Hillhaven Highland House

National Labor Relations Board - Board Decisions

Sep 30, 2001

336 N.L.R.B. 646 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
First Healthcare Corporation d/b/a Healthcare Cor-
poration in the State of California d/b/a Hill-
haven Highland House and Hospital and Service
Employees Union, Local 399, affiliated with Ser-
vice Employees International Union and Service
Employees International Union, Local 22, affili-
ated with Service Employees International Un-
ion

First Healthcare Corporation d/b/a Healthcare Cor-
poration in the State of California d/b/a Hill-
haven Highland House and Hospital and Service
Employees Union, Local 399, affiliated with Ser-
vice Employees International Union

First Healthcare Corporation d/b/a Hillhaven Bakers-
field and Hospital and Service Employees Union,
Local 399, affiliated with Service Employees In-
ternational Union and Service Employees Inter-
national Union, Local 22, affiliated with Service
Employees International Union. Cases 31–CA–
20973, 31–CA–21091, and 31–CA–21551
September 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On July 21, 1998, Administrative Law Judge Steven
M. Charno issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party filed cross-exceptions, the General Coun-
sel filed exceptions, the Charging Party and the General
Counsel each filed an answering brief to the Respon-
dent’s exceptions, the Respondent filed answering briefs
to the Charging Party’s and General Counsel’s excep-
tions, and the Respondent filed reply briefs to the Gen-
eral Counsel’s and the Charging Party’s answering
briefs. The American Health Care Association filed an
amicus brief in support of the Respondent.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. 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.
I. PROCEDURAL ISSUE
The Respondent asserts that the parties were bound by
a stipulation entered into by the parties on December 4,
1995, which was submitted to the Board on December
11, 1995, with a motion to transfer the proceedings in
Cases 31–CA–20973 and 31–CA–21091.3 The Board
rejected the stipulation and remanded the proceedings on
February 13, 1996. The Respondent contends that the
parties had stipulated that the litigation of issues, other
than the question of the right of access of employees who
were not employed at the facility where they sought to
engage in union activity, would be waived. The Respon-
dent also contends that the remand of the proceeding for
hearing was solely for determining the purpose of the
employees for coming onto the property of the Respon-
dent’s facilities where they did not work. Thus, the Re-
spondent argues that the judge improperly addressed
allegations (and found violations) which were not part of
the stipulation, thereby depriving the Respondent of its
due process rights. We reject the Respondent’s argu-
ment.
First, the parties stated in the motion to transfer pro-
ceedings that the record would consist of, inter alia,
specified charges and amended charges, the amended
consolidated complaint dated August 22, 1995, the Re-
spondent’s answer dated August 22, 1995, and the stipu-
lation. The stipulation stated that the “central issue” is,
in essence, the question of the right of employees to en-
gage in Section 7 activities at the Respondent’s facilities
where they did not work. The parties did not eliminate
or waive litigation of other issues.
Next, in rejecting the stipulation, the Board stated that
it was remanding the proceeding:
[A]s the briefs raise issues of fact and law which can
best be resolved on the basis of a hearing before an
administrative law judge. More particularly, the
stipulation does not set forth whether the solicitation
and distribution activities were organizational in
character or were for some other purpose.
Thus, the Board rejected the stipulation and remanded
the proceeding for a hearing to resolve the issues in-
volved in this proceeding. Although noting a particular
deficiency in the parties’ stipulation, the Board did not
limit the scope of the hearing.4
3 The original charge in Case 31–CA–20973 was filed on January 3,
1995, the original charge in Case 31–CA–21091 was filed on April 6,
1995, and the consolidated complaint for these two cases issued on May
30, 1995, and an amended complaint issued on August 9, 1995.
4 We note that the allegations related to Case 31–CA–21551 were not
included in a complaint until the second consolidated complaint issued on
February 5, 1998—after the Board rejected the stipulation and remanded
the proceeding for hearing. (The charge in Case 31–CA–21551 was filed
336 NLRB No. 62
HILLHAVEN HIGHLAND HOUSE 647
We find that the General Counsel did not abandon or
waive the litigation of any issues raised by the charges
and complaints.
II. THE RULE AGAINST SOLICITATION AND/
OR DISTRIBUTION
The judge found that the Respondent violated Section
8(a)(1) by maintaining and enforcing its rule against so-
licitation and/or distribution by nonemployees5 in a man-
ner to preclude its off-duty employees, who were engag-
ing in union solicitation and/or distribution, from having
access to its parking lots and other outside nonwork area
at facilities of the Respondent’s other than the facilities
at which the employees worked.
On September 17, 1994, three nonemployee union or-
ganizers and Alfredo Chavez, an employee at Respon-
dent’s Alta Vista facility, went to the Respondent’s
Highland House facility. Chavez handed out flyers and
talked with the employees in the parking lot outside the
employees’ entrance. The flyers pointed out the asserted
benefits for union members. Chavez was later joined by
union organizer Correa. The facility’s administrator,
Carol Bowman-Jones, then approached them. Both
Correa and a Highland employee identified Chavez as a
Hillhaven employee. Nevertheless, Bowman-Jones or-
dered Chavez to leave the property.
On July 12, 1995, Jenny Davenport, also an employee
at Respondent’s Alta Vista facility, and union organizers
Gary Guthman and Carla Zombro met at the Respon-
dent’s Bakersfield facility. Davenport took some union
literature, which discussed how to get involved in “fight-
ing” for the Union, and went to an outdoor break area on

