the salary was less than he had been earning at
HSR, $5.15 per hour, as compared with $5.43. He also told
Rivero that he could not sign a form saying that he agreed
to follow the personnel manual and regulations, because he
had not read nor seen the manual and regulations. Rivero re-
ferred him then to Veintidos who told him that that was the
salary scale in the department, and that she did not have a
personnel manual available at that time. Suarez then went to
check with the Union, and returned on September 6 to sign
the appointment. At the same time he wrote to Veintidos
protesting the lower salary and the fact that he had not re-
ceived the personnel regulations. Suarez returned to work, I
infer, on or about September 6.
Whatever my views of this procedure to which Suarez was
subjected, there is no allegation in the complaint that the
hospital’s conduct constituted an unfair labor practice, and it
is certainly not my function to determine in this proceeding
whether Judge Cerezo’s order was properly complied with.
In any event, Suarez resumed his active role in union ac-
tivities as soon as he returned to work. Even before he went
back he participated in the distribution and handout of a flyer
proclaiming the Union’s ‘‘great victory’’ in the district court.
Then, on September 28 he joined with a number of other
employees in the X-Ray department to send a communica-
tion to Maria T. Dominguez, the hospital’s auxiliary services
manager, requesting a meeting with her to discuss staffing
problems in the X-Ray department.
Suarez was distributing copies of this letter on October 3
in the X-Ray department when he was approached by Dr.
Francisco Loubriel Mendez, the newly hired director of the
department. Suarez testified that he was handing a copy of
the letter to Luz Neida Lopez Rubet, a supervisor in the de-
partment, when Dr. Loubriel came up, asked to see a copy,
read it, and said that it would bring more problems in the
department. Loubriel then said that he wanted to talk about
‘‘something personal between you and I,’’ but Suarez told
him that he was on his break, that he had been told he had
to carry out his union activities on his own time in nonwork-
ing areas, and that if Dr. Loubriel wanted to talk, they could
talk after Suarez finished his break.
After returning from his break Suarez was talking to a co-
worker, Jose Puello, when Loubriel came up and told Suarez
that he had asked him to come to his office after the break.
Loubriel and Suarez then went to the Doctor’s office.
Loubriel told Suarez that he was the boss and when he called
Suarez to a meeting, he should leave what he was doing and
come to the meeting immediately. Suarez said he meant no
disrespect, but he could not leave patients to take care of
other matters. Loubriel told him to do what he said and that
was it. He told Suarez that he had came as director of the
department as an independent contractor with the entire re-
sponsibility for the department, and he did not care about the
Union, or anybody’s rights, or the problems Suarez might
have with the administration. He, Loubriel ‘‘could do a lot
of damage in the Department.’’ He also said that he had
been told that Suarez could ‘‘damage the rest’’ of the em-
ployees.
Suarez told Loubriel that he was not damaging (the depart-
ment), because what he had done he did legally, whereas the
hospital been found guilty of violating his rights, and they
had been forced to reinstate him and to sit down and nego-
tiate.
The meeting concluded with Loubriel and Suarez both ex-
pressing sorrow that they could not understand each other.
Dr. Loubriel’s version of this encounter was much more
concise, but the general outlines are very similar, Suarez was
passing out literature. Loubriel asked him to meet. Suarez
said he was on break. When he returned (Loubriel said it
was 45 minutes) Loubriel had to go and get him to come to
633HOSPITAL SAN RAFAEL
55 There is no tie-up of the warning about the needs of the depart-
ment with the letter from employees to Dominguez dated September
28.
the meeting. There was some talk about the Union, but
Loubriel denied ever boasting about being ‘‘the boss,’’ and
denied saying that he could do a lot of harm in the depart-
ment.
I do not feel in this instance that the General Counsel has
established a prima facie case for a violation of law. I think
both Suarez and Loubriel spoke the truth, as they recalled it.
I think that Suarez was passing out literature, and Loubriel
wanted to talk to him, as a new director, to explain how he
viewed his new responsibilities. I think that Suarez did not
report to Loubriel, but, by his own admission, was talking
to another employee, it could have been for 30 or more min-
utes, after the break was over. If Loubriel was annoyed about
that and if he told Suarez that he should report promptly
when told, I can understand that. Moreover, if Loubriel told
Suarez that he could damage the operation, or the other em-
ployees if he did not follow orders, that is, likewise, under-
standable.
