DIGNITY HEALTH d/b/a St. Rose Dominican Hospital

National Labor Relations Board - Board Decisions

Jun 12, 2014

360 N.L.R.B. 1130 (N.L.R.B. 2014)

1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 126
Dignity Health d/b/a St. Rose Dominican Hospitals
and Michael S. Dela Paz. Case 28–CA–094717
June 12, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On September 23, 2013, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent and the General Counsel each filed exceptions,
a supporting brief, an answering brief, and a reply brief.
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 decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The Respondent terminated employee Michael Dela
Paz after he circulated a petition soliciting signatures
from employees who had concerns about a coworker’s
attitude and conduct toward them and presented those
complaints to the coworker’s supervisor. The judge
found that Dela Paz did not engage in protected concert-
ed activity, but his discharge was nonetheless unlawful
because the Respondent maintained overbroad and dis-
criminatory rules and discharged Dela Paz pursuant to
them. For the reasons discussed below, we reverse the
judge’s findings. Although we agree that the discharge
of Dela Paz was unlawful, we find that the Respondent
did not maintain unlawful rules. Rather, Dela Paz was
unlawfully discharged for engaging in protected concert-
ed activity.
I. FACTS
Since 2007, Dela Paz has performed housekeeping
work at the hospital as a member of the Respondent’s
environmental services department. Among his many
duties, he cleaned the cafeteria floor. He also frequently
bought food at the cafeteria. Dela Paz had frequent con-
tact with cafeteria cashier Habiba Araru, and the two did
not get along. On or about June 4, 2012,2 Dela Paz ap-
proached Araru’s register with hot dogs and rice, and she
informed him that she would have to charge him for two
entrees. The record is unclear, but Araru may have
commented that “Filipinos don’t know . . . hot dogs go
with bread, not rice,” and Dela Paz may have threatened
that he would “take care of [her].” Araru reported the

1 We shall amend the judge’s conclusions of law in accordance with
our findings here. We shall modify the judge’s recommended Order
and substitute a new notice to conform to our findings, the Board’s
standard remedial language, and in accordance with our decisions in J.
Picini Flooring, 356 NLRB 11 (2010), and Durham School Services,
360 NLRB 694 (2014).
2 All dates refer to 2012 unless otherwise noted.
incident, and the Respondent took seriously Araru’s
claim that Dela Paz had threatened her. On June 5, Envi-
ronmental Services Manager Brad Duda telephoned Dela
Paz and informed him that he would be on administrative
leave until the Respondent completed its investigation of
the incident. Duda added that Dela Paz was not to con-
tact any hospital employees during his administrative
leave.
While on leave, Dela Paz asked a union officer for her
advice. That officer advised collecting witness state-
ments and statements attesting to Dela Paz’ character.
Although Dela Paz obtained signed statements from
three employees attesting to his good character, com-
plaining about Araru, or both, he also circulated a peti-
tion on his own initiative with a cover page that read:
If at one time or another you had ever had an encounter
with [Araru], the cashier at the Cantina—if she had ev-
er been rude to you or if perhaps you observed that she
has treated someone else with disrespect or a sullen at-
titude, kindly sign your name on the attached paper in
support of my signature campaign.
Dela Paz collected signatures by approaching employees
whom he knew had concerns about Araru’s behavior, and
those employees recommended others who also had con-
cerns. By June 12, 17 employees had signed the petition.
On June 12, Manager Duda met with Dela Paz. Dela
Paz gave Duda the three employee statements, the peti-
tion, and a written statement describing his side of the
story and his own concerns about Araru’s unprofessional
attitude. Duda read the documents, thanked Dela Paz for
them, and did not mention them again during the meet-
ing. Duda suspended Dela Paz for making threatening
and harassing statements during his altercation with Ara-
ru,3 counting Dela Paz’ 7-day administrative leave as his
suspension. Duda told him that the matter was now
closed and “that the expectation was that he would not
retaliate and that as long as he didn’t do so, he would
remain in good standing and be employed.” Duda gave
Dela Paz an “Action Plan” that outlined the conditions
for Dela Paz to keep his job. One condition read, “Em-
ployee will not retaliate against co-workers when infor-
mation or feedback given. There will be ZERO tolerance
for any perceived retaliation against coworkers.”
After Dela Paz returned to work, he continued collect-
ing signatures on his petition because employees who
also had problems with Araru asked to sign it. On June
16, Dela Paz approached Araru’s supervisor, Brad Wild.
He gave Wild a copy of the petition, which now bore 28

3 The General Counsel has not alleged this suspension to be unlaw-
ful.