on September 22, 1995.) In a motion to the judge, dated June 4, 1998, to
dismiss certain paragraphs of that complaint, the Respondent argued, inter
alia, that the Respondent and the “Region” had agreed that the charge
relating to the Bakersfield facility (Case 31–CA–21551) would be held
“in abeyance as the outcome would be dictated by the disposition of the
[other cases].” The only evidence that the Respondent submitted in sup-
port of this supposed agreement was the stipulation and a letter its attor-
ney sent to the counsel for the General Counsel dated November 3, 1997.
The stipulation does not refer to any agreement regarding Case 31–CA–
21551. Further, in its letter to the counsel for the General Counsel, the
Respondent objected to the consolidation of Case 31–CA–21551 with the
other cases, noting that, “[a]ll parties agreed that a decision of the issue as
framed by the parties [emphasis in the original] in Case Nos. 31–CA–
20973 and 31–CA–21091, would govern Case No. 31–CA–21551.”
Thus, it is clear from Respondent’s own assertions that, at most, any
agreement was to hold Case 31–CA–21551 in abeyance until the Board
made a determination on the issue as framed by the parties. As the stipu-
lation was rejected and the proceeding remanded for hearing, it was ap-
propriate to include the allegations in Case 31–CA–21551 in the second
consolidated complaint.
5 The Respondent’s rule, in pertinent part, stated; “Non-employees are
not allowed to solicit or distribute material while on facility property.”
Although the rule reads in terms of nonemployees, the Respondent has
interpreted and applied the rule to off-duty employees employed at its
other facilities.
the Respondent’s Bakersfield premises. Davenport be-
gan talking with a Bakersfield employee about the as-
serted benefits of the Union. Supervisor Favereaux ap-
proached Davenport and told her that she was required to
leave the property.
In finding that the Respondent violated Section 8(a)(1)
by engaging in the above conduct, the judge relied on
Tri-County Medical Center, 222 NLRB 1089 (1976). In
that case, the Board held that, except where justified by
business reasons, an employer rule that denies off-duty
employees entry to outside nonworking areas of the em-
ployer’s facility will be found invalid. The judge also
noted that in Postal Service, 318 NLRB 466 (1995), the
Board extended the Tri-County rule to protect off-duty
employees engaging in Section 7 activity in outside
nonworking areas of their employer’s facilities other than
where they worked.6 The judge rejected the Respon-
dent’s argument that Postal Service and Southern Cali-
fornia Gas should be limited to their facts (i.e., the em-
ployees, in both cases, were members of a bargaining
unit which included the facility where they worked as
well as the facility where they were engaging in the Sec.
7 activities). The judge found that the Board, in these
two cases, did not rely on the fact that a multifacility unit
was involved. The judge therefore concluded that the
Respondent’s maintenance and enforcement of the rule to
exclude its off-duty employees from another facility
from its property were unlawful. Finally, the judge, cit-
ing Ohio Masonic Home, 290 NLRB 1011 (1988), enfd.
892 F.2d 449 (6th Cir. 1989), rejected the Respondent’s
contention that it established a business justification for
its rule.
The Respondent excepts, asserting that its employees
who are not employed at the particular facility, whom the
Respondent refers to as “stranger employees,” do not
have the same access rights to that facility as off-duty
employees from that facility, even for organizational
purposes, unless there is (1) a “strong community of in-
terest” between employees of that facility and the one
where the “stranger employees” work or, (2) a Board
determination supporting a multifacility unit. Otherwise,
the Respondent contends, employees from another facil-
ity are more akin to nonemployee union organizers than
they are to off-duty employees from the facility to which
they seek access. Accordingly, the Respondent submits
that the holding in Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), that nonemployee organizational trespassing may
generally be prohibited, is controlling here.
6 The judge also noted that in Southern California Gas, 321 NLRB 551
(1996), the Board, citing Postal Service, supra, reached the same result.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
While this case was pending before the Board, the
United States Court of Appeals for the District of Co-
lumbia Circuit vacated and remanded the Board’s deci-
sion in a case presenting the same issue. ITT Industries,
v. NLRB, 251 F.3d 995 (D.C. Cir. 2001), vacating and
remanding 331 NLRB 4 (2000). There, the Board had
followed its prior decisions in Southern California Gas
Co., 321 NLRB 551 (1996), and Postal Service, 318
NLRB 466 (1995), applying the rule of Tri-County
Medical Center, supra, to prevent an employer from de-
nying access to visiting, offsite employees. Although the
court’s mandate in ITT Industries has not issued, and the
Board has not yet requested or received additional brief-
ing from the parties there, we are guided today by the
court’s decision.7
For the reasons that follow, we conclude that: (1) un-
der Section 7 of the Act, offsite employees (in contrast to
nonemployee union organizers) have a nonderivative
access right, for organizational purposes, to their em-
ployer’s facilities; (2) that an employer may well have
heightened private property-right concerns when offsite
(as opposed to onsite) employees seek access to its prop-
erty to exercise their Section 7 rights; but (3) that, on
balance, the Section 7 organizational rights of offsite
employees entitle them to access to the outside, non-
working areas of the employer’s property, except where
justified by business reasons, which may involve consid-
erations not applicable to access by off-duty, onsite em-
ployees. To this extent, the test for determining the right
to access for offsite visiting employees differs, at least in
practical effect, from the Tri-County test for off-duty,
onsite employees.
1. Section 7 rights of offsite employees
We agree with the observation of the ITT Industries
court, that the Supreme Court’s decisions “certainly do
not stand for the proposition that all trespassers, whether
they be non-employee union organizers or offsite em-
ployees, possess only derivative [Section] 7 access
rights.” 251 F.3d at 1002. We conclude that offsite em-
ployees do possess freestanding, nonderivative access
rights, even if such employees may be regarded as tres-
passers. In this respect, offsite employees are fundamen-
tally different from non-employee union organizers, al-

