Capital Medical Center

National Labor Relations Board - Administrative Judge Opinions

Jul 17, 2014

19-CA-105724 (N.L.R.B. Jul. 17, 2014)

JD(SF)–35–14
Olympia, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CAPITAL MEDICAL CENTER
and Case 19–CA–105724
UFCW LOCAL 21
Elizabeth Devleming, Esq., for the General Counsel.
Glenn Bunting, Esq. and Henry Warnock, Esq.,
for the Respondent.
Brittany Pitcher, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Seattle, Washington,
on March 17–18, 2014. The United Food and Commercial Workers Local 21 (Local 21 or
Union) filed the charge on May 22, 20131 and the General Counsel issued the complaint on
December 20.
The complaint alleges that on May 20, 2013, the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (the Act) by threatening employees who were engaged in
stationary picketing and handbilling with discipline and arrest, by summoning police to the
Hospital, and by denying its off-duty employees access to parking lots, gates, and other outside
nonworking areas to engage in activities protected by Section 7 of the Act. Capital Medical
Center (the Respondent or Hospital) filed a timely answer denying all material allegations.
The parties filed a joint motion for partial stipulation of facts which I granted and
admitted into the hearing record as Joint Exhibit 1 (Jt. Exh.).2

1 All dates are in 2013 unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for General Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General
Counsel’s brief; and “R Br.” for the Respondents’ brief. Although I have included several citations to the
record to highlight particular testimony or exhibits, I emphasize that my findings and conclusions are
based not solely on the evidence specifically cited, but rather are based my review and consideration of
the entire record.
JD(SF)–35–14
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union and the Respondent, I make
the following
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a Washington corporation with an office and place of business in
Olympia, Washington, is engaged in the business of providing patient and health care services 10
and operating an acute care hospital. At all relevant times, the Respondent derived gross
revenues in excess of $250,000, and purchased and received at its Washington facilities goods
valued in excess of $50,000 from points outside the State of Washington. The Respondent
admits, and I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of 15
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case involves whether or not informational picketing activities occurring over a 20
roughly 2–hour period on May 20, 3013, were protected by the Act.
The Respondent operates an acute care hospital. The Union has been the certified
collective-bargaining representative of a mixed unit of the Hospital’s technical employees for
about 14 years. 25
Jenny Reed is the Union’s membership action director for healthcare. During the
relevant time period, she was a representative for Local 21 assigned to the Hospital. The
Hospital and the Union began bargaining for a successor contract in September 2012, and as of
May 2013, there was not yet a collective-bargaining agreement (CBA) in place. Glenn Bunting, 30
a private attorney who represents the Hospital for labor relations matters, was the lead negotiator
for the Hospital. Heather Morotti, the Hospital’s director of human resources, also served on the
negotiating committee. The Union’s lead negotiator was Janet Parks.
Gina Arland, an x-ray technician and Local 21 steward, was a member of the negotiating 35
committee. She knew the employees were becoming frustrated about the state of the
negotiations. As a response, the Union and some of the employees planned an informational
picket for May 20. That date was selected to directly precede an upcoming bargaining session
scheduled for May 21–22. The goal of the picket was to educate the public and encourage the
Hospital to discuss some key issues and settle on a contract. On May 9, the Union, by way of a 40
letter from Parks, provided the Respondent with notice of its intent to engage in picketing and
handbilling on May 20.3 (Jt. Exh. 5.)
On May 16, Morotti, Bunting, and Dean Rutledge, the director of engineering with
oversight of security, spoke with Lieutenant Holmes from the Olympia Police Department to 45

3 This notice is required by Sec. 8(g) of the Act.
JD(SF)–35–14
3
make the police aware of the pickets.4 Holmes provided Bunting with a copy of Olympia
Municipal Code 9.68.020, a local ordinance regarding trespass and interference at health care
facilities.
Bunting and Morotti also spoke with Parks, who told him Reed was in charge of the 5
pickets.5 (GC Exh. 9.) The purpose of the discussions with Holmes and Parks, according to
Bunting, was to make sure channels of communication were open and clear and to try to avoid
misunderstandings. The Hospital also arranged to have an additional security guard present for
the picketing. Security was instructed security to ensure any picketing remained outside the
Hospital’s property lines.6 10
On May 17, Arland provided Morotti with a picture of Reed and her contact information.
(Jt. Exh. 6.)
During the evening of May 19, Reed and some other organizers and members put 15
together picket signs and went over general rules about the picket. They discussed that because
there were patients and other customers coming to the Hospital the Union wanted to keep their
approach positive. Employees were instructed to introduce themselves and, if they were
leafleting, hand leaflets to the people walking by them. With regard to leafleting, the organizers
instructed members to stand to the sides of the doors and not to block entrances. They also 20
discussed avoiding emergency entrances and any areas that could impede patient care. They
decided to distribute leaflets at two entrances: the main lobby entrance, which is primarily for
family members of patients, reps, and employees; and the physician’s pavilion entrance, which is
used primarily by people attending appointments in the physicians’ offices and employees. Reed
did not instruct the picketers to chant, yell, sing, or march back and forth.25
Picket signs identified the picketers as “Capital Medical Center Workers” on the top, and
on the bottom, “Informational Picket, UFCW 21.” In the middle were phrases such as: “Fair
Wages,” “Fair Contract Now,” or “Respect Our Care.” The signs were standard-size, about two
feet by three feet. (Jt. Exh. 8; GC Exhs. 2–8.) The leaflets said: 30
OUR PATIENTS MATTER
We are the health care providers who care for patients at Capital Medical Center.
35

