Beth Israel Hospital

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1495 (N.L.R.B. 1977)

BETH ISRAEL HOSPITAL
Beth Israel Hospital and Massachusetts Hospital
Workers Union, Local 880, Service Employees
International Union, AFL-CIO. Cases 1-CA-
11469, 1-CA-11479, 1-CA-11580, 1-CA-11581,
1-CA-11582, 1-CA-11661, and 1-CA-12161
April 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On December 9, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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 and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Beth Israel
Hospital, Boston, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i In an earlier proceeding involving the same parties, Beth Israel
Hospital, 223 NLRB 1193 (1976), we found Respondent's no-solicita-
tion/no-distnbution rule to be an overly broad restriction on employee
rights under the policy fully explicated by the Board in its Decision in St
John's Hospital and School of Nursing, Inc, 222 NLRB 1150 (1976). This
same rule is again in issue in this proceeding and although we are cognizant
of the fact that Respondent's counsel did not have the benefit of our ruling
in St John's Hospital at the time the legality of the rule was originally
litigated, we note that in this proceeding Respondent was permitted to
litigate, and did fully litigate, the issue as to whether a proper business
justification existed which would require the maintenance and enforcement
of such a rule. On the basis of the record before us and for the reasons
expressed in our Decision in St John's Hospital, we find that the evidence
adduced by Respondent is insufficient to establish business justification for
the existence of the rule. Accordingly, we reaffirm our earlier finding that
the rule is an impermissible restraint on employee Sec 7 rights and is
thereby unlawful.
DECISION
STATEMENT OF THE CASE
1495
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in Case l-CA-I 1469 was filed on February 24,
1976,1 in Case 1-CA-11479, on February 25. They were
consolidated for hearing and a complaint was issued on
April 22. The charges in Cases 1-CA-11580, 11581, and
11582 were filed on March 29. They were consolidated for
hearing with each other and with 11469 and 11479 and a
complaint was issued on May 18. The charge in Case 1-
CA-11661 was filed on April 19 and amended on April 29.
It was consolidated for hearing with the five earlier cases
and a complaint was issued on June 2. Hearing was held on
that complaint on August 4 and 26 in Boston, Massachu-
setts. The charge in Case l-CA-12161 was filed on August
30 and amended on September 24. A complaint was issued
on October 7. On November 3 the General Counsel and
Respondent filed a joint motion to reopen the record and
consolidate Case 1-CA-12161 with the six earlier cases for
purposes of decision. The motion is hereby granted.
The principal issue litigated was whether a discharge
effected and warnings issued for violations of Respondent's
no-distribution rule violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended . Because I am
bound by the Board's finding in Beth Israel Hospital, 223
NLRB 1193 (1976), that Respondent's no-solicitation, no-
distribution rule is illegal , I fmd that they did.
Upon the entire record, and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Massachusetts corporation, operates a
nonprofit hospital in Boston. It annually grosses more than
$250,000 and receives goods valued at more than $50,000
which are shipped directly to it by suppliers located outside
the Commonwealth of Massachusetts.
H. THE UNFAIR LABOR PRACTICES
A. Facts
The facts in this proceeding are undisputed. In areas
other than the discharge of Gregory Spear on February 23,
they are, in large measure, stipulated.
i Dates are 1976 unless otherwise indicated.
228 NLRB No. 195
14% DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Background
On July 25, 1975, Administrative Law Judge Ivar H.
Peterson issued his Decision in Case I-CA- 10200, the case
which ultimately became 223 NLRB 1193. That case
involved Respondent 's longstanding no-solicitation, no-
distribution rule. The rule reads:
There is to be no soliciting of the general public
(patients, visitors) on Hospital property. Soliciting and
the distribution of literature to Beth Israel employees
may be done by other Beth Israel employees, when
neither individual is on his or her working time, in
"employee-only" areas, i.e., employee locker rooms and
certain adjacent rest rooms. Elsewhere within the
Hospital, including patient-care and all other work
areas, and areas open to the public such as lobbies,
cafeteria and coffee shop, corridors, elevators, gift shop,
etc., there is to be no solicitation nor distribution of
literature.
Solicitation or distribution of literature on Hospital
property by non-employees is expressly prohibited at all
times.
Consistent with our long-standing practices, the
annual appeal campaigns of the United Fund and of
the Combined Jewish Philanthropies for voluntary
charitable gifts will continue to be carried out by the
Hospital.