7 On remand in ITT Industries, of course, the Board may wish to re-
fine or supplement the analysis offered here, in response to the arguments
made by the parties in that case.
Our dissenting colleague asserts that the court’s decision in ITT Indus-
tries supports his position that the employees in this case are not legally
entitled to access to their employer’s property. The court in ITT Indus-
tries, however, did not decide whether the employees in that case were
entitled to access to their employer’s property; instead, it remanded the
issue to the Board for further explanation of its holding. ITT Industries
therefore does not support our dissenting colleague’s position.
though the situation of offsite employees is not identical
to that of onsite employee invitees. Compare, Lechmere,
Inc. v. NLRB, supra (addressing access rights of non-
employee union organizers) with Republic Aviation v.
NLRB, 324 U.S. 793 (1945) (protected activity by onsite
employees), and Eastex, Inc. v. NLRB, 437 U.S. 556
(1978) (same).
Offsite employees are not only “employees” within the
broad scope of Section 2(3) of the Act, they are “em-
ployees” in the narrow sense: “employees of a particular
employer” (in the Act’s words), that is, employees of the
employer who would exclude them from its property.
Clearly, then, these workers are different in important
respects from persons who themselves have no employ-
ment relationship with the particular employer. Here, the
Section 7 rights implicated involve not just the shared
interests of statutory employees as members of the work-
ing class, or as employees working in the same sector,
industry, or community, but as employees working for
the same employer. Nothing in either the Act or the Su-
preme Court’s decisions establishes that the Section 7
rights of the employees of a particular employer, as
against that employer, are somehow derivative of other
employees’ rights, when they are exercised at a location
other than the customary site of employment.
When an offsite employee seeks to encourage the or-
ganization of similarly situated employees at another
employer facility, the employee seeks to further his own
welfare. In attempting to organize the unorganized, em-
ployees seek strength in numbers to increase the power
of their union and ultimately to improve their own work-
ing conditions. See Food & Commercial Workers Locals
957, 7, & 1036 (Meijer, Inc.), 329 NLRB 730, 734
(1999) (“[T]here is abundant evidence that, in collective
bargaining, unions are able to obtain higher wages for the
employees they represent . . . when the employees of
employers in the same competitive market are union-
ized”).8
Section 7 clearly and directly protects such activity.
The Supreme Court has recognized that the scope of Sec-
tion 7 extends even to concerted activity where employ-
ees “seek to improve terms and conditions of employ-
ment or otherwise improve their lot as employees
through channels outside the immediate employee-
employer relationship.” Eastex, Inc., supra, 437 U.S. at
565 (emphasis added). Where offsite employees seek to
organize fellow employees, they act within the immedi-
8 The United States Court of Appeals for the Ninth Circuit initially re-
versed the Board’s decision in Meijer, Inc., supra, in part 249 F.3d 1115,
rehearing en banc granted 265 F.3d 1079 (9th Cir. 2001). But the court’s
action did not implicate the uncontroversial proposition that organizing
one group of employees can benefit another.
HILLHAVEN HIGHLAND HOUSE 649
ate employee-employer relationship. The core concerns
of Section 7, which protects the “right to self-
organization,” undeniably are implicated.
The offsite employee’s personal stake in organizing his
counterparts at a different employer facility is clearest
where he is, or will be, part of a multifacility bargaining
unit that includes onsite employees. But a similar self-
interest arises even where the unorganized employees
may be in a different bargaining unit.9 Precisely because
they work for the same employer, even at different
workplaces, employees will often have common interests
and concerns related to wages, benefits, and other work-
place issues that may be addressed by concerted action.
These shared interests, as we have suggested, are not
limited to circumstances in which employees have the
same employer (as opposed to, for example, an employer
in the same industry or same market), but they are cer-
tainly enhanced in that case. Thus, employees may rea-
sonably believe—indeed, they presumably did believe in
this case—that organizing employees at a different facil-
ity, even in a different potential bargaining unit, could
bolster their efforts to improve their own working condi-
tions. It seems correspondingly clear that the unorgan-
ized status of fellow employees at one facility can un-
dermine the gains or potential gains won by the union
elsewhere.
It is true, as the ITT court observed, that the “interests
of employees located on a single employer site do not
always coincide with the collective interests of employ-
ees located on several different sites.” 251 F.3d at 1005.
The fact remains that employees often will share signifi-
cant interests, even if their interests are not identical. In
a particular case, the fact that offsite employees are seek-
ing to organize their fellow employees suggests that they
believe there is a basis to make common cause. There is
some merit in taking into account employees’ judgments
of their own interests.
For all of these reasons, we conclude that the Section 7
rights of offsite employees are nonderivative and sub-
stantial.
2. Employer’s private property concerns
The ITT Industries court observed that offsite employ-
ees—in contrast to onsite employees (at least those who
are on-duty)—may be regarded as trespassers by the em-
ployer. The court held that this fact must be considered
in weighing the access rights of offsite employees.

