Baptist Memorial Hospital

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 45 (N.L.R.B. 1977)

BAPTIST MEMORIAL HOSPITAL
Baptist Memorial Hospital and American Federation
of State, County and Municipal Employees, AFL-
CIO. Cases 26-CA-5929, 26-CA-5955, 26-CA-
5992, and 26-CA-6028
April 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 20, 1976, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 2 and has decided to affirm the rulings,
findings, 3 and conclusions 4 of the Administrative
Law Judge and to adopt his recommended Order, as
modified herein.
As noted by the Administrative Law Judge in his
Decision, during a prior unfair labor practice hearing
held in November 19755 Respondent's assistant vice
president, Stephen Reynolds, testified that employees
were free to handbill inside or outside the hospital so
long as they did not interfere with the work of other
employees or did not carry on their activities in
patient care areas. However, as found by the
Administrative Law Judge, employees who relied on
these assurances and attempted to handbill on the
Union's behalf in December 1975 and February 1976
were ordered by Respondent's security guards to
stop their activity. Employees, including Jerry Lee
Wheeler, who persisted in distributing union materi-
als were given disciplinary warnings by their supervi-
sors.
' The General Counsel also moved to strike Exhibit "A" appended to
Respondent's bnef in support of exceptions on the ground that Exhibit "A"
constitutes an ex parte offer of evidence. In its response to the motion,
Respondent notes that Exhibit "A" is identical to Appendix "A" attached to
the complaint herein. The General Counsel's motion is hereby denied.
2 Respondent's request for oral argument is hereby denied as the record
and exceptions adequately present the issues and positions of the parties.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 The Administrative Law Judge concluded that Respondent's rule
against employees returning to the hospital during off-duty hours violated
Sec. 8(aXl) of the Act. In so doing, the Administrative Law Judge relied
229 NLRB No. I
On February 25, 1976, Wheeler handbilled in the
hospital lobby across from the cafeteria during his
lunch break. While so engaged, Wheeler was ap-
proached by a security guard who directed him to
stop handbilling or be suspended. When Wheeler
persisted, the guard threatened him with arrest unless
he left the premises. When Wheeler protested that he
was scheduled to work, two security guards escorted
him to the hospital's entrance where, after some
further discussion, Wheeler was taken into custody
by the Memphis City police and charged with
disorderly conduct. Wheeler was convicted the next
day in Memphis Municipal Court and fined $25.
Subsequently, Wheeler was discharged by Respon-
dent. At the time of the unfair labor practice hearing,
the conviction was on appeal.
The Administrative Law Judge found, and we
agree, that Respondent's solicitation and distribution
policies and rules are unlawful. We also agree with
the Administrative Law Judge's conclusion that it
was Respondent's intention to make an object lesson
out of the Wheeler incident, and thereby to chill its
employees' enthusiasm for union activity. As the
Administrative Law Judge pointed out, "Respon-
dent's unlawful policy, compounded by Reynolds'
testimony in the earlier unfair labor practice case,
was the direct cause of Wheeler's arrest, conviction,
and discharge from his job."6 The Administrative
Law Judge also observed that credible testimony 7
established that Wheeler conducted himself with
decorum throughout the February 25 incident.
Based on these findings, the Administrative Law
Judge recommended that Respondent be ordered to
offer Wheeler full reinstatement and to make him
whole for loss of pay and for the $25 fine levied in
the court proceedings. Thereafter, the General
Counsel excepted to the Administrative Law Judge's
failure to include in his recommended remedy a
provision requiring Respondent to pay legal fees and
expenses incurred by Wheeler in connection with his
arrest and conviction on the misdemeanor charge
initiated by Respondent. The General Counsel also
urges that Respondent be directed to join in a joint
upon Respondent's failure to meet the requirements pertaining to no-access
rules laid down in Tri-County Medical Center, Inc., 222 NLRB 1089 (1976).
Thus, the Administrative Law Judge noted that Respondent prohibited
access not only to the interior of the hospital but to the sidewalks and other
outside areas. Furthermore, the Respondent permitted access to employees
for certain purposes, including picking up paychecks and visiting patients.
Although Chairman Fanning and Member Jenkins agree that the no-
access rule in issue here is unlawful, they base this conclusion on the view
that off-duty employees have a right to remain on or to enter the Employer's
premises for solicitation or distribution of union literature subject only to
the Employer's need to maintain production, discipline, or security. See, in
this regard, the dissenting opinion of Members Fanning and Jenkins in GTE
Lenkurt, Incorporaorte 204 NLRB 921 (1973).
s Reported at 225 NLRB 525 (1976).
AUD, sec. A, par. 12.
7 Respondent's security guard testified that Wheeler had been quiet and
cooperative.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition to the Municipal Court of Memphis,
Tennessee, and the City of Memphis Police Depart-
ment to expunge any record of Wheeler's arrest and
conviction. For the reasons explained below, we find
merit in the General Counsel's exceptions and we
shall grant the requested remedy.