Judge Peterson concluded that "[b]y initiating, promulgat-
ing and maintaining a written rule prohibiting distribution
of union literature, and union solicitation except on a 'one-
to-one' basis, in its cafeteria and coffee shop, the Respon-
dent violated Section 8(a)(1) of the Act." He recommend-
ed, inter aha, that the Board order Respondent to
"[r]escind its written rule prohibiting distribution of union
literature and union solicitation in its cafeteria and coffee
shop."
On April 30, 1976, the Board issued 223 NLRB 1193.
The Board affirmed Judge Peterson 's rulings, findings, and
conclusions, and adopted his recommended Order with a
modification not relevant to this proceeding. In a footnote
appended to its affirmance of Judge Peterson's conclu-
sions, the Board said:
Subsequent to the Administrative Law Judge's Deci-
sion in this case, the Board in St. John's Hospital and
School of Nursing, Inc., 222 NLRB 1150 (1976), held
that restrictions on solicitation and distribution in
patient access areas such as cafeterias violate Sec.
8(a)(1) of the Act. Accordingly, the Respondent also
violated Sec. 8(a)(1) by maintaining an overly broad no-
solicitation, no-distribution rule that prohibited all solici-
tation and distribution in all areas to which patients and
visitors have access and employees have access during
nonworking time other than immediate patient care areas.
[Emphasis supplied.]
From July 25, 1975, to April 30, 1976, and since April 30
Respondent has continued to give effect to this rule,
pending final resolution of the question of its legality by
the United States Court of Appeals for the First Circuit.
The discharge and the warnings which are the substance of
this proceeding were all initiated by Respondent pursuant
to this rule in the belief its position that the rule is legal will
ultimately be vindicated. Since August 20, Respondent has
added the following statement to all warnings issued to
employees for violation of its rule:
While the validity of these rules wil soon be litigated in
the Circuit Court of Appeals, the Hospital is confident
that its rules will be upheld. Because this question has
not finally been resolved, any possible related disciplin-
ary action has been suspended.
Nevertheless, your violation of these rules has been
recorded for future reference. In the event that the
Court sustains the Hospital's position, the record of
such violations will be reviewed for possible discipline
up to and including discharge.
2. The discharge
Gregory Spear was a full-time transporter at the time of
his discharge. Transporters' duties (for example, delivering
supplies to operating rooms) take them into all parts of the
hospital. Local 880 has been engaged in a campaign to
organize Respondent's employees for more than a year.
Spear was a member of Local 880's in-hospital organizing
committee.
Spear's supervisor was Thomas Hughes, Respondent's
manager of distribution services . Around 1 p.m. on
Thursday, February 19, Spear was waiting for an elevator
on the third floor of the hospital. He had in a pocket of his
uniform jacket a number of copies of a union leaflet. The
leaflets were taller than the pocket was deep. Consequently,
enough of the leaflets projected from the pocket to make
them readily identifiable as union literature. Jose Torres,
another transporter, was standing with Spear, waiting for
the same elevator. He noticed the leaflets projecting from
Spear's pocket. He reached over and plucked one from
Spear's pocket. Hughes came around a corner just at that
moment, in time to see Torres reading the leaflet and to
hear his comment that it was one he had not seen before.
Hughes was too late to see Torres take the leaflet from
Spear's pocket. He did see the manner in which Spear was
carrying the leaflets . He did not say anything to either
Torres or Spear.
Later that afternoon, Hughes asked Torres how he had
gotten the leaflet from Spear. Torres assured Hughes,
truthfully, that Spear had not given him the leaflet but,
rather, that he had taken it from Spear's pocket on his own
initiative.
Still later that afternoon, Hughes summoned Spear to his
office. He told Spear that he had talked with Torres and
that he believed what Torres had told him. He said that the
manner in which Spear was carrying the leaflets in his
pocket was a violation of Respondent's no-distribution rule
because Spear intended other employees to take them from
his pocket just as Torres had done, thus, in effect, acting as
a walking outbox for union literature. Hughes told Spear
he could only carry union literature in his pocket if it was
folded in such a way that none of it showed. Hughes said
that, if Spear left the office with the leaflets projecting from
BETH ISRAEL HOSPITAL 1497
his pocket, he would discharge Spear. Spear folded the
leaflets so that they did not show and left the office.
After leaving the office, Spear reconsidered his position.
Consequently, still later that afternoon, he spoke to Hughes
in his work area. He told Hughes he had a legal right to
carry union literature in his pockets in the manner Hughes
disapproved of and he intended to continue doing so.
That evening Spear attended a meeting of Local 880's
organizing committee. He reported what had happened to
him. The committee decided to challenge Hughes' novel
interpretation of the no-distribution rule. Consequently, on
Friday, February 20, Spear and a number of other
employees went about their duties with leaflets sticking out
of their pockets. Hughes saw what Spear was up to but,
because of the press of other duties, said nothing to him.