ST. ROSE DOMINICAN HOSPITALS 1131
signatures, and a copy of the written statement Dela Paz
had submitted to Duda on June 12. On June 18, Dela Paz
also gave the updated petition to Duda’s superior, Envi-
ronmental Services Director Lee Timothy. Timothy told
Dela Paz that “if he accept[s] this paper, [Dela Paz]
might be separated” from the Respondent. On June 20,
Wild relayed his June 16 encounter with Dela Paz to Du-
da and Timothy.
On July 3, Duda summoned Dela Paz to the human re-
sources office and discharged him. His termination no-
tice explained:
One expectation of the action plan outlined zero toler-
ance for any retaliation against the employee with
whom he had the altercation. Mr. Dela Paz has failed
to meet this expectation. Since returning from his sus-
pension, he has continued to actively pursue measures
to have the other employee disciplined. He has ap-
proached coworkers and management alike in an at-
tempt to smear the reputation of the other employee
and try to get her fired. Such actions demonstrate an
unwillingness to follow the simple expectations of the
action plan and represents blatant insubordination.
II. ANALYSIS
The judge found that the Respondent violated Section
8(a)(1) of the Act by promulgating unlawful work rules
when Duda instructed Dela Paz not to contact other em-
ployees during his administrative leave and not to retali-
ate against Araru. The Respondent excepts, arguing that
Duda’s instructions were not work rules. We agree.4
Instructions directed solely at one employee that “were
never repeated to any other employee as a general re-
quirement” are not work rules. Flamingo Las Vegas Op-
erating Co., 360 NLRB 243, 243 & fn. 5 (2014); see also
Teachers AFT New Mexico, 360 NLRB 438, 438 at 1 fn.
3 (2014) (no evidence the employer’s statements were
communicated to other employees or would be reasona-
bly construed as establishing a new rule or policy). Here,
Duda’s instructions were directed only to Dela Paz, and
the General Counsel presented no evidence that the same
instructions were ever given to any other employee.5 As

4 In his conclusions of law, the judge implicitly found merit in the
General Counsel’s allegation that, during the July 3 termination meet-
ing, the Respondent promulgated a rule prohibiting employees from
enlisting the assistance of their coworkers. We reverse this finding for
the same reasons discussed below.
5 The General Counsel never alleged that Duda’s instructions oth-
erwise violated Sec. 8(a)(1), and we find no other basis for so finding.
Duda instructed Dela Paz on June 5 not to contact other employees
during his administrative leave—over 6 months before Dela Paz’ De-
cember 11 charge. An allegation that the statement violated the Act
would be time barred by Sec. 10(b). Moreover, under the circumstanc-
es of this case, Duda’s June 12 no-retaliation instruction would not
the Respondent did not promulgate any rules, we also
reverse the judge’s finding that the Respondent violated
Section 8(a)(1) by discharging Dela Paz pursuant to un-
lawful rules.
The General Counsel also alleged that the Respondent
violated Section 8(a)(1) because it discharged Dela Paz
for his protected concerted activity of continuing to cir-
culate, after his June 12 suspension meeting, the petition
about Araru’s attitude and presenting that petition to
Wild.6 The judge dismissed this allegation because, alt-
hough he implicitly agreed that Dela Paz’ conduct was
concerted, he found that it was not for the purpose of
mutual aid or protection under Holling Press, Inc., 343
NLRB 301 (2004). In his view, “Dela Paz was pursuing
a purely personal claim.”7 We disagree that the activity
for which the Respondent discharged Dela Paz was not
for the purpose of mutual aid or protection.
Section 7 protects activity when it is both “concerted”
and “for the purpose of . . . mutual aid or protection.”
See Meyers Industries, 281 NLRB 882, 887 (1986), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). Dela Paz’ conduct
was unquestionably concerted. His petition sought to
enlist the assistance of his coworkers, and 28 coworkers
in fact joined him in expressing concerns about Araru’s
attitude. See id. at 885–886. Not only did they sign the
petition, but many also referred Dela Paz to other con-
cerned employees or approached him to offer their sup-
port. Dela Paz later brought the group complaint to the
attention of management when he approached Wild. See
id. at 887.
To be for the purpose of mutual aid or protection, con-
certed activity must seek to “improve terms and condi-
tions of employment or otherwise improve [employees’]
lot as employees.” Eastex v. NLRB, 437 U.S. 556, 565
(1978). In Holling Press, supra, one employee, Fabozzi,

“reasonably tend to interfere with, restrain, or coerce an employee in
the exercise of his Section 7 rights.” Network Dynamics Cabling, Inc.,
351 NLRB 1423, 1427 (2007). We find below that circulating the
petition was Sec. 7 activity. Duda, however, thanked Dela Paz when he
submitted the petition during the June 12 meeting, and Duda never
indicated at that time that there was anything wrong with Dela Paz’
circulating it. Thus, Dela Paz would not reasonably believe that con-
tinuing to engage in the Sec. 7 activity of circulating the petition would
constitute the sort of retaliation against Araru that he had agreed to
refrain from.
6 We adopt the judge’s finding, for the reasons stated in his deci-
sion, that the Respondent did not violate Sec. 8(a)(3).
7 The judge found that the Respondent discharged Dela Paz for his
continuing to circulate the petition and not because he presented it to
Wild. We disagree. The termination notice, quoted above, references
Dela Paz’ approaching coworkers and management. As explained
below, circulating the petition and presenting the group complaint to
Wild were both protected concerted activity.
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attempted to get another employee to testify on her be-
half before a state agency in support of Fabozzi’s sexual
harassment claim. The Board found that this was not for
the purpose of mutual aid or protection where, among
other considerations, there was no evidence that any oth-
er employee “had similar problems—real or perceived—
with a coworker or supervisor,” and the employee whom
Fabozzi solicited to testify did not want to support her.
343 NLRB at 302.8
Here, by contrast, many employees had real or per-
ceived problems with Araru’s attitude in the workplace
affecting their working conditions. Those employees
wanted to and did support Dela Paz’ petition. Although
personal vindication may have been among Dela Paz’
goals, that does not mean Dela Paz failed to “embrace[]
the larger purpose” of drawing management’s attention
to Araru’s attitude for the “benefit of all of his fellow
employees.” Phillips Petroleum Co., 339 NLRB 916,
918 (2003) (finding protected concerted activity even
though an employee’s own need to care for his wife and
children sparked his efforts to seek sick leave for family
medical emergencies). On these facts, we find that Dela
Paz’ continuing to circulate the petition and presenting it
to Wild was concerted activity for the purpose of mutual
aid or protection.
Accordingly, as the Respondent knew that Dela Paz’
activities were concerted and discharged Dela Paz for
engaging in those protected concerted activities, we find
that the Respondent violated Section 8(a)(1).9
Finally, we reverse the judge’s dismissal of the allega-
tion that the Respondent, by Manager Timothy, violated
Section 8(a)(1) by threatening Dela Paz with termination
when Dela Paz gave Timothy the updated petition. The
judge found Timothy’s statement lawful based on his
prior finding that Dela Paz’ circulating the petition was
not protected concerted activity. Because we find above
that Dela Paz did engage in protected concerted activity,
we find the 8(a)(1) threat violation.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 3.

8 Member Schiffer observes that no party in this case has asked the
Board to revisit Holling Press. Accordingly, she expresses no view on
whether that case was correctly decided. She agrees, however, that it is
distinguishable from the present case.
9 Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988). As we find that approaching Wild to present employees’
complaints about Araru was also protected concerted activity, we find
no merit in the Respondent’s asserted affirmative defense that it would
have discharged Dela Paz anyway for approaching Wild.
“3. The Respondent violated Section 8(a)(1) of the Act
by threatening Michael Dela Paz with discharge on June
18, 2012, for his protected concerted activity of circulat-
ing a petition concerning a coworker’s attitude.”
2. Substitute the following for the judge’s Conclusion
of Law 4.
“4. The Respondent violated Section 8(a)(1) of the Act
by discharging Dela Paz on July 3, 2012, for his protect-
ed concerted activity of circulating a petition concerning
a coworker’s attitude and presenting those group com-
plaints to the coworker’s supervisor.”
ORDER
The National Labor Relations Board orders that the
Respondent, Dignity Health d/b/a St. Rose Dominican
Hospitals, Henderson, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they engage in protected concerted activities.
(b) Discharging employees because they engage in
protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Michael Dela Paz full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Dela Paz whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the judge’s decision.
(c) Compensate Dela Paz for any adverse income tax
consequences of receiving his backpay in one lump sum,
and file a report with the Social Security Administration
allocating his backpay to the appropriate calendar quar-
ters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Dela Paz and, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
ST. ROSE DOMINICAN HOSPITALS 1133
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Henderson, Nevada facility copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 18, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

10
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT threaten you with discharge because you
engage in protected concerted activities.
WE WILL NOT discharge you because you engage in
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL within 14 days from the date of the Board’s
Order, offer Michael Dela Paz full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Dela Paz whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, less any net interim earnings, plus in-
terest.
WE WILL compensate Dela Paz for any adverse income
tax consequences of receiving his backpay in one lump
sum, and WE WILL file a report with the Social Security
Administration allocating his backpay to the appropriate
calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Dela Paz, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.
DIGNITY HEALTH D/B/A ST. ROSE DOMINICAN
HOSPITALS
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–094717 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nathan Higley, Esq., for the General Counsel.
James Winkler, Esq. (Littler Mendelson, P.C.), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on August 6, 2013, in Las Vegas, Nevada.
The complaint here, which issued on April 30, 2013, and was
based upon an unfair labor practice charge and an amended
charge filed by Michael Dela Paz, an individual, on December
11, 20121 and January 22, 2013, alleges that since June 11 Dig-
nity Health, d/b/a St. Rose Dominican Hospitals, (the Respond-
ent), has maintained an overly broad and discriminatory rule
prohibiting employees at its Sienna facility from discussing
discipline Respondent issued to them. It is further alleged that
from June 11 until about July 3, Dela Paz engaged in protected
concerted activities with other employees by circulating a peti-
tion at its facility requesting employees to complain about a
coworker being rude to them, by soliciting letters from other
employees and by asking them to sign a petition about the ac-
tions of this coworker, and that he engaged in these activities at
the request of the Union. The complaint also alleges that on
about June 28, Respondent by Lee Timothy, the director of the
EVS department, and an admitted supervisor and agent of the
Respondent, threatened employees with discharge for engaging
in concerted activities, that on about July 3, Respondent, by
Brad Duda, the manager of the EVS department, and also an
admitted supervisor and agent of the Respondent, promulgated
and enforced an overly broad and discriminatory rule prohibit-
ing its employees from engaging in certain protected concerted
activities, and on about July 3, Respondent discharged Dela Paz
for engaging in union activities and protected concerted activi-
ties, in violation of Section 8(a)(1) and (3) of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits and I find that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and a healthcare institution within the mean-
ing of Section 2(14) of the Act, and that Service Employees
International Union Local 1107, (the Union), has been a labor
organization within the meaning of Section 2(5) of the Act.
II. THE FACTS
Stated briefly, Dela Paz, a maintenance employee at the hos-
pital, had a disagreement with Habiba Araru, a/k/a “Mustah” a
cashier at the hospital cafeteria. As a result of this disagree-
ment, Dela Paz was suspended for 5 days without pay, although
there is no allegation that this suspension violated the Act.
After being suspended, Dela Paz approached employees at the
hospital and asked them to sign a petition if Araru had been
rude to them or to other employees, and he gave this petition to
Araru’s supervisor and was discharged.
Dela Paz has been employed by the Respondent as an envi-
ronmental service tech employee (a housekeeping employee)

1 Unless indicated otherwise, all dates referred to here relate to the
year 2012.
since March 2007. He is a member of the Union, which repre-
sents that unit, and works the 11 p.m. to 7:30 a.m. shift. His
direct supervisor is Eddie Aguilar; his manager is Brad Duda.
There was an incident involving Dela Paz and Araru on June 1,
according to Duda’s testimony; Dela Paz testified that there
was also a second incident on June 4. Duda testified that he
was notified of the incident by the security supervisor shortly
after June 1, and was given a statement about the incident pre-
pared by Araru. The statement states that when Dela Paz went
to pay for his food, Araru told him that as he had two entrees
she would have to charge him for them, but that she didn’t want
him to think that she was overcharging him. He replied, “I’ve
already reported you and I’ll take care of you.” She also told
the security department that she was concerned for her safety
and would like more security in the area. Duda discussed the
situation with Timothy, his supervisor, and they decided that
Dela Paz would be put on administrative leave while they con-
ducted a further investigation, and Duda called Dela Paz and
told him that he was being placed on administrative leave.
Duda testified that he also notified the Union that Dela Paz was
being put on administrative leave.
A meeting was held on June 12 with Duda, Dela Paz, Pam
Bylekie, a supervisor of operators and transporters, and Debbie
Miller a union representative. At this meeting, Dela Paz gave
him a petition dated June 11, stating:
Signature Campaign in Support of Mhike Sanchez
If at one time or another you had ever had an encounter with
Mustah, the cashier . . . if she had ever been rude to you or if
perhaps you had observed that she has treated someone else
with disrespect or a sullen attitude, kindly sign your name on
the attached paper in support of my signature campaign.
There were 17 employee signatures attached to the petition. In
addition, Dela Paz gave him statements written by three em-
ployees, none of whom witnessed the incident. The first heard
only a loud noise, the second was critical of Araru’s attitude
and rudeness, and the third spoke of what a nice person Dela
Paz was. Duda looked over these documents and told Dela Paz
that he would retroactively count the administrative leave as a
suspension, and that Dela Paz could return to work, and By-
lekie and Miller agreed. He also told Dela Paz that the matter
was closed, “. . . and that the expectation was that he would not
retaliate and that as long as he didn’t do so, he would remain in
good standing and be employed.” Dela Paz was given an em-
ployee counseling report that day stating that he had been sus-
pended for 7 days without pay because Araru felt threatened
and harassed by his statements. It further states that he was
given copies of the Respondent’s policies re: harassment in
workplace, workplace conduct, zero tolerance of workplace
violence and standards of conduct, and that he was “. . . to
strictly adhere to these policies with 100% compliance.” At-
tached to the employee counseling report was an action plan
that Dela Paz was required to follow. One item listed states:
“Employee will not retaliate against co-workers when infor-
mation or feedback given. There will be ZERO tolerance for
any perceived retaliation against co-workers.”
Dela Paz testified that he ate at the cafeteria three times a
day, 5 days a week, where he often encountered Araru. His job
ST. ROSE DOMINICAN HOSPITALS 1135
included cleaning and sweeping the floors in the cafeteria, and
on June 1 he saw her cleaning the tables in the cafeteria, and
dropping the ketchup packets on the floor. He asked her if she
could pick them up and she said that wasn’t her job. Later that
evening he told Aguilar about what occurred and on the follow-
ing morning he told Duda about the incident, and Duda said
that he would discuss it with Aguilar. On June 4, he went to
pay for some food that he had chosen, rice and hot dogs, and
Araru said, “You Filipinos don’t know how to eat, hot dogs go
with bread, not rice.” Dela Paz, who is Filipino, was upset, but
only said, “Whatever is on my plate I’m paying for” and
walked away. Later that evening he told Aguilar about the
incident, and Aguilar told him to just do his job, not to worry
about it. On the morning of June 5 he received a telephone call
from Duda, who told him not to report for work, and not tell the
Union, or his friends at the hospital, and he would contact him
when to return, but he never gave him a reason for the suspen-
sion. On June 7, Duda sent an email to Timothy notifying him
that Dela Paz would be on administrative leave pending the
conclusion of an investigation into the incident. The email
concluded:
Michael was also instructed that he was not to contact any
hospital employees during his administrative leave. I asked
Michael if he understood my instructions regarding his ad-
ministrative leave and not contacting any hospital employees
and he said that he did and would follow them.
Dela Paz testified further that he went to the collective-
bargaining session on June 5 where he told Union Representa-
tive Debbie Miller about his suspension and she said that she
was unaware of it. There was a meeting at the hospital with
Dela Paz, Duda, Timothy, and Cherie Mancini, the union stew-
ard. Brad Wild, Araru’s supervisor, participated by phone.
They spoke about his incident with Araru and he was told that
he was being suspended for threatening and harassing Araru.
He testified that during this meeting, Timothy told him to ob-
tain statements from people who witnessed the event. Mancini,
who is employed by the Respondent as a senior operating room
buyer and is a union steward, testified that a few days after June
4, while she was at work, Dela Paz told her that he had been
disciplined over the incident with Araru, and he asked her what
he could do to defend himself against the charges and she told
him to obtain statements from people who witnessed the inci-
dent.
On June 16, Wild, Araru’s supervisor, was approached by
Dela Paz, who told him of his suspension due to the incident
with Araru. Dela Paz then gave Wild the same petition that he
had given Duda on June 12, but this one was signed by 28 em-
ployees, 11 more than the earlier one. Wild told Dela Paz that
he would make sure that Duda and Timothy were given this
petition. Wild sent an email to Timothy and Duda stating that
on June 13, a unit manager of Respondent gave him a copy of
Dela Paz’ earlier petition signed by 17 employees, stating that
she found it on the nurses’ station, and on June 16, Dela Paz
approached him and gave him a petition that had more signa-
tures than the earlier petition. Duda determined that by giving
Wild this petition with the added signatures, Dela Paz violated
the no retaliation provision contained in the action plan that
was given to him on June 12, as well as the no contact with
other employee’s restriction and, therefore, he should be termi-
nated. He testified that the petition was a concern to him, “Be-
cause he continued to circulate the petition and violate the Ac-
tion Plan.” He testified further: “Moving forward with it, gain-
ing additional signatures, I didn’t tell him specifically that, but I
would consider any . . . additional activity on his part in the like
manner to be a violation.” He considers retaliation any solicit-
ing or trying to get the other employee in trouble and he con-
sidered Dela Paz’ approaching Wild with the petition to be
retaliation because, “He was trying to get the other employee in
trouble or trying to provide information to cause trouble for the
other employee.” In attempting to explain this situation further,
Duda testified that “The appropriate chain of command . . . to
resolve these issues is first to go to your immediate supervisor
. . . and allow supervisors to bring these things to each other’s
attention and come up with a resolution.” Going to someone
else’s supervisor constitutes retaliation. He, along with Timo-
thy and Scott Fuller, from human resources, determined that
Dela Paz would be terminated:
Q. And that was prompted by your conversation with
Mr. Wild?
A. It was prompted by the interaction from, between,
Mr. Wild and Mr. Dela Paz.
Q. And by the petition? Is that correct?
A. I was strictly focusing on the fact that he was ap-
proached by Mr. Dela [Paz] . . . that Mr. Wild was ap-
proached by Mr. Dela Paz.
Q. Was the petition a factor?
A. In his termination?
Q. Yes.
A. No.
Dela Paz was terminated at a meeting on July 3. Present at
this meeting were Dela Paz, Duda, Miller, and Mancini, as was
LeRoy Walker, from Respondent’s human resources depart-
ment. Duda was again asked why Dela Paz was terminated:
A. I mean, I terminated him based off of his approach-
ing Mr. Brad Wild.
Q. Okay. And that’s it?
JUDGE BIBLOWITZ: As far as you were concerned?
A. As far as I’m concerned, that was the grounds for
moving forward with that, yes. . . .
Q. And was it limited to just Mr. Dela Paz’s interac-
tion with Brad Wild?
A. We were concerned about the fact that the docu-
ment continued to circulate, but it was not until he went to
Brad Wild that we considered his actions crossing the line.
Q. Had he not gone to Brad Wild, then he would not
have been terminated?
A. He would not have been.
At the July 3 meeting Dela Paz was given another employee
counseling report, this one stating that he was being terminated.
The report refers to the earlier action plan and states:
One expectation of the action plan outlined zero tolerance for
any retaliation against the employee with whom he had an al-
tercation. Mr. Dela Paz has failed to meet this expectation.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since returning from his suspension, he has continued to ac-
tively pursue measures to have the other employee disci-
plined. He has approached coworkers and management alike
in an attempt to smear the reputation of the other employee
and try to get her fired. Such actions demonstrate an unwill-
ingness to follow the simple expectations of the action plan
and represents blatant insubordination. Mr. Dela Paz is ap-
parently unwilling to meet the conditions required of him for
his continued employment with SRDH.
Dela Paz testified that after his suspension he continued get-
ting signatures on his petition because he “wanted to find the
true story.” He obtained these signatures from hospital em-
ployees by learning from other employees who was having
problems with Araru at the cafeteria and he approached these
employees with his petition. He testified that he gave this up-
dated petition to Timothy on June 18 while Timothy was in his
office and Timothy told him that if he accepted the petition,
Dela Paz might be fired. He gave it to him and walked away.
On July 3, Timothy told him to come to his office at 1. In addi-
tion to Timothy, Duda, Walker, Miller, and Mancini were pre-
sent, as were two security guards. He testified that Duda told
him that he was terminated because he left a copy of the peti-
tion at a copy machine at the facility, which violates HIPPA.2
However, when he was then asked if Duda explained the reason
for his discharge, he testified, “Because I gave it to . . . Brad
Wild. . . .” The security guards then escorted him out of the
building.
III. ANALYSIS
In making my findings here, I have discounted some of Dela
Paz’ testimony, not because I found his testimony to lack credi-
bility, but because he appeared to make some obvious errors in
his testimony. For example, he testified that Timothy told him
to obtain signatures from employees supporting his version of
the incident with Araru. However, as Mancini testified, the
more logical testimony is that she told him to obtain the signa-
tures. In addition, Dela Paz testified that Duda told him that he
was being terminated for violating HIPPA rules. Duda im-
pressed me as a very savvy manager, and I find it unlikely that
he would use that as a reason for terminating a maintenance
employee. On the other hand, I found Duda to be a generally
credible witness, albeit one who had difficulty admitting that it
was the petition, not the fact that Wild was the recipient of it,
that was the cause of the termination. However, this was clear-
ly established by documentary and other evidence.
The initial allegation here is that since about June 11 the Re-
spondent has maintained an overly broad and discriminatory
rule prohibiting employees at the facility from discussing disci-
pline that the Respondent had issued to them. This relates to
the warning that Duda gave to Dela Paz on June 12 that he
would count the administrative leave as the suspension, but
“. . . the expectation was that he would not retaliate [against
Araru] and that as long as he didn’t do so, he would remain in
good standing and be employed.” He also told Dela Paz not to
contact any hospital employees during his leave. In addition,

2 Duda testified that he never told Dela Paz on July 3 that his con-
duct was a violation of HIPPA.
the action plan that was attached to the employee counseling
report said pretty much the same thing: “Employee will not
retaliate against co-workers when information or feedback giv-
en. There will be ZERO tolerance for any perceived retaliation
against co-workers.” It is alleged that Duda’s statements to him
and that the similar restriction contained in the action report,
violate Section 8(a)(1) of the Act. Further, it is similarly al-
leged that on about July 3, the Respondent, by Duda, has prom-
ulgated and enforced an overly broad and discriminatory rule
prohibiting its employees from engaging in the protected con-
certed activities by enlisting the assistance of their fellow em-
ployees to protect their employment rights. These activities are
alleged to violate Section 8(a)(1) of the Act.
Although Duda’s warning, the action report and the counsel-
ing report are vague in that they prohibit retaliation, later events
(Dela Paz’ termination) make clear that the term retaliation was
meant to include petitioning his fellow employees to support
him against the allegations of Araru, and his suspension; in
other words, his ability to engage in concerted activities. In
addition, Duda’s June 7 email to Timothy states that he told
Dela Paz not to contact any hospital employee during his leave.
In Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000), the
Board stated: “The Board has long held that legitimate manage-
rial concerns to prevent harassment do not justify policies that
discourage the free exercise of Section 7 rights by subjecting
employees to investigation and possible discipline on the basis
of the subjective reactions of others to their protected activity.”
See also Hispanics United of Buffalo, Inc., 359 NLRB 368
(2012). Keller Ford, 336 NLRB 722 (2001), presented a simi-
lar fact pattern. In that case, the charging party was unhappy
with the timing of the increase in the employer’s copayment for
his life and disability insurance, and complained to his supervi-
sor about it. When the charging party said that he would dis-
cuss it with other employees, the supervisor told him: “Don’t
go getting everybody riled up about this. It could be hazardous
to your health.” Finding that this statement would reasonably
tend to interfere with the employee’s free exercise of his right
under Section 7 to discuss his concerns regarding terms and
conditions of employment with fellow employees, the Board
found that this statement violated Section 8(a)(1) of the Act.
Further, in KSL Claremont Resort, Inc., 344 NLRB 832 (2005),
the Board stated:
We find that the rule’s prohibition of “negative conversa-
tions” about managers would reasonably be construed by em-
ployees to bar them from discussing with their coworkers
complaints about their managers that affect working condi-
tions, thereby causing employees to refrain from engaging in
protected activities.
The same is true in the instant matter. Telling Dela Paz not to
contact other employees clearly violates the Act; telling him not
to retaliate, could have a few meanings, some lawful, some not,
but later events established that it was restricting his Section 7
rights to obtain the support of his fellow employees, in viola-
tion of Section 8(a)(1) of the Act.
The final allegation is that Dela Paz was terminated in viola-
tion of the Act for a number of reasons: (1) that he was termi-
nated for engaging in the protected concerted actions of peti-
ST. ROSE DOMINICAN HOSPITALS 1137
tioning his fellow employees to assist him in the incident in-
volving Araru, in violation of Section 8(a)(1) of the Act; (2)
that he was terminated for violating the “no retaliation rule” set
forth above which I have found violates Section 8(a)(1) of the
Act, also allegedly in violation of Section 8(a)(1) of the Act;
and (3) that he was terminated for following the Union’s advice
in obtaining signatures supporting his position regarding the
incident with Araru, in violation of Section 8(a)(1) and (3) of
the Act.
In Holling Press, Inc., 343 NLRB 301, 302 (2004), the issue
was whether the charging party was engaged in activity encom-
passed by Section 7 of the Act. The Board discussed Meyers I
and Meyers II3 and stated:
In order for employee conduct to fall within the ambit of Sec-
tion 7, it must be both concerted and engaged in for the pur-
pose of “mutual aid or protection.” These are related but sep-
arate elements that the General Counsel must establish in or-
der to show a violation of Section 8(a)(1).
Although individual action will be considered concerted if “the
concerns expressed by the individual are a logical outgrowth of
the concerns expressed by the group,” Mike Yurosek & Son,
306 NLRB 1037, 1038 (1992), employees who are pursuing a
personal claim, even with the support of fellow employees, do
not enjoy the protection of Section 7 of the Act.4 In the situa-
tion here, Dela Paz was pursuing a purely personal claim re-
garding the incident with Araru and his fear of discipline. No
other employee was involved in the dispute. The participation
of the other employees was simply to affirm that, at some point,
Araru had been rude to them or that they had observed her
showing disrespect to someone else. The dispute was solely
between Dela Paz and the Respondent. The Board, in Holling
Press, supra, dismissed the complaint finding that although the
charging party’s actions were concerted, they were “personal”
to her and therefore not for mutual aid or protection. The
Board stated that she “. . . chartered a course of action with
only one person in mind—Fabozzi herself. To begin with,
Fabozzi’s complaint was individual in nature . . . [with a] pur-
pose to advance her own cause.” Similarly, I find that Dela
Paz’ dispute with the Respondent was strictly personal, and that
the support of his fellow employees did not convert it to activi-
ties protected by Section 7 of the Act.
It is next alleged that the discharge of Dela Paz violated Sec-
tion 8(a)(1) of the Act because he was fired for violating Du-
da’s “no retaliation” rule, and the rule forbidding him from
talking to other employees. Board law is clear that the imposi-
tion of discipline pursuant to an unlawfully overbroad policy or
rule constitutes a violation of the Act. I have found that Duda’s
no talking to other employees during his suspension, and the no
retaliation rule are overly broad and unlawful. By firing Dela
Paz for violating these rules, by obtaining additional signatures
on his petition, the Respondent violated Section 8(a)(1) of the
Act. Double Eagle Hotel & Casino, 341 NLRB 112 (2004);
Northeastern Land Services, 352 NLRB 744 (2008).

3 Meyers Industries, 268 NLRB 493 (1984), and Meyers Industries,
281 NLRB 882 (1986).
4 Gartner-Harf Co., 308 NLRB 531 fn. 1 (1992).
It is further alleged that the discharge of Dela Paz on July 3
also violates Section 8(a)(1) and (3) of the Act. In some situa-
tions, an 8(a)(1) discharge will also violate Section 8(a)(3) of
the Act where union activity was involved. Stephens Media,
LLC, 356 NLRB 661 (2011). I find that this is not one of those
situations. Although Mancini recommended that he obtain
statements from employees who witnessed the incident with
Araru, the statements and petition that he obtained talks about
his good character and her rudeness; apparently, none of the
employees who signed the petition witnessed the incident. In
addition, there is no evidence that the Respondent had any
knowledge of the advice that Mancini gave to him. I therefore
recommend that the 8(a)(1) and (3) allegation here be dis-
missed.
The remaining allegation is that Respondent, by Timothy,
threatened employees with discharge for engaging in concerted
activities. This allegation is supported by Dela Paz’ testimony
that when he gave the updated petition to Timothy on June 18,
Timothy told him that if he accepted the petition, Dela Paz
might be fired. As I have found that Dela Paz’ petition was
personal in nature, and did not constitute protected concerted
activities, I recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
has been a health care institution within the meaning of Section
2(14) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Since on or about June 11 and July 3, Respondent has
maintained an overly broad and discriminatory rule prohibiting
its employees from engaging in protected concerted activities
and from discussing discipline issued to them in violation of
Section 8(a)(1) of the Act.
4. The Respondent violated Section 8(a)(1) of the Act by
discharging Dela Paz on about July 3, for violating the overly
broad and discriminatory rule described above, when he con-
tinued to ask fellow employees to sign a petition supporting
him in a dispute that he had with the Respondent.
5. The Respondent did not further violate the Act as alleged
in the complaint.
THE REMEDY
The Respondent having discriminatorily discharged Dela
Paz, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of a proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). I shall also order the Respondent to file a
special report with the Social Security Administration allocat-
ing Vega’s backpay to the appropriate calendar quarters and to
compensate him for any adverse income tax consequences of
receiving his backpay in one lump sum. I also recommend that
Respondent be ordered to notify Dela Paz that it has rescinded
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the overly broad and discriminatory rule wherein it prohibited
him from contacting other employees to support him in his
dispute with the Respondent, and that it will not enforce it
against him when he returns to work.
[Recommended Order omitted from publication.]