Under Section 10(c) of the National Labor Rela-
tions Act, as amended, this Board is charged with a
duty to fashion remedial orders which will effectuate
the purposes and policies of the Act. Moreover, the
Board has wide discretion in selecting remedies to
achieve such ends, subject to the requirement that
any relief must bear some rational relationship to the
unfair labor practices found.8
Applying these principles to the facts of this case,
we are persuaded that only by granting the addition-
al relief requested by the General Counsel will we
meet our statutory duty. Such a conclusion necessari-
ly follows from the fact that one of the basic
purposes of our Act is to guarantee to employees
freedom to engage in, or to refrain from, concerted
activities. In vindicating this guarantee of employee
rights, the Board must seek to undo the effects of
unlawful conduct by restoring the situation "as
nearly as possible, to that which would have obtained
but for the illegal discrimination."s
As found by the Administrative Law Judge,
employee Jerry Lee Wheeler's arrest and conviction
in February 1976 stemmed solely from Respondent's
persistent effort to maintain and enforce its unlawful
policies and to thwart the protected organizational
activities of its employees.10 Indeed, the Administra-
tive Law Judge concluded that Respondent intended
that the Wheeler incident serve as an example to
employees of their Employer's intransigent opposi-
tion to the Union. It follows from this that legal
expenses and fees which have been or will be
incurred by employee Wheeler in connection with
this incident are directly the result of Respondent's
unlawful policies and conduct. Only by requiring
Respondent to reimburse Wheeler for these costs will
we succeed in making Wheeler whole"1 and in
fulfilling our obligation to remove, insofar as is
8 See Retail Store Employees Union Local No. 400, Retail Clerks
International Association, AFL-CIO [C W.F. Corporation] v. N.L R.B., 458
F.2d 792 (C.A.D.C., 1972); N.LR.B. v. Union Local No. 3, International
Brotherhood of Electrical Workers, AFL-CIO [New York Telephone Compa-
ny], 477 F.2d 260 (C.A. 2, 1973), cert. denied 414 U.S. 1065. See also
N.LR.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
9 See N. LR.B. v. Local Union 396, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America lUnited Parcel
Service], 509 F.2d 1075 (C.A. 9, 1975), citing Phelps Dodge Corporation v.
N.L.R.B., 313 U.S. 177, 194 (1941).
10 As noted previously, the Administrative Law Judge found, and the
record supports his finding, that nothing in Wheeler's conduct on February
26 warranted the action taken against him by Respondent.
II It is well settled that by making employees whole for losses suffered on
account of unfair labor practices the Board effectuates the public policy
possible, the effects of Respondent's unfair labor
practices.12
We shall also require Respondent to rectify the
effects of its unlawful conduct by joining with
employee Wheeler in petitioning the Memphis
Municipal Court and Police Department to expunge
any record of Wheeler's arrest and conviction. We
have long held that an employee who is the victim of
unfair labor practices is entitled to have all adverse
reports or disciplinary warnings connected therewith
removed from his personnel file. Such a remedy
recognizes that the existence of an adverse report or
disciplinary warning will not only imperil the
employee's prospect for advancement with his
current employer but may also be the basis for a
negative recommendation if he seeks other employ-
ment.
In the instant case there is a plain nexus between
Respondent's unlawful conduct and Wheeler's arrest
and conviction. Indeed, the arrest was caused as part
of the unlawful effort to stop lawful solicitation. In
our view, in these circumstances, there is no more
reason for Wheeler to be saddled with the burden of
such an adverse record than there is for any
employee who receives a disciplinary report or
warning for engaging in protected activity. Although
we recognize that it is not entirely within Respon-
dent's power to wipe the slate clean, we think it
reasonable in all the circumstances of this case to
require Respondent to take at least those steps which
are within its power to undo the damage it has
done.13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Baptist Memorial Hospital, Memphis, Tennes-
see, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
which underlies the Act. N. LRB. v. Jaspeh T Strong d/b/a Strong Roofing
and Insulating Co., 393 U.S. 357 (1969).
The Board has indicated in a different context that legal expenses are
recoverable in certain circumstances. See Tiidee Products, Inc., 194 NLRB
1234 (1972).
12 Nor can we be unmindful of our obligation to demonstrate to Wheeler
and his fellow employees that this Board, by its willingness to shape an
appropriate and full remedy, is prepared to vindicate their right to engage in
protected activity. Indeed, given the circumstances of this case, to do
otherwise would make a mockery of the concept of protected rights.
13 In so doing, we realize that in the final analysis it is for the local court
to determine whether or not Wheeler's conviction should be reversed and
the record expunged. By our action herein, we are not seeking to usurp the
authority of the court but merely to effectuate the policies and purposes of
the Act.
46
BAPTIST MEMORIAL HOSPITAL
I. Insert the following as paragraph 2(c) of the
recommended Order and reletter existing paragraph
2(c) and the subsequent paragraphs accordingly:
"(c) Reimburse Jerry Lee Wheeler for all reason-
able legal fees and expenses incurred by him or to be
incurred by him, including costs of appeal, in
connection with his arrest on February 25, 1976, and
his subsequent conviction and, upon request, join in
a petition to the Memphis Municipal Court and
Police Department requesting that all records relat-
ing to said arrest and conviction be expunged."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the
opportunity to present their evidence, it has been
decided that we violated the law and we have been
ordered to post this notice. We intend to carry out
the order of the Board and abide by the following:
WE WILL NOT promulgate, maintain, or enforce
any rule or policy which prohibits employees
from engaging in union solicitation on or near
hospital premises during nonworking time and
from engaging in the distribution of union
literature in nonwork areas on or near hospital
premises.