Spear did not work on Saturday or Sunday. On Monday
morning, February 23, he carried leaflets in his pocket in
the same manner. Hughes saw him. He asked Spear if
Spear intended to continue carrying the leaflets that way.
Spear said yes. Hughes said that, if Spear persisted in doing
so, he would have no choice but to take the action he had
mentioned on Thursday, i.e., discharge Spear. Hughes did
not, however, tell Spear he was discharged at that time.
Shortly after noon, some 20 to 25 employees from
various departments of the hospital went to Hughes' office
to protest. Hughes was not there. The employees tracked
him down in the office of Andrea Hansen, Respondent's
assistant personnel director. Aaron Krakow acted as
spokesman for the group. He protested Hughes' interpreta-
tion of the no-distribution rule and demanded that, if Spear
had been discharged, he be rehired forthwith. Hughes said
he had not yet decided whether to discharge Spear. He said
he had been advised by a lawyer that the manner in which
Spear was carrying union leaflets in his pocket was illegal.
He refused to discuss the situation further with the
employees as a group. He said he would be willing to talk
individually to those employees who were in his depart-
ment. He suggested that other employees who were in the
group go to their immediate supervisors to discuss the
matter. He left Ms. Hansen to cope with the employees.
Sometime after Hughes spoke to Spear on the morning of
February 23, he started Spear's discharge in motion by
filling out a form titled "Notice of Termination." He
checked the "Dismissed-explain fully below" box. After
"Reason for leaving" he entered "Dismissed for repeated
violations of hospital policy." After "Additional com-
ments" he entered "Greg has shown very poor judgement
regarding hospital rules on solicitation. Despite repeated
warnings concerning violations of these rules, Greg has
continued to violate them, resulting in his dismissal." 2
Hughes turned the form in and, later that day, received
Spear's final check. Sometime on the afternoon of Febru-
ary 23, after his confrontation with the group of employees
in Ms. Hansen's office, Hughes summoned Spear to his
office and discharged him. Later that afternoon Hughes
spoke to each of the four transporters other than Spear who
had been in Ms. Hansen's office in an effort to calm them
2 In view of Hughes' admission that he would not have discharged Spear
on February 23 if Spear had not insisted on carrying union leaflets in his
pocket in a manner that caused them to be visible and identifiable as such, I
make no findings as to several incidents which occurred prior to February
down. He summoned Krakow, Jose Oveido, and Ron
Charon to his office. Craig Goddard came on his own in
response to the invitation Hughes had extended as he left
Ms. Hansen's office. In each case, Hughes explained to the
employee his interpretation of the no-distribution rule as
applied to employees' carrying union literature in their
pockets and his reasons. In each case, he warned the
employee that he would have to take action if the employee
insisted on doing what Spear had done.
3. The warnings
On February 20, about 1 p.m., while standing at the
elevator on the second floor of North Building, Judith
Beatrice, a station secretary who was on her lunch break,
handed a union leaflet to Rhonda Martin, a nurse who was
also on her lunch break. They discussed the Union as they
entered and rode in the elevator. Later that day Ms.
Beatrice was counseled concerning the incident, and the
counseling was memorialized in a memorandum which was
entered in her personnel file.
On March 25, about 6:30 a.m., Ricardo Levins, a
housekeeping assistant , and Aaron Krakow were distrib-
uting union literature during their nonworking time,
outside near the steps to the rear entrance to South
Building. The area outside South Building, by the steps to
the rear entrance, is a nonworking nonpatient care area on
hospital property. It is an area to which employees, visitors,
and patients all have access. While Levins and Krakow
were distributing literature, they were approached by Kip
McClelland, director of plant management, who asked
them whether they were employees and, if so, in what
department. He told them they were in violation of the
hospital's solicitation and distribution rule. Levins and
Krakow told McClelland which departments they worked
in. McClelland told them they would have to leave the
hospital property. They left when told to do so. Later that
day both received oral warnings. The warnings were
memorialized in memoranda which were placed in their
personnel files.
On March 31, about 7:30 a.m., Carlos Hansen, an
orderly, and Robert Townsend, a radiology technician,
were distributing union literature during their nonworking
time, outside the Brookline Avenue front entrance to the
hospital. This area is a nonworking nonpatient care area on
the hospital property, and is an area to which employees,
visitors, and patients have access. While distributing the
literature Hansen and Townsend were approached by
McClelland, who asked them to identify themselves and
told them they were violating the hospital rule on
distribution. They refused to identify themselves. McClel-
land told them to leave the hospital property, which they
also refused to do. Hansen and Townsend each received
two written warnings for the incident. The first was for
violation of the no-solicitation rule. The second was for the
employee's failure to identify himself.