4 The General Counsel requests that I draw an adverse inference based on Rutledge’s failure to testify.
(GC Br. 40, fn. 27.) I decline to grant this request because my decision is based on what occurred, which
is a matter of record, and I cannot see how his testimony, favorable or unfavorable, would impact my
decision in any way.
5 Bunting also testified that Parks told him picketing would be confined to the sidewalk. Parks
testified, “I recall him saying that we couldn't picket on the property. I told him we were on the
sidewalk.” (Tr. 292.) She claimed she did not make any assurances. Ambiguities aside, what Parks and
Bunting may have said to each other on the phone does not impact my decision.
6 The General Counsel requests that I draw an adverse inference based on the failure of any of the
security guards to testify. (GC Br. 40, fn. 26.) Because Arland’s testimony about her interactions with
security are unrefuted, and she is an otherwise credible witness, there is no dispute of fact warranting an
inference.
JD(SF)–35–14
4
Right now, we are in contract negotiations with our employer, but wanted to let you
know that we are having difficulty reaching a compromise. Management continues to
refuse to fix problems that leave us short-staffed and cause us to miss our breaks and
meals. In addition, they have been unwilling to support fair wage increases.
5
We have already voted down a prior offer from management and are back in
negotiations.
THANK YOU
Supporting hospital workers means standing up for the middle class values that respect 10
the dignity of hard work. This includes fair wages, fair benefits, and dependable hours.
(Jt. Exh. 7.)
The informational picket took place on May 20 from 6 a.m. to 6 p.m. Reed arrived at 15
5:45 a.m. and parked near the driveway to the Respondent’s premises where she met with the
employee picketers. The picketers gathered on the sidewalk adjacent to the driveway and this
location served as meeting point throughout the day. At 6 p.m., Reed went over the logistics of
the picket and started dispersing around 20–25 employee picketers to different locations. (Jt.
Exh. 9.) 20
Arland participated in the picket from 6 a.m. until she was called to work her shift at
2p.m. During that time period, there were two employees handing out leaflets at the side of the
front lobby entrance, two employees doing the same beside of the physician’s pavilion entrance,
and anywhere from 15 to 30 employees out on sidewalk bordering the Hospital carrying picket 25
signs. The employees on the sidewalk used a bullhorn and did some chants. Some employees
held signs that said something like “honk for fair wages,” so some cars were honking as they
drove by.
The number of participants was highest between about 3:30 and 4:15 p.m.. At that point 30
50–60 employees were picketing and leafleting.
Arland’s shift ended at 4 p.m. and, after checking in with Reed, she and fellow employee
Derek Durfey went to the main lobby entrance with picket signs. Around this same time, Allison
Zassenhaus, who at the time was an employee and Local 21 steward,7 was leafleting near the 35
pavilion entrance. Arland recalled she and Durfey were the only two picketers at the main lobby
entrance. Bunting and Morotti recalled seeing more employees with picket signs at the main
lobby entrance. At some point, an individual other than Arland, Durfey, or Zassenhaus was near
the main lobby entrance with a picket sign, though not necessarily at the same time. (GC Exh. 6.)
40
Arland stood to the right of the entrance and Durfey stood to her right, farther away from
the entrance, about 10–12 feet from it. Durfey carried two picket signs. Arland tried to remain
in line with the outside pillars alongside the entryway. The only times she went past the pillars
was when she was briefly engaging a patron to hand him/her a leaflet. Arland initially attempted
to hand out leaflets while holding the picket sign, but found it too cumbersome so she ultimately 45
ceased leafleting and just held the picket sign. Durfey did not speak with any patrons.