WE WILL NOT promulgate, maintain, or enforce
any rule or policy which discriminatorily or
because of vagueness discourages or restricts
employees from engaging in union solicitation
during nonworking time and from engaging in the
distribution of union literature in nonwork areas
on or near hospital premises.
WE WILL NOT reprimand, cause the arrest and
conviction of, discharge, or otherwise discipline
employees for having violated the hospital's
unlawful no-solicitation, no-distribution, and no-
access policies.
WE WILL NOT engage in acts of surveillance of
our employees because of their union activity.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights
protected by Section 7 of the National Labor
Relations Act.
WE WILL offer Jerry Lee Wheeler immediate
and full reinstatement to his former position or, if
that job no longer exists, to a substantially similar
job, without prejudice to his seniority or other
rights, privileges, or working conditions.
WE WILL make Jerry Lee Wheeler whole for
any loss of pay or other benefits suffered as a
result of the termination of his employment and
as a result of his fine of $25.
WE WILL reimburse Jerry Lee Wheeler for all
reasonable legal fees and expenses incurred by
him, or to be incurred by him, including costs of
appeal, in connection with his arrest and subse-
quent conviction and, upon request, WE WILL join
in a petition to the Memphis Municipal Court
and Police Department to expunge any record of
said arrest and conviction.
WE WILL remove all reprimands and counseling
interviews from hospital records of employees
Wheeler, Fletcher, Johnson, and Maclin which
relate to the hospital's no-solicitation/no-distribu-
tion policy.
WE WILL post a notice which clearly informs
employees where they may distribute union
literature during their nonworking time.
BAPTIST MEMORIAL
HOSPITAL
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge: This
case arises upon a consolidated complaint, issued March
23, 1976, as amended, by the National Labor Relations
Board alleging that Baptist Memorial Hospital had
violated Section 8(aXl), (3), and (4) of the National Labor
Relations Act. In its answer, filed March 26, 1976, and
subsequently amended, Respondent admitted numerous
factual allegations in the complaint, but it denied the
substantive charges that it had committed any unfair labor
practices.
The hearing in these charges was held in Memphis,
Tennessee, on April 12, 13, and 14, 1976. The General
Counsel and Respondent were represented by counsel and
afforded full opportunity to adduce evidence, to call,
examine, and cross-examine witnesses, and to file briefs.
Upon the entire record in this case, including briefs of
counsel and from my observation of the witnesses, I make
the following findings of fact and conclusions of law with
particular reference to the main issue in this case, whether
Respondent's no-solicitation or no-distribution policies
and their enforcement violated the Act.
FINDINGS OF FACT
Baptist Memorial Hospital is a respondent in a Board
proceeding for a second time in the recent past. On June
30, 1976, the Board affirmed the decision by Administra-
tive Law Judge Thomas A. Ricci who found that the
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hospital had engaged in certain conduct prohibited by
Section 8(a)(1) and (3) of the Act.' While the challenged
practices involved in the present proceeding are different
from those found unlawful in the earlier case, I am
authorized to rely on certain findings of the Board which
are also applicable to this proceeding, as, for example,
jurisdictional findings.
Baptist Memorial Hospital is a large general welfare
corporation doing business in Memphis, Tennessee. With
approximately 4,700 employees, Respondent is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Charging Party, American Federation of State,
County and Municipal Employees, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
A. Respondent's No-Distribution and No-Solicitation
Policies
In its answer and during the hearing, Respondent
admitted most of the factual allegations in the complaint.
For example, with respect to the gravamen of the
complaint, the promulgation and enforcement of no-
solicitation and no-distribution policies, Respondent ad-
mitted paragraphs 8-11, 13-15, 17, and 18, and substantial-
ly conceded paragraphs 12 and 16(a) and (b). With the
exception of paragraph III of the amended complaint,
Respondent has thereby admitted substantially all the
allegations against the hospital dealing with the no-solicita-
tion and no-distribution policies. More specifically and
without unnecessary repetition of the admitted allegations,
Respondent for many years prior to March 17, 1976, has
maintained and enforced a policy which prohibited its
employees from the distribution of union literature during
their nonduty hours, work breaks, or lunch periods on or
near hospital premises. This restriction although not in
written form was absolute on hospital premises, including
the Union East lobby, an area located next to the cafeteria
and accessible to employees, patients, and the general
public. Also a hospital sidewalk leading to a public
sidewalk from the Union East Building was off limits to
soliciting employees. While Respondent enforced this
policy with the assistance of its security force, listed by
name in the complaint, the record shows that Respondent
made one exception to its blanket no-solicitation, no-
distribution rule and permitted solicitations on behalf of
United Way on hospital premises. Moreover, while
employees generally were not permitted to return to the
hospital for union solicitation purposes, they were permit-
ted to return to pick up their paychecks, visit patients, go to
the credit union, or return for Christmas parties. In sum,
employees were prohibited from passing out union litera-
ture at any time in any area which was considered hospital
premises.