9 Because employers and unions may agree to merge organized facili-
ties into multifacility bargaining, employees at a newly organized facility
could become part of an existing bargaining unit that includes previously
organized facilities.
Broadly viewed, of course, any employee engaged in
activity to which the employer objects on its property,
might be deemed a trespasser, not an invitee: the em-
ployer arguably is free to define the terms of its invita-
tion to employees. There is an inherent tension, then,
between an employer’s property rights and the Section 7
rights of its employees. See Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 802 fn. 8 (1945) (“Inconvenience
or even some dislocation of property rights, may be nec-
essary in order to safeguard the right to collective bar-
gaining”). The “task of the Board,” as the Supreme
Court has made clear, “is to resolve conflicts between
[Section] 7 rights and private property rights, and to seek
a proper accommodation between the two.” Hudgens v.
NLRB, 424 U.S. 507, 521 (1976). A proper accommoda-
tion “may largely depend upon the content and the con-
text of the [Section] 7 rights being asserted.” Id. With
respect to the access rights of off-duty, onsite employees,
the Board’s accommodation (the Tri-County rule) has
been widely accepted by the courts. See ITT Industries,
supra, 251 F.3d at 999.
We recognize that the situation of offsite employees
implicates some distinct considerations. On one view,
such employees are (as the Respondent here describes
them) “strangers” to the employer, in contrast to off-
duty, onsite employees. (As we have observed, however,
even onsite employees arguably are trespassers on the
employer’s property if they seek access while off duty, a
time when they have not been invited onto the property.)
Of critical importance, on the other hand, is the fact that
an employment relationship exists between them and the
employer, which distinguishes offsite employees from
the ordinary trespasser, who truly is a stranger. The exis-
tence of an employment relationship, in turn, means that
the employer has a lawful means of exercising control
over the offsite employee (even regarded as trespasser),
independent of its property rights. Surely it is easier for
an employer to regulate the conduct of an employee—as
a legal and a practical matter—than it is for an employer
to control a complete stranger’s infringement on its prop-
erty interests. The employer, after all, controls the em-
ployee’s livelihood.
This is not to say, however, that in protecting its inter-
ests and preserving its property rights, an employer deal-
ing with offsite employees faces precisely the same situa-
tion as it would when confronted by the access claims of
onsite employees. The employee status of offsite em-
ployees, for example, may be more difficult to deter-
mine, at least initially. There may be other, unique prob-
lems involved, as well, as the ITT Industries court ob-
served. 251 F.3d at 1005 (“employer’s right to control
the disputed premises likely implicates security, traffic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
control, personnel, and like issues that do not arise when
only onsite employee access is involved”).
We believe, however, that in this context, an em-
ployer’s property interests, as well as its related man-
agement interests, may be given due recognition without
granting it the unqualified right to exclude offsite em-
ployees pursuing organizational activity. That result,
which would effectively foreclose the exercise of Section
7 rights, is inconsistent with the Supreme Court’s admo-
nition that the “[a]ccommodation between employees’
[Section] 7 rights and employers’ property rights . . .
‘must be obtained with as little destruction of one as is
consistent with the maintenance of the other.’” Hudgens,
supra, 424 U.S. at 521, quoting NLRB v. Babcock & Wil-
cox, 351 U.S. 105, 112 (1956).
3. Balancing Section 7 rights and property concerns
On balance, rather, the Section 7 organizational rights
of offsite employees entitle them to access to the outside,
nonworking areas of the employer’s property, except
where justified by business reasons. In weighing those
reasons, we will take into account an employer’s “pre-
dictably heightened property concerns” (in the words of
the ITT Industries court) when offsite, as opposed to on-
site, employees are involved.
In some cases, an influx of offsite employees might
raise security problems, traffic control problems, or other
difficulties that might well justify an employer’s restric-
tion (or even prohibition) of such access. Appropriate
measures might also be justified, for example, to require
apparent trespassers to identify themselves and thus to
determine whether the person seeking access is, in fact,
an offsite employee of the employer.
We caution, however, that an employer must demon-
strate why its security needs or related business justifica-
tions warrant restrictions on access by offsite visiting
employees. We will review an employer’s proffered
justification carefully, on a case-by-case basis.
III. APPLICATION OF THE ANALYSIS TO THIS