7 Zassenhaus stopped working for the Respondent in June 2013.
JD(SF)–35–14
5
Morotti received a report that employees were picketing adjacent to the front lobby
entrance at around 4p.m. According to Bunting, they saw 3–4 picketers with signs at the front
lobby entrance and at the pavilion entrance. Before Arland or Durfey approached any patrons,
three security guards came to the entryway. Bruce Hillard, the security manager, approached 5
Arland and told her she was welcome to stay at the doorway with leaflets, but she was not
permitted to stand on the Hospital property with her picket sign. He politely asked her to leave
and she politely declined. This scenario repeated itself every 15–20 minutes for the next hour or
so.
10
Bunting and Morotti followed behind Hillard the third or fourth time he approached the
picketers. Bunting told Arland she could be on the property with pamphlets but she could not be
out at the entrance with her sign.
Durfey went down to the sidewalk to get Reed. Accompanied by fellow Local 21 15
Representative Cathy MacPhail, Reed went up to the main entrance. Reed expressed her belief
to Bunting that the employees had the right to picket by the entrance. After a brief conversation
outside, Bunting asked Reed and MacPhail to come inside to Morotti’s office. While there,
Bunting told Reed and MacPhail they needed the employees to leave, and said they could face
discipline if they remained. 20
Reed attempted to clarify whether there would be repercussions for the employees
engaging in concerted activity, so she asked him, repeatedly, “Yes or no?” Bunting responded
by using hand gestures similar to Reed’s and repeating to her, “Yes or no”, which Reed
perceived as mocking. Reed said the union attorney, James McGuinness,8 had told her the 25
employees had the right to picket outside the hospital doors, and Bunting asked her to get
McGuinness on the phone. Reed responded that she did not intend to call McGuinness, but
Bunting was free to call him if he wanted. At this point, Reed and MacPhail left.
Bunting called McGuinness and expressed his view that the picketers were not entitled to 30
picket at the entryways and the Hospital was entitled to exercise its property rights. He did not
report any disruption, just that they were enforcing property rights. Bunting recalled they
disagreed on the law regarding where the employees could picket and he asked if McGuinness
would call the Union so they could attempt to resolve the matter. He conveyed that if they could
not resolve the situation, the Hospital’s options were to discipline the employees or call law 35
enforcement.
After the phone call, Morotti consulted with the Hospital’s CEO and they decided they
would not issue discipline, but would call the police at 5p.m. if the picketers were still present
near the entryways.40
Following the meeting with Bunting and Morotti, Reed and MacPhail checked in on the
picketers. Reed informed Arland that Bunting said she could be accountable for what she was
doing.
45

8 McGuinness was not specifically identified as the attorney until the end of their conversation.
JD(SF)–35–14
6
Shortly thereafter, Bunting and Morotti came out again and Bunting told Arland she
should not be there. She expressed her belief that she had a right to be there. Arland could not
recall the precise words, but recalled being told she, not the Union, could get in a lot of trouble.
Reed came back and conversed with Bunting. Reed asked Arland if she wanted to remain where
she was, and she replied that she did. Durfey and Zassenhaus heard Bunting mention calling the 5
police. Arland told Durfey he should leave because she was concerned about him getting in
trouble. Durfey was nervous, so he returned to the sidewalk. At that point, Zassenhaus took his
picket sign.
Bunting and Morotti went back inside. Reed went back to the sidewalk area and called 10
Pam Blauman, the Union’s membership action director.9 Shortly thereafter, at 4:59 p.m., James
Sen, a security officer, called the Olympia Police Department. (GC Exh. 8.)
At 5:11 p.m., Olympia Police Department Patrol Sergeant Dan Smith arrived at the
Hospital. Upon seeing him, Arland called Reed, who came back to the main lobby entryway. 15
Bunting and Morotti came out and told Smith they wanted the picketers removed from the
Hospital’s premises. Smith also spoke to Reed, who told him they were almost done picketing
for the day and asked if he was going to arrest anyone. Smith went back and talked to Bunting
and Morotti, and told them he could not force the picketers to leave because they were not being
disruptive and they were not blocking doors or preventing people from entering the Hospital. He 20
encouraged the parties attempt to come to a compromise. The time for the picket to end was
nearing, so the picketers started packing and left, which resolved the situation. Smith left the
Hospital at 5:49 p.m.
Arland recalled there was not much traffic at the main lobby entrance when she was there 25
with her picket sign. Durfey did not talk to anyone entering or exiting the Hospital. Zassenhaus
talked to about 10–15 people when she was handbilling at the pavilion entrance. Less than five
individuals entered or exited the Hospital during the time she carried her picket sign. There were
no negative or confrontational interactions between the picketers and anyone entering or exiting
the Hospital entrances.30
III. DECISION AND ANALYSIS
A. Alleged Denial of Access to Publicize Dispute
35
The complaint, at paragraph 8(b), alleges that the Respondent violated Section 8(a)(1) of
the Act on May 20, 2013, by denying off-duty employees access to parking lots, gates, and other
outside nonworking areas for the purpose of publicizing their dispute by engaging in Section 7
activity that did not constitute picketing. The evidence demonstrates that the only activity the
Respondent sought to exclude on its property was picketing. Handbilling and leafleting on the 40
Hospital’s property was permitted on May 20, and had been permitted on previous occasions. 10
Accordingly, I recommend dismissal of this complaint allegation.