The record is replete with instances which illustrate
Respondent's practices of enforcing its no-solicitation, no-
distribution rule.
Yet in his testimony during the prior unfair labor
practice hearing in November 1975, Assistant Vice Presi-
dent Stephen Reynolds, Respondent's highest official to
testify, explained that employees were permitted to pass
out literature at breaktime in the cafeteria or outside the
hospital. Several employees who followed his advice,
however, were promptly prevented from doing so.
For example, in the afternoon on December 10, 1975,
two employees Jerry Lee Wheeler and Connie Fletcher
commenced to hand out union literature on a hospital
sidewalk leading from a public sidewalk to the Union East
entrance. Security guard Wilkins immediately requested
that they leave the hospital premises. When both employ-
ees refused to leave, another security guard, Lieutenant
Bowling, repeated the request that they move off the
hospital premises. Believing to be within their rights, as
explained by Reynolds in his previous testimony, the
employees refused to comply with the order of the security
force. As a result of this episode, employees Wheeler and
Fletcher received three written disciplinary warnings from
their supervisors. Similar instances occurred on February
7, 1976, involving employees Maclin and Fletcher who
commenced handbilling in the Union East lobby on
February 12, 1976, with employee Maclin in the Union
East lobby, and on February 18, 1976, with employees
Wheeler and Johnson also in the Union East lobby.
On February 25, 1975, Respondent's strict enforcement
of the no-solicitation policy resulted in the arrest and
conviction for disorderly conduct of employee Jerry
Wheeler. On that day Wheeler proceeded to handbill union
literature in the Union East lobby. Within minutes after
Wheeler commenced the handbilling, he was told by
Security Lieutenant Cohen to discontinue the handbilling
or risk being suspended from his job. Wheeler continued in
spite of several more requests to stop the practice. He was
then confronted by Security Director McCaleb and
Sergeant Campbell who informed him several times that he
had been suspended and who repeatedly ordered him off
the premises lest he be arrested. Even though Reynolds was
also present, Wheeler refused, whereupon he was escorted
by the security guards to the street. He was given the
opportunity to leave voluntarily. Insisting that he had a
right to handbill in the lobby area, and that he was
scheduled to report for work, Wheeler was finally arrested
by city police who had been summoned by the hospital.
With the help of the testimony of two of the involved
security agents, Wheeler was convicted of disorderly
conduct and fined $25. Wheeler was informed, 2 days after
his arrest, by separation note that he was fired because he
"[rlefused to leave the hospital when asked, [and] insisted
on being arrested." In this connection, the credible
testimony shows that throughout the entire episode
Wheeler had not blocked any area or been boisterous or
loud in his demeanor. The record further shows that the
conduct of the security force throughout the entire episode
had been directed by Stephen Reynolds.
Significantly, on March 17, 1976, Respondent changed
its no-solicitation, no-distribution policy at the hospital.
What had been an unwritten but blanket restriction on any
form of soliciting or handbilling (except for the United
Way) was now reduced to a written poster displayed at
I The decision is reported in 225 NLRB 525 (1976).
48
BAPTIST MEMORIAL HOSPITAL
departmental bulletin boards throughout the hospital. The
new policy was entitled "Baptist Memorial Hospital Policy
on Solicitation For Unions and Distribution of Union
Literature As of March 17, 1976," and outlined in eight
numbered paragraphs where and under what circumstanc-
es solicitation or handbilling on behalf of the Union was
prohibited. Nowhere, however, did this notice indicate
where and when the union activity would be tolerated. In
its opening statement the new policy recognized the
hospital's longstanding prohibition against any form of
solicitation with one exception, the annual "United Way of
Greater-Memphis." It states: "As you know, there had
been a long standing policy at Baptist Memorial Hospital
against any type of solicitation or distribution with the sole
exception of the annual United Way of Greater-Memphis."
While the new policy purports "to provide a balance
between the rights of all hospital employees as determined
by recent National Labor Relations Board guidelines and
health care fundamental philosophies" of primarily caring
for patients, respecting their friends and families and not
interfering with one another's work, the rules were so
restrictive and vague that the average employee could
never be sure under what circumstances he could exercise
his rights without running afoul of the new policy. For
example, handbilling was prohibited in "work areas or
work corridors." From the viewpoint of an employee, there
is absolutely no area in a hospital which is not a work area.
Even a lobby is a work area to a janitor who must clean the
ashtrays or polish the floors. Another rule prohibited
printed union matter from being distributed during an
employee's working time or "in such a way as to interfere
with the working time of the person being solicited." Yet
another prohibition in the new policy was directed against
handbilling "where littering the premises or other disrup-
tion of normal functions will occur." To a hospital
administrator any union activity may disrupt "normal
functions." In short, the rules, while cleverly lifted from the
language contained in leading cases, were too imprecise
and vague to adequately inform employees who are not
trained in the law when and whether they might violate the
new policy and risk being disciplined.
In any case, the immediate impact of the revised rules
was that, a day or two after the new policy was put into
effect, several employees including Johnson, Fletcher, and
Maclin were called into their respective supervisors' office
and advised of the new rules. In addition, the employees
were informed that their previous "counseling interview"
reports were being withdrawn which had cited them for
violations of the prior no-distribution policy. However, the
record shows that the withdrawn interview reports were
merely replaced by new counseling interview reports which
stated in substance that their acts of handbilling although
not in violation of the new rules had violated the old
hospital policy. It is clear that the removal of the prior
existing counseling reports was meaningless in view of the
existence of the present ones.
