Fairfax Hospital

National Labor Relations Board - Board Decisions

Jan 29, 1993

310 N.L.R.B. 299 (N.L.R.B. 1993)

299
310 NLRB No. 39
FAIRFAX HOSPITAL
1 As requested by the General Counsel in a motion filed October
21, 1992, alleging failure of service by the Respondent, we note that,
under Sec. 102.47 of the Board’s Rules and Regulations, copies of
all motions in proceedings before the Board must be accompanied
by an affidavit of service upon the parties.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent asserts that the judge’s decision is biased. After
a careful examination of the entire record, we are satisfied that this
allegation is without merit.
We note that the judge mistakenly stated that Vicki Herman testi-
fied. We correct this inadvertent error but find that it makes no dif-
ference in the result in this case.
We agree with the judge that an employer may lawfully campaign
during employees’ nonbreaktime and in working areas even though
it prohibits employees from doing so. Thus, we do not rely on any
implication in pars. 33 and 59 of the judge’s decision that the Re-
spondent’s exercising its right to solicit and distribute flyers directly
affects the Union’s right to solicit and distribute.
4 The General Counsel has excepted to the judge’s failure to find
that the Respondent violated Sec. 8(a)(3) as well as Sec. 8(a)(1) of
the Act by requesting its nurses to remove their union buttons. The
General Counsel bases his argument on the judge’s finding that the
Respondent’s requests to its nurses to remove their union buttons
were a form of discipline. We find that the requests to nurses Jan
Hylton, Catherine Meister, Elaine Muller, and Joan Whalen, which
were documented in the Respondent’s files, violated Sec. 8(a)(3).
We find it unnecessary to pass on whether the request to nurses
Carol Awad, Lynn Baker, Janet Courtemanche, Brenda Craft, and
Tina Price to remove their union buttons violated Sec. 8(a)(3) be-
cause these violations, if found, would be cumulative and would not
materially affect the Order.
5 The judge’s recommended Order provides that the Respondent
shall offer immediate and full reinstatement to discriminatee Kathryn
Richardson. The Respondent argues that Richardson should not be
reinstated because, inter alia, she expressed disloyalty to the hospital
in a televised interview after her discharge. We leave it to the com-
pliance stage of this proceeding to determine the effect, if any, of
Richardson’s alleged misconduct after her discharge.
Fairfax Hospital, a Division of Inova Health Sys-
tems and Fairfax Health System, Inc. and Dis-
trict of Columbia Nurses Association, Amer-
ican Nurses Association. Cases 5–CA–20387, 5–
CA–20468, 5–CA–21042, and 5–CA–21048
January 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 4, 1992, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed an-
swering briefs, and the General Counsel filed a cross-
exception and a supporting brief. The Respondent filed
reply briefs.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs,2 and has
decided to affirm the judge’s rulings, findings,3 and
conclusions as modified4 and to adopt the rec-
ommended Order.5
We agree with the judge’s finding that the discharge
of Kathryn (Kitty) Richardson violated Section 8(a)(3)
and (1) of the Act. We do so for the following reasons.
The credited facts, which are more fully set out in
the judge’s decision, are as follows. On March 7,
1990, nurse Kathryn Richardson, while in the break
room during her break, engaged in a discussion with
her supervisor, Terri Booth. Nurse Linda Ensign heard
the entire conversation and nurse Janet Steuber heard
part of the conversation. In what the judge described
as ‘‘a heated discussion,’’ Richardson protested the
Hospital’s posting and distributing its antiunion lit-
erature while prohibiting union supporters from posting
and distributing union materials.
The poster and flyer, which were the immediate
cause of the dispute, described an incident in which a
patient on his way to surgery allegedly was told that
he would not receive good treatment because his wife
had refused to support the Union. During the conversa-
tion Richardson had challenged the truthfulness of the
literature, stated that in all her years of nursing she had
never seen conduct such as that described in the lit-
erature, and questioned how Booth could believe such
a thing. Booth commented that the hospital’s posting
was unpleasant, but stated that ‘‘you better get used to
it because there will be a lot more of these things com-
ing.’’ Richardson replied that Booth could expect ‘‘re-
taliation.’’ Booth reported the incident to her super-
visors. Richardson was discharged the next morning.
The Respondent contends that Richardson was dis-
charged for threatening Booth with ‘‘retaliation.’’
Mary Jane Mastorovich, Respondent’s assistant admin-
istrator for medical, surgical, critical care and operating
suite nursing, testified that the decision to discharge
Richardson was made on the afternoon of March 7,
1990, the day the incident occurred, and was made in
consultation with Toni Ardabell (director of medical,
psychiatric, and dialysis nursing), Charles Barnett
(chief operating officer of Fairfax Hospital), Brent Mil-
ler (vice president of human resources, Inova Health
Systems), and legal counsel. Ardabell corroborated
Mastorovich’s testimony that the decision to terminate
Richardson occurred on March 7. When Richardson re-
ported to work on the morning of March 8, Ardabell
discharged her.
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent in its brief argues that Richardson’s conduct was
not concerted. Because Richardson was engaged in union activity,
we find it unnecessary to rely on the judge’s finding that she was
engaged in ‘‘concerted’’ activity. Salem Leasing Corp. v. NLRB, 774
F.2d 85, 89 fn. 8 (4th Cir. 1985).
We do not rely on the judge’s statement, in par. 74 of his Deci-
sion, that the literature that the Respondent posted and distributed
was untruthful. The Respondent correctly states (at least in the con-
text of this case) in its brief that ‘‘the truth or falsity of the [lit-
erature] is irrelevant to the issue of whether Ms. Richardson was dis-
charged for her union activity.’’
7 See generally Brunswick Food & Drug, 284 NLRB 663, 665
(1987), enfd. mem. 859 F.2d 927 (11th Cir. 1988); Postal Service,
250 NLRB 4 (1980); NLRB v. Cement Transport, 490 F.2d 1024,
1029–1030 (6th Cir. 1974), cert. denied 419 U.S. 828 (1974).
We find that Atlantic Steel Co., 245 NLRB 814 (1979), on which
the Respondent relies, is distinguishable from this case. In Atlantic
Steel, the Board deferred to an arbitrator’s decision that the respond-
ent had lawfully discharged for insubordination an employee who di-
rected an obscenity to his foreman. The majority opinion emphasized
the fact that the obscenity was unprovoked and was made on the
production floor during the employee’s working time. In addition to
the procedural distinctions between Board review of an arbitral
award under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Board
review of an administrative law judge’s decision, Atlantic Steel is
factually distinguishable from the present case. Richardson, the
discriminatee here, was in the break room on her own time, engaged
in a discussion with her supervisor regarding union-related materials
when she spoke of ‘‘retaliation.’’
8 Member Oviatt finds it unnecessary to decide whether Richard-
son’s retaliation statement was itself protected. He relies instead on
the pretextual nature of the discharge. Thus, Member Oviatt notes
that the General Counsel made a strong prima facie case for finding
that the Respondent violated Sec. 8(a)(3). Member Oviatt observes
that (1) Richardson had 27 years of experience, over 15 of these at
the Respondent; (2) she had consistently excellent evaluations at the
Respondent, was strongly recommended for promotion to the Clin-
ical Ladder, and her promotion to Clinician III was approved; (3)
Mastorovich, the supervisor who approved Richardson’s discharge,
had never before received a negative report about her work; (4) de-
spite the Respondent’s particular difficulty in filling all its registered
nurse positions, its positive discipline system designed to give an
employee an opportunity to improve her behavior before discharge,
and the lack of specific evidence that a registered nurse had ever
been discharged for just one incident of misconduct without prior
warning or counseling, Richardson was summarily discharged just on
the basis of her retaliation remark; (5) although there is ample record
evidence, and the judge found, that under its disciplinary rules Re-
spondent investigates alleged misconduct before imposing discipline,
including speaking to the employee involved, Supervisor Ardabell
recommended, and Mastorovich decided, to discharge Richardson
without first speaking either to Richardson or to Steuber, another
employee present during the Booth-Richardson conversation, and
without Ardabell’s even reviewing Richardson’s personnel file; (6)
the Respondent knew that Richardson was a leading union proponent
who had been pictured and quoted in a union leaflet, herself had
leafletted the Respondent’s supervisors, and had questioned the Re-
spondent’s managers concerning the Union; (7) there is substantial
evidence of the Respondent’s antiunion animus, including numerous
violations of Sec. 8(a)(1) and (3), among them its selective and dis-
parate enforcement of its rule on the use of bulletin boards; and (8)
Richardson was discharged shortly after she objected to her super-
visor about the fairness of the Respondent’s antiunion campaign, in-
cluding the inability of prounion nurses to post notices on the bul-
letin board.
Member Oviatt observes that the Respondent’s supervisors testi-
fied that Richardson was discharged just for her remark concerning
retaliation. He notes, however, that the judge discredited these super-
visors on the basis of their demeanor—the judge found that they
were not sincere and that in fact they seized on the retaliation re-
mark to rid themselves of an outspoken union supporter. The judge
also found that, although Booth was upset, this stemmed from the
substance of her entire conversation with Richardson, during which
Richardson questioned Booth’s single-minded loyalty to manage-
ment. The Board will not overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence establishes that those resolutions are incorrect. Stand-
ard Dry Wall Products, supra; see Abbot Laboratories v. NLRB, 540
F.2d 662, 667 (4th Cir. 1976). In Member Oviatt’s view, the evi-
dence will not support a reversal of those findings. Thus, like the
judge, Member Oviatt is constrained to find that the asserted reason
for Richardson’s discharge—her retaliation remark—was pretextual,
and that the real reason was her union activity. Member Oviatt em-
phasizes that his findings in this case should not be interpreted to
mean that an employer could never summarily discharge an em-
ployee for sugggesting ‘‘retaliation.’’ As Member Oviatt has con-
cluded, however, the Respondent failed in its proof that the retalia-
tion remark was the real reason for the discharge.
9 251 NLRB 1083 (1980), enfd. as modified 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
We find that Richardson was engaged in union ac-
tivity during this conversation.6 We also find that
under the circumstances presented here, her entire con-
duct, including her statement about ‘‘retaliation,’’ was
protected. To be sure, an employee may lose the pro-
tection of the Act by threatening to engage in mis-
conduct in retaliation for what is perceived as provoca-
tive (and even unlawful) conduct by an employer. But
Richardson’s reference to ‘‘retaliation,’’ uttered in a
heated exchange concerning the Respondent’s unlawful
enforcement of its no-solicitation/no-distribution and
bulletin board rules, was inherently ambiguous. It
could have meant no more than that the Union would
respond in kind to the Respondent’s propaganda. Un-
less accompanied by threats of egregious or outrageous
conduct, Richardson’s oblique statement was not un-
protected.7
The Respondent admits that it discharged Richard-
son for her use of the word ‘‘retaliation,’’ activity
which we have found to be protected by the Act. Ac-
cordingly, in discharging Kathryn Richardson because
of the ‘‘retaliation’’ statement, the Respondent dis-
charged her for her protected union activity in viola-
tion of Section 8(a)(3) and (1) of the Act.8
Assuming arguendo that Richardson’s conduct in
using the word ‘‘retaliation’’ was not protected, we
would still find that her discharge was unlawful under
Wright Line.9
The General Counsel has established a prima facie
case that the Respondent discharged Richardson for
her union activity. It is undisputed that Richardson was
known to the Respondent as a leading union advocate.
She was a member of the Fairfax Professional Nurses
Association steering committee, had handed out union
leaflets in front of the hospital to members of manage-
ment as well as to fellow employees, was one of six
nurses whose picture and interview appeared in a
301FAIRFAX HOSPITAL
union flyer, and her discharge was precipitated by a
discussion of the union organizing compaign.
There is ample evidence of antiunion animus in the
numerous 8(a)(1) violations which the Respondent
committed in its attempts to discourage the nurses
from organizing. Specifically, we find animus in the
Respondent’s disparately enforcing its bulletin board
rule, in promulgating and disparately enforcing its
mailbox rule, in confiscating union literature from em-
ployee mailboxes, in promulgating and disparately en-
forcing its personal appearance policy to prohibit the
wearing of union buttons, in promulgating and dispar-
ately enforcing its rules restricting access of off-duty
employees, in engaging in surveillance of its employ-
ees’ union activities, as well as in disparately enforcing
a no-solicitation/no-distribution rule.
Once the General Counsel has established that the
Respondent knew of the discharged employee’s union
activity and that the Respondent has demonstrated
antiunion animus, the burden shifts to the Respondent
to show that it would have taken the same action in
the absence of union activity. The Respondent has
failed to do so.