9 At the time of the hearing, Blauman had retired.
10 The Hospital maintains a solicitation policy that prohibits flyers or other forms of mass distribution
and prohibits solicitation of (which includes distribution to) members of the public. The policy was not
alleged to be unlawful in the complaint, and none of the parties reference it in their respective closing
briefs.
JD(SF)–35–14
7
Paragraph 8(a) of the complaint alleges that the Respondent violated Section 8(a)(1) of
the Act by denying off-duty employees access to parking lots, gates, and other outside
nonworking areas for the purpose of publicizing their dispute by picketing or distributing
materials. As set forth directly above, distribution of leaflets was permitted in the past and on 5
May 20. Accordingly I recommend dismissal of this part of the complaint allegation.
The remaining allegation with regard to access is whether the Respondent violated the
Act by prohibiting employees from picketing near the main lobby and pavilion entrances of the
Hospital. 10
Under Section 8(a)(1), it is an unfair labor practice for an employer to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other 15
concerted activities for the purpose of collective bargaining or other mutual aid or protection . .
.” The Board's longstanding test to determine if there has been a violation of Section 8(a)(1) of
the Act is whether the employer engaged in conduct which might reasonably tend to interfere
with the free exercise of employee rights under Section 7 of the Act. American Freightways Co.,
124 NLRB 146 (1959). Further, “It is well settled that the test of interference, restraint, and 20
coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether
the coercion succeeded or failed.” American Tissue Corp., 336 NLRB 435, 441 (2001) (citing
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)).
The parties cite to two different lines of cases to support their respective positions. The 25
General Counsel and the Union rely on Tri-County Medical Center, 222 NLRB 1089 (1976),
where the Board held that an employer's rule barring off-duty employees access to their
employer's facility is valid only if it: (1) limits access solely to the interior of the facility, (2) is
clearly disseminated to the employees, and (3) applies to off-duty access for all purposes, not just
for union activity. 30
The Respondent cites to Supreme Court precedent for the proposition that the Board’s
task is to seek a proper accommodation for conflicts involving Section 7 rights and property
rights, and to balance these competing interests “with as little destruction of one as is consistent
with the other.” NLRB v. Babcock & Wicox Co., 351 U.S. 105, 1112 (1956); Hudgens v. NLRB, 35
424 U.S. 507, 521 (1976). More specifically, the Respondent relies on the Board’s decision in
Jean Country, 291 NLRB 11, 14 (1988),11 to assert that the following test applies in the instant
case:
[I]n all access cases our essential concern will be the degree of impairment of the 40
Section 7 right if access should be denied, as it balances against the degree of impairment
of the private property right if access should be granted. We view the consideration of the
availability of reasonably effective alternative means as especially significant in this
balancing process.

11 The Respondent also cites to a non precedential administrative law judge (ALJ) decision, In re Fuji
Foods US, Inc., Case No. 27–CA–17596, 2002 NLRB LEXIS 313 (2002). That case involved access
rights of employees on strike. Even if it had precedential value, it would not apply here.
JD(SF)–35–14
8
For the following reasons, I decline to apply either Tri-County Medical Center or Jean
Country.
The Jean Country balancing approach, as applied to non-employees, was repudiated by 5
the Supreme Court in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1988). Lechmere did not concern
access for off-duty employees, so the Court, not surprisingly, was silent on the matter.
Following Lechmere, the Board has declined to apply the Jean Country test to cases
involving off-duty employee access to the work premises. In Nashville Plastic Products, 313 10
NLRB 462, 463 (1993), the Board stated, “Lechmere itself emphasized the critical distinction
between employees and nonemployees as established in NLRB v. Babcock & Wilcox,12 and, a
fortiori, the rule enunciated in Lechmere does not apply to employees.” (Fn. omitted.) The
Board also squarely rejected the employer’s argument that off-duty employees should be treated
like non-employee union organizers for purposes of access. In the words of the Court of Appeals 15
for the Sixth Circuit, in a case involving off-duty employees’ distribution of union literature,
“The championed balancing test of Jean Country is no more.” Timken Co. v. NLRB,
29 Fed.Appx. 266, 267 (6th Cir. 2002).
Accordingly, I find the test set forth in Jean Country does not apply to the instant case. 20
In addition to its repudiation by subsequent caselaw, another reason I decline to apply Jean
Country is that the instant case does not involve a no-access rule or policy. It is undisputed that
off-duty employees were permitted to be on the Hospital’s premises both on May 20 and before,
so long as they did not carry picket signs. Likewise, no evidence was presented that off-duty
employees were otherwise prohibited from coming to the Hospital. It is not access to the 25
Hospital that is central to this case, but rather the participants’ pursuit of the Section 7 activity.
For this same reason, the General Counsel and Union’s reliance on Tri-County Medical Center,
222 NLRB 1089 (1976), is misplaced. See Santa Fe Hotel & Casino, 331 NLRB 723, 729
(2000).
30
I find instead that the proper legal authority is the Supreme Court’s decision in Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which governs employee rights to engage in
Section 7 activity on an employer’s property, and upon which the General Counsel relies in
tandem with Tri-County Medical Center. Pursuant to Republic Aviation, employers may not bar
employees who are not on working time from: (1) engaging in solicitation, or (2) distributing 35
literature in nonworking areas of its property, unless such a bar is necessary to maintain
discipline and production.
In Town & Country Supermarkets, 340 NLRB 1410, 1413–1414 (2004), the Board
applied Republic Aviation to find that the employer violated the Act by calling the police, 40
threatening arrest, and causing the arrest of employees who were picketing and handbilling at the
front entrances of its stores. The Board contrasted nonemployee organizers, who may be
considered trespassers, with off-duty employees, stating:
The critical distinction is that employees are not strangers to the employer's property, but 45
are already rightfully on the employer's property pursuant to their employment