Moreover, on April 1, 1976, and in spite of the new rules,
employee Maclin was again threatened by Lieutenant
Cohen with the possible loss of her job if she continued to
handbill in the Union East lobby next to the cafeteria. To
be sure, Respondent by Assistant Vice President Reynolds
spoke to Maclin several days prior to the hearing. He
informed her that Cohen had no authority to threaten her
with the loss of her job, but that he did have the right to
enforce the rules of the hospital. Reynolds also told her
that she could handbill in the cafeteria under normal
circumstances.
The hospital's practices concerning its policy of solicita-
tions and handbilling on behalf of the Union, which have
only been briefly summarized in view of Respondent's
admission of substantially all the factual allegations
dealing with the issue, clearly were and presently are in
violation of the Act. Respondent so much as admits that its
prior policy disallowing any type of solicitation or
distribution on behalf of the Union was not in accordance
with the Board's decision in St. John's Hospital and School
of Nursing, Inc., 222 NLRB 1150 (1976), since it revised its
policy soon after the St. John's decision. In any case, the
record is clear that Respondent maintained and strictly
enforced-with sometimes drastic consequences-an abso-
lute no-solicitation and no-distribution policy with regard
to the Union prior to March 17, 1976. In St. John's supra,
the Board reiterated that generally a no-solicitation rule is
presumed invalid if it extends to solicitation during
nonworking time irrespective of whether the solicitation
occurs in a nonwork area; and a rule prohibiting distribu-
tion of literature is presumed invalid if it extends during
nonworking time in a nonworking area. Respondent has
failed to present any justification to overcome these
presumptions. The fact that Respondent is a hospital
whose prime function is patient care where a tranquil
atmosphere is essential justifies a somewhat more stringent
prohibition on solicitation than ordinarily permitted.
Respondent's broad policy, however, restricted handbilling
in the Union East lobby and the cafeteria and the hospital
sidewalk leading to Union East which are areas where
Respondent's care of patients could not conceivably have
been disrupted. Indeed, the record shows that attempts to
handbill or solicit occurred only in those areas where the
visiting public was generally permitted. While there was
some suggestion that the employees who were engaged in
the distribution of union literature were impeding traffic,
this contention is unconvincing. Obviously, interested
employees will stop or hesitate momentarily in accepting
the tendered literature, but the record does not show that
any extensive solicitation with long conversations occurred
or that any passageway or walkway was ever blocked as a
result of the handbilling.
Any suggestion that employees who engaged in the union
activity were properly restricted from access to their place
of employment during off-duty hours is without merit. The
Board has made it clear that any nonaccess rule is valid
only under certain circumstances. Tri-County Medical
Center, Inc., 222 NLRB 1089 (1976). Respondent has failed
to meet at least two of those requirements. First, Respon-
dent has prohibited access not only to the interior of the
hospital but also to the outside area such as the access way
from the public sidewalks to the Union East Building.
Second, employees are not restricted for all purposes. The
hospital permits, for example, employees to visit patients or
to pick up their paychecks during their nonduty hours, and,
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
third, the record does not reflect that the nonaccess policy
has been communicated to all of its employees.
Respondent's maintenance and enforcement of the no-
solicitation, no-distribution, and nonaccess rules were,
accordingly, violative of Section 8(a)(3) and (1) of the Act,
and any counseling interviews or other adverse actions
taken by the hospital against its employees resulting from
the enforcement of these rules were unlawful. Lutheran
Hospital of Milwaukee, Inc., 224 NLRB 176 (1976).
Particularly the incident leading to the arrest, conviction,
and discharge of Jerry Lee Wheeler was a drastic
consequence of Respondent's blanket policy dealing with
distribution of union literature. Without doubt, Respon-
dent's unlawful policy, compounded by Reynolds' testimo-
ny in the earlier unfair labor practice case, was the direct
cause of Wheeler's arrest, conviction, and discharge from
his job. Indeed, I firmly believe that Respondent's
intention was to make an example of this employee
because the incident followed only a few weeks after a
meeting among top officials of the hospital to determine
what, if anything, should be done if the employees
continued to insist on passing out union literature. The fact
that Wheeler was arrested for and convicted for disorderly
conduct by a local court is not a binding decision upon the
Board to the effect that Wheeler was guilty of insubordina-
tion, particularly here, where the basis for the conviction
was Respondent's illegal activity, i.e., the enforcement of
an unlawful no-distribution policy. Numerous cases which
General Counsel has cited in his brief support the principle
that a discharge as a result of Respondent's enforcement of
an illegal policy is a violation of Section 8(a)( 3).
Furthermore, Respondent's revised policy, adopted on
March 17, 1976, and communicated to all employees, was
not in accordance with law. First of all, it prohibited
employees who were not reporting for work from the
interior of the hospital for purposes of handbilling or
soliciting on behalf of the Union. Yet employees who were
not scheduled for work were able to return to the hospital
for other purposes such as picking up their paychecks,
visiting patients, etc. This is clearly discriminatory and
designed to discourage union activity in violation of
Section 8(a)( ). Tri-County Medical Center, Inc., supra.