CASE
We now apply the above considerations to this case.
Here, employees Chavez and Davenport sought access,
respectively, to the Respondent’s Highland facility and
its Bakersfield facility—facilities other than the facility
at which they worked. As offsite employee visitors, they
sought to promote their Union, and the benefits it of-
fered, to onsite employees at Highland and Bakersfield.
We conclude that employees Chavez and Davenport
were exercising their Section 7 rights to organize, to
strengthen their own Union and ultimately to better their
own working conditions. Accordingly, these employees
had a freestanding, nonderivative right of access under
the Act.
In entering onto the Respondent’s parking lot or out-
side break area, they entered against the wishes and the
rule of the Respondent and thus, to that extent, trespassed
on its property. However, as this case involved two in-
stances where a single visiting employee entered an out-
side area of a Respondent facility, we find that the inter-
ference with the Respondent’s property interests was not
substantial.
Critically, we examine the Respondent’s business jus-
tifications for its prohibition. The Respondent primarily
contends that it must prohibit access to offsite organizing
employees in order to provide for the “welfare, peace and
tranquility” of its nursing home residents. However, the
offsite employees here did not enter the nursing homes
where they would be most likely to come into direct con-
tact with patients. Moreover, as the judge noted, the Re-
spondent’s witness, Dr. Stone, a geriatric specialist, ad-
mitted that a new face on premises might as likely stimu-
late as disturb one of the residents. Further, the Respon-
dent failed to show how a visiting employee organizer
might disturb residents any more than a visiting deliv-
eryman or a visitor coming to see a resident.
The Respondent also submits that, given its many fa-
cilities and employees, it would be extremely difficult
and burdensome to keep track of all its employees.
However, we are not persuaded that the Respondent has
established this defense. Here, again, a single offsite
employee sought access at a Respondent facility. In de-
nying access, the Respondent did not contend that it was
unable to determine whether the offsite visitor (i.e.,
Chavez or Davenport) was in fact one of its own em-
ployees.
Finally, the Respondent contends that its no access rule
was justified because of the Union’s “dignity campaign.”
According to the Respondent, the judge prevented it
from introducing evidence to establish that the Union and
its supporters had previously engaged in violent and dis-
ruptive actions. The Respondent of course would be
privileged to deal with and seek to prevent any such ac-
tions occurring on its property. However, its rule was
not tailored to address violent and disruptive acts. Rather,
the Respondent would prohibit all access by offsite visit-
ing employees. Indeed, employees Chavez and Daven-
port acted appropriately and with decorum in attempting
to engage in organizational activity. Thus, we agree with
the judge that the Respondent could not establish its
business justification defense by reference to alleged
union activity occurring at other places and at other
times.
HILLHAVEN HIGHLAND HOUSE 651
We therefore conclude that the Respondent violated
Section 8(a)(1) by maintaining a provision of its solicita-
tion and distribution policy which it enforced to prohibit
the employees of one of Respondent’s facilities from
gaining access to the nonworking outside areas at any
other facility for the purpose of union organizing and
enforcing that provision.10
THE REMEDY
To remedy the violations found, the judge recom-
mended that the Respondent be required to post cease-
and-desist notices at the three facilities directly involved
in this proceeding. The General Counsel and the Charg-
ing Party except and seek a broader posting. The Gen-
eral Counsel urges that the Respondent be required to
post a notice at all its facilities in California. The Charg-
ing Party seeks a nationwide posting.
We shall order that the Respondent post the notice at
all its nonunion facilities in California. On the record
before us, we are satisfied that the Respondent main-
tained an unlawful rule, as described in footnotes 5 and
10 of this decision, at these facilities. Accordingly, it is
appropriate to require posting at all these facilities. See
Raley’s, 311 NLRB 1244 fn. 2 (1993).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Vencor
and Nursing Centers West, LLC d/b/a, inter alia, High-
land Nursing & Rehabilitation Center and Californian
Care Center, formerly First Healthcare Corporation d/b/a
Delaware First Healthcare Corporation and in the State
of California (Hillhaven) d/b/a, inter alia, Hillhaven
Highland House and California Care Center, its officers,
agents, successors, and assigns, and shall take the action
set forth in the Order as modified.
Substitute the following as paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
all of its nonunion facilities in the State of California
copies of the attached notice marked ‘Appendix C.’4