Respondent’s proffered rebuttal was that it had a
good-faith belief that Richardson was threatening her
supervisor with personal harm when she spoke of ‘‘re-
taliation.’’ The Respondent’s witnesses testified that
they understood the word ‘‘retaliation’’ to mean that
Richardson threatened Booth with physical harm. The
Respondent argued that Richardson’s statement was so
threatening as to amount to an assault on her super-
visor, thus justifying an immediate dismissal under the
Respondent’s personnel policy.
The judge, however, discredited the Respondent’s
witnesses’ testimony, including testimony that Booth
was hysterical because of Richardson’s statement, and
rejected this argument. In this connection, the judge
specifically stated that the Respondent’s witnesses
‘‘were not sincere’’ and ‘‘were not candid.’’ Thus, the
judge determined that the Respondent’s witnesses did
not have a good-faith belief that Richardson intended
to harm Booth. The judge reasonably inferred that
Booth was upset, not because of any threat, but be-
cause of the substance of the entire conversation. In
these circumstances, the judge was warranted in con-
cluding that the Respondent seized on ‘‘the word ‘re-
taliation’ to concoct a legitimate reason for discharging
[Richardson], whereas all that was really involved was
a deeply felt disagreement arising from the Hospital’s
opposition to the Union’s attempt to organize the
nurses.’’
Further, as the judge noted, the Respondent failed to
follow its own progressive discipline policy in its dis-
charge of Richardson. The Respondent’s written policy
generally provides for factfinding, oral and written re-
minders, and a day of decision-making leave prior to
discharge. Even for serious offenses warranting imme-
diate discharge, the policy provides that the employee
will be suspended while the facts of the offense and
the appropriate discipline are fully investigated. The
Respondent clearly did not fully investigate this inci-
dent before deciding to discharge Richardson. The Re-
spondent interviewed nurse Linda Ensign, who heard
the entire conversation and testified, inter alia, that she
was surprised that Booth thought Richardson’s state-
ment was threatening. Nurse Janet Steuber testified
that she was in and out of the break room during the
March 7 incident, that she heard part of the conversa-
tion including the comment about ‘‘retaliation,’’ but
that no one in hospital management asked her about
the conversation prior to Richardson’s termination, or
even after Richardson’s discharge when she told Booth
and Ardabell that she had heard the statement and it
was not threatening. Finally, the Respondent did not
interview Richardson herself before making the deci-
sion to terminate her. This failure to investigate casts
still further doubt on the Respondent’s contention that
it discharged Richardson because of its good-faith be-
lief that she had threatened her supervisor with per-
sonal harm.
Respondent’s witnesses testified that there are al-
ways positions open for registered nurses at Fairfax
Hospital, that the hospital attempts to keep experienced
nurses, and has even established an RN Retention
Committee in its endeavor to do so. Kathryn Richard-
son, a nurse for 27 years, had been employed at Fair-
fax Hospital for over 15 years. She was certified in ne-
phrology and hemodialysis. Richardson’s evaluations
dating back to 1976 were entered as exhibits in this
proceeding. Her evaluations are consistently high and
replete with references to her ‘‘superior’’ and ‘‘out-
standing’’ performance, comments about her participa-
tion in hospital in-service and orientation programs,
and a 1988 notation that she was nominated for the
Virginia Nurses Association Outstanding Nurse of the
Year Award because of her dedication to her profes-
sion. Yet, despite Richardson’s years of efficient and
dedicated service, and despite the hospital’s ongoing
need for experienced nurses, the Respondent precipi-
tously discharged her.
We conclude that the Respondent has failed to show
that it would have discharged Richardson in the ab-
sence of her union activity. We agree with the judge
that in discharging Kathryn Richardson, the Respond-
ent violated Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fairfax Hospital, a division
of Inova Health Systems and Fairfax Health System,
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All the nurses referred to herein are registered nurses.
2 The relevant docket entries are as follows: The Union filed its
charge in Case 5–CA–20387 on April 17, 1989, and amended it on
April 27 and November 17. It filed its charges in Case 5–CA–20468
on May 19, 1989, in Case 5–CA–21042 on March 13, 1990, and in
Case 5–CA–21048 on March 15, 1990. The complaint issued on De-
cember 4, 1989, and was amended on May 1, 1990, and at the hear-
ing. The hearing was held in Fairfax, Virginia, on various dates be-
tween May 15, 1990, and May 7, 1991.
3 Respondent complains that the amendment of the complaint was
extremely prejudicial and violated fundamental concepts of due proc-
ess. As explained in the text, most of the information about the rela-
tionship of Inova to the Hospital was given by Miller, who was
called as a witness by Respondent late in the hearing. As a result
primarily of his testimony, the counsel for the General Counsel
promptly moved to amend the complaint. In granting the amend-
ment, I advised Respondent specifically that, in the event that it was
unprepared to meet the allegation, it could apply to me for additional
time to elicit testimony. Furthermore, after my ruling, there was a
lengthy delay in the hearing, prompted by Respondent’s failure to
comply with a subpoena duces tecum which Respondent had unsuc-
cessfully moved to quash. Clearly, Respondent had a right to contest
that ruling in an enforcement proceeding in the Federal district court,
as it did, but there was a 6-month hiatus in the hearing, during
which it should have had ample opportunity to review its legal posi-
tion and present its opposition to the amendment. I find that Re-
spondent was not prejudiced, and its right to due process was not
violated.
Inc., Fairfax, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Carol A. Baumerich, Esq., and Angela S. Anderson, Esq., for
the General Counsel.
John G. Kruchko, Esq., Kathleen A. Talty, Esq., and Steven
W. Ray, Esq. (Kruchko & Fries), of Vienna, Virginia, for
the Respondent.
Douglas Taylor, Esq., of Washington, D.C., for the Charging
Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
consolidated complaint in this unfair labor practice pro-
ceeding alleges that, when District of Columbia Nurses Asso-
ciation, American Nurses Association (Union), began to or-
ganize the registered nurses1 employed by Fairfax Hospital
(the Hospital), Respondent instituted or began to enforce no-
solicitation, no-distribution, no-access, no-buttons, and no-
posting rules, some disparately, in order to prevent and frus-
trate the Union from organizing. When nurses violated the
rules, they were warned or otherwise disciplined. The com-
plaint also alleges a variety of other violations of the Na-
tional Labor Relations Act, all of which Respondent denied.2
Jurisdiction is conceded, but the proper party respondent
is not. The first complaint named the Hospital as the re-
spondent, alleging that it was a Virginia corporation. The an-
swer denied that the Hospital was a corporation, but alleged,
and I so conclude, that the Hospital was an unincorporated
division of Fairfax Health System, Inc. (System), a Virginia
nonstock corporation; that it operated a private nonprofit
community health care facility providing medical and profes-
sional care services to the general public in Fairfax, Virginia;
and that during the 12 months preceding May 1, 1990, it de-
rived gross revenues in excess of $250,000 and purchased
and received goods, materials, and services valued in excess
of $10,000 directly from points outside Virginia. The amend-
ed complaint continued to allege only the Hospital (not as a
division) as the respondent, and the Hospital took the same
position in reply. Only during the hearing did the General
Counsel agree to amend the name of the Hospital, as the
Hospital contended.
Late in the hearing, the Hospital called Brent Miller, the
vice president, human resources, of Inova Health Systems
(Inova), to testify about certain facts involving his participa-
tion in the decision to photograph a certain union demonstra-
tion and to discharge nurse Kathryn (Kitty) Richardson. Be-
cause Miller was not employed by System, but was inti-
mately involved in the Hospital’s decision to conduct the sur-
veillance and to discharge Richardson, the counsel for the
General Counsel justifiably inquired of Miller as to how he
became involved in these matters. Miller stated that the Hos-
pital was a division of Inova, a Virginia corporation, and not
System, of whose existence he professed ignorance. Counsel
then moved to amend the consolidated complaint, a motion
which I granted, to allege that Inova and System constituted
a single employer within the meaning of the Act and were
doing business as Fairfax Hospital; and that wherever the
complaint made reference to Respondent, it meant these two
entities. However, no motion was made to amend the cap-
tion, which still named the Hospital, as a division of System.
It was only a result of the General Counsel’s unopposed mo-
tion to amend the caption, as well as other portions of the
official transcript, made after the hearing terminated, and
hereby granted, that the caption now appears in its present
form.
I find, but not without doubt, that the Hospital is a divi-
sion of both Inova and System. Respondent’s answer admit-
ted that the Hospital was a division of System, and Miller
stated that the Hospital was one of four hospitals which com-
prised the hospital division of Inova. Both Respondent’s
counsel and Miller are in a position to be fully aware of
what the facts are. It was incumbent on Respondent to clear
up whatever conflict might exist between the answer and
Miller’s testimony. Respondent offered no help. Although it
might well be that the caption incorrectly designates the Hos-
pital’s affiliation with both, particularly System, the error, if
any, is of the Hospital’s making. The caption, describing the
Hospital’s status, is supported by this record.3
I am unclear what the General Counsel believes is added
by the allegation that both Inova and System, doing business
as the Hospital, constituted a single employer. If the Hospital
is a division of both, both are doing business as the Hospital
and are responsible for any relief granted herein. At least,
that is my intent. That finding is based almost wholly on the
admission in the answer. Otherwise, except for some mis-
cellaneous facts, the record supports the finding that Inova
is the sole employer of the Hospital’s employees. Inova owns
the Hospital, at least, so testified Miller, contrary to what the
answer admits. All employees’ paychecks bear Inova’s name,
as well as the Hospital’s. Many administrators of the Hos-
pital have comparable positions within Inova’s structure.
Inova made the rules and policies (approved by Mike French,
Inova’s senior vice president) affecting labor relations which
were binding on the Hospital and are the bases of many of
303FAIRFAX HOSPITAL
4 The General Counsel repeatedly argues in his brief that Respond-
ent posted its own antiunion posters on the same bulletin boards that
the employees were not allowed to post their prounion material. The
point is irrelevant. Respondent had the right to post its literature
without affording a similar right to its employees. Summitville Tiles,
300 NLRB 64 (1990).
the principal allegations in the complaint. Inova’s policies re-
quire that the final authority for the discipline of nurses rests
with Inova’s president; and the discharge of Richardson was
approved by Miller, who is not on the staff of the Hospital.
Other than some common officers, the record fails to de-
fine the function of System; but there is at least enough to
show that System was not an innocent bystander and should
not be exonerated from any liability which results from this
proceeding. French, Inova’s senior vice president, is its presi-
dent. The Hospital’s administrator, Everette Devaney, who
was described by one witness as the ‘‘head’’ of the Hospital,
is senior vice president of System and an employee of Inova.
He reports to French, as do other members of the manage-
ment of the Hospital, but the record does not reveal whether
he reports to French in his capacity as an officer of System
or Inova, or both.
Whether employers are single employers involves the ex-
amination of four factors: ‘‘(1) functional integration of oper-
ations; (2) centralized control of labor relations; (3) common
management; and (4) common ownership.’’ NLRB v. Brown-
ing-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982).
On the basis of the lack of evidence of the functional inte-
gration of operations of System and Inova and, particularly,
what System does, I conclude that there is no proof of the
relationship between System and Inova, and I find that they
do not constitute a single employer; but I find that the Hos-
pital is a division of both. I conclude that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and a health care institution
within the meaning of Section 2(14) of the Act. I also con-
clude that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
In the summer of 1988 the Union began an organizing
campaign, which led to the formation of the Fairfax Profes-
sional Nurses Association (FPNA), with a steering committee
of nurses from various units in the Hospital. FPNA contacted
the Union and affiliated with it. Respondent found out about
the organizing campaign, and, in an effort to counter the
Union’s meetings, leaflets, and literature, some placed in the
employees’ mailboxes, others distributed in the parking lots,
cafeteria, and lounges during off-duty time, Devaney held
meetings with the nurses to discuss their concerns and issued
‘‘Action Reports’’ describing these meetings. These meetings
continued, as did the Union’s efforts to organize, into 1989,
and during this period Respondent pursued a policy of at-
tempting to silence the Union’s message or of substantially
interfering with its ability to promote itself, at least on the
campus of the Hospital.
The first way that Respondent did this was by enforcing
the following rule, in effect since 1984, to prohibit the post-
ing of union literature on its bulletin boards:
STATEMENT
Bulletin boards located at various places throughout
the organization are for the official use of Fairfax Hos-
pital Association. However each facility may designate
one bulletin board for employees’ use within stated
perameters.
GUIDELINES
A. Bulletin Boards: All bulletin boards of the Asso-
ciation are restricted to the posting of Association-des-
ignated documents and notices.