Furthermore, the new rules are solely directed against
solicitation by employees on behalf of the Union. Yet the
record shows that solicitation for the United Way of
Greater Memphis is not only tolerated but actively
supported by the hospital and apparently sanctioned
during work and nonwork time and in work or nonwork
areas. Again, the new rules are a discriminatory attempt
directed against the Union.
Finally, the new rules are ambiguous, vague, and subject
to various interpretations. In his testimony, Stephen
Reynolds, Respondent's assistant vice president, was
unsure himself as to the practical application of the rules.
Indeed, I am convinced that Respondent fully intended to
draft the new policy in an ambiguous manner in order to
create uncertainty in the minds of its employees and
thereby discourage any union activity. Most, if not all, of
Respondent's employees are not legally trained and any
apprehension on their part created by the rules' uncertainty
is a form of coercion by Respondent in violation of Section
8(a)(1) of the Act.
B. The Poll
The records show, as alleged in the complaint, that on
February 2, 1976, Respondent by its supervisor, Barabara
Garner, conducted a poll of her staff to find out how they
felt about the Union. Garner paged approximately 22
employees under her supervision in the department of
surgery requesting them to come to the lunchroom.
Approximately 18 or 19 of the employees gathered, and
Garner told the group that she wanted to have a vote on
how the employees felt about the Union. Employee
Dorothy Garrison testified that she objected several times
to her supervisor about the procedure, but that Garner
indicated that she did not care about the identity of who
was in favor of or against the Union but that she merely
wanted to find out how her employees felt generally about
the Union. During a fairly informal meeting, employees
were given slips of paper which they were asked to mark
with the number "I" if they were for the Union, "2" if they
were against it, or "3" if they were undecided. The
employees then placed their completed slips into a surgical
cap and Garner counted the votes with the help of one of
the employees. The count indicated that about 12 employ-
ees were in favor of the Union, 2 against, and 3 were
undecided. The pieces of paper were then discarded in the
trash. The record shows that Garner failed to assure the
employees that no reprisals would be taken as a result of
the voting, and further that Garner did not indicate what
she intended to do about the results of the vote. In her
testimony she explained that she found it unnecessary to
offer any such assurances, presumably, since the employees
knew that no reprisals would be taken. She further testified
that the only reason that she wanted this information was
to follow up and talk to several employees to test how
sound their thinking was.
While at first blush the polling seems fairly innocuous,
particularly since Garner was a relatively lower echelon
supervisor within the hospital, and since there is no
evidence that higher officials had approved of the proce-
dure or that it had been employed elsewhere within the
institution, however, in the light of Respondent's union
animus as found in the prior unfair labor practice case and
in view of the record as a whole which indicates
Respondent's commission of other unfair labor practices, it
is clear that this polling practice violated Section 8(aX)(I) of
the Act. As the Board stated in Struksnes Construction Co.,
Inc., 165 NLRB 1062, 1063 (1967):
Absent unusual circumstances, the polling of em-
ployees by employer will be violative of Section 8(a)(l)
of the Act unless the following safeguards are observed:
(1) the purpose of the poll is to determine the truth of a
union's claim of majority, (2) this purpose is communi-
cated to the employees, (3) assurances against reprisal
are given, (4) the employees are polled by secret ballot,
and (5) the employer has not engaged in unfair labor
practices or otherwise created a coercive atmosphere.
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BAPTIST MEMORIAL HOSPITAL
Respondent's practice here failed to comply with several
requirements laid down by the Board. The poll was not
conducted to ascertain a union's claim of majority, the
employees were not informed of the purpose of the poll,
nor were any assurances given against reprisals. Signifi-
cantly, the poll was taken in the context of Respondent's
commission of other unfair labor practices.
C. Surveillance of Employees
During the hearing, General Counsel was granted
permission to amend the complaint alleging that Respon-
dent had illegally engaged in acts of surveillance of
employees who engaged in union activity. In this regard,
the record shows clearly that the Respondent's security
guards engaged in a systematic practice of watching union
representatives when they were present on hospital premis-
es. In performing this duty, security guards were also
present and watched when hospital employees handbilled
in the hospital. This may have occurred inadvertently in
some instances. However, the record shows that members
of Respondent's security guards watched employees Ma-
clin and Fletcher on February 7, 1976, and employees
Wheeler and Johnson on February 18, 1976, while they
were passing out union literature. No union officials were
present during those times. The inference that Respondent
thereby intended to discourage its employees from distrib-
uting union literature is particularly unavoidable, since
Respondent has so clearly and without exception enforced
its no-distribution policy. Respondent's practice has not
only an intimidating effect upon the employees who are
engaged in the distribution of union literature but also
upon other employees who are being solicited.
Respondent's violation of Section 8(aXl) is clear since
the surveillance of employees' union activity is unlawful,
Barnes Hospital, 217 NLRB 725 (1975), even though some
employees may have been unaware of it and even though
top management had not authorized it. N.LR.B. v. Grower-
Shipper Vegetable Association of Central California, et al.,
122 F.2d 368 (C.A. 9, 1941). Intertype Company, a Division
of Harris-lntertype Corporation v. N.LR.B., 371 F.2d 787
(C.A. 4, 1967).