Suarez impressed me as truthful, as I have said, but forget-
ful and muddled on times and details. I cannot accept his
uncorroborated version of these events, and I do not find a
violation of Section 8(a)(1) and (3) in this incident.
A second incident occurred about October 4 in the hospital
in connection with a meeting between the technicians in the
X-Ray department and their supervisor, Luz Neida Lopez.
During this meeting, according to Milton Suarez, Lopez told
the employees that they should think about how they were
going to rotate shifts, for 7 a.m. to 4 p.m., 8 a.m. to 5 p.m.,
or 9 a.m. to 6 p.m. Suarez said that the employees were not
in agreement with rotating shifts, and that he wanted to dis-
cuss the question with the Union. Lopez replied that the
Union had nothing to do with the X-Ray department, and
that there was no agreement between the Union and the hos-
pital.
Lopez testified here, and denied that she ever said to
Suarez that there was no union at the hospital. She did say
to Suarez and the other employees that HIMA was Union,
but that there was no collective-bargaining agreement, at that
time. It still remained to be negotiated.
Here again, I note the similarity in the testimony, but here
I find Lopez to be a credible witness, and in the absence of
any corroboration of Suarez’ story, I do not find that the
General Counsel has established a prima facie case, based
upon a preponderance of the credible evidence, and I do not
find a violation of Section 8(a)(1) and (3).
The third incident in the complaint involving Milton
Suarez alleges that he was issued a written warning on Octo-
ber 2, 1989.
Luz Neida Lopez testified that she had spoken to Suarez
on several occasions after he returned to work in September
1989 about disappearing from the X-Ray department without
notice. Suarez always said it would not happen again, but it
did, so Lopez spoke about the problem to Arelis Veintidos.
Veintidos thereupon prepared a ‘‘Written Orientation Meet-
ing’’ form, listing several violations of hospital rules.
In connection with this warning, there was a meeting be-
tween Veintidos, Lopez, and Suarez where the specifics of
the violations were discussed. The substance of the meeting,
according to Suarez, was merely a listing of the violations,
Suarez allegedly abandoned his work area without permis-
sion, interrupted other employees, concerned himself with the
‘‘needs of the X-Ray Department’’ which were properly mat-
ters for supervision, and not for Suarez, and generally being
involved in nonwork activities on working time. Suarez de-
nied that he had ever been warned about these things, but I
do not credit that denial. I do credit Lopez’ account, and I
find that the warning was warranted by Suarez’ activities in
leaving his work area and interrupting the work of others.55
I therefore find no violation of Section 8(a)(1) and (3) in
this warning incident.
IV. THE REMEDY
Having found that the Respondents herein have engaged in
certain unfair labor practices, I shall recommend that they
cease and desist therefrom and that they take certain affirma-
tive actions designed to effectuate the policies of the Act.
Having found that Hospital San Rafael, Inc. and Centro
Medico Del Turabo are alter egos and a single employer
within the meaning of the Act, and that Hospital San Rafael
failed and refused to bargain collectively and in good faith
with the Union as the exclusive bargaining representative of
its employees in units A and B, as described above between
May 19 and November 14, 1988. I shall recommend that
Hospital San Rafael post a notice to its former employees
and others on the premises of its alter ego, Centro Medico
del Turabo.
Since I have found that Centro Medico Del Turabo, the
alter ego of Hospital San Rafael has, since on or about No-
vember 14, 1988, failed to recognize or bargain in good faith
with the Union as the executive bargaining representative of
its employees in unit B as described above; and has unilater-
ally determined wages, hours, and working conditions for its
employees in unit B, without notice to or bargaining with the
Union at its subsidiary, Hospital Interamericano de
Mediciana Avanzada, I shall recommend that it immediately
recognize the Union, and bargain collectively in good faith
with the Union, and if agreement is reached, embody such
agreement in a written contract; that it reimburse all of its
employees in unit B for any differences in wages, hours, and
other conditions of employment from those that they enjoyed
as employees of Hospital San Rafael; and that said CMT
offer to Milton Suarez, Carmen Merced, Isabel Arriaga, and
Norma Flores, immediate and full reinstatement to their
former or substantially equivalent positions, and make them
whole for any losses they may have suffered on account of
CMT’s discrimination against them in accordance with the
formulas set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987).