Also on March 31, about 7 a.m., Margaret O'Connor, a
ward secretary, and Robert Ragland, an orderly, were
19 and one which occurred on February 19 (but which was unrelated to the
dispute over the leaflets) despite Hughes' testimony that he also had those
incidents in mind when he filled out the termination form.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributing union literature during their nonworking time,
outside, near the steps to the rear entrance to South
Building . They were approached by Richard Care, chief of
security, who told them they were in violation of the
hospital's solicitation and distribution rule. Care asked
them if they were employees, and asked them to identify
themselves. Ragland and Ms. O'Connor left the property
without identifying themselves, although Ms. O'Connor
stated she was a secretary. Later Ms. O'Connor and
Ragland each received two written warnings for the
incident. The first was for violation of the no-solicitation
rule. The second was for failure to identify themselves.
On August 20, about 7:15 a.m., Carlos Hansen, Judith
Beatrice, Craig Goddard, Frances Soderberg, and Joel
Rubin were distributing union literature during their
nonworking time in an area outside the Brookline Avenue
front entrance to the hospital. This is a nonworking
nonpatient care area on the hospital property to which
patients, visitors, and employees all have access. While
distributing the literature, these employees were ap-
proached by hospital security guards who asked them if
they were employees, and if so, to identify themselves by
name and department, which they did. Each employee
later received a written warning notice for violation of the
hospital's no-solicitation, no-distribution rule.
no-distribution rule, Respondent has violated Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist order and
notice, an order requiring Respondent to remedy the unfair
labor practices found by reinstating and making Spear
whole and by expunging from its records all references to
warnings to employees for violations of its no-solicitation,
no-distribution rule is required to effectuate the policies of
the Act. Spear's backpay will be computed on a quarterly
basis, plus interest at 6 percent per annum, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). Material
expunged will include, but not be limited to, all warning
notices , counseling reports, incident/observation reports,
and untitled memoranda relating to alleged violations of
Respondent's rule.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
B. Analysis and Conclusions
Respondent's no-solicitation, no-distribution rule per-
mits distribution of union literature by employees only in
locker rooms and certain adjacent restrooms. Respondent
has defended this proceeding on the ground that it has a
legal right to so restrict its employees because of the threat
which the distribution of sometimes scurrilous material
poses to the therapeutic milieu essential to its business of
patient care. However, that portion of the Board's Decision
in Beth Israel Hospital, 223 NLRB 1193, which I have
emphasized above clearly holds that the rule which
Respondent relies on to justify its action herein violates the
Act. I have no choice, therefore, but to find that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Gregory Spear on February 23, 1976, and by
warning its employees, both verbally and in writing, on the
various occasions detailed above for violating the rule.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Beth Israel Hospital is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Massachusetts Hospital Workers Union, Local 880,
Service Employees International Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Gregory Spear on February 23, 1976,
and by warning employees for violating its no -solicitation,
ORDERS
Beth Israel Hospital, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Giving effect to its no-solicitation, no-distribution
rule.
(b) Discharging employees for violating its no-solicita-
tion, no-distribution rule.
(c) Warning employees for violating its no-solicitation,
no-distribution rule.
(d) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Offer Gregory Spear 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 earnings he lost, plus interest, as a result of
his discharge on February 23, 1976.
(b) Expunge from its records all references to warnings to
employees for violations of its no-solicitation, no-distnbu-
tion rule.
(c) 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 recommended Order.
3 In the event no exceptions are filed as provided by Sec 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and Order, and all objections thereto shall be
conclusions, and recommended Order herem shall, as provided in Sec deemed waived for all purposes.
BETH ISRAEL HOSPITAL 1499
(d) Post at its Hospital in Boston , Massachusetts , copies
of the attached notice marked "Appendix ." 4 Copies of said
notice , on forms provided by the Regional Director for
Region 1 , after being duly signed by Respondent's
authorized representative , shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order , what steps the
Respondent has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
trial , that our no-solicitation , no-distribution rule violates
Federal law, we hereby notify you that:
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form , join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all these things.
WE WILL NOT give effect to our no-solicitation, no-
distribution rule.
WE WILL NOT discharge you or warn you for
violations of that rule.
WE WILL NOT in any other manner interfere with or
attempt to restrain or coerce you in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer Gregory Spear immediate and full
reinstatement 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 WE WILL make him whole for any earnings he lost,
plus interest , as a result of his discharge on February
23, 1976.
WE WILL expunge from our records all references to
warnings to you for violations of that rule.
BETH ISRAEL HOSPITAL