Middleton's Reprimand
On January 9, 1976, Francis Middleton, a hospital
porter, received a written reprimand from his superior,
Speck. The reprimand notice states in pertinent part:
On Wednesday, January 7, 1976, a day on which he
was not scheduled to work, Mr. Francis Middleton was
observed on the second floor of the Madison West
Building talking to other hospital employees during
their working time and, thereby interfering with their
work.
Mr. Middleton has been warned in the past about
being out of his work area or taking excessive time to
perform assignments which take him out of his work
area and using such occasions to talk to other
employees which causes him both to neglect his own
work and to interfere with the work of others.
In addition to the above warnings, Mr. Middleton was
verbally counseled by me on approx. October 9, 1975,
on the specific point of not coming back to the hospital
except for legitimate purposes at time he is not
scheduled to work. This notification to him was
necessitated because he was observed by Mr. Bethune
on October 3, 1975, on the 6th Floor M. W. talking to
the personnel and interfering with their work. He came
to the hospital to get a flu shot, but afterwards went out
of his way to find and talk to other employees while
they were working.
S * *
Statement: Mr. Middleton is building a considerable
history of interruption and interference with the work
of other hospital employees both during the time he is
supposed to be working himself and also when he has
come back to the hospital when off duty and he is not
on hospital business or legitimate public use business.
General Counsel has gone to a considerable effort to
show that the reprimand was at least partially unjustified
and that Middleton could not have been in the hospital on
January 7, 1976, since he allegedly was in Decatur,
Alabama, on that date. Since Middleton had been a strong
union supporter and a witness in the prior unfair labor
practice hearing, it is General Counsel's contention, that
the written reprimand was unjustified and a violation of
Section 8(a)(1), (3), and (4) of the Act.
Respondent does not contest that Middleton was a union
supporter, a member of the Union's organizing committee,
and a witness in a prior Board proceeding, but Respondent
does insist that the reprimand was fully justified, and that
Stephen Reynolds personally witnessed Middleton's pres-
ence in the hospital on January 7, 1976.
Prior to analyzing the record on the issue whether
Middleton was in the hospital on January 7 or in Decatur,
Alabama, it is necessary to observe that General Counsel's
effort was solely directed towards a portion of the
reprimand, i.e., Middleton's whereabouts on January 7.
The propriety of the reprimand is therefore unrefuted to
the extent that it criticized Middleton for being on hospital
premises in violation of the hospital's nonaccess policy on
previous occasions, including October 3, 1975, and that it
otherwise criticized the employee in the discharge of his
duties. The mere fact, therefore, that a part of the
reprimand notice may have been without justification does
not mean that the entire reprimand was a pretext.
In any case, I am also unconvinced by the testimony of
General Counsel's witnesses. Middleton himself testified
that he and his wife left for Decatur, Alabama, on January
5, and returned on January 8, 1976. He testified that he
could not have been in the hospital since he had car trouble
on January 7 and had his car repaired at a gas station in
Decatur, Alabama. To prove the point Middleton testified
that he had requested Mr. Shackelford, the operator of the
garage, to give him a written receipt for the work
performed. The receipt, however, is dated January 9, 1976.
To explain this inconsistency, Middleton testified that he
had persuaded Shackelford to date the receipt, not with the
accurate day of January 7, but to postdate the receipt with
51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 9, 1976. According to Middleton, he had decided
not to report for work on January 9, as scheduled, but to
use the car trouble as an excuse for his absence. Middleton
also admitted that he had persuaded Shackelford to falsify
the receipt in yet another respect. Instead of indicating the
true amount charged, Shackelford agreed to fill in a far
higher amount. This would enable Middleton to obtain
money from his relatives. In this regard Middleton testified
during cross-examination as follows:
Q. So, essentially this receipt was made out at your
request with both a false amount and a false date, is
that right?
A. That's right.
Q. And according to your testimony, the false
amount was so that you could con your relative into
some money, is that right?
A. Not con--borrow.
* *
Q. And you did because you knew if you showed
them a bill of $40, they weren't going to lend you any
money, isn't that right?
A. Well, they probably would have.
Q. Well, then why did you do it?
A. I wasn't taking any chance on that.
Q. So, rather than take a chance, you would just lie
to them about it?
A. Why sure, why not.
Q. So, then the date is on there false so you could
lie to your boss about that, is that right?
A. That's right.
Q. You don't see anything wrong with lying to your
mother and brother, did you?
A. No, I know a lot of people lies.
It is obviously impossible to rely upon a witness whose lack
of respect for truth and honesty is so clearly demonstrated.