In this case, the violations I have found are of such a
grievous and aggravated nature as to show a calculated dis-
regard for the statutory rights of employees and have caused
employees to be deprived of their rights since the summer
of 1987. In such case, I believe that a broad remedial order
is warranted. Hickmott Foods, 242 NLRB 1357 (1979).
On the basis of the above findings of fact, and the entire
record in this case, I make the following
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Hospital San Rafael, Inc., a subsidiary of San Rafael
Planning Corporation, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Centro Medico del Turabo, Inc., the general partner and
principal owner of Turabo Medical Center Limited Partner-
ship d/b/a Hospital Interamericano de Medicina Avanzada, is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
3. Hospital San Rafael, Inc. and Centro Medico del
Turabo, Inc. are alter egos and a single employer within the
meaning of the Act.
4. Centro Medico del Turabo is also a successor employer
to Hospital San Rafael within the meaning of the Act.
5. Caribe Hospital Affiliates, Inc. is a joint employer with
CMT and its subsidiaries, TMCLP and HIMA.
6. Union Nacional de Trabajadores de la Salud, affiliated
with the National Union of Hospital and Health Care Em-
ployees, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
7. By failing and refusing to bargain collectively and in
good faith with the Union from on or about July 29, 1987,
to November 14, 1988, and by violating the terms of a settle-
ment agreement entered into on May 19, 1988, Hospital San
Rafael violated Section 8(a)(1) and (5) of the Act.
8. By refusing to recognize and bargain collectively with
the Union in the bargaining units described below from No-
vember 14, 1988, to August 8, 1989, Centro Medico del
Turabo as the alter ego to Hospital San Rafael, has violated
Section 8(a)(1) and (5) of the Act.
9. By refusing to recognize and bargain collectively with
the Union in the bargaining units described below, as the
successor employer to Hospital San Rafael, Centro Medico
del Turabo has violated Section 8(a)(1) and (5) of the Act.
10. By unilaterally and without notification to or consulta-
tion with the Union, changing wages, hours, and conditions
of employment of employees in the units described below,
Respondent Centro Medico del Turabo, as the alter ego of
and as successor employer to Hospital San Rafael has vio-
lated Section 8(a)(1), (3), and (5) of the Act.
11. The Units appropriate for collective bargaining in this
portion of the case are:
Unit (A) Included: All registered nurses and phar-
macists employed by Respondent at its hospital located
in Caguas, Puerto Rico.
Excluded: All other employes, office clerical employ-
ees, guards and supervisors as defined in the Act.
Unit (B) Included: All licensed practical nurses and
technicians employed by Respondent at its hospital lo-
cated at Caguas, Puerto Rico, including escorts: EKG
technicians; Respiratory Therapy technicians; X-Ray
technicians; Operating Room Technicians; Dietary
Technicians; Medical Records Technicians; Admission
Clerks; Record Room Clerks; X-Ray Clerks; Diet De-
partment Clerks; Respiratory Therapy Clerks; Pharmacy
Clerks; Operating Room Clerks; Emergency Room
Clerks; Ward Clerks; and Pharmacy Auxiliaries.
Excluded: All other employees, office clerical em-
ployes, professional personnel, guards and supervisors
as defined in the Act.
12. By refusing to rehire, or to continue to employ
Milton Suarez, Carmen Merced, Isabel Arriaga, and
Norma Flores Respondent Centro Medico del Turabo
has violated Section 8()(1) and (3) of the Act.
13. By failing and refusing to bargain in good faith with
the Union as the representative of its employees in unit B,
described above, on and after August 8, 1989, and until Oc-
tober 20, 1989, Centro Medico del Turabo has violated Sec-
tion 8(a)(1) and (5) of the Act.
[Recommended Order omitted from publication.]