B. Employee Bulletin Board: Each facility may des-
ignate one bulletin board for the use of employees. Em-
ployees will be permitted to post personal announce-
ments, such as car-pool information, for-sale advertise-
ments, and apartment sharing. Commercial notices, for
example, advertising for real estate agencies, political
notices, church events, and other such solicitations are
prohibited.
Items to be posted must be delivered to the facility
personnel office for approval prior to posting. The size
of the announcements may not exceed 3’’ x 5.’’ No-
tices may be posted for a period not exceeding one cal-
endar week. Notices found on the Employee Bulletin
Board without approval of the personnel office will be
removed immediately.
Posted material found anywhere other then the des-
ignated bulletin board will be removed immediately.
C. Special Requests: Special requests for authority to
post notices of events in the community by charitable
groups, various professional associations and the like
shall be submitted to the Director of Personnel. The Di-
rector of Personnel will convey the request to the facil-
ity Vice President/Administrator for consideration. Nor-
mally, only those requests to post notices which involve
health, medical, patient care or similar subjects may be
approved.
In general, an employer has complete control of its bul-
letin boards and the items, if any, that it will permit to be
posted on them. There is no statutory right of employees to
use an employer’s bulletin boards. Honeywell, Inc., 262
NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983);
Container Corp., 244 NLRB 318 fn. 2 (1979). The complaint
does not allege that Respondent’s rule is illegal, nor does it
allege that it was adopted for the specific purpose of thwart-
ing any future union activities. What it does allege is that the
rule was maintained and enforced selectively and disparately
because Respondent removed union-related solicitations and
distributions, while it permitted the posting of nonunion-re-
lated solicitations and distributions for long periods of time,
without the Hospital’s approval and without compliance with
any size requirements.4
The record amply supports the complaint. Nurse after
nurse testified in relentless detail about the locations of the
bulletin boards and what was posted on them. The Hospital’s
units—two on each floor of the Hospital’s main building, the
Tower Building, as well as other units—had as many as nine
bulletin boards, and it is not particularly helpful or interest-
ing to recite the locations of the boards or their general pur-
pose. What is important is that union-related literature, either
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent contended throughout its brief that there should be
no finding of certain unfair labor practices because the conduct com-
plained of was too isolated or there were too few incidents of illegal-
ities in a facility of the Hospital’s size. I generally reject these de-
fenses, first, because I find that the conduct was not isolated and,
second, because all the conduct had a direct bearing on the nurses
whose protected and union activities were being limited. In par-
ticular, the principal allegations have in common Respondent’s at-
tempt to discourage communications among the nurses. Evidence of
any disparate treatment regarding any of the opportunities to com-
municate, whether by verbal solicitation, notices on bulleting boards,
or leafletting by off-duty nurses, or by leaving a note in a mailbox,
is material to all of the allegations.
6 This finding includes materials advertising social functions, post-
ed by professional associations.
announcements or propaganda, was removed from the bul-
letin boards within minutes or hours after posting. What was
not removed from these same bulletin boards was not only
Hospital-related material, which no one questions was enti-
tled to remain, but other kinds of posters, notices, and
writings which the Hospital had never objected to before the
Union’s organizing drive began and much of which was still
posted even at the time of the hearing in this proceeding,
such as birth announcements, cake sales, order forms for Girl
Scout cookies and Tupperware, pizza-delivery and Chinese-
food notices, baby shower invitations (where each nurse, and
even supervisor, who planned to attend would sign the sheet
and indicate what food she or he was going to bring, so that
others would not bring the same food), announcements,
happy hour parties, get-togethers, going-away parties, retire-
ment parties, Christmas parties, comic strips, cartoons, post-
ers for the Gold Cup horse race in Virginia, shoe sales, car
sales, real estate rentals and sales, solicitations for ‘‘Sunshine
Funds,’’ postcards from staff who were on vacation, and
thank-you’s from patients. Some of these remained on the
bulletin boards for days, some for weeks, and some even for
months. Many far exceeded the size limitation imposed by
the Hospital’s rule, and the requirement of the Hospital’s ad-
vance permission seems to have been totally ignored. Permit-
ting the posting of all these personal items, while not permit-
ting and removing only union-related material, violates the
Act. Honeywell, Inc., supra; St. Vincent’s Hospital, 265
NLRB 38 (1982).
Among Respondent’s defenses is that, for the most part,
its rule was enforced. Indeed, some nursing coordinators tes-
tified that they always removed all material that was not
Hospital-related, a rather curious admission in light of the
rule’s permission to post ‘‘personal announcements.’’ In fact,
in some of the Hospital’s wings, there were bulletin boards
labeled ‘‘Thank You’s,’’ ‘‘Good News Grapevine,’’ and
‘‘Personal,’’ just for the posting of the kind of material that
the supervisors at the hearing were insisting that they were
removing. I do not credit them. I find generally that the Hos-
pital’s witnesses supported whatever they thought the Hos-
pital wanted to hear, rather than testifying truthfully.
In any event, most of the supervisors who testified that
they enforced the rule, and the rule was not enforced uni-
formly throughout the Hospital, did not enforce it until the
fall of 1988, after the nurses began to look to the Union for
help. Until then, the rule had been almost completely ig-
nored. I credit those nurses who testified that they did not
know about the above-quoted rule because, for years, they
had posted material without permission from Respondent’s
administrators and managers and their material remained
posted on the bulletin boards until it was so stale that it was
removed by the nurses or their supervisors. It was only after
the organizing drive was discovered that Lloyd Greene, the
Hospital’s assistant administrator for human resources, met
with the supervisors and supervisory nurses and advised
them to enforce the bulletin board rule. A number of nurses
testified that the rule was first posted or inserted in the
nurses ‘‘Read’’ file or announced at meetings of nurses only
after the organizing drive began. Thus, even though the re-
striction on posting notices preceded the Union’s organizing
campaign, and even assuming that the rule was applied uni-
formly following the commencement of the campaign, Re-
spondent’s motive to enforce the rule was to stifle its em-
ployees’ organizing activities and rendered the rule unlawful.
Ramada Inn of Fremont, 221 NLRB 331 (1976).
But the rule was not applied uniformly. The instances tes-
tified to were no mere isolated exceptions.5 Too many nurses
testified about too many postings; and I credit all of their tes-
timony. Some of the material that was posted is in evidence,
and there are photographs of the bulletin boards—all offering
indisputable evidence that non-Hospital-related material6 was
posted as a general course of conduct and that Respondent’s
supervisors permitted those postings and permitted them to
remain, while removing all union-related material. No one
testified that union material had been permitted to remain, as
did all the other material. Respondent applied its rule dispar-
ately, on purpose. It took away the right of the nurses to
communicate only about the Union, while it permitted the
nurses to communicate freely about parties and food and va-
cations. The rule which required permission of the Hospital
was never generally enforced, nor were any of its other pro-
hibitions. Even when Respondent began to enforce the rule,
albeit partially, the offensive material was not wholly elimi-
nated from the nurses attention. For example, instead of al-
lowing a notice of a shower to be posted, the notice was
merely removed from the bulletin board but allowed to re-
main on the table in the nurses lounge, within feet of the
bulletin board from which it had been removed. To the con-
trary, union propaganda left on tables in lounges was uni-
formly and immediately removed.
Accordingly, I do not agree that the failure to enforce the
rule was negligible and isolated in light of the rule’s permis-
sion to post ‘‘personal announcements,’’ a defense which ap-
pears illusory. If the Hospital wished to bar personal notices,
it was obliged to enforce that rule and was obliged to have
sufficient personnel monitor the boards to make sure that the
prohibition was applied in an even-handed manner. The
rights guaranteed employees by the Act cannot be forfeited
by their employer’s inaction or inattention. Nor do I agree
with Respondent’s contention that the announcements of
‘‘social unit-related activities’’ should be disregarded as evi-
dence of disparate activity because they ‘‘have been shown
to have a positive effect on team building, thereby improving
the rendition of patient care.’’ Parties may be places where
nurses may share or exchange their work experiences, but
nurses may also do so at union meetings. There is no reason
why an announcement of one is any more helpful or harmful
to patient care than the other. I conclude that Respondent
violated Section 8(a)(1) of the Act.
The complaint also alleges that the Hospital restricted the
number of bulletin boards available for the employees to post
305FAIRFAX HOSPITAL
7 All dates hereinafter refer to the year 1989, unless otherwise stat-
ed.
8 The word ‘‘mailbox’’ in this discussion is used loosely. Many of
the ‘‘mailboxes’’ were cubbyholes. Others were lateral letter files
and manila file folders.
their union literature, an allegation which makes little sense
because an employer does not have to make any bulletin
boards available to employees. What was litigated was Re-
spondent’s relabeling of a bulletin board allegedly to elimi-
nate the only board in that area available for union material.
Before November 1988, there had been only two bulletin
boards, among many, which were labeled on the ground and
basement floors in the Tower Building in the operating room
area. One was labeled ‘‘Personal’’ and nurses used to be able
to post their own private messages there. In November 1988,
after union adherents had posted their first union literature,
which was quickly removed, this bulletin board and others
which had not been labeled were relabeled with plaques
which read ‘‘Official Minutes’’ or ‘‘Official Memos,’’
‘‘Laser Updates,’’ ‘‘Educational Seminars,’’ ‘‘Educational
Literature,’’ and ‘‘Quality Assurance.’’ There was no longer
a bulletin board labeled ‘‘Personal’’ and thus, according to
the complaint, no longer a proper place to post union lit-
erature.
However, Respondent had never allowed union literature
to be posted anywhere, and at best the proof shows only that
Respondent removed a bulletin board where personal mes-
sages could be placed. On the other hand, at the same time,
Respondent added two new boards in the basement and hall-
way leading to the basement nurses lounge. The first was la-
beled ‘‘Stat Staff Messages’’ and became the repository for
the nurses social messages, but the nurses also posted what-
ever they wanted on the frames of other bulletin boards, as
well as bathroom stall doors and doors leading into the
lounges and in the stairway. Thus, the effect of the labeling
of the other bulletin boards was offset by the addition of the
new boards. There was no discrimination here, and certainly
no discrimination because of the employees’ union activities
or activities protected by Section 7. I conclude that Respond-
ent did not violate the Act in this respect and will dismiss
this allegation.
In mid-February 19897 the Union prepared flyers announc-
ing a union meeting to be held on February 23; and, a day
or two before the meeting was to be held, nurse Kathleen
Eisenhauer placed these flyers in the mailboxes8 of the oper-
ating room nurses. They were removed by Operating Room
Nursing Coordinator Rosalie Ewing, who advised that
Eisenhauer was soliciting and that this type of material was
not allowed in the hospital. If Eisenhauer had any questions,
she should contact the Hospital’s personnel office. About 10
days later, on March 3, Respondent promulgated the fol-
lowing new rule:
The internal mailboxes for employees are the Hos-
pital’s property. These mailboxes are made available to
facilitate in-house communication on matters directly
related to Hospital operations and practice. Therefore,
material concerning outside matters, such as picnics,
fund raising, etc., may not be placed in the mailboxes.
Only hospital-related material that a Department
Head or his/her designee, places in the in-house mail-
boxes is permitted. Any written material that is not hos-
pital-related or is placed in the mailboxes by someone
other than a Department Director/Nursing Coordinator
will be removed from the mailboxes. Any employee
who is found to violate this policy will be subject to
disciplinary action.
I reject Respondent’s claim that the rule was not new.
None of the nurses heard of or read the rule before, and Re-
spondent never produced the prior rule. The practice of the
employees before the issuance of the new rule was to use
their mailboxes for any correspondence that they wished to
share with others. That included union literature, one of
which was disguised as a ‘‘shopping spree,’’ Christmas and
birthday cards, thank you notes, invitations to showers and
parties, telephone messages, Avon catalogues, correspond-
ence from people on vacation, reminders for Girl Scout
cookie sales, photographs, videotapes, raffle tickets, buttons,
and cartoons. In addition, many nurses testified that they
constantly received notices of course offerings, schedule
changes, and correspondence and newsletters from other pro-
fessional associations, such as the Association of Operating
Room Nurses—none of which were ‘‘directly related to Hos-
pital operations and practice.’’ Nor were they placed in the
mailboxes, as the rule required, by the ‘‘Department Head or
his/her designee.’’ Even after the rule was promulgated, the
nurses continued to place many of these in the mailboxes;
but the only items ever removed were union literature. (Some
nurses testified, however, that, because of the promulgation
of the rule and instructions given by their supervisors, they
have not used the mailboxes to distribute union-related mate-
rial.)