12 351 U.S. 105 (1956).
JD(SF)–35–14
9
relationship, thus implicating the employer's management interests rather than its
property interest. . . . In sum, under Republic Aviation, supra, off-duty employees may
engage in protected solicitation and distribution in nonwork areas of the employer's
property.
5
(Citations omitted.) The Board in Town & Country did not distinguish between handbilling and
picketing, finding the employer’s prohibition of both activities on its property unlawful in the
absence of a justification based on its need to maintain order or discipline.
The fact that the picketing at issue here was informational rather than organizational is of 10
no consequence. As the Board stated in NCR Corp., 313 NLRB 574, 576 (1993), “Employees
have a statutorily protected right to solicit sympathy, if not support, from the general public,
customers, supervisors, or members of other labor organizations.” See also Eastex, Inc. v. NLRB,
437 U.S. 556 (1978); Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir. 2003);
Providence Hospital, 285 NLRB 320, 322 (1987)(economic protest against employer to 15
publicize bargaining position in a contract negotiation dispute is primary activity involving a
core Section 7 right); Santa Fe Hotel & Casino, supra at 723.; New York New York LLC
(NYNY), 356 NLRB No. 119 (2011).
The Respondent asserts, as an affirmative defense, that its actions were in accordance with state 20
law and a local ordinance. Section 9A.52.080 of the Revised Code of Washington (RCW) states,
in relevant part, “A person is guilty of criminal trespass in the second degree if he or she
knowingly enters or remains unlawfully in or upon premises of another. . . .” Olympia
Municipal Code 9.68.020, entitled, “Interference with Health Care Facilities,” states:
25
It is unlawful for a person except as otherwise protected by state or federal law, alone or
in concert with others, to willfully or recklessly interfere with access to or from a health
care facility or willfully or recklessly disrupt the normal functioning of such facility by:
A. Physically obstructing or impeding the free passage of a person seeking to enter or 30
depart from the facility or the common areas of the real property upon which the property
is located;
B. Making noise that unreasonably disrupts the peace within the facility;
35
C. Trespassing on the facility or the common areas of the real property upon which the
facility is located; . . .
(R. Exh. 1.) As set forth above, the off-duty employees were not trespassers, so any defense 40
based on state trespass law fails. Moreover, the local ordinance limits its own application by
stating, “except as otherwise protected by state or federal law . . . .” Here, the actions at issue
were protected by the Act. In any event, there is no evidence any of the picketers willfully or
recklessly disrupted the normal functioning of the Hospital.
45
Citing to Hillhaven Highland House, 336 NLRB 646, 649 (2001), the Respondent
contends that the conduct of an off-duty employee can change his status from an invitee to a
trespasser. The Board, however, was discussing the status of offsite employees in Hillhaven
JD(SF)–35–14
10
Highland House, not employees who worked onsite, as here. Moreover, that case involved
enforcement of a rule barring offsite employees from access to facilities other than the jobsite
where they worked. There is no such general access rule at issue in this case.
The Respondent also relies on NYNY, supra, which involved handbilling by employees of 5
Ark, a food service provider that contracted with the Respondent, a hotel. The Respondent’s
brief cites to a portion of the NYNY decision, which states:
[I]t also seems clear that, purely from the perspective of state property law, the Ark
employees were trespassers at the moment they began to distribute handbills. Whatever 10
their status as NYNY's invitees at other times and for other purposes, there is no
suggestion that the offduty Ark employees had an invitation from NYNY that privileged
them to distribute handbills to the public in the locations involved here.
Slip op. at 13. This portion of the decision, however, concerned the hotel owners’ property 15
rights when Ark employees distributed handbills in areas of the hotel outside of Ark’s leasehold.
The Board came to a rather different conclusion when analyzing whether employees could do the
same at entrances to the hotel and a restaurant Ark serviced. The cited portion of NYNY is
therefore is inapplicable here, as the Hospital owned the property where the disputed activity
occurred. 20
The case that weighs most strongly in the Respondent’s favor is Providence Hospital,
supra. In Providence Hospital, off-duty hospital employees frustrated with the state of contract
negotiations engaged in informational picketing and handbilling on public property adjacent to
the hospital and at the hospital’s entryway. The Board relied on Fairmont Hotel, 282 NLRB 139 25
(1986), and applied its then-current test, as follows:
If the property owner's claim is a strong one, while the Section 7 rights at issue is clearly
a less compelling one, the property right will prevail. If the property claim is a tenuous
one, and the Section 7 right is clearly more compelling, then the Section 7 right will 30
prevail. Only in those cases where the respective claims are relatively equal in strength
will effective alternative means of communication become determinative.
This test was short-lived, as Fairmont Hotel was overruled less than 2 years later by Jean
Country, supra, to the extent that it held the test required consideration of alternative means of 35
communication only if property interests and Section 7 rights were relatively equal. As
discussed above, Jean Country was subsequently overruled by Lechmere, supra, at least as to the
rights of nonemployees.
Though Providence Hospital has not been expressly overruled, it turned on application of 40
precedent that has since been overruled—Fairmont Hotel.13 The Board, with guidance from the
Supreme Court, has since refined its caselaw, and though the lines are at times blurred, there