10 As noted, above, we rejected the Respondent’s contention that this
case was limited to the issue regarding the off-duty employees seeking
access at a facility other than where they worked. The judge also found
that the Respondent, at least until July 12, 1995, maintained a rule for its
nonunion service staff in California, which stated that “When you are off
duty, don’t return to the facility unless you are picking up your paychecks
or are making an authorized visit.” The judge found that the provision
unlawfully prohibited off-duty employees from returning to the nonwork
areas of their own facility unless “authorized” and therefore violated Sec.
8(a)(1). The Respondent contends that there was no violation because
there was no evidence that any employee was barred from returning to the
outside portion of the nursing center where they worked. We reject the
Respondent’s argument and agree with the General Counsel and the judge
that the maintenance of the rule violated Sec. 8(a)(1).
Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by Respon-
dent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facilities, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since July 3,
1994.”

CHAIRMAN HURTGEN, dissenting.
I do not agree that the Respondent’s employees at one
facility have a Section 7 right to come onto the property
of another facility of the Respondent, for the purpose of
organizing the employees of the latter facility.1 I do not
quarrel with the proposition that the Respondent’s em-
ployees are “employees” within the meaning of the Act.
Nor do I dispute the notion that their effort to organize
employees at a different site is protected by Section 7.
The issue is one of balancing this Section 7 right and
employer property rights. For the reasons expressed be-
low, I find that the balance in this case favors the prop-
erty right.
The case falls between two landmark Supreme Court
cases. In Republic Aviation Corp. v. NLRB,2 employees
at an employer’s facility sought to organize their fellow-
employees at that same facility. The Court held that, in
general, those employees had a right to do so, provided
that the solicitation was confined to nonworktime and
distribution was confined to nonworktime and nonwork
areas.
In NLRB v. Babcock & Wilcox3 and in Lechmere, Inc.
v. NLRB,4 union organizers (nonemployees of the em-
ployer) sought to come onto the employer’s property in
order to organize the employees there. The Court held
that, in general, there was no such right of access.
The instant case involves persons who are employees
of the Employer, but who are not employed at the facility
1 I agree with my colleagues’ findings to the extent that they find that
the Respondent, at least until July 12, 1995, maintained a rule that unlaw-
fully limited the right of off-duty employees to enter the nonwork area of
the facility where they worked to engage in organizational activity. How-
ever, in this regard I would limit the Respondent’s obligation to post a
notice to three facilities, as recommended by the judge.
2 324 U.S. 793 (1945).
3 351 U.S. 105 (1956).
4 502 U.S. 527 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
where they seek access. Thus, the case is controlled by
neither Republic Aviation nor Lechmere.
More relevant is Hudgens v. NLRB.5 In that case, fac-
tory employees of Butler Shoe were on strike. In con-
nection with that strike, they sought to picket at a Butler
Shoe retail store which was located in a shopping mall.
The Supreme Court noted, as discussed above, that the
case was controlled by neither Republic Aviation nor
Babcock. As to the former, the Court noted that Republic
involved organizational activity “by employees already
rightfully on the employer’s property.”6 As to Babcock,
that case involved organizational activity by non-
employees of the employer. By contrast, Hudgens in-
volved strike/picketing activity by employees of the em-
ployer, albeit at a different location. In addition, the
Court noted that the property involved in Hudgens was
that of a third party (the shopping mall owner).
In light of these differences, the Court remanded for an
accommodation between the Section 7 rights involved
and the property rights involved. On remand, the Board
balanced the rights and found the violation.
The instant case differs from Hudgens. In Hudgens,
the employees at the shoe store were directly pursuing
their own Section 7 right to strike and to bring economic
pressure to bear on their employer. Obviously, an impor-
tant part of that pressure was to persuade potential cus-
tomers to withhold their patronage from Butler during
the strike. Equally obviously, that pressure could be ex-
erted by picketing at the Butler retail store.
By contrast the employees here are not directly pursu-
ing their own interests. They are already organized.
They wish to go elsewhere to assist other employees in
their organizational efforts. To be sure, the successful
organization of the latter employees may redound to the
benefit of the already organized employees. But, clearly,
the interest is not the direct one possessed by the strik-
ing/picketing Butler employees.
In sum, although the employees here have a Section 7
right to assist employees elsewhere in their organiza-
tional drive, it does not follow from Hudgens that they
have a Section 7 right to come onto the property of the
Respondent at a facility where they do not work.
My position is clearly supported by the D.C. Circuit’s
opinion in ITT Industries v. NLRB, 251 F.3d 995 (2001).
In that case, the court held that the Board had not shown
that offsite off-duty employees have a right to come onto
the property of their employer, even where the employees
at the two facilities were in the same bargaining unit.
Notwithstanding that all employees were in the same