The complaint alleges that this rule was promulgated in
order to discourage union and protected activities and was
applied disparately. My conclusion is similar to my resolu-
tion of the complaint’s bulletin board allegation. Respond-
ent’s rule was enforced as a direct result of the attempt by
the employees to engage in union activity. Respondent feared
that the employees would communicate with one another by
notices on the bulletin board and wanted to stop that prac-
tice. Thus, the bulletin board rule was enforced to prevent
the employees from posting any union-related notice in the
Hospital. When the employees attempted to spread word of
their organizing efforts by using the mailboxes, the Hospital
learned that it had no rule preventing that practice; and so
it promulgated the rule shortly after the Union’s attempt to
disseminate its notice of its upcoming meeting. The timing
of the rule supports an inference that the real reason for the
rule was an illegal one, to prohibit the dissemination of
union material.
Greene’s explanation of the reason for the rule’s enforce-
ment was hazy and unsatisfactory. He testified that many
nursing coordinators and directors had inquired about what
could appropriately be placed in the mailboxes. There was no
explanation of what was bothering them, and it appears more
than coincidental that the nurses had just recently begun their
efforts to organize. The fact that Eisenhauer had attempted
to inform her fellow nurses of a meeting must have been
threatening. As a result, this new rule was publicized in a
memorandum Greene addressed to all employees. The direc-
tors and nursing coordinators were required to post the
memorandum, and the directors were ordered to remove from
the mailboxes anything placed there in violation of the new
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rule. Respondent’s maintenance and selective enforcement of
its new rule was thus disparate and violated Section 8(a)(1)
of the Act. It follows that Ewing’s confiscation of the union
flyers from the mailboxes on February 21 or 22 also violated
the Act.
Respondent claims that this violation cannot be remedied,
because permitting the employees to place flyers in the inter-
nal mailboxes would violate the Federal Private Express Act,
18 §§ 1694, 1696. This is the first time that the Hospital had
been worried about that act. Until the adoption of its rule,
Respondent freely distributed its material in these mailboxes,
and employees and professional associations distributed their
material, too. Respondent was concerned not about the meth-
od of distribution, but the contents of what was being distrib-
uted. Furthermore, the record is barren of any evidence that,
even if the Private Express Act applied, the Hospital oper-
ated an internal mail system within the meaning of that stat-
ute. University of California v. Public Employment Relations
Board, 485 U.S. 589 (1988), dealt with a university’s refusal
to allow a union to use the internal mail system to send
unstamped letters to certain of the university’s employees.
Here, however, certain employees were merely delivering
leaflets by inserting them in open slots or in file folders and
never sought to use any mail system. My recommended
order will not, in any event, require Respondent to deliver
anything. Respondent simply may not adopt rules to thwart
union activity, and it must only afford the same rights to
those who favor the Union as it does to all its other employ-
ees.
The complaint next alleges that nursing coordinator Sue
Corbett violated Section 8(a)(1) in three respects when she
talked with nurse Elaine Muller on February 23. Muller’s
testimony was as follows: Corbett told her that it had been
reported to her that Muller had been passing out union lit-
erature, and Corbett accused Muller of putting union material
in employees’ lockers. Muller denied putting anything in
lockers but admitted handing out an article from American
Journal of Nursing, a professional journal. Corbett asked
Muller why she would be interested in joining the Union.
Muller replied that she was interested in seeing the nurses
take charge of their own profession. Corbett asked, if Muller
thought there were problems, why she needed to pay money
to the Union and why she could not discuss the problems di-
rectly with the Hospital’s administrators. Muller replied that
the nurses were very busy in their profession and that the
Union was the best organization to represent the nurses. In
addition, Muller said that the administrators had been in
charge of hospitals for the last 15 or 20 years; they had
ended the employment of nurses aides and licensed practical
nurses and expected nurses to do everything from nursing to
paperwork and cleaning floors, whereas nurses should be at
the bedside; and the only result of their administration was
that capable nurses had left the profession. It was time for
the nurses to do something about it. Corbett then asked why
Muller thought that the operating nurses knew about what
was happening ‘‘over here in the building’’ and then pointed
her finger at Muller, saying: ‘‘I’m warning you, you better
be careful, I’m warning you, they know who you are and
they’re watching you.’’ Muller said that she was not dis-
ciplined during this conversation. Later, however, on April
24, she was given a written warning for distributing union
flyers in a parking lot and was told that she was in the sec-
ond phase of Respondent’s disciplinary procedure, because
she had previously been warned on February 23.
The complaint alleges that the ‘‘warning’’ constituted both
a warning of unspecified discipline and giving Muller the im-
pression that her activities were being watched. Corbett spe-
cifically denied that she said the words attributed to her in
the above quotation, but testified that she warned Muller for
soliciting an on-duty staff nurse and distributing union mate-
rial to that nurse at the nurses station. Corbett’s testimony
makes sense for two reasons: first, Muller seemed to know
exactly what she was being warned about. She testified, in
an answer that was not wholly responsive to the question
posed: ‘‘Well, I distinctly remember the incident she was re-
ferring to. I had been on 9 East and asked them to [read the
article], that this was an interesting article from the AJN and
asked them to read it.’’ In a letter of May 3, Muller ac-
knowledged that Corbett had ‘‘accused [her] of passing
union material while on duty.’’ I find it improbable that
Corbett should have warned her not about this incident, but
about putting material in lockers. Muller did not testify that
she engaged in any such conduct, and I have no basis for
believing that Corbett should have accused her of anything
other than what Muller appeared to admit, at least in part.
Second, the sequence and context of the alleged ‘‘warn-
ing,’’ as related by Muller, made little sense. Corbett had
been talking about the knowledge of the operating room
nurses, and that had nothing to do with a ‘‘warning’’ that
people were watching Muller, construed by the General
Counsel to be a creation of an impression of surveillance. I
find that there was no such warning and thus no creation of
an impression of surveillance. The only warning that was
discussed was the warning about Muller’s distribution of the
magazine article. Because the complaint also alleges that
Muller was disciplined because she placed union literature in
the nurses lockers, and that is not what Corbett disciplined
Muller about, I dismiss the allegation pertaining to the dis-
cipline. The General Counsel did not litigate that Respondent
violated the Act when it gave Muller a warning for illegal
solicitation.
The General Counsel also contends that the conversation
constituted illegal interrogation. The Board instructed in
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985), that an interrogation is illegal when,
under all the circumstances, the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaranteed
by the Act. Evidence of the coercive nature of Corbett’s in-
terrogation is mixed. Corbett was Muller’s immediate super-
visor, and the meeting was held in Corbett’s office. How-
ever, Muller was an open and active union supporter. Corbett
knew that Muller had previously gone to a union meeting
and knew that Muller actively supported the Union. Indeed,
Corbett gave Muller the warning about soliciting union sup-
port from another nurse. (Muller’s picture appeared on the
first page of a union flyer, but the record does not make
clear whether the flyer was distributed before the conversa-
tion. Corbett did not testify that she saw that flyer.) The na-
ture of the conversation does not appear to be threatening
and the questions were not ‘‘designed to determine [Mull-
er’s] involvement in protected activities.’’ Hunter Douglas,
Inc., 277 NLRB 1179, 1181 (1985), enfd. 804 F.2d 808 (3d
Cir. 1986). Nor did the interrogation seek to find out about
307FAIRFAX HOSPITAL
9 The General Counsel’s motion to strike a section of Respondent’s
brief as not being supported by record evidence is denied. In so rul-
ing, I have considered that section, find it unpersuasive, and have
not relied on it.
10 Claire Cocklin testified that she may have merely attended a
meeting at which Respondent’s new policy was announced. I do not
find that this proves that she was disciplined.
11 So speedy was its action that Respondent issued its new rule
with the typographical error noted in the above quotation. However,
to conceal that its action resulted from the Union’s button, the rule
was dated back to April 3, although Greene’s memorandum an-
nouncing it was dated April 17.
the support of the Union by other nurses. Rather, the con-
versation appeared to be harmless and ended with Corbett
and Muller hugging, hardly the reaction of an employee who
has been coerced. I conclude that it did not violate Section
8(a)(1) of the Act. UARCO, Inc., 286 NLRB 55 (1987);
Churchill’s Supermarkets, 285 NLRB 138 (1987); Keystone
Lamp Mfg. Corp., 284 NLRB 626 (1987); Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).9
Respondent had a rule since 1986, which permitted the
wearing of ‘‘[p]rofessional pins, Association service pins, or
those authorized by Administration,’’ but prohibited the
wearing of other ‘‘pins, badges, insignia, buttons, signs,
etc.’’ This rule, like the bulletin board rule, was honored in
its breach. Registered nurses wore Redskins buttons and but-
tons celebrating holidays, such as Valentine’s Day, Christ-
mas, Thanksgiving, Halloween, St. Patrick’s Day, and Easter
(for example, shamrocks, bunnies, skeletons which lit up).
They wore buttons related to health care, such as those not-
ing that they had given blood or ‘‘Nurses are the Heart of
Health Care’’ or ‘‘Just Say No.’’ Others were humorous,
such as ‘‘Just Turned Forty,’’ ‘‘I Need a Vacation,’’ and
‘‘No Panic.’’ Others were ‘‘cute,’’ such as bears and Gar-
field the Cat. There were yet other buttons that had been dis-
tributed by the Hospital and related to services provided by
it or health messages that it wished to impart. Finally, nurses
wore buttons that had been distributed by their nursing asso-
ciations. (The General Counsel contends that that these were
‘‘Association’’ pins, which were permitted by the rule. How-
ever, as used in other of Respondent’s rules, ‘‘Association’’
refers to the ‘‘Fairfax Hospital Association,’’ whatever that
entity is, but undoubtedly the same as the employer of the
nurses in this proceeding.)
The Union decided to hold a ‘‘Button Day’’ and at noon
on April 17, 1989, union supporters put on buttons which
read:
NURSES:
LET’S WORK
TOGETHER
FPNA/DCNA
The pin showed clasped hands, undoubtedly preaching ‘‘soli-
darity.’’ The same day Respondent promulgated the fol-
lowing new rule:
All Association employees must wear an authorized
name tag while on duty. Only professional pins, service
pins may be worn in immediate patient care dress [sic].
Beginning that afternoon, nurses were told that they could
not wear their FPNA/DCNA buttons. The Hospital main-
tained its position, despite the nurses argument that the
Union was a professional association and that the official
policy of the Hospital permitted the wearing of professional
and association buttons. The nurses were advised that the
policy was going to be strictly enforced and that any viola-
tion would be met with disciplinary action. In fact, the policy
was enforced, at least with respect to the FPNA/DCNA but-
tons; and some nurses (Catherine Meister, Joan Whalen,
Elaine Muller, and Jan Hylton) were given formal warnings
for wearing the buttons, the first step in Respondent’s posi-
tive disciplinary process. Other nurses—Carol Awad, Lynn
Baker, Janet Courtemanche, Brenda Craft, and Tina Price—
were told that they were to remove their buttons; and Mary
Jane Mastorovich, the Hospital’s assistant administrator, tes-
tified that a request to remove a button was a form of dis-
cipline.10
As to other buttons, the Hospital’s actions were mixed.
Some nurses were immediately advised that they were no
longer entitled to wear buttons that they had been wearing,
without objection and without disciplinary action, before
April 17. But the prohibition on all buttons and noncon-
forming accessories, other than the FPNA/DCNA buttons,
did not last very long. Nurses returned to wearing blood
donor buttons, Redskins buttons, teddy bears, holiday but-
tons, humorous buttons, and the like. They continued to wear
buttons provided by their own nursing associations. For ex-
ample, the nurses in the orthopedic unit wore T-shirts and
buttons which read: ‘‘I Love Every Bone In Your Body.’’
The postanasthesia nurses wore buttons stating: ‘‘Wake Up
With a Recovery Room Nurse.’’ In May 1990, when the
hearing in this proceeding began, many nursing coordinators
again started to enforce the rule, but not in all units.
The Board’s normal rule is that employees have a pro-
tected right to wear union insignia while at work. Ohio Ma-
sonic Home, 205 NLRB 357 (1973), enfd. 511 F.2d 527 (5th
Cir. 1975). The leading decision of Beth Israel Hospital v.
NLRB, 437 U.S. 483 (1978), will be dealt with in more de-
tail, below; but suffice it to state at this point that a rule that
prohibits union solicitation in immediate patient-care areas in
a health care facility is presumptively valid. Based on that
decision, the Board has applied a similar presumption to the
wearing of union insignia. Mesa Vista Hospital, 280 NLRB
298 (1986). The Board, however, will consider whether the
health care facility promulgated the rule to promote the
health and welfare of its patients or to thwart the employees’
right to organize. Ohio Masonic Home.