13 I note also that Fairmont Hotel concerned handbilling activities of nonemployees, so it is unclear
why the Board chose to apply it given that employees conducted the handbilling and picketing in
Providence Hospital. This is particularly confounding, considering the Board did not endorse the ALJ’s
rationale that off-duty employees are analogous to nonemployees under GTE Lenkurt, Inc., 204 NLRB
921 (1973), stating it agreed with the judge’s decision, but only for the reasons set forth in its decision.
JD(SF)–35–14
11
appear to be distinctions based on various permutations of three primary considerations: (1) the
characteristics of the individuals engaging in the activity at issue, i.e., employee versus
nonemployee; (2) the ownership of the property, i.e., ownership by the employer versus
ownership by another entity; and (3) the nature of the rule or prohibition, i.e., a rule barring
access to anyone other than employees who are on the clock versus a rule targeting certain 5
activities on the work premises. The caselaw I have chosen to apply is guided by the facts that
the individuals who engaged in the Section 7 activity at the Hospital on May 20 were employees,
the disputed Section 7 activities took place on property the Hospital owned and controlled, and
the prohibition targeted the specific Section 7 activity of carrying picket signs at the hospital’s
nonemergency entryways. Providence Hospital, which applied a now defunct test for 10
nonemployees, appears to be an outlier in the wake of the caselaw that has since developed
concerning off-duty employees who engage in Section 7 activity in nonworking areas of their
own employer’s property.
In addition to relying on Providence Hospital to assert its property rights, the Respondent 15
argues that case supports its contention that, because of the unique nature of the hospital setting,
having picketers at the doorway creates undue stress for hospital patrons. Put in terms that
conform to the precedent I believe is correct and applicable here, the Respondent contends that
enforcement of a rule prohibiting picketing activity at the entryway to the hospital is tailored to
legitimate business concerns regarding the impact of such activity on hospital patients and their 20
families.
Recognizing the need for hospitals to provide a tranquil atmosphere to carry out its
primary function of patient care, the Supreme Court and the Board have recognized some special
considerations when it comes to Section 7 activity in a hospital setting. Beth Israel Hospital v. 25
NLRB, 437 U.S. 483, 500 (1978); St. John's Hospital & School of Nursing, Inc., 222 NLRB 1150
(1976), enfd. in part 557 F.2d 1368 (10th Cir. 1997). As such, hospitals “may be warranted in
prohibiting solicitation even on nonworking time in strictly patient care areas, such as the
patients' rooms, operating rooms, and places where patients receive treatment, such as x-ray and
therapy areas.” St. John’s Hospital, supra. As to other areas, a hospital may place prohibitions 30
on employees who engage in Section 7 activities only if it proves the prohibition is needed to
prevent patient disturbance or disruption of health care operations. Id.; NLRB v. Baptist
Hospital, 442 U.S. 773, 781–787 (1979).
I find the Respondent has not met its burden of proof. The Respondent argues that it has 35
an interest in ensuring “patients, along with their family members and loved ones, are not forced
to negotiate their way through a picket line as they enter and exit the Hospital.” (R Br. 20.) The
Respondent contends:
By positioning picketers at the Main Entrances of the Hospital and causing patients and 40
family members to walk (or to be pushed in a wheelchair) past those picketers patrolling
at the doorways, the Union subjected these most vulnerable Hospital patrons to additional
stress that was both undeserved, and unnecessary for the accomplishment of the Union’s
goals.
45
(R. Br. 20.) This contention does not amount to proof, however. The only evidence regarding
any potential disruption caused by the picket is that Morotti heard one visitor stated that he
usually did not cross picket lines, but that he had to in order to visit a patient. (Tr. 280.) There
JD(SF)–35–14
12
was no testimony or other evidence regarding the impact, if any, on patients or hospital
operations.
Moreover, the contention is slightly embellished, in that there was no evidence the
picketers “patrolled” the doorways. In fact, the evidence shows the picketers stationed 5
themselves outside the main pathway to the door, and only stepped into the entryway briefly
when engaging a patron.14 This is what had occurred previously when the employees handbilled.
The difference had nothing to do with the employees’ presence on the property, but rather was
solely the fact they later carried picket signs.
10
Relying on Providence Hospital, the Respondent asserts that the “presence of picketers
on hospital property could well tend to disturb patients entering and leaving the hospital.” 285
NLRB at 322. While this is certainly a possibility, the Respondent has failed to meet its burden
of proof given the facts present here. The evidence is unrefuted that the hospital was not very
busy between 4:00 and the time the picketing activity ceased shortly before 6:00 that day. 15
Arland provided unrefuted testimony that traffic at the front door was very low. Zassenhaus
recalled less than five employees entered or exited the Hospital when she held her picket sign.
Under these circumstances, the Respondent has not met its burden of proof. Beth Israel, supra;
NLRB v. Southern Maryland Hospital Center, 916 F.2d 932, 935 (4th Cir. 1990).
20
The Respondent also asserts that Section 8(g) of the Act imposes different constraints on
picketing, as opposed to handbilling, due to its coercive nature.15 Citing to Nurses CAN (City of
Hope), 315 NLRB 468, 470 (1994), the Respondent argues that picketing is restricted at health
care institutions because it may disrupt patient care by causing a work stoppage. That case,
however, involved picketing during an economic strike. The threat of work stoppage in the 25
strike context certainly does not carry over to the informational picket as it was implemented
here.
Next, the Respondent avers that Section 8(b)(4) of the Act recognizes the inherently
coercive nature of picketing. There is a wealth of caselaw regarding the coercive nature of 30
secondary picketing pursuant to Section 8(b)(4), including numerous painstaking dissections of
how “picketing” is defined.16 Such a discussion is thankfully not warranted here. There is no
evidence that the employee picketers at issue here patrolled the doorway, marched in formation,
chanted or made noise, created a real or symbolic barrier to the entryways, or otherwise engaged
in behavior that disturbed patients or disrupted hospital operations. Indeed, Sergeant Smith 35
testified the employees’ behavior was not disruptive, he had no basis for removing them from the
property, and he would not have arrested them if requested.