5 424 U.S. 507 (1976).
6 See Hudgens, supra at fn. 10.
unit, the court noted that the two sets of employees might
well have different interests. In my view, it follows a
fortiori that employees in different bargaining units do
not have common interests. The fact that they are in
separate units means that it has not been shown that they
share a “community of interest.”7
The court in ITT noted that the offsite employees are
trespassers at the site where they do not work. That is,
they are not business invitees. That is also true in the
instant case.
My colleagues say that the Respondent has not shown
that the intrusion of the offsite employees has created a
security or health-care problem. Assuming that this is
so, it does not aid the General Counsel’s case. The issue
here is Section 7 rights versus property rights. In our
system of jurisprudence, property rights themselves have
value. Where, as here, those rights are not outweighed
by Section 7 rights, those property rights must prevail.
Tri-County Medical Center8 is wide of the mark. That
case involves off-duty employees who seek access to the
facility at which they work. Postal Service,9 while closer
to the mark, is also distinguishable. In that case, the em-
ployees at all postal facilities were in the same unit and
were represented by the same union. They therefore had
a common interest in the election of officers in that un-
ion. The interest was common, direct, and immediate.
Similarly, in Southern California Gas,10 the employees
were in one common unit and they shared a common
interest in opposing the settlement of a lawsuit that af-
fected all of them.
My colleagues also rely on Eastex, Inc. v. NLRB, 437
U.S. 556 (1996). That case is also wide of the mark.
That case held that employees could engage in Section 7
activity at the site where they worked, even though their
Section 7 activity involved concerns that were broader
than the immediate employer-employee relationship. By
contrast, the instant case involves employees who seek to
engage in Section 7 activity at a site other than the one at
which they work.
Similarly, Food & Commercial Workers Locals 951, 7,
& 1036 (Meijer, Inc.), 329 NLRB 730 (1999), is not on
point. That case did not involve employee access to
property at which they did not work. Thus, there was no
necessity for balancing Section 7 rights and property
rights.
7 My colleagues say that the two units could be merged into one.
However, there is no indication that this will occur or that it is even con-
templated.
8 222 NLRB 1089 (1976).
9 318 NLRB 466 (1995).
10 321 NLRB 551 (1996).
HILLHAVEN HIGHLAND HOUSE 653
In my view, an employer can ordinarily post its prop-
erty against intrusion by outsiders, i.e., those who do not
work at the facility in question. Hudgens and Postal
Service are exceptions to this rule. The exceptions are
grounded in the direct and immediate interest of the em-
ployees who sought access in those cases. Those excep-
tions are not applicable here.
Thus, I find no violation in the Respondent’s denial of
access to the employees involved here.