Here, there is no question that Respondent promulgated
the rule in a direct and speedy reaction to the Union’s ‘‘But-
ton Day.’’11 Before April 17, Respondent never appeared to
care what buttons were being worn. The nurses wore what-
ever they wished, and Respondent prepared its own buttons
which it asked the nurses to wear. The prohibition of April
17 was thus directed at no legitimate interest to protect pa-
tients from the buttons. Rather, the prohibition was part of
Respondent’s plan to stop all communication about the
Union, even if the communication consisted of only a few
words, as innocuous as those words that Respondent per-
mitted to be worn on another button: ‘‘Nurses are the Heart
of Health Care.’’ Baptist Memorial Hospital, 225 NLRB 525
fn. 3 (1976). The rule was also amended to exclude the
wearing of ‘‘Association service pins,’’ undoubtedly because
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Union’s motion to reopen the record to receive a videotape
of a nonunit employee wearing various paraphernalia illustrating an
obsessive love of the Washington Redskins is denied. The incident
happened long after the hearing in this proceeding closed, and the
granting of the motion would entail the reopening of the hearing to
enable Respondent to explain its position and present additional evi-
dence, all of which would add nothing, because the record amply
demonstrates that the rule against the wearing of pins was dispar-
ately applied.
Respondent realized that the nurses were arguing that the
Union was an ‘‘Association’’ and the old rule might author-
ize the wearing of the Union’s pin. The new rule, without
the language about ‘‘Association’’ pins, was quickly applied
to the Union’s button, and it has always applied to that but-
ton, while the nurses have once again reverted to wearing
their buttons which relate to a wide variety of other mat-
ters.12
Respondent’s brief contends that its rule was amended be-
cause the earlier rule ‘‘contained a provision which prohib-
ited, without limitation, the wearing of non-professional but-
tons or pins;’’ and that rule was ‘‘overly broad’’ and ‘‘in
violation of Board law.’’ As amended, the rule permitted em-
ployees to wear union pins ‘‘in all areas of the Hospital, ex-
cept for immediate patient-care areas.’’ As neat as this argu-
ment might appear, no one testified that this was the reason
for the amendment; and I find that it constitutes merely a
convenient pretext to excuse the illegality. In addition, even
though a number of Respondent’s supervisors testified that
they enforced the new rule, I find that they did not and that
nurses continued to wear buttons which did not offend their
supervisors; but the nurses were afraid to wear their union
buttons. Respondent also contended that its policy was
changed to prevent any disruption in patient-care areas. Be-
cause Respondent freely handed out its much more inflam-
matory antiunion tracts in patient-care areas, which it knew
would cause the nurses to react, I find that it was uncon-
cerned about the creation of disruption. Respondent also al-
leges that it repudiated its prior unlawful conduct and thus
relieved itself from liability. Passavant Memorial Hospital,
237 NLRB 138, 138–139 (1978), requires, among other
things, that any ‘‘repudiation or disavowal of coercive con-
duct should give assurances to employees that in the future
their employer will not interfere with the exercise of their
Section 7 rights.’’ Respondent gave no such assurances. In-
deed, a review of the record reveals that it repudiated noth-
ing. I reject that defense.
I conclude that the promulgation of the April 17 rule was
illegal from its inception as it was motivated solely by the
Union’s pin and has, in any event, been disparately applied
only to buttons issued by the Union. Respondent’s requests
of its nurses to remove their union buttons and its discipline
of them violated Section 8(a)(1) of the Act.
Another manner which the complaint alleges that Re-
spondent tried to cut off communication among the employ-
ees was by enacting the following no-access rule:
STATEMENT
Off-duty employees are not allowed to return to, or
to enter, the Hospital’s physical property or premises
unless to visit a patient, receive medical treatment or to
conduct hospital-related business.
GUIDELINES
A. An off-duty employee is defined as an employee
who has completed his/her normally scheduled shift.
B. Hospital-related business is defined as the pursuit
of the employee’s normal duties or duties as specifi-
cally directed by management.
C. Special exceptions to this policy will require the
prior approval of the appropriate assistant/associate ad-
ministrator and the director of personnel.
The amended complaint alleges that this rule, adopted
‘‘[i]n or around mid-October 1988,’’ was ‘‘overly broad.’’
This allegation was omitted from the original complaint,
which was based on the Union’s unfair labor practice charge
filed on April 17, 1989; and Respondent now contends that
the charge was filed outside the time allowed by the Act’s
10(b) 6-month limitations period. The complaint also alleges
that the rule was applied disparately and selectively on April
20 to coerce three off-duty nurses to leave a parking lot and
that, the following day, they were given disciplinary warn-
ings for violating the rule.
Board law holds that a no-access rule is valid only if it
(1) limits access solely with respect to the interior of the
plant and other working areas, (2) is clearly disseminated to
all employees, and (3) applies to off-duty employees seeking
access to the plant for any purpose and not just to those em-
ployees engaging in union activity. Tri-County Medical Cen-
ter, 222 NLRB 1089 (1976). Furthermore, an employer may
not deny off-duty employees entry to outside nonwork areas
of its premises, unless the employer provides an adequate
business justification for doing so. Ibid.; Orange Memorial
Hospital, 285 NLRB 1099, 1100 (1987); Presbyterian Med-
ical Center, 227 NLRB 904, 905 (1977), enfd. 586 F.2d 165
(10th Cir. 1978).
Respondent’s method of disseminating its no-access rule
was anything but clear. Employees were typically advised of
the existence of a new policy by the issuance of a memo-
randum. For example, when Respondent issued its mailbox
rule and revised personal appearance policy, it advised the
employees in separate memoranda. Here, it did not. Usually,
new policies were also placed in communications and policy
books which were maintained in the various units and were
announced by the nursing coordinators at staff meetings.
Here, Respondent contended that it placed its new no-access
rule in the books, but the rule was never announced at staff
meetings. Most nurses were unaware of the existence of the
rule, but there were exceptions. Hylton found out about the
rule in mid-October 1988 when she returned to work while
off duty to distribute some literature about collective bar-
gaining. She was told by then Director of Surgical Nursing
Karen Lemieux to go to the staffing office to read the policy.
That office was not the location where the Hospital posted
its policies at that time, but Hylton found it posted. The rule
had not been in the unit communications and policy book,
but was there the next day. Other nurses testified that they
first found out about the rule when they saw it posted (in
November 1988), or when they saw it lying on a table and
later saw it posted (summer 1989) or when they heard about
it from one of the nurses who had been disciplined in April
1989, and only one of the three disciplined nurses knew of
the rule before then.
309FAIRFAX HOSPITAL
13 Respondent contends that Muller was standing with the other
nurses. I credit Muller’s testimony that she was not.
Respondent’s brief contends that this testimony was insuf-
ficient to refute the testimony of Greene, who stated that em-
ployees are informed of the Hospital’s personnel policies ei-
ther through the internal mailboxes or from their supervisors
or managers. Greene did not aver that the no-access rule was
made known to the employees in either of these ways; and,
although optimally, this is what Greene had hoped would
happen with all the policies and rules, his generalized answer
was insufficient to rebut successfully the testimony of the
General Counsel’s witnesses. Not one nursing coordinator
testified that she told her nurses about the rule and no copy
of any memorandum was placed in evidence. The testimony
of Scott Southee, parking ID coordinator, that the Hospital’s
parking policy is ‘‘located in every administrative binder,
which is located on every nursing unit, in every department’’
adds nothing to meet Respondent’s burden to show the dis-
semination of the no-access rule to the nurses because Re-
spondent failed to disseminate the rule through the channels
it normally utilized. I thus find it unlikely that Southee did
anything. Even if he did, the nurses were not expected to
find new rules which Respondent was less than open in re-
vealing. I find that the General Counsel produced enough to
meet his burden that the rule was not clearly disseminated
to all employees, as Board law required, and I reject Re-
spondent’s defense that the complaint’s allegation was barred
by Section 10(b). Except for Hylton, who discovered it only
because she was being disciplined, no one was aware of the
existence of the rule until November 1988, well within the
6-months’ time for filing.
Furthermore, I find that Respondent had no legitimate rea-
son for the adoption of its rule. Respondent offered two rea-
sons for its promulgation. First, parking at the Hospital had
reached the critical stage. There were not enough parking
spaces available for all the employees on the afternoon shift
if the day shift employees did not leave promptly. There are
a number of problems with Respondent’s position, not the
least of which is that there was an utter failure of proof with
respect to the other shifts, which traditionally employ far
fewer staff. Thus, there was no showing that there was a
parking problem if employees were to arrive early in the
morning, when they were replacing the lesser number of em-
ployees on the night shift, or were to arrive after the day
shift had ended, at which time the parking lot should have
emptied. Indeed, Respondent’s brief contends that it was
‘‘important to minimize any activity which would interfere
with the availability of parking areas during the critical 2:30
p.m. to 3:30 p.m. time period.’’ The rule was not limited to
solving that problem, but was an illegal, blanket prohibition,
not on parking, but on employees’ access to Respondent’s
property for all the time that they were not working. Pres-
byterian Medical Center, 227 NLRB 904, 905 (1977), enfd.
586 F.2d 165 (10th Cir. 1978). In addition, public buses
stopped outside the Hospital’s premises. If employees came
by bus, they would not cause any problems in the parking
areas; nor would any problems be caused by employees who
parked on the public streets.
The second principal reason that Respondent relied on was
that the parking lots were riddled with crime—assault, van-
dalism, theft, and suspicious persons. Respondent introduced
evidence showing that there were numerous reports of illegal
activity, but this activity occurred primarily in 1986 and
1987, and the number of incidences had tapered off in 1988,
when (late in the year) Respondent adopted its new rule.
This is not to disparage the Hospital’s attempt to lessen the
amount of crime, but the timing of the adoption of the no-
access rule, enforced for the first time only after the union
campaign began, is rather persuasive evidence that the
Union, not crime, was behind this rule. Besides, Respond-
ent’s proof of the conduct that it was allegedly attempting to
prevent was less impressive than its brief portrays. For exam-
ple, its allegations of ‘‘several violent assaults’’ was actually
supported by one, another being a report of a wandering, sus-
picious woman (October 1987); and its allegations of four in-
cidents of ‘‘extensive damage to vehicles’’ was supported by
three where there was no damage and one of a broken cable,
where it was difficult to determine whether the cable (under
the car) was an act of vandalism. Almost all of these inci-
dents occurred in 1987, a year before Respondent adopted its
rule. Furthermore, the Hospital showed no correlation be-
tween the commission of crime and the overuse of the park-
ing lots; and none of the illegal conduct was engaged in by
returning employees or employees who stayed after their
working hours. The conduct was engaged in by others, and
whether the nurses returned to the Hospital or not would
have had no bearing on the commission of any crime. I con-
clude that Respondent had no adequate business justification
for adopting its rule and that it violated Section 8(a)(1) of
the Act.
It follows that the imposition of the illegal rule on the
three nurses on April 20 and their discipline the next day
equally violate the Act. The facts are simple. April 20 was
3 days after Respondent stopped the nurses from wearing
their FPNA/DCNA buttons. Nurses Eisenhauer, Muller, and
Dorothy Vasilchek distributed leaflets captioned, ‘‘What’s So
Scary About A Button?’’ Muller was on a public sidewalk:13
yet, two of Respondent’s security guards asked her what she
was doing and took her name. Eisenhauer and Vasilchek
were leafletting in parking lots of the Hospital, and
Mastorovich told them that they were not allowed to pass out
leaflets and asked them whether they knew that. Eisenhauer
said that she did not and that, according to the no-solicitation
rule, they were in the correct place. (That rule permitted so-
licitation in the parking lots by employees not on their work-
ing time.) Mastorovich asked her whether she had worked
that day, and Eisenhauer replied that she had not.
Mastorovich said that she was in violation of the no-access
rule and again asked her to leave. Both nurses refused, but
they stayed only 10 more minutes because most of the nurses
had already left. The following day, the three nurses were
given written warnings, each of which stated that it con-
stituted the second phase of the disciplinary process and that
additional violations could lead to further disciplinary action.
Neither Eisenhauer nor Vasilchek had ever been disciplined
before.