14 The Respondent contends that GC Exh. 5 shows Arland engaged a patron in the pathway to the
door. I note, however, that she and the patron are to the side of the carpet leading to the door.
15 As part of the balancing test that I find does not apply in the instant case, the Respondent points out
that the Union planned and orchestrated the picket. The employees, however, carried the signs forming
the basis for the complaint before me.
16 I note that the term “picket” and its grammatical variants are used throughout this decision, but this
is not meant to denote a hyper-technical definition of the word such as might be required if notice
pursuant to Sec. 8(g) or a secondary boycott under Sec. 8(b)(4) was squarely at issue.
JD(SF)–35–14
13
The Respondent contends that the requirement to show that the employees have not
disrupted business operations begs the question of when the Hospital may assert its property
rights. It asserts that it should “not have to engage in an after-the-fact analysis of a trespasser’s
incremental destruction of an employer’s property rights in order to determine whether the
employer is legally privileged to enforce those rights.” (R Br. 31.) The off-duty employees, 5
however, were not trespassers. This same question, if it pertained to nonemployees, would yield
a different result.
In sum, I find the General Counsel has met its burden to prove the Respondent interfered
with protected Section 7 activity by informing the employees that they could not carry picket10
signs near the mail lobby and pavilion entrances, in violation of Section 8(a)(1).
B. Alleged Threats
Paragraph 7 of the complaint alleges that the Respondent threatened employees with 15
discipline and arrest, and summoned police to the Hospital.
When determining if statements amount to threats of retaliation, the Board applies the test
of “whether a remark can reasonably be interpreted by an employee as a threat.” The actual
intent of the speaker or the effect on the listener is immaterial. Smithers Tire, 308 NLRB 72 20
(1992); See also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry under
Sec. 8(a)(1) is an objective one which examines whether the employer's actions would tend to
coerce a reasonable employee). The “threats in question need not be explicit if the language used
by the employer or his representative can reasonably by construed as threatening.” NLRB v. Ayer
Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board considers the totality of the 25
circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled threat
to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
The parties do not dispute that all interactions between the employees and Hospital
management, including the security manager, were cordial and respectful. With regard to the 30
threat of discipline, the parties dispute precisely who said what to whom. Arland recalled
Bunting said words which implied to her she could be disciplined. At the very least, it is clear
Bunting told Reed discipline could ensue. Reed then conveyed to Arland that the Hospital could
hold her accountable for her actions. As to the threats of calling the police, Reed and Zassenhaus
both heard Bunting reference calling the police.17 This made Durfey feel nervous, so he returned 35
to the sidewalk because he “didn’t want to get in trouble.” (Tr. 190.)
The Board has held that an unlawful threat of discipline communicated to a union
representative rather than directly to employees, is the legal equivalent of a threat directed to an
employee. See Schrock Cabinet Co., 339 NLRB 182 (2003). Moreover, aside from the threat of 40
discipline conveyed through Reed, Arland felt threatened by Bunting, and it is clear that she was
repeatedly asked to leave by security. The threats to call police, which caused Durfey to leave
the main lobby entryway area, came to fruition.