Mori Pam Rubin, Esq., for the General Counsel.
John V. Nordland, Esq. and Joseph P. Ryan, Esq. (Nordland &
Miller, P.C.), of Larkspur, California, and Kenneth M. Hur-
ley, Esq., of Westminster, California, for the Respondent.
Andrew Strom, Esq., of Los Angeles, California, for the Charg-
ing Party.
DECISION AND CERTIFICATION
STEVEN M. CHARNO, Administrative Law Judge. This
case was tried before me in Los Angeles, California, on June 8–
11, 1998. After oral argument, I issued a bench decision pursu-
ant to Section 102.35(a)(10) of the Board’s Rules and Regula-
tions. Appendix A is the portion of the transcript containing
my decision,1 while Appendix B contains corrections to that
transcript. [App. B omitted from publication; errors in the tran-
script have been noted and corrected.] In accordance with Sec-
tion 102.45 of the Board’s Rules and Regulations, I certify the
accuracy of the amended transcript containing my decision.
Based on the findings of fact and conclusions of law contained
therein and on the entire record in this case,2 I issue the follow-
ing recommended3
ORDER
The Respondent, Vencor Nursing Centers West, LLC d/b/a,
inter alia, Highland Nursing & Rehabilitation Center and Cali-
fornian Care Center, formerly First Healthcare Cooperation
d/b/a Delaware First Healthcare Corporation in the State of
California (Hillhaven) d/b/a, inter alia, Hillhaven Highland
House and Californian Care Center, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing a rule that prohibits its off-duty
employees from returning to its facilities except to pick up
paychecks or make a visit authorized by it.
(b) Enforcing its rule against solicitation or distribution by
nonemployees on facility property in a manner so as to pre-
clude its off-duty employees, who are engaging in union solici-
tation and/or distribution, from having access to its parking lots
and other outside nonwork areas at facilities of Respondent
other than the facilities to which they are assigned to work.

1 Due to an error by the Board’s reporting contractor, I first received a
copy of these transcript pages on July 1, 1998.
2 I have also considered the post-hearing submissions relating to rem-
edy made by counsel for the General Counsel and Respondent.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
(c) Denying its off-duty employees, who are engaging in un-
ion solicitation and/or distribution, access to parking lots and
other outside nonwork areas on the premises of facilities other
than the ones to which the off-duty employees are assigned to
work.
(d) Promulgating, maintaining,or enforcing a rule prohibiting
its employees from distributing literature not approved by it in
nonwork areas during nonwork times.
(e) Informing its employees that they may not distribute lit-
erature in nonwork areas during nonwork times.
(f) In any like or related manner interfering with, restrain-
ing,or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) To the extent it has not already done so, rescind the rule
contained in its employee handbook which states that employ-
ees who are off duty may not “return to the facility unless
[they] are picking up [their] paycheck or making an authorized
visit” and notify its employees, in writing, that it has done so.
(b) Post at its Alta Vista, Highland House, and Californian
Care Center facilities copies of the attached notice marked “Ap-
pendix C.”4 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by Re-
spondent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices are not
altered, defaced or covered by any other material.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the second amended com-
plaint is dismissed insofar as it alleges violations of the Act not
specifically found.

APPENDIX A
661
The other provision of solicitation and distribution provision
is the one which says that off-duty employees may not essen-
tially return to the premises, et cetera, and specified reasons
which don’t include exercising their Section 7 rights.
MS. RUBIN: Okay. The first part as applied would be
unlawful. It is not unlawful on its face; it’s as applied, applying
it to off-duty employees from other facilities.
The other portion of the rule is illegal on its face and as ap-
plied; but it’s facially invalid, on the third part is facially inva-
lid. The reference to non-employees is only invalid insofar as
it’s invoked against employees from other facilities.
4 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “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.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
JUDGE CHARNO: Thank you. Why don’t you give me an
hour and a half and I’ll see what I can do in that length of time
and I’ll check back with you at—I guess it would be 4 o’clock.
MR. NORDLUND: Your Honor, could we give you a little
more time, 3:30, and that will give us the time to get some cop-
ies and checked out of the hotel and—
JUDGE CHARNO: Certainly. 3:30’s fine.

(Off the record.)

JUDGE CHARNO: In response to timely charges being
filed, a second consolidated Complaint was issued on February
5, 1998, which, after Charging Party’s withdrawal of certain
allegations, alleged that Vencor Nursing Centers West, LLC,
d/b/a inter alia, Highland Nursing and Rehabilitation Center
and Californian Care Center,
662
formerly, First Healthcare Corporation, d/b/a, Delaware First
Healthcare Corporation