Because the underlying rule violated the Act, any dis-
cipline that was based on the illegal rule also violated the
Act. Furthermore, the discipline represented ‘‘double kill’’ in
the sense that Respondent was punishing two of the nurses
for second violations, despite the fact that they had not been
disciplined before, and Muller was not even standing on the
Hospital’s property. If that were not offensive enough, Hos-
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 It is true, as the Hospital contends, that there was proof that
Hospital officials saw only some of these nurses returning, but I find
that there was hardly any effort to search them out. I find especially
persuasive the testimony of those nurses who returned to attend par-
ties at which their supervisors were present. No effort was made to
direct those nurses off the Respondent’s property. Only union activ-
ists were really being looked for, as evidenced by various reports of
the security guards who searched the lots for automobiles containing
union paraphernalia.
pital officials treated these nurses differently from the way
that they treated nurses who returned to the Hospital not to
engage in union activity but to attend going away parties,
Secretaries’ Day luncheons, baby and bridal showers, Christ-
mas parties, and to go to the library, the credit union, or the
gift shop, or pick up their pay checks, or eat in the cafeteria,
or chat with or deliver tickets to other nurses, or to engage
in sports.14 Respondent contends that these nurses were en-
gaged in Hospital-related business, but I find that the nurses
were engaged in activities to benefit themselves. In addition,
the Hospital has permitted demontrators to engage in anti-
abortion protests on the Hospital’s property, sometimes in-
volving as many as 800–1000 persons. (Greene noted, how-
ever, that if an employee wished to engage in the protest, the
Hospital’s no-access rule required that permission be sought
and given to return to the Hospital. The 800–1000 dem-
onstrators were not employees and did not have to obtain the
same permission.)
In sum, the Hospital was interested in nothing but union
activity, and the no-access rule was yet another attempt to
ensure that employees would not be able to exchange their
views about the benefits of union representation. If security
and overparking were not a concern when there were 800-
1000 protesters on the grounds of the Hospital, surely they
could not have been legitimate concerns when three nurses
were attempting to hand out their leaflets. The Hospital felt
that it had to give a public forum to the antiabortion pro-
testers. It did not have the same anxiety when it came to its
dealing with the Union. That was an anathema; and, out of
all the conduct that could be permitted, an attempt to orga-
nize by their employees could not be countenanced. That is
blatant discrimination. I conclude that the discipline meted to
Eisenhauer, Muller, and Vasilchek violated Section 8(a)(3)
and (1) of the Act.
Respondent’s obsession with the union movement was not
limited to making rules to discourage it. On May 5, from
5:30 a.m. to 7 p.m., nurses and other supporters of the
Union, about 30 in all, some carrying balloons and none
wearing signs, distributed packets of union materials around
the perimeter of the Hospital. Respondent had advance notice
that there was going to be some union activity, and at 2
o’clock that morning had picked up some union literature
which stated that nurses would be standing on county side-
walks and roads adjacent to the entrances to the Hospital and
were going to be handing out authorization cards and other
literature.
Prior to May 5 Greene had arranged to have photographers
available to take still photographs and videotapes of the par-
ticipants. Greene, Tim Klagholz, Respondent’s director of its
media services department, and the photographers drove
around the premises of the Hospital for an hour, taking pic-
tures, many with telephoto lenses, often on the direction of
Greene, who pointed out the leafleteers he wanted pictures
of. Klagholz and a photographer went out in another car later
in the day to do the same picture-taking. In addition, Greene
stationed a videocamera at the front entrance of the Tower
Building, the Hospital’s central structure, and demonstrators
were taped from this location, too. As if that were not
enough, the Hospital’s security guards were also instructed to
watch the leafletting all day; and Nursing Directors Kathleen
Garrity and Lemieux also rode in other vehicles, Lemieux
admitting that her function was to observe the union activity.
Although it is true that an employer’s mere observation of
union activities that are conducted in public does not violate
Section 8(a)(1) of the Act, Porta Systems Corp., 238 NLRB
192 (1978), and that management need not hide, Tarrant
Mfg. Co., 196 NLRB 794, 799 (1972), Board law does not
authorize an employer to use patrolling cars, cameras, and
videotapes to enhance its identification of those who are law-
fully engaging in protected Section 7 conduct. The law per-
mits the Hospital not to close its eyes, but it does not permit
it to enhance its vision with telephoto lenses and to make re-
peated runs in cars around and around the premises. That
constitutes activity out of the ordinary and has the tendency
to unreasonably chill the exercise of employees’ Section 7
rights. See Hoschton Garment Co., 279 NLRB 565, 567
(1986).
Respondent makes much of its alleged concerns, but those
concerns were at best fabricated, because there was not one
bit of conduct engaged in by the demonstrators that involved
any trespass, any violence, or any improper conduct. Nor
was there any stoppage of work, or any threat which could
reasonably have been interpreted as a stoppage of work,
which would have permitted Respondent to rely on the fact
that the Union gave it no notice under Section 8(g) of the
Act, the purpose of which is ‘‘to give health care institutions
an opportunity to prevent the disruption of patient care which
can be foreseen by . . . picketing.’’ Service Employees Local
84 (Baptist Memorial Hospital), 266 NLRB 335, 336 (1983).
First, there was no picketing, and there was no strike. Indeed,
at 2 a.m. Greene had notice of the harmless activities that
were going to be conducted later that morning. Even if Re-
spondent had shown a reasonable idea that something dire
was going to happen, and it is questionable that this would
have necessarily permitted Respondent to take its pictures,
Glomac Plastics, 234 NLRB 1309, 1320–1321 (1978), there
is nothing to justify its repeated surveillance, with instruc-
tions to zero in on the faces of particular employees and oth-
ers, even after it should have been evident that nothing more
was going to occur than had already occurred.
Respondent’s reliance on the fact that it also videotaped
the antiabortion rally is misplaced. First, the demonstrators
were not protected under the Act. Second, even the videotape
did not evidence the closeup photography that was engaged
in to identify the persons involved in the union activities. Fi-
nally, the fact that pictures were also taken by the media and
even by a friend of one of the participants who invited him
to take the pictures, makes no difference. The essence of the
unfair labor practice charge is that employers have no right
to spy on the union and concerted activities of its employees.
Such spying is coercive. The spying causes employees to
fear that their employer has specifically identified them to
take action, such as discharge or other discipline. Thus, it
constitutes a threat to the employees. Even if the union ad-
herents had made their identities public, here the Hospital’s
311FAIRFAX HOSPITAL
15 Although of no importance to this conclusion, I specifically dis-
credit Respondent’s witnesses, all of whom testified that they made
no notes of who was engaged in the Union’s demonstration and that
they reported what they saw to no one. I find wholly improbable that
their car rides were mere purposeless pleasure tours of the Hospital’s
grounds. In addition, to the extent that Respondent attacks the credi-
bility of the General Counsel’s witnesses, who testified to the sur-
veillance, I credit them.
supervisors and agents made repeated trips around the prem-
ises, videotaping at length and taking numerous photographs.
That would have the tendency to discourage the employees
from acting as they were doing, because they were being tar-
geted in such a fashion, and violates the Act.15 See generally
Cannon Electric Co., 151 NLRB 1465, 1468–1469 (1975).
The final rule attacked in the complaint relates to the em-
ployees’ right to solicit support of the Union and distribute
materials about it. The rule reads:
STATEMENT
Solicitation for any purpose among employees has
the effect of disturbing and disrupting the provision of
health care services. Therefore, Fairfax Hospital Asso-
ciation prohibits solicitation for any purpose in des-
ignated patient care areas.
GUIDELINES
A. Persons Not Employees of the Association: Per-
sons who are not employees of Fairfax Hospital Asso-
ciation may not solicit for any purpose on the premises
of the Association.
B. Association Employees: Individuals who are em-
ployees of the Association may not solicit any employ-
ees, nor distribute literature, for any purpose during
their working time. Working time means the period of
time scheduled for the performance of job duties, not
including mealtimes, breaktimes or other periods when
employees are properly not engaged in performing their
work tasks.
C. Areas Within Association Facilities Where Solici-
tation is Specifically Prohibited:
—patient rooms;
—operating and recovery rooms;
—nurse’s stations;
—rooms where patients receive treatment, such as
treatment rooms of the emergency department, radi-
ology, radiation oncology, and other therapy rooms;
—corridors adjacent to patient rooms, operating and
recovery rooms, treatment rooms;
—sitting rooms on patient floors accessible to and
used by patients;
—elevators or stairways used frequently to transport
patients;
—locker areas adjacent to patient care areas.
D. Areas Where Solicitation Is Not Restricted: Areas
where solicitation by employees not on their working
time is permitted includes cafeterias, lobbies, gift shops,
lounges, locker rooms, rest rooms and parking lots.
E. Areas Within Association Facilities Where Dis-
tribution is Specifically Prohibited: Distribution of lit-
erature in any work areas (to include areas listed in par
C) is prohibited.
F. Disciplinary Action: Solicitation for any purpose
during working time and/or in any of the areas where
solicitation is prohibited will subject the employees to
disciplinary action. Distribution of literature any time in
working areas will subject the employee to disciplinary
action.
The Act protects generally employees’ right to self-organi-
zation. In order to organize effectively, employees must be
permitted to talk with other employees to solicit their views
and attempt to convince them of the benefits of mutual asso-
ciation. While employees are, during their working hours, ex-
pected to devote their full attention to their work—after all,
that is what their employer is paying them for—during their
nonworking time, they are not being paid and generally have
the right to do what they want. Thus, the Board usually pre-
sumed that no employer could adopt a rule prohibiting solici-
tation on nonwork time. Republic Aviation Corp. v. NLRB,
324 U.S. 793, 803–804 fn. 10 (1945). However, the Board
found this presumption unworkable in a hospital setting be-
cause it gave too little weight to the need to avoid disruption
of patient care and disturbance of patients. Thus, the Board
found that it would not regard as presumptively invalid pro-
scriptions against solicitation in immediate patient-care areas,
St. John’s Hospital, 222 NLRB 1150 (1976), enfd. in part
557 F.2d 1368 (10th Cir. 1977), a position accepted by the
United States Supreme Court in Beth Israel Hospital v.
NLRB, 437 U.S. 483 (1978). There, the Supreme Court
upheld the Board’s conclusion that the hospital had not justi-
fied its prohibition of union solicitation in the cafeteria, gift
shop, and lobbies on the first floor of the hospital.
Respondent’s no-solicitation rule is carefully crafted to
bring it within the scope of Beth Israel, but the General
Counsel contends that the rule was invalidly applied because
Respondent permitted employees to solicit other employees
and distribute material to them in violation of the rule, while
it disparately enforced the rule when prounion employees at-
tempted to solicit support for the Union or attempted to dis-
tribute material about it. Furthermore, the General Counsel
contends that Respondent itself solicited employees with
antiunion material in areas prohibited to union adherents.
The rule did not restrict solicitation in Respondent’s cafe-
teria, but the adjoining meeting room, the cafetorium, was
not one of the areas where the rule permitted solicitation.
However, book sales from the Hospital’s library and outside
booksellers, a fall craft fair, and shoe sales have been held
there. Blood drives have been held in the cafeteria, and
books and tickets have been sold there, as well as the adver-
tising of picnics and hospital trips. The following items,
among others, have been sold, sometimes in open view of
patients, in various areas where the Hospital has prohibited
solicitation: Tupperware, Avon products, Girl Scout cookies,
candy bars, citrus fruit, Easter baskets, flowers, plants, tote
bags, T-shirts, Christmas cards, wrapping papers, and rib-
bons. I infer from the widespread and open solicitation and
distribution of these items that Respondent had full knowl-
edge of these solicitations. St. Vincent’s Hospital, 265 NLRB
38 fn. 3 (1982), enfd. in relevant part 729 F.2d 730 (11th
Cir. 1984).
The record is barren of any evidence that anyone has ever
been disciplined for advertising or selling any of these prod-
ucts. Yet, union literature was subjected to different rules.
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The rule states that ‘‘employees . . . may not solicit any em-
ployees, nor distribute literature, for any purpose during their work-
ing time.’’ It is unclear whether the word ‘‘their’’ refers to the em-
ployees who are soliciting or being solicited. In light of the general
purpose of the rule, it may reasonably be argued that it refers to
both.
Greene testified that distribution of union literature at the
nurses station was a violation of the rule. Nurses were
warned that they were prohibited from distributing union lit-
erature in the nurses lounge, despite the fact that a notice for
a shower, after having been removed from a bulletin board,
was allowed to remain on the table in the lounge, and the
additional fact that the nurses lounge was supposedly exempt
from the rule. (Indeed, Nursing Coordinator Jonathan
Hurwitz told Price that she was not allowed to bring union
literature into the Hospital at any time.) So, union material
that was left there, and even in the cafeteria, was confiscated.
While the union adherents were restricted by the no-solici-
tation, no-distribution rule from freely handing out their
propaganda, the Hospital felt itself bound by no such restric-
tions, even in areas where the Union was not allowed to
campaign. Respondent published numerous antiunion posters
(11 by 17 inches) which were placed on the bulletin boards
and smaller versions of which were printed as handouts.