17 Though Bunting denies he made threats to actually make the call himself, I am unconcerned with
sorting out the semantics in light of what directly ensued.
JD(SF)–35–14
14
Based on the foregoing, I find the General Counsel has easily met its burden to prove the
Respondent violated Section 8(a)(1) by making threats and summoning law enforcement, as
alleged in complaint paragraph 7.
5
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
10
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By attempting to prevent employees from publicizing a contract dispute at its
nonemergency entrances by carrying picket signs and acting in a non-confrontational manner
that did not disturb patients or disrupt hospital operations, threatening employees with discipline 15
for engaging in this activity, summoning the police to the scene, and threatening employees with
arrest the Respondent has violated Section 8(a)(1) of the Act.
REMEDY
20
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
Having unlawfully attempted to prevent employees from publicizing a contract dispute at 25
its non-emergency entrances by carrying picket signs and acting in a non-confrontational manner
that did not disturb patients or disrupt hospital operations, the Respondent will be ordered to
cease and desist from these actions.
Having unlawfully threatened employees with discipline and arrest for engaging in this 30
activity, and having summoned the police, the Respondent will be ordered to cease and desist
from these actions.
I will order that the employer post a notice in the usual manner, including electronically
to the extent mandated in J. Picini Flooring, 356 NLRB No. 9, slip op. at 5–6 (2010). Also in 35
accordance with that decision, the question as to whether a particular type of electronic notice is
appropriate should be resolved at the compliance stage. Id, slip op. at p. 3. See, e.g., Teamsters
Local 25, 358 NLRB No. 15 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 40
following recommended18

18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–35–14
15
ORDER
Capital Medical Center (the Respondent),Olympia, Washington, its officers, agents,
successors, and assigns, shall5
1. Cease and desist from
(a) Attempting to prevent employees from publicizing a contract dispute at its non-
emergency entrances by carrying picket signs and acting in a non-confrontational manner that 10
does not disturb patients or disrupt hospital operations;
(b) Threatening employees with discipline for engaging in such activity;
(c) Threatening employees with arrest for engaging in such activity;15
(d) Summoning police to its facility in response to employees engaging in such
activity; and
(e) In any like or related manner interfering with employee rights under Section 7 of 20
the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its hospital in Olympia, 25
Washington, copies of the attached notice marked “Appendix.”19 Copies of the notice, on forms
provided by the Regional Director for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed 30
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these 35
proceedings, the Respondent shall duplicate 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 May
20, 2013.
(b) Within 21 days after service by the Region, file with the Regional Director of 40
Region 19 of the Board a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to comply.

19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices
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.”
JD(SF)–35–14
16
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
5
Dated, Washington, D.C. July 17, 2014
____________________
Eleanor Laws10
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything to prevent you from exercising these rights.
WE WILL NOT attempt to prevent you from publicizing a contract dispute at its nonemergency
entrances by carrying picket signs and acting in a non-confrontational manner that does not
disturb patients or disrupt hospital operations.
WE WILL NOT threaten you with discipline or arrest, call the police to remove you, or in any
other way interfere with you engaging in protected activities, including publicizing a contract
dispute at its nonemergency entrances by carrying picket signs and acting in a
nonconfrontational manner that does not disturb patients or disrupt hospital operations.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
CAPITAL MEDICAL CENTER
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-105724 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.