General Counsel called three witnesses to corroborate
Middleton's testimony that he was not in the hospital on
January 7. Middleton's wife, Mrs. Jessie Middleton,
essentially duplicated her husband's story, disagreeing with
him in minor respects. For example, contrary to her
husband's testimony she testified that it was not her but her
husband's idea to return to Memphis on January 8. While
her testimony appeared far more credible than that of
Middleton, I believe that the possibility of his power of
persuasion-effectively employed with Shackelford-simi-
larly rendered his wife's testimony unreliable. Shackel-
ford's testimony was also unconvincing. At the mere
suggestion of Middleton, a stranger, Shackelford knowing-
ly signed a receipt which contained false information. His
recollection was in some cases hazy and in some his
practices were questionable. For example, he erroneously
placed "Alabama 1976" in the space on the cash receipt
which is actually reserved for the car's license number and
state. The third witness was Mary Hogard, office manager
of the hospital's credit union. She merely testified that
Middleton made a loan application on January 5, that the
loan was approved on January 7, and that the check was
not dispersed until January 9, 1976. Her testimony does not
establish that Middleton could not have been in Memphis
on January 7.
For the foregoing reasons, I find that General Counsel
has failed to show that the reprimand of January 9, 1976,
was unjustified and a violation of Section 8(a)(1), (3), or
(4).
CONCLUSIONS OF LAW
1. Respondent Baptist Memorial Hospital is an em-
ployer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6) of
the Act.
2. The Union, American Federation of State, County,
and Municipal Employees, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(aX)(l) of the Act by
maintaining and enforcing for many years prior to March
17, 1976, a no-solicitation, no-distribution policy which
prohibited its employees from soliciting or handbilling on
behalf of the Union on or near hospital premises in
nonwork areas during nonworking time.
4. Respondent violated Section 8(a)(1) of the Act by
promulgating on March 17, 1976, and thereafter maintain-
ing and enforcing a no-solicitation, no-distribution, and
no-access policy which is discriminatorily directed against
the Union, and which is too ambiguous to inform
adequately its employees of their rights to solicit and
handbill in nonwork areas during nonworking time.
5. Respondent violated Section 8(aX)(1) and (3) of the
Act by enforcing unlawful no-solicitation, no-distribution
policies and by reprimanding employees Maclin, Fletcher,
Johnson, and Wheeler for violations of the unlawful no-
solicitation, no-distribution policy.
6. Respondent violated Section 8(a)(1), (3), and (4) of
the Act by reprimanding employee Maclin who was a
witness in a prior Board hearing for violating Respondent's
unlawful no-solicitation, no-distribution policy.
7. Respondent violated Section 8(aXl) and (3) of the
Act by suspending, discharging, refusing to rehire, and
causing the arrest and conviction for disorderly conduct of
employee Wheeler because of his refusal to comply with
Respondent's unlawful no-solicitation, no-distribution
policy.
8. Respondent violated Section 8(aXl) by acts of
surveillance of employees who were handbilling on behalf
of the Union.
9. Respondent violated Section 8(aXi) by the acts of
Supervisor Garner in conducting a poll of its employees to
ascertain their union allegiance.
10. Any other allegations in the complaint have not
been sustained and are dismissed.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(aX)(1), (3), and (4) of the
Act, I recommend that Respondent be ordered to cease
and desist from its unlawful practices. I further recommend
that Respondent be ordered to post an appropriate notice
and take affirmative action in order to effectuate the
policies of the Act.
52
J
BAPTIST MEMORIAL HOSPITAL
In addition, I recommend that Jerry Lee Wheeler be
offered full and immediate reinstatement with backpay,
computed as provided in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). 1 also recommend that Respondent be
required to expunge all reprimands or counseling interview
records in Respondent's possession which deal with the
hospital's no-distribution, no-access policy concerning
employees Wheeler, Maclin, Fletcher, and Johnson.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I recommend the issuance of the
following recommended:
ORDER 2
Respondent Baptist Memorial Hospital, Memphis, Ten-
nessee, its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Maintaining, promulgating, and enforcing any rule or
policy which prohibits employees from engaging in union
solicitation during nonworking time and from engaging in
the distribution of union literature in nonwork areas on or
near hospital premises.
(b) Maintaining, promulgating, and enforcing any rule or
policy which discriminatorily or because of ambiguity or
any other reason discourages or restricts employees from
engaging in union solicitation during nonworking time and
from engaging in the distribution of union literature in
nonwork areas on or near hospital premises.
(c) Reprimanding, causing the arrest and conviction of,
discharging or otherwise disciplining employees for having
violated Respondent's unlawful no-solicitation, no-distri-
bution policies.
(d) Engaging in acts of surveillance of its employees
because of their union activity.
(e) Conducting polls of its employees to ascertain their
union allegiance without meeting adequate safeguards.
(f) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights
protected by Section 7.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmnative action necessary to
effectuate the policies of the Act:
(a) Offer Jerry Lee Wheeler immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered,
including reimbursement of the $25 fine, in the manner set
forth in the section hereof entitled "The Remedy."
(b) Remove all reprimands or counseling interviews from
the hospital records of employees Wheeler, Fletcher,
Johnson, and Maclin which are in any way related to
Respondent's no-distribution, no-solicitation rules.
(c) Publish at its bulletin boards or other areas where
Respondent customarily attaches notices to its employees a
written notice which clearly, adequately, and unambigu-
ously informs its employees where they may distribute
union literature.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its place of business in Memphis, Tennessee,
copies of the attached notice marked "Appendix." 3 Copies
of said notice on forms provided by the Regional Director
for Region 26, after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places at all locations where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
53