Some of these were headed ‘‘Why Fairfax Nurses Oppose
The Union,’’ and Respondent advised all the nursing coordi-
nators to make sure that they were distributed to all the
nurses. Often these were distributed while the nurses were
working and in patient-care areas, most often at or near the
nurses stations, and sometimes in areas in close proximity to
patient rooms. They were also left in the nurses report
rooms.
On December 4, 1989, Nursing Coordinator Director
Marianne Heberer suspended for 1-day of ‘‘decision-making
leave’’ nurses Vasilchek and Vicki Herman for violating the
rule. That meant that they were to go home and think things
over to see whether they understood what they had done
wrong and to return to work only if they intended not to err
again. This resulted from the following credited facts, which
primarily are those related by nurse Tracy Maslyn, who I
found had no reason to misstate what happened, whereas
Vasilchek and Herman slanted their narration to protect
themselves from the Hospital’s discipline: Earlier, during the
night shift of November 13–14, Maslyn was reassigned to
the unit on which Vasilchek and Herman regularly worked.
Vasilchek and Herman went into the cubbyhole, a small open
area off the nurses lounge and an area where nurses would
regularly take their break on the night shift, despite the fact
that it was also used by the nurses for charting and docu-
mentation work, paging people, and making phone calls.
Maslyn was there, charting. Vasilchek and Herman, recog-
nizing that Maslyn was pregnant, started a conversation
about her future plans, whether she was going to return to
work after she had had her baby, and the quality of the Hos-
pital’s health and child care benefits. They mentioned that
the Union was very active in pushing the Hospital to build
a day care center. They asked whether she knew about the
Union, whether there were active union supporters on her
floor, and whether she would be interested in attending a
union meeting, which would be code-named a Tupperware
party (presumably so that management would be unaware of
what was going on.) They asked whether she would be inter-
ested in reading about the Union; and when Maslyn said that
she would, Herman left to get a union authorization card and
a union flyer. Herman returned and gave her the documents.
Vasilchek also gave her a union newsletter. The conversation
ended, and all returned to work. However, Vasilchek noticed
that Maslyn had left the union literature where she had been
sitting. Vasilchek brought the literature to her—she was
standing near the nurses station—and told her to take the in-
formation and read it later. Heberer eventually found out
about the conversation and the distribution of the union ma-
terial, and the discipline followed.
The General Counsel is incorrect in claiming that Re-
spondent disparately enforced its no-solicitation rule because
it solicited its antiunion material in violation of its own rule.
In Summitville Tiles, 300 NLRB 64 (1990), the Board stated
that Section 8(c) permits an employer and its agents to ex-
press their views on unionization as long as the opinions do
not contain proscribed threats or promises, citing Gissel
Packing Co., 395 U.S. 575, 618–619 (1969). Absent evi-
dence that a union does not have sufficient means to commu-
nicate with the employees, an employer does not violate the
Act by enforcing a valid no-solicitation rule while engaging
in antiunion solicitation of its own. NLRB v. Steelworkers
(Nutone, Inc.), 357 U.S. 357, 364 (1958). As the Board stat-
ed in St. Francis Hospital, 263 NLRB 834, 835 (1982), enfd.
729 F.2d 844 (D.C. Cir. 1984): ‘‘[N]othing in law nor logic
limits this right of an employer to discussions with employ-
ees only in nonwork areas on the employees’ breaktimes.’’
To the contrary, an employer may lawfully campaign during
employees’ nonbreaktime and in working areas even though
employees may not do so. In such a case, an employer has
not unlawfully enforced its no-solicitation, no-distribution
rule in a disparate manner or unlawfully violated its rule.
That does not mean, however, that Respondent is free to
limit its employees’ rights without limitation. The Board’s
general rule is to permit employees to organize during their
own time. Only in hospitals is there a limitation on the
places where the employees may exercise their rights, and
that is because the Board presumes that organizing in pa-
tient-care areas will be disruptive to the medical care that is
the hospital’s primary mission to deliver. Here, Respondent,
by engaging in the very activities prohibited to its employ-
ees, has created evidence that perhaps its limitation on its
employees is not warranted, that employees’ solicitation in
the same areas would not disrupt the delivery of medical
care. In other words, although Respondent has the right to
solicit and distribute as it wishes, it may not limit its non-
working employees from engaging in Section 7 activities
when they are not working and when they are in areas where
there would be no disruptive effect.
Here, Vasilchek and Herman testified that they were on
break, although Maslyn disputed the fact that they were eat-
ing their sandwiches, as they contended, and I have credited
her. But, even assuming that they were on break, Maslyn
was not; and the rule prohibits solicitation which ‘‘has the
effect of disturbing and disrupting the provision of health
care services.’’ She was charting, and Vasilchek and Herman
were disturbing her work and causing her to delay finishing
her work within her normal shift. Respondent’s rule was in-
tended to prohibit solicitations during working time, and the
rule is drawn so broadly that it prohibits both off-duty and
on-duty nurses from soliciting nurses who are working.16
313FAIRFAX HOSPITAL
17 ‘‘Monday Rounds,’’ which is published by Respondent and has
been left in stacks at the front desk of the nurses stations, is not evi-
dence of disparate application of Respondent’s rule. Despite the fact
that the publication contains some advertisements, it is primarily a
newsletter of interest to the Hospital community and not a commer-
cial document.
The General Counsel contends that Respondent did the
very same thing as Vasilchek and Herman did. Indeed, sev-
eral months later, on March 1, 1990, Heberer gave Vasilchek
one of the Hospital’s antiunion flyers in the same cubbyhole,
while Vasilchek was charting. And there is sufficient evi-
dence that many of Respondent’s antiunion tracts were hand-
ed out at the nurses station and in other areas which Re-
spondent protests were patient-care areas.17 Furthermore,
Greene testified that Respondent knew that its literature
would generate discussion, as it in fact did.
However, there is nothing in the record to prove that Re-
spondent permitted its employees to engage in antiunion dis-
cussions or solicitations in patient-care areas or when they
were on duty. To the contrary, on one occasion, a nursing
coordinator asked some nurses to leave the nurses station and
go back into the cubbyhole so that the patients would not
overhear them. Furthermore, as noted above, Respondent had
the right to solicit employees and to distribute literature,
whereas employees had no such right. Finally, the General
Counsel complains that the punishment must have been ille-
gally motivated because Respondent disciplined the two
nurses for two violations, solicitation and distribution. How-
ever, under section F of the rule, violation of the no-solicita-
tion and no-distribution rules are treated as separate viola-
tions; and I find no evidence that Respondent incorrectly or
disparately charged the nurses with two violations, rather
than one, for their conduct. They solicited Maslyn to become
interested in the Union and distributed material to her, both
of which are violations. Accordingly, I will recommend that
this allegation be dismissed.
However, having prohibited dissemination of and con-
fiscated material in places where its rule permitted employ-
ees to engage in such activities, and having prohibited em-
ployees from engaging in those activities in locations which,
by its own conduct, Respondent could not have considered
patient-care areas, Respondent violated Section 8(a)(1) of the
Act. Respondent’s rule unduly restricted the nurses’ ability in
their free time to solicit and distribute for the Union in areas
where Respondent permitted solicitations in violation of the
rule, and Respondent maintained and enforced the rule only
as it pertained to union solicitations and distributions. I con-
clude that Respondent’s maintenance and disparate enforce-
ment of the rule violates Section 8(a)(1) of the Act.
The final allegation of the complaint relates to the dis-
charge of Richardson on March 8, 1990. Richardson was a
nurse in the hemodialysis unit at the Hospital. She had 27
years of experience as a nurse, 15 at the Hospital, and was
certified in her specialty. On March 5, 1990, she saw posted
in her unit one of Respondent’s series of ‘‘Why Fairfax
Nurses Oppose the Union,’’ which told of a particularly ugly
event of a patient being told on his way to surgery that he
would not receive good treatment because his wife had re-
fused to support the Union. Two days later, during a break,
Richardson engaged in a heated discussion with her nursing
coordinator, Terri Booth, about the substance of that poster,
which Booth had given her a copy in its flyer version. Rich-
ardson doubted that the facts could be accurate, while Booth
believed the flyer, and Richardson asked in bewilderment
how Booth could believe that a nurse could engage in that
sort of conduct. She said that she had never seen any con-
duct like that in all her years of nursing. Despite her argu-
ments, Booth maintained that the Hospital would never false-
ly publish any such information.
Richardson tried other means to persuade Booth that the
facts were illogical and could not be true. She thought that
Booth ought to have known that the incident could not have
happened and was offended that, if Booth thought carefully
about the allegation, she would have known that it was false
and would never have circulated the handout, that the poster
was big enough that she could read it on the bulletin board.
Richardson asked why, in addition to posting the poster on
the normal bulletin board, it also had to be put in the nurses’
bathroom. Booth replied that the Hospital owned the entire
hospital and could post its propaganda wherever it wanted.
Richardson contended that the prounion nurses should also
be able to post their notices. (The record amply demonstrates
that the prounion posters had been taken down in these loca-
tions.)
The break was ending and, as Richardson was getting up
to leave, Booth commented that the Hospital’s posting was
unpleasant for everyone and the unpleasantness was probably
going to get worse. Richardson recalled that Booth said:
‘‘[Y]ou better get used to it because there will be a lot more
of these things coming.’’ Richardson replied that Booth
could expect ‘‘retaliation.’’
Richardson’s use of the word ‘‘retaliation’’ caused her dis-
charge, at least according to Respondent, whose witnesses
uniformly testified that they understood that to mean that
Richardson threatened Booth with physical harm. Booth said
that she was so alarmed that she became nauseous and
poured herself three cups of coffee before she realized what
she was doing. She could barely control herself. She reported
the incident to her supervisors; and, as each inquired into the
incident, each became alarmed at the emotional intensity of
the situation, and each reached the conclusion that the threat
of physical harm to a supervisor would not be tolerated.
I watched all the witnesses carefully as they testified. I
have reviewed the official transcript numerous times. I do
not believe Respondent’s witnesses. I find that they were not
sincere; I find that they were not candid. I find, instead, that
they seized upon the word ‘‘retaliation’’ as a means of rid-
ding themselves of one of the Union’s outspoken supporters
to show to all nurses the dangers of questioning manage-
ment’s antiunion positions.
There is absolutely nothing in Richardson’s background, as
a person, as a nurse, and as an employee, to indicate that vi-
olence is part of her makeup. Rather, she is a consummate
professional, dedicated to the care of her patients. She is an
advocate of the rights of patients. She is an educator. She is
devoted to nursing. She is a woman of substance. She is
principled. She is highly thought of by her peers. It is true
that she is outspoken, and she may be more animated and
more intense, and her voice may rise above normal conversa-
tional levels. But to make her appear as a common street
bully is wholly unwarranted, and I find that Respondent’s ac-
cusation was made with no sincerity.
Second, although the word ‘‘retaliation’’ might be
stretched to subsume some understanding of violence, that
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Respondent contends that there is no evidence of union animus,
because all of its writings were protected by the free speech excep-
tion contained in Sec. 8(c) of the Act, relying on Holo-Krome Co.
v. NLRB, 907 F.2d 1343 (2d Cir. 1990). The Board did not adopt
that holding on remand. 302 NLRB 452 (1991). Instead, it continues
to hold that conduct that may not be found violative of the Act may
still be used to show animus. Gencorp, 294 NLRB 717 fn. 1 (1989);
General Battery Corp., 241 NLRB 1166, 1169 (1979). Here, a find-
ing of a lack of animus would have to ignore Respondent’s series
of posters and leaflets entitled: ‘‘Why Fairfax Nurses Oppose The
Union.’’ It would also have to ignore that the argument between
Richardson and Booth was one of the articles of that series and, in
essence, what lengths the Hospital would travel in its opposition to
the Union. Even if that particular article were ignored, Respondent
committed numerous unfair labor practices which may be considered
evidence of its state of mind, including its illegal attempts to dis-
courage nurses from communicating about the Union in the Hospital.
stretching is undoubtedly incorrect. ‘‘Retaliation’’ correctly
means an action which is returned in kind. Webster’s Third
New International Dictionary, 1981, defines ‘‘retaliation’’ as
‘‘an act of retaliating : REQUITAL; esp : return of evil for
evil.’’ ‘‘Retaliate’’ is defined as ‘‘vt 1 : to return the like for
: repay or requite in kind (as an injury) 2 : to put or inflict
in return . . . vi : to return like for like : make requital; esp
: to return evil for evil.’’ The dictionary further notes:
syn RECIPROCATE, RETALIATE, REQUITE, and
RETURN can mean to give back usu. in kind or quan-
tity. RECIPROCATE can imply a mutual, equivalent or
roughly equivalent, exchange or a paying back of what
one has received . . . RETALIATE usu. implies a pay-
ing back in exact kind, often vengefully . . . REQUITE
can imply simply a paying back usu. reciprocally, but
also often implies a paying back according to what one
considers the merits of the case . . . .
