Alle-Kiski Medical Center

National Labor Relations Board - Board Decisions

Jun 23, 2003

339 N.L.R.B. 361 (N.L.R.B. 2003)

ALLE-KISKI MEDICAL CENTER 361
Alle-Kiski Medical Center and United Food and
Commercial Workers International Union, Lo-
cal Union 23, AFL–CIO, CLC. Case 6–CA–
32356 (1)(2)
June 23, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 24, 2002, Administrative Law Judge
Earl E. Shamwell Jr. issued the attached decision. The
General Counsel filed limited 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 record in
light of the exceptions1 and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified2 and set forth be-
low.3
ORDER
The National Labor Relations Board orders that the
Respondent, Alle-Kiski Medical Center, Natrona
Heights, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from

1 The General Counsel’s exceptions are limited to the judge’s rec-
ommended notice. There are no exceptions to the judge’s findings on
the merits.
2 We shall revise the judge’s recommended Order and notice to in-
clude the Board’s standard language requiring the Respondent to re-
scind the unlawful written warning. We shall also delete the following
paragraphs of the recommended Order: 1(e), which requires the Re-
spondent to cease and desist from “(d)iscriminating against employees
in regard to any term of employment to encourage or discourage mem-
bership in any labor organization”; 2(b), which requires the Respondent
to return to employee Sharon Hugo the union literature that it confis-
cated from her; and 2(d) and (e), which require the Respondent to make
employee Diane Lang whole and to preserve the records necessary for
the computation of backpay. The language in these paragraphs is not
part of the standard remedy for the violations found. See Cooper
Health System, 327 NLRB 1159, 1165 (1999) (confiscation of union
literature); St. Joseph Hospital, 337 NLRB 94, 95 (2001) (written
warning). Finally, we shall modify the judge’s recommended Order in
accordance with our decision in Excel Container, 325 NLRB 17 (1997).
3 In accordance with the General Counsel’s limited exceptions, we
shall include in the notice the standard “expunction” language with
respect to the unlawful no-solicitation/no-distribution policy. See Coo-
per Health System, supra. We shall also correct the reference to unlaw-
ful “discharge” by substituting “written warnings,” which is the specific
discipline found unlawful here.
However, we shall not grant the General Counsel’s request to in-
clude in the notice a paragraph stating that the Respondent will allow
lawful solicitations and distributions on its property. This is not a stan-
dard remedy for maintaining and enforcing an overly-broad no-
solicitation/no-distribution rule. See Cooper Health System, supra..
(a) Unlawfully monitoring, photographing, videotap-
ing, and engaging in surveillance of employees engaged
in protected concerted activities;
(b) Confiscating union literature from employees.
(c) Maintaining and enforcing the following provisions
of it policy number 800.085 issued January 6, 2000, re-
garding solicitation and distribution by its employees:
Solicitation and distribution are prohibited during
working time for both the employee soliciting and the
employee being solicited. Employees are not allowed
at anytime to solicit in patient areas. Employees are not
allowed at any time to distribute printed materials, lit-
erature or handouts in any patient areas or other loca-
tions, including but not limited to the cafeteria or gift
shop, where such activity may cause annoyance, har-
assment or embarrassment of patients, visitors or other
employees or if such activity may cause littering, im-
pede pedestrian traffic or otherwise interfere with effi-
cient operations.
(d) Discriminatorily issuing written warnings to em-
ployees for violation of the aforementioned solicitation
and distribution policy.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Rescind and cease enforcing the aforementioned
provisions of policy number 800.085 issued January 6,
2000, regarding solicitation and distribution by its em-
ployees.
(b) Rescind the written warning issued to Diane Lang
on October 11, 2001, and, within 14 days from the date
of this Order, remove from its files any reference to the
unlawful warning, and, within 3 days thereafter, notify
her in writing that this has been done and that the disci-
pline will not be used against her in any way.
(c) Within 14 days after service by the Region, post at
its facilities in Natrona Heights, Pennsylvania, copies of
the attached noticed marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
4 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.”
339 NLRB No. 44
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 29, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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
violated the Federak 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.

WE WILL NOT unlawfully monitor, photograph, video-
tape, or engage in surveillance of employees engaged in
protected concerted activities.
WE WILL NOT confiscate union literature from employ-
ees.
WE WILL NOT maintain and enforce the following pro-
visions of our policy number 800.085 issued January 6,
2000, regarding solicitation and distribution by employ-
ees:
Solicitation and distribution are prohibited during
working time for both the employee soliciting and the
employee being solicited. Employees are not allowed
at anytime to solicit in patient areas. Employees are not
allowed at any time to distribute printed materials, lit-
erature or handouts in any patient areas or other loca-
tions, including but not limited to the cafeteria or gift
shop, where such activity may cause annoyance, har-
assment or embarrassment of patients, visitors or other
employees or if such activity may cause littering, im-
pede pedestrian traffic or otherwise interfere with effi-
cient operations.
WE WILL NOT discriminatorily issue written warnings
to employees for violations of the aforementioned
solicitation and distribution policy.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind and cease enforcing the aforemen-
tioned provisions of policy 800.085 issued January 6,
2002, regarding solicitation and distribution by employ-
ees.
WE WILL rescind the written warning issued to Diane
Lang on October 11, 2001, and, within 14 days of the
Board’s Order, remove from our files any reference to
the unlawful warning, and WE WILL, within 3 days there-
after, notify her in writing that this has been done and
that the discipline will not be used against her in any
way.
ALLE-KISKI MEDICAL CENTER

Janice A. Sauchin, Esq., for the General Counsel.
Donald Ladlov, Esq. (Cohen & Grigsby), of Pittsburgh, Penn-
sylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard by me on March 13, 2002, in Pittsburgh, Penn-
sylvania, pursuant to charges originally filed on October 12,
2001, and subsequently amended on December 19, 2001,
against the Alle-Kiski Medical Center (the Respondent) by
United Food and Commercial Workers International Union,
Local Union 23, AFL–CIO, CLC (the Union). On December
20, 2001, the Regional Director for Region 6 of the National
Labor Relations Board (the Board) issued a complaint based on
the aforementioned charges. The complaint alleges that the
Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by maintaining an overly broad
no-solicitation/no-distribution rule, confiscating union litera-
ture, unlawfully monitoring union activity, and discriminatorily
enforcing its no-solicitation/no-distribution rule.
On January 3, 2002, the Respondent timely filed its answer,
among other things, admitting the jurisdictional allegations, the
labor organization status of the Union, the supervisory status of
Ray Andra, director of human resources, and Michael Harlovic,
director of nursing. The Respondent also admitted the supervi-
sor status of two other employees, Lorraine Azzarone, Clinical
Director, and Jim Gentile, supervisor/security.1 The Respon-
dent generally denied committing any unfair labor practices.
Based on my review and consideration of the entire record of
this case and my observation of the witnesses and their de-
1 The complaint averred that Azzarone and Gentile were titled nurs-
ing supervisor and director of security, respectively. The Respondent’s
answer corrected their position titles, but did not deny their supervi-
sor/agent status with the hospital.
ALLE-KISKI MEDICAL CENTER 363
meanor, as well as the arguments and briefs of the General
Counsel and the Respondent,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania not-
for-profit corporation, with offices and facilities in Natrona
Heights, Pennsylvania, has been engaged in the operation of an
acute care hospital which provides in-patient and out-patient
medical and professional services for the public. The Respon-
dent admits, and I find, that in conducting its business opera-
tions during the last 12 months, it purchased and received at its
facility goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania. The Respondent
further admits, and I find, that is an employer engaged in com-
merce with the meaning of Section 2(2), (6), and (7) of the Act
and is a health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find and conclude, that at all
material times, that the United Food and Commercial Workers
International Union, Local Union 23, AFL–CIO, CLC has been
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a not-for-profit Pennsylvania corporation
that employs over 1300 employees. It operates an outpatient
physical therapy center, a nursing school, two outpatient phle-
botomy drawing sites, and Allegheny Valley Hospital, where
the occurrences at issue here took place.
Allegheny Valley Hospital (the hospital) is a 257-bed acute
care hospital that provides a full range of inpatient and outpa-
tient medical services. It is located on 1301 Carlisle Street,
Natrona Heights, Pennsylvania. Hospital employees park in an
adjacent parking garage (the garage lot), a parking lot (the
lower lot), located downhill of the hospital, a lot located near
the rear of the hospital (the rear lot), and a lot that is leased by
the hospital (the Allegheny Ludlum or AL lot). The lower lot
accommodates approximately 200 vehicles. The rear lot can
accommodate between 50 and 75 vehicles, and the AL lot ac-
commodates between 150 and 200 vehicles.
The hospital has several entrances. The main entrance is lo-
cated near the front of the building and is used by patients,
visitors, and employees. This is the primary entrance for pa-
tients and visitors. Patients are discharged through the main
entrance (often assisted by a nurse for pickup in a vehicle
standing by). In addition to the main entrance, employees may
use between three and four employee entrances.3 These em-

ospital.

2 The Charging Party did not submit a separate brief.
3 There is no evidence or testimony regarding how many or with
what frequency employees use the employee entrances or if any one is
more popular than the others.
ployee entrances are rarely, if ever, used by patients and visi-
tors.
The main entrance leads to the main lobby of the hospital.
Notably, the hospital cafeteria is a located a few feet from the
main entrance, off the main lobby. The hospital has a gift shop,
but the record does not clearly indicate where it is located in the
building but it seems to be on the first floor level near the main
entrance. Patients, visitors, and employees patronize the cafete-
ria and gift shop.
B. The 8(a)(1) Violations
1. The alleged surveillance of employees engaged in union
activity on August 29 and October 11, 2001
The complaint in paragraph 8 alleges that the Respondent,
through its security officers acting under the direction of its
Security Supervisor Jim Gentile, surveilled employees engaged
in union activities on August 29 and October 11, 2001. To es-
tablish this charge, the General Counsel called as witnesses
Matthew Lewis, Jack Allen, Diane Lang, and Karen Allen.
a. The alleged August 29, 2001 surveillance
Matthew Lewis testified that he is an organizer for the Un-
ion. He stated that he received a call from a nonprofessional
employee working for an entity called Pro Lab who was inter-
ested in the Union. Lewis stated that after meeting with a
group of employees and filing a petition for representation, he
was informed that Pro Lab was owned and operated by the
Respondent.4 Lewis stated that the Union determined that Pro
Lab employees were not an appropriate bargaining unit.
Nevertheless, the Union decided to commence a campaign to
gather support for the Union among the Respondent’s nonpro-
fessional employees working at the h
According to Lewis, he and three other union organizers
(Justin Toner, Sandy Thompson, and Terry Robinson)5 on three
separate occasions distributed union handbills to Respondent’s
employees on August 29, 2001. The first handbilling session
was between 6 and 8 a.m., the second was between 2:30 and 4
p.m., and the last was between 10:30 p.m. and midnight. Dur-
ing the morning session, Lewis stated that the union organizers
solicited employees around the garage lot; but initially two of
the four organizers were handbilling within the lot. According
to Lewis, a security guard approached the two organizers who
were on the lot and escorted them off. Lewis said the guard
stood and monitored the organizers for the remainder of the
morning session.6
4 Lewis did not specify when he received the telephone call from an
unidentified phlebotomist employed at Pro Lab or when the Union
actually commenced the campaign to organize the Respondent’s em-
ployees. However, according to his testimony both these events evi-
dently took place sometime before he and other union organizers hand-
billed on August 29, 2001. Lewis’ handbilling activities are discussed
below.
5 Toner, Thompson, and Robinson did not testify at the hearing.
6 Respondent’s security guard Pam Scholl’s August 29, 2001 inci-
dent report indicates that she was the guard that monitored the union
organizers. In the report, Scholl notes that Security Supervisor Gentile
ordered her to go to the lower lot to “check on people in garage lot
handing out fliers.” The report indicates that Scholl monitored the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
Lewis stated that he and the other union organizers had been
distributing union materials during the afternoon on August 29,
2001, for around 15–20 minutes when two security guards ap-
proached their area. According to Lewis, the two guards sta-
tioned themselves approximately 20 yards away and appeared
to be videotaping and photographing their activities. Lewis
stated that one guard seemed to be videotaping while the other
was taking still photographs as Lewis and the other organizers
distributed handbills. Lewis admitted that he was not sure if
the guards were actually recording, but said that the video cam-
era and the still camera were pointed in the direction of the
union organizers for about 20 minutes while the organizers
approached and offered handbills to employees exiting the lot.7
b. The alleged October 11, 2001 surveillance
Lewis stated that the Respondent again engaged in surveil-
lance of employee union activities on October 11, 2001. Ac-
cording to Lewis, he and fellow Union Organizers Sandy
Thompson and Justin Toner returned to the hospital on that day
to solicit further union support; also, Jack Allen, the husband of
employee Karen Allen, and employee Diane Lang volunteered
to help in the effort. Lewis stated that between 6:30 and 8 a.m.,
and again in the afternoon between 2:30 and 4 p.m., the union
organizers distributed handbills and authorization cards near the
entrance to the garage lot; Jack Allen distributed materials near
the entrance to the AL lot. According to Lewis, none of the
October 11, 2001 solicitors set foot on hospital property.
Diane Lang testified that she has been employed by the Re-
spondent for about 14 years, and that she distributed the union
materials on hospital property near the main entrance to the
hospital on October 11, 2001. Lang said that she purposefully
approached only persons she knew to be employees of the hos-
pital. Lang stated that after she had handbilled for about 20 to
30 minutes, Andra and a security guard approached her. Ac-
cording to Lang, Andra asked if she had union literature, to
which she said, “[Y]es.” Lang stated that Andra then told her
she had to leave and that she was then escorted off the property
by the guard. Lang said that she then walked down to the ga-
rage lot where the union organizers were soliciting and after a
few minutes walked over to the AL lot where Jack Allen was.
Lang stated that she was followed by a security guard as she
walked from the garage lot to the AL lot and, as she left the AL
lot to go to work, the same security guard who followed her to
the AL lot stopped her before she could enter hospital property.
According to Lang, the guard only let her pass after she identi-
fied herself as an employee. Lang said she was then stopped

activities of the union organizers until 8 a.m. and gave Gentile a copy
of the flier that was being distributed. According to Ray Andra, the
Respondent’s human resources director, no daily activity reports
(which provide a detailed account of the guards’ daily activities), are
available for August 29, 2001, because these documents are only kept
for 4 or 5 months. Scholl did not testify at the hearing.
7 In response to Lewis’ allegations regarding videotaping and photo-
graphing, Andra testified that Allegheny Valley Hospital did not own a
video camera; however, Andra admitted that the security department
owns a Polaroid camera. Andra stated that after conducting an internal
investigation, he was unable to produce any photographs that were
taken on August 29, 2001.
once again by Security Supervisor Gentile and another guard
and again had to identify herself as an employee.8
Jack Allen testified that around 6:30 a.m. on October 11,
2001, security guard Palmer9 parked her marked security Jeep
in the AL lot where he was soliciting, about 20–30 feet away
from where he was standing, and monitored his activities for
about 30 minutes from inside the vehicle. He further testified
that although 10 or 15 employees passed by him, none accepted
a handbill.10 According to Allen, employees looked over at the
parked security Jeep and then refused the literature. Allen
noted that several employees had accepted handbills before the
guard arrived.
According to Allen, he and the union organizers also solic-
ited on October 11, 2001, in the afternoon outside the lower lot.
They distributed handbills and authorization cards to employees
without incident.11
c. Legal principles applicable to the surveillance issue
It is well settled that an employer may lawfully surveil em-
ployees engaged in protected activities in the open, and on or
near the employer’s premises. Roadway Package System, 302
NLRB 961 (1991); Southwire Co., 277 NLRB 377 (1985);
Porta Systems Co., 238 NLRB 192 (1978). In Basic Metal &
Salvage Co., 322 NLRB 462 (1996), the Board held that a su-
pervisor’s conspicuous observation of employees openly meet-
ing with a union organizer approximately 100 feet away from
the employer’s property under an expressway was not unlawful
because the employees did not attempt to conceal their activi-
ties.
However, if the conspicuous surveillance interferes with the
lawful activity, then there may be a violation of Section 8(a)(1).
In Carry Cos. of Illinois, 311 NLRB 1058 (1993), the Board
affirmed the administrative law judge’s finding that respondent
violated Section 8(a)(1) of the Act when its supervisor and an
off-duty police officer watched, from a distance of 2 or 3 feet, a
union agent lawfully trying to distribute union literature. Sig-
nificantly, the supervisor and off-duty police officer monitored
8 Lang’s testimony regarding a security guard being with Andra
when he approached her near the main entrance, and the security guard
escorting her off the property is supported by security guard Spicher’s
October 11, 2001 daily activity report. Lang’s testimony, regarding a
security guard following her from the garage lot the AL lot and then
stopping her, is supported by security guard Palmer’s daily activity
report. See GC Exh. 4. Neither Spicher nor Palmer testified at the
hearing.
9 Jack Allen identified the guard as a woman named “Dawn” whom
he had met previously during a social event. GC Exh. 4 indicates that
the guard who surveilled union activities near the AL lot at the relevant
time was named “Dawn Palmer.”
10 Jack Allen is not an employee of the Respondent; he is employee
Karen Allen’s husband. He acted as a volunteer for the organizing
effort. Allen testified he was given to understand by Lewis that the
Respondent’s employees parked at the AL lot and walked from there to
the hospital. Allen stated he approached people he surmised were
employees of the hospital and asked them to accept the handbills.
11 Security guard Ortmann’s daily activity report supports Allen’s
testimony regarding the October 11, 2001 afternoon session. The re-
port indicates that Ortmann was on duty at the time and that he moni-
tored the solicitation taking place. The report indicates that Ortmann
intermittently monitored the activities until 4:30 p.m. (See GC Exh. 4.)
ALLE-KISKI MEDICAL CENTER 365
the union agent for the duration of the solicitation period and
the employees seemed intimidated by their presence.
With regard to surveillance through videotaping and photo-
graphing, the Board has generally found a lower threshold for
holding an employer in violation of Section 8(a)(1). Although
employers have the right to maintain security measures neces-
sary to the furtherance of legitimate business interests during
union activity, videotaping and photographing of the activity
can only be justified if the surveillance serves a legitimate secu-
rity objective, National Steel & Shipbuilding Co., 324 NLRB
499 (1997), or if the employer can demonstrate that it had a
reasonable basis to believe misconduct would occur. NLRB v.
Colonial Haven Nursing Home, 542 F.2d 691 (7th Cir. 1976).
d. Discussion
The General Counsel contends that the Respondent, in addi-
tion to unlawfully monitoring employees engaged in protected
activities, videotaped and photographed them on August 29,
2001. The General Counsel also contends that the Respondent
unlawfully monitored the employees distributing and accepting
handbills on October 11, 2001. The General Counsel maintains
that the Respondent’s actions constitute an unlawful surveil-
lance of union activities in violation of Section 8(a)(1) of the
Act.
The Respondent denies the General Counsel’s allegations re-
garding its purported videotaping and photographing on August
29, 2001. It maintains that any monitoring that took place on
August 29 and October 11, 2001, was not unlawful under the
Act.
I note at the outset that the testimony of the General Coun-
sel’s witnesses is largely uncontested or corroborated by other
evidence of record, except perhaps that relating to the alleged
videotaping and photographing. With regard to the videotaping
and photographing, the Respondent flatly denies Matthew
Lewis’ testimony. Ray Andra, the Respondent’s human re-
sources director, claimed that the hospital did not even own a
video camera and that an internal investigation determined that
no pictures were taken on August 29, 2001. Nevertheless, I
find Lewis’ truthful demeanor on the stand, coupled with con-
sistency of his account of the events that took place on August
29 and October 11, 2001, to be highly credible. Therefore, I
credit his testimony regarding his observations of the Respon-
dent’s videotaping and photographing on August 29, 2001.12
As noted above, videotaping and photographing of employ-
ees engaged in union activities can only be justified through a
legitimate security objective or a reasonable belief that miscon-
duct would occur. No legitimate security objective behind the
videotaping was evident on this record, nor was one advanced
by the Respondent. Moreover, the surrounding circumstances
did not indicate any security risk posed by the union organizers.
Notably, a security guard’s August 29, 2001 incident report
indicates that the union organizers who were initially on the lot
peacefully left when asked. This report makes no mention of
any further attempt by the solicitors to re-enter hospital prop-

12 Notably, my finding is buttressed by the Respondent’s failure to
call the security guards involved in observing Lewis and the other
solicitors.
erty, and the record generally is devoid of any evidence sug-
gesting that the union organizers entered or made any further
attempt to enter hospital property to solicit. In my view, the
record discloses no legitimate security objective to justify
videotaping and photographing employees engaged in union
activities. Generally, it is clear that the solicitation events were
peaceful and that the solicitors were cooperative with security
personnel.
Assuming, arguendo, that no videotaping or photographing
took place, I would find and conclude that the Respondent nev-
ertheless violated Section 8(a)(1) by unlawfully monitoring and
observing employees on August 29 and October 11, 2001. As
stated above, it is well settled that open surveillance of employ-
ees engaged in protected activities on or near the employer’s
premises is lawful. However, the surveillance may be unlawful
if the manner in which it is done is so obtrusive and conspicu-
ous as to interfere with the exercise of employees’ Section 7
rights. In my view, the Respondent did not observe the union
activity that was occurring near its property in an unobtrusive
fashion. Rather, the Respondent sent uniformed security
guards to stand watch over the activity. The guards stood (or
parked) nearby and were in plain sight of employees passing
by. One security guard even followed Lang to the parking lot
and then back to the hospital. That the monitoring may have
reasonably chilled the employees’ Section 7 rights is evidenced
by Lewis and Allen’s credible testimony that employees
seemed less willing and, in some circumstances, completely
refused to accept union literature in the presence of the security
guards.
On the above reasoning, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by unlawfully surveilling employees
engaged in union activity on August 29 and October 11, 2001,
as alleged.
2. The alleged confiscation of union literature from
employee Sharon Hugo
The complaint in paragraph 9 alleges that the Respondent
confiscated union literature from its employees. To establish
this charge, the General Counsel called current employee
Sharon Hugo.
Sharon Hugo13 testified that on October 11, 2001, an uniden-
tified security guard grabbed a prounion handbill out of her
hands as she was exiting the lower lot in her car. She stated
that she was stopped at the road, outside of the lot, checking for
traffic when Lewis gave her the handbill. She stated that a
guard then approached her car and took the handbill away from
her saying, “these are illegal.” (Tr. 51.)
Security Director Andra testified and admitted that one of the
hospital’s security guards did indeed take a handbill from
Hugo, but maintained the confiscation was justified because the
handbill was unlawfully distributed.14
With regard to confiscation of union literature, the Board has
held that confiscation violates Section 8(a)(1) of the Act be-
cause it interferes with employees’ protected right to receive
13 Hugo testified that she has been employed as a cook by the Re-
spondent for more than 6 years.
14 Aside from Andra’s testimony, the Respondent offered no further
proof regarding the lawfulness of handbill’s distribution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
union literature. Romar Refuse Removal, 314 NLRB 658
(1994). Further, confiscation is unlawful even where the union
literature was unlawfully distributed. NCR Corp., 313 NLRB
574 (1993).
The General Counsel contends that the guard’s confiscation
of union literature from Hugo’s hands violated Section 8(a)(1)
of the Act. The Respondent maintains the confiscation was not
unlawful because the union literature was unlawfully distrib-
uted.
I fully credit Hugo’s testimony about the incident, there es-
sentially being no denial of the underlying facts by the Respon-
dent.
Turning to the issue at hand, the Board has made clear that
confiscation of union literature is a violation of Section 8(a)(1)
because it interferes with employees’ Section 7 rights. I find
that the Respondent, through one of its security guards, unlaw-
fully confiscated union literature from Sharon Hugo in viola-
tion of Section 8(a)(1) of the Act.
3. The alleged maintenance and enforcement of an unlawful
no-solicitation/no-distribution rule
The complaint in paragraphs 10 and 11 alleges that the Re-
spondent maintained and promulgated an overly broad and
facially invalid no-solicitation, no-distribution policy.
It is undisputed that the Respondent’s no-solicitation/no-
distribution policy is outlined in a five-page, single-spaced
document issued on January 6, 2000. In relevant part, the pol-
icy states:

Solicitation and distribution are prohibited during working
time for both the employee soliciting and the employee being
solicited. Employees are not allowed at anytime to solicit in
patient areas. Employees are not allowed at any time to dis-
tribute printed materials, literature or handouts in any patient
areas or other locations, including but not limited to the cafe-
teria or gift shop, where such activity may cause annoyance,
harassment or embarrassment of patients, visitors or other
employees or if such activity may cause littering, impede pe-
destrian traffic or otherwise interfere with efficient opera-
tions. [GC Exh. 2 (emphasis added).]

“Patient areas” is defined as,

Areas devoted to the care and treatment of patients or readily
accessible thereto. Such areas include, not by way of limita-
tion, the patient’s room, diagnostic rooms, examination
rooms, treatment rooms, operating rooms, nursing stations,
patient or visitor waiting areas, smoking area, all elevators
used by patients and their visitors, collection points for trans-
portation of patients, patient care corridors, patient admission
areas, discharge areas and solariums [emphasis added].

The policy further states, “The Human Resources Department
is responsible for the interpretation of this policy and assisting
Supervisors with administration of this policy.” (GC Exh. 2.)
In Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978), the
Supreme Court held that hospitals may only prohibit all solici-
tation in immediate patient areas (areas devoted strictly to pa-
tient care). In areas other than immediate patient areas, such as
lounges and cafeterias, solicitation during nonworking time
must be allowed absent a showing of disruption to patient care.
Thus, any no-solicitation/no-distribution rule in a hospital that
prohibits all solicitation in areas other than immediate patient
areas is in violation of Section 8(a)(1) of the Act, absent a
showing of disruption to patient care.
In NLRB v. Baptist Hospital, 442 U.S. 773 (1979), the Court
further developed its definition of “immediate patient areas” to
include corridors and sitting rooms on floors of a hospital hous-
ing either patients’ rooms or operating and therapy rooms. Not
included are cafeterias, gift shops, and lobbies on the first floor
of the hospital. In areas not characterized as “immediate pa-
tient areas,” the hospital must demonstrate that the “needs of
essential patient care” would be adversely affected in order to
ban all solicitation.
The General Counsel alleges that the Respondent’s no-
solicitation/no-distribution policy is overly broad and facially
invalid because it could reasonably be read to prohibit all em-
ployee solicitation on hospital property.
The Respondent, however, contends that the hospital’s no-
solicitation/no-distribution rule is not overbroad and does not
prohibit all employee solicitation. In support of this position,
Andra testified that employees could “distribute literature in
nonpatient care areas during nonwork time. These areas in-
clude such places as locker rooms, restrooms, break rooms [and
the smoking area].” (Tr. 138.)15
In my view, the Respondent’s policy falls short of Beth Is-
rael’s requirement. Moreover, in fact, the Respondent offered
no evidence of any disruption to patient care which could be
attributed to soliciting and distributing materials by the union-
ists here. Verily, the Respondent offered no evidence of lower
threshold annoyance, harassment or embarrassment, littering, or
blocking of pedestrian traffic to justify its prohibition of solici-
tation during nonworking time in nonworking areas.
Therefore, I would find and conclude that the Respondent’s
no-solicitation/no-distribution rule is overbroad and is in viola-
tion of the Section 8(a)(1) of the Act on its face and by the
Respondent’s enforcement thereof.
C. The Alleged Discriminatory Enforcement of the
Respondent’s No-Solicitation/No-Distribution Policy: The
8(a)(3) Violation
The complaint in paragraphs 12, 13, and 15 alleges that the
Respondent discriminatorily enforced its no-solicitation/no-
distribution rule against its employee and thus interfered with,
restrained, and coerced employees’ exercise of their rights
guaranteed by Section 7 of the Act in violation of Section
8(a)(1) and (3). To establish this charge, the General Counsel
called Diane Lang and Karen Allen.
Lang testified that after being allowed to pass the security
guards and enter the hospital, most of her workday passed
without incident on October 11, 2001. However, towards the
end of her shift, she was called into a meeting with Clinical
Director Lorraine Azzarone and Director of Nursing Michael
Harlovic at which she was issued a disciplinary warning for

15 The General Counsel asked Andra to specify in greater detail what
was and was not a patient area. Andra replied, “[A]ny area in which we
have patients [is] normally deemed [a] patient area.” (Tr. 140.) He
went on to say the lobby, main entrance, cafeteria, and gift shop were
patient areas because patients could be at any one of those locations.
ALLE-KISKI MEDICAL CENTER 367
violating the hospital’s no-solicitation/no-distribution rule. The
written warning (GC Exh. 10) stated that she violated the hospi-
tal’s no-solicitation/no-distribution policy and that “employees
are not permitted to solicit on hospital premises.” The warning
also stated that any future infractions might result in further
disciplinary action and/or termination. Lang said that she re-
fused to sign the warning and wrote in the employee comments
section, “I was not aware of policy” and that she “left [the main
entrance] when asked.”
Lang also testified about numerous nonwork-related solicita-
tions by employees on hospital property. According to Lang,
Unit Supervisor Mary Stirland sells Avon products in the hospi-
tal and attracts customers by leaving catalogs in nurses’ sta-
tions. Lang stated that purchased products are often left in the
nurses’ stations for pickup as well. Lang also described fliers
advertising hoagie (see GC Exh. 12) sales to benefit a local
high school that are kept on walls in patient areas during the
school year. She stated that posters and attached mail-in post
cards for the Society of Gastroenterology Nurses and Associ-
ates (SGNA)16 are posted in patient areas. Lang also stated that
a Survivor17 pool sheet was kept in a patient area. Lang also
testified that she saw Stirland and Azzarone’s names among the
many employees who paid to enter the pool. Lang stated that
the Ladies Auxiliary annually held a book sale and Christmas
tree raffle in the hospital lobby.18 She stated that announce-
ments for the book sale and raffle were posted throughout the
hospital. Lang testified that six fully decorated Christmas trees
were kept in the lobby as further advertisement for the raffle.
As a final example of permitted solicitation, Lang stated that
the American Cancer Society annually sold daffodils and re-
cruited participants for its marathon in the main lobby and out-
side the cafeteria.19
Karen Allen20 confirmed Lang’s statements regarding
unpunished and permitted solicitations in her testimony. Allen
added that an employee also kept a Girl Scout cookie list in a
patient area.
The Respondent called Andra to rebut the charges. Andra
testified that Lang was not disciplined because of her union
activities, but rather because she violated the hospital’s no-
solicitation/no-distribution policy. Andra distinguished be-
tween Lang’s solicitation activities and other solicitations at the
hospital by stating that the others did not violate the hospital’s
policy. Andra stated that Lang’s activities near the main en-

16 SGNA is a professional organization for nurses and endotechs that
offers certification and courses. It also distributes regular news bulle-
tins to members. See GC Exh. 13, a copy of a SGNA mail-in card of
the type referred to by Lang.
17 “Survivor” was a popular reality-based weekly television program
in which one member of the cast was voted off each week. See GC
Exh. 14, the Survivor pool with highlighted references to Stirland and
Azzarone’s participation in the pool.
18 See GC Exh. 15, a copy of a Ladies’ Auxiliary leaflet announcing
a book sale.
19 See GC Exh. 20, a copy of the Alle-Kiski Medical Center’s Daf-
fodil Day event sponsored by the American Cancer Society for March
20–22, 2001.
20 Karen Allen stated that she has been employed by the Respondent
as a unit secretary for than 25 years.
trance at 6:30 a.m. were against the hospital’s policy because
they impeded pedestrian traffic.21 However, he also stated that
he was not aware of any patient complaints regarding Lang’s
activities. On examination by the General Counsel, Andra
testified that although employees could not generally solicit in
the hallways for extended period of times, members of the La-
dies Auxiliary, “Daffodil Days, and the Cancer Society” were
permitted to solicit. Andra did not deny that other solicitations
pointed out by Lang did not occur.
Andra admitted that Lang was the first person disciplined
under the hospital’s no-solicitation/no-distribution policy. An-
dra also admitted that he had a “pretty good idea” (Tr. 167) that
Lang was distributing union materials on the morning of Octo-
ber 11, 2001, but was not sure of it.22 Andra denied Lang’s
assertion that he asked Lang if she was distributing union litera-
ture. Andra maintained that he merely asked her what she was
distributing.
Andra also testified that he discussed the discipline of Lang
with Harlovic and together they decided that a formal written
disciplinary warning was appropriate under the circum-
stances.23
1. Discussion of applicable legal principles
In determining whether an employer has violated Section
8(a)(3) and (1) of the Act by encouraging or discouraging union
membership by discrimination in regard to hire or tenure of
employment or any term or condition of employment, the
Board applies the analysis found in Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under Wright Line, the General
Counsel bears the initial burden of establishing a prima facie
violation of the Act by “showing sufficient support that pro-
tected concerted conduct was a substantial or motivating factor
in the employer’s decision to discharge.” Thus, a prima facie
8(a)(3) violation can be established by demonstrating that the
employee engaged in a protected concerted activity, that the
employer was aware of the activity, employer animus towards
unionization existed, and there was a subsequent adverse im-
pact on the employee’s working conditions. Farmer Bros. Co.,
303 NLRB 638, 649 (1991).
Once a prima facie case is established, the burden shifts to
the employer to demonstrate that the same decision would have
been made in the absence of protected conduct. An employer
cannot simply present a legitimate reason for its action, but
must demonstrate by a preponderance of the evidence that it
would have taken the same course of action against the em-
ployee regardless of the protected activity. Kellwood Co., 299
NLRB 1026, 1028 (1990). It should be remembered that a
preponderance of the evidence does not require that all evi-
dence be favorable to the employer’s position. Merrilat Indus-
21 Andra also stated, and Karen Allen confirmed, that many patients
requiring surgery and other in-patient services checked into the hospital
between 6:30 and 8 a.m.
22 When pressed by the General Counsel, Andra said that he was
pretty sure that Lang was soliciting union support because of the Un-
ion’s earlier solicitation on August 29, 2001, and because he saw other
union supporters soliciting near the parking lots that same morning.
23 Neither Azzarone nor Harlovic testified at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
tries, 307 NLRB 1301, 1303 (1992). If the employer does not
meet its burden, then its justification is considered pretextual
and the employer is deemed to have unlawfully discriminated
against the employee.
Under some circumstances, the Board will infer animus from
the record as a whole, even in the absence of direct evidence.
Flour Daniel, Inc., 304 NLRB 970 (1991).
In Funk Mfg. Co., 301 NLRB 111 (1991), the Board held
that discrimination, in violation of Section 8(a)(3), may be in-
ferred where a rule that is not routinely enforced is enforced
against open and active union support. See also Cooper Health
System, 327 NLRB 1159 (1999).
With regard to excepting charitable organizations from gen-
eral no-solicitation/no-distribution rules, the Board has held
that an employer may permit a small number of charitable or-
ganizations to solicit without violating the Act. Hammery Mfg.
Corp., 265 NLRB 57 fn. 4 (1982). However, where the chari-
table exceptions occurred frequently and/or for an extended
period of time, the Board has found discriminatory application
of the no-solicitation/no-distribution rule in violation of Section
8(a)(3). Albertson’s, Inc., 332 NLRB 1132 (2000); Price
Chopper, Inc., 163 F.3d 1177 (10th Cir. 1998); Great Scott,
Inc., 39 F.3d 678 (6th Cir. 1994).
2. Discussion
The General Counsel contends that the Respondent discrimi-
natorily enforced its no-solicitation/no-distribution rule in re-
gard to the hire or tenure or conditions of employment of em-
ployee Lang in violation of Section 8(a)(1) and (3) of the Act.
The Respondent denies this contention.
As a preliminary matter, I credit the testimony of both Lang
and Allen. In my view, they both were very confident, an-
swered all questions in a straightforward fashion, and their
accounts were internally and externally consistent with each
other.24 I credit Lang’s testimony over Andra’s regarding
whether Andra asked Lang if she was distributing union litera-
ture. It is very likely that Andra did ask Lang if she was dis-
tributing union literature. In my view, Andra’s unwillingness
to unequivocally say whether he knew that Lang was distribut-
ing union literature detracts from his credibility. Also, he
seemed guarded and made qualifications throughout his testi-
mony.
Accordingly, I find and conclude that the General Counsel
established a prima facie case, under the Wright Line analysis,
that the Respondent unlawfully discriminated against Lang.
First, it is undisputed that Lang was engaged in solicitation in
support of the Union.25 Second, the General Counsel suffi-
ciently established that the Respondent was aware of Lang’s
union activities. It is clear from the record that Andra knew of
the Union’s previous solicitation and saw other union solicitors
around the hospital’s parking lots. I believe he confronted
Lang, knowing she was engaged in prounion solicitation.
Third, the record as a whole demonstrates the Respondent’s
animus towards the Union. Notably, support for union animus

24 It should also be noted that the security guards’ daily activity re-
ports corroborated Lang’s testimony.
25 The Respondent did not argue that Lang’s solicitation was not a
protected activity under the Act.
is amply provided in my above findings of 8(a)(1) violations by
the Respondent. Finally, there was an adverse impact on
Lang’s employment conditions because she was issued a formal
warning and now has a blemish on her previously untarnished
employment record.26
The Respondent’s principal defense to the discrimination
charge is that it uniformly enforces its no-solicitation/no-
distribution rule. The Respondent claims that other organiza-
tions and individuals were allowed to solicit on hospital prop-
erty because those solicitations were not contrary to the hospi-
tal’s no-solicitation policy, while Lang’s activities violated the
policy. The Respondent argues that the fact that Lang was
engaged in union activities was not a consideration in her disci-
pline.
However, as I have previously herein found, the Respon-
dent’s no-solicitation/no-distribution policy is overly broad.
The policy, as written, does not make any clear differentiation
between Lang’s solicitation and the types of solicitation permit-
ted by the Respondent. In my view, the only perceivable dis-
tinction between Lang’s activity and permitted solicitation is
that Lang was soliciting in favor of the Union. It thus cannot
be gainsaid that Lang’s union activities had no part in the Re-
spondent’s decision to discipline her.
In its brief the Respondent cited a General Counsel memo-
randum27 that purportedly outlined the Board’s policy regarding
permissible charitable exceptions to a general no-solicitation/
no-distribution rule. However, according to Board law, these
exceptions do not apply where the charitable solicitation oc-
curred frequently and/or for an extended period of time. The
record here clearly demonstrates that the Cancer Society, La-
dies Auxiliary, and daffodil sales solicited for extended periods
of time on an annual basis. Also, Lang cited, with no rebuttal,
several examples of permitted noncharitable solicitation by the
Respondent (e.g., Avon products being sold in nurses’ stations
and a Survivor pool). Thus, the Respondent’s argument regard-
ing charitable exceptions28 is also rejected.
Accordingly, I would find and conclude that the Respondent
violated Section 8(a)(1) and (3) of the Act in disciplining Lang
on October 11, 2001.
CONCLUSIONS OF LAW
1. Alle-Kiski Medical Center, the Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and is a health care institution
within the meaning of Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
26 Lang testified that she had never received a disciplinary warning
prior to October 11, 2001.
27 The cited memorandum was described by the Respondent as Of-
fice of the General Counsel Memorandum GC 01-06 re: Fundraising
Following Recent Tragedy (September 28, 2001). A copy was not
provided in the brief. I was unable to find a copy of this policy. I have
relied instead on the Board authority cited herein to resolve this issue.
28 It should be noted that the Board’s exceptions apply to otherwise
lawful no-solicitation/no-distribution rules. I have determined that the
instant policy is unlawful in its entirety.
ALLE-KISKI MEDICAL CENTER 369
3. By monitoring employees engaged in union activities,
through its security guards, the Respondent violated Section
8(a)(1) of the Act.
4. By maintaining and enforcing an overly broad, facially
invalid no-solicitation/no-distribution rule, the Respondent
violated Section 8(a)(1) of the Act.
5. By confiscating union literature from an employee, the
Respondent violated Section 8(a)(1) of the Act.
6. By disciplining employee Diane Lang because of her un-
ion activities in order to discourage employees from engaging
in these and other protected activities, the Respondent violated
Section 8(a)(1) and (3) of the Act.
7. By the aforesaid conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
8. For purposes of the present order, the Respondent has not
violated the Act in any other way, manner, or respect.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act and post the appropriate notice to its employees.
It is recommended that the Respondent rescind the written
discipline issued to employee Diane Lang; remove any refer-
ence to her discipline from all of the Respondent’s records; and
make her whole for any loss of earnings and benefits she may
have suffered as a result of the Respondent’s discrimination
against her, computed on a quarterly basis as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), less any net earnings,
plus interest as computed in accordance New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Further, that the Respondent rescind its solicitation and dis-
tribution policy consistent with the findings and conclusions
herein stated.
[Recommended Order omitted from publication.]