The latter part of the Booth-Richardson conversation was
devoted to the Hospital’s right to post and distribute its
antiunion tracts, while the Union was left helpless in its ef-
forts to spread its message in the Hospital. The tenor of the
discussion was devoted to what Richardson decried as an in-
flammatory, outrageous attack on the Union. All that was
talked about was literature, and Richardson’s use of ‘‘retalia-
tion’’ was obviously intended to reflect her decision, on be-
half of the Union and the nurses, to attack, in words, the
flyer that she complained was not only unfair but also un-
true. There were two nurses who heard either all or parts of
this conversation. Neither characterized Richardson’s com-
ment as being one that could reasonably be understood in the
entirety of the circumstances as one which threatened phys-
ical harm.
Even if there were some threat made by Richardson, Re-
spondent’s rules nonetheless presented it with a problem. Re-
spondent had a system of progressive discipline, and a threat
did not fit easily into its guidelines to permit it to discharge
an employee. This is not to say that a serious threat (with
a knife, for example) could under no circumstances be the
basis for the immediate firing of an employee, but Respond-
ent justified its discharge of Richardson by noting that its
rules specifically permitted the discharge of one who as-
saulted another. Because Richardson threatened Booth with
physical harm, her words were in the nature of an assault,
according to Miller, who approved Richardson’s discharge.
Interestingly, Respondent’s brief hedges on this, noting that
there was ‘‘future physical or psychological harassment of
Ms. Booth’’ and that Richardson intended to inflict on Booth
the same type of injury that Richardson said that she had suf-
fered: ‘‘personal upset, offense and anger.’’ (Emphasis
added.) There is no question that there was no physical con-
tact made at any time by Richardson, no less an assault with
an intent to harm anyone. In addition, although Respondent’s
disciplinary rules seem to require it to talk with its employee
and obtain that person’s views of the incident, no one talked
to Richardson. She was a dangerous person, in effect a com-
mon felon, in the Hospital’s eyes. Conveniently, all con-
nected with the Hospital disregarded her outstanding evalua-
tions, her expertise, her humanity, in a desperate rush to
prove that the defense of the Union might well subject an
employee to harm much greater than having to read
antiunion material.
What lingers is whether Booth was as hysterical as most
of Respondent’s witnesses said that she was. If she was, it
was not because of any threat. I am convinced that Booth
was upset; but she was mad at the substance of the entire
conversation. She was being ridiculed as Respondent’s
stooge, one who would believe without thinking that every-
thing that the Hospital said was correct. Her intelligence and
her allegiances were being questioned. However, Respond-
ent’s focus was on Richardson’s attack on its labor relations
policies. Respondent then used the word ‘‘retaliation’’ to
concoct a legitimate reason for discharging her, whereas all
that was really involved was a deeply felt disagreement aris-
ing from the Hospital’s opposition to the Union’s attempt to
organize the nurses.
Finally, Richardson was complaining, in the presence of
another employee, Linda Ensign, about the inability of the
Union to post its literature, while Respondent was drama-
tizing its claims against the Union by means of untruthful lit-
erature posted on bulletin boards and distributed to all nurses
in handouts. Her complaint constituted concerted and pro-
tected activity, and she could not be disciplined unless her
conduct was so egregious as to render her conduct unpro-
tected. I find that her conduct was not egregious within the
meaning of Board law. Her threat dealt solely with her at-
tempt to obtain Respondent’s consent to the posting of the
Union’s material at the Hospital. Leasco Inc., 289 NLRB 549
fn. 1 (1988); Consumers Power Co., 282 NLRB 130, 132
(1986). I conclude that Respondent’s discharge of Richardson
violated Section 8(a)(3) and (1) of the Act.18
The unfair labor practices found herein, occurring in con-
nection with Respondent’s business, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Specifically, I shall order
Respondent to offer immediate and full reinstatement to
Kathryn (Kitty) Richardson to her former position or, if her
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
315FAIRFAX HOSPITAL
19 The parties’ joint motion to amend the official transcript is here-
by granted and the transcript is amended accordingly.
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
privileges previously enjoyed, and to make her whole for any
loss of wages and other benefits she may have suffered by
reason of Respondent’s discrimination against her, in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). I shall also order Re-
spondent to rescind its rules prohibiting distribution of lit-
erature in employee mailboxes, denying access of off-duty
employees to its property, and prohibiting employees from
wearing insignia on their uniforms in support of the Union
or any other labor organization. I shall also order Respondent
to rescind its disciplinary warnings, including fact-finding
memos or oral reminders, issued to any of its employees, in-
cluding Carol Awad, Lynn Baker, Janet Courtemanche, Bren-
da Craft, Jan Hylton, Catherine Meister, Elaine Muller, Tina
Price, and Joan Whalen, in connection with their wearing
buttons in support of the Union and issued to employees
Dorothy Vasilchek, Elaine Muller, and Kathleen Eisenhauer
in connection with their leafletting activities on behalf of the
Union; and remove from their files and the file of Richard-
son any reference to their unlawful warnings and discharge,
respectively, and notify them in writing that this has been
done and that the warnings and discharge, respectively, will
not be used against them in any way.
On these findings of fact and conclusions of law and on
the entire record,19 including my observation of the de-
meanor of the witnesses as they testified, and my consider-
ation of the briefs filed by the General Counsel, Respondent,
and the Union, I issue the following recommended20
ORDER
The Respondent, Fairfax Hospital, a division of Inova
Health Systems and Fairfax Health System, Inc., Fairfax,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Selectively and disparately maintaining and enforcing
its rule concerning employee bulletin boards by removing
union-related solicitations and distributions while permitting
nonunion-related solicitations and distributions to remain, in
order to discourage its employees from supporting the Dis-
trict of Columbia Nurses Association, American Nurses As-
sociation (Union), or any other labor organization.
(b) Confiscating union literature from employee mailboxes.
(c) Promulgating and selectively and disparately enforcing
any rule concerning employee mailboxes by prohibiting dis-
tribution of union-related materials while permitting distribu-
tion of nonunion-related materials, in order to discourage its
employees from supporting the Union or any other labor or-
ganization and engaging in concerted activities for their mu-
tual aid or protection.
(d) Promulgating and selectively and disparately enforcing
any rule regarding wearing of union pins in patient-care areas
by telling its employees to remove union buttons, while per-
mitting others of its employees to wear nonunion-related but-
tons, in order to discourage its employees from supporting
the Union or any other labor organization.
(e) Promulgating and selectively and disparately enforcing
any rule prohibiting its off-duty employees from returning to
its property by telling some of its employees to leave the
grounds and disciplining them for violating the rule, while
permitting others of its employees to return to its property,
in order to discourage its employees from supporting the
Union or any other labor organization and engaging in con-
certed activities for their mutual aid or protection.
(f) Engaging in surveillance of its employees’ union activi-
ties.
(g) Selectively and disparately enforcing any rule con-
cerning solicitation and distribution by prohibiting union-re-
lated solicitations and distributions while permitting non-
union-related solicitations and distributions, in order to dis-
courage its employees from supporting the Union or any
other labor organization and engaging in concerted activities
for their mutual aid or protection.
(h) Discharging its employees because they join, support,
or assist the Union or any other labor organization or be-
cause they engage in other protected concerted activities.
(i) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its rule prohibiting distribution of literature in
employee mailboxes.
(b) Rescind its rule concerning access of its off-duty em-
ployees to its property.
(c) Rescind its disciplinary warnings, including fact-find-
ing memos or oral reminders, issued to employees Carol
Awad, Lynn Baker, Janet Courtemanche, Brenda Craft, Jan
Hylton, Catherine Meister, Elaine Muller, Tina Price, and
Joan Whalen, because they wore buttons in support of the
Union.
(d) Rescind its April 17, 1989 revised personal appearance
policy to the extent that it prohibits its employees from wear-
ing insignia on their uniforms in support of the Union or any
other labor organization.
(e) Rescind the disciplinary warnings issued to employees
Dorothy Vasilchek, Elaine Muller, and Kathleen Eisenhauer
because they leafletted on behalf of the Union.
(f) Offer Kathryn (Kitty) Richardson immediate and full
reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges
previously enjoyed, and make her whole for any loss of earn-
ings and other benefits suffered as a result of its discrimina-
tion against her, in the manner set forth in the remedy sec-
tion of this decision.
(g) Remove from their files any reference to the unlawful
warnings issued to Elaine Muller, Carol Awad, Lynn Baker,
Janet Courtemanche, Brenda Craft, Jan Hylton, Catherine
Meister, Tina Price, Joan Whalen, Dorothy Vasilchek, and
Kathleen Eisenhauer, and the discharge of Kathryn (Kitty)
Richardson and notify them in writing that this has been
done and that the warnings and discharge, respectively, will
not be used against them in any way.
(h) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
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.
(i) Post at its facility in Fairfax, Virginia, copies of the at-
tached notice marked ‘‘Appendix.’’21 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT selectively and disparately maintain and en-
force our rule concerning employee bulletin boards by re-
moving union-related solicitations and distributions while
permitting nonunion-related solicitations and distributions to
remain, in order to discourage our employees from sup-
porting the District of Columbia Nurses Association, Amer-
ican Nurses Association (Union), or any other labor organi-
zation.
WE WILL NOT confiscate union literature from employee
mailboxes.
WE WILL NOT promulgate and selectively and disparately
enforce any rule concerning employee mailboxes by prohib-
iting distribution of union-related materials while permitting
distribution of nonunion-related materials, in order to dis-
courage our employees from supporting the Union or any
other labor organization and engaging in concerted activities
for their mutual aid or protection.
WE WILL NOT promulgate and selectively and disparately
enforce any rule regarding wearing of union pins in patient-
care areas by telling our employees to remove union buttons,
while permitting others of our employees to wear nonunion-
related buttons, in order to discourage our employees from
supporting the Union or any other labor organization.
WE WILL NOT promulgate and selectively and disparately
enforce any rule prohibiting our off-duty employees from re-
turning to our property by telling some of our employees to
leave the grounds and disciplining them for violating the
rule, while permitting others of our employees to return to
our property, in order to discourage our employees from sup-
porting the Union or any other labor organization and engag-
ing in concerted activities for their mutual aid or protection.
WE WILL NOT engage in surveillance of our employees’
union activities.
WE WILL NOT selectively and disparately enforce any rule
concerning solicitation and distribution by prohibiting union-
related solicitations and distributions while permitting non-
union-related solicitations and distributions, in order to dis-
courage our employees from supporting the Union or any
other labor organization and engaging in concerted activities
for their mutual aid or protection.
WE WILL NOT discharge our employees because they join,
support, or assist the Union or any other labor organization
or because they engage in other protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL rescind our rule prohibiting distribution of lit-
erature in employee mailboxes.
WE WILL rescind our rule concerning access of our off-
duty employees to our property.
WE WILL rescind our disciplinary warnings, including fact-
finding memos or oral reminders, issued to employees Carol
Awad, Lynn Baker, Janet Courtemanche, Brenda Craft, Jan
Hylton, Catherine Meister, Elaine Muller, Tina Price, and
Joan Whalen, because they wore buttons in support of the
Union.
WE WILL rescind our April 17, 1989 revised personal ap-
pearance policy to the extent that it prohibits our employees
from wearing insignia on their uniforms in support of the
Union or any other labor organization.
WE WILL rescind the disciplinary warnings issued to em-
ployees Dorothy Vasilchek, Elaine Muller, and Kathleen
Eisenhauer because they leafletted on behalf of the Union.
WE WILL offer Kathryn (Kitty) Richardson immediate and
full reinstatement to her former position or, if that position
no longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
previously enjoyed, and make her whole for any loss of earn-
ings and other benefits suffered as a result of the discrimina-
tion against her, with interest.
317FAIRFAX HOSPITAL
WE WILL remove from their files any reference to the un-
lawful warnings issued to Elaine Muller, Carol Awad, Lynn
Baker, Janet Courtemanche, Brenda Craft, Jan Hylton, Cath-
erine Meister, Tina Price, Joan Whalen, Dorothy Vasilchek,
and Kathleen Eisenhauer, and the discharge of Kathryn
(Kitty) Richardson and notify them in writing that this has
been done and that the warnings and discharge, respectively,
will not be used against them in any way.
FAIRFAX HOSPITAL, A DIVISION OF INOVA
HEALTH SYSTEMS AND FAIRFAX HEALTH SYS-
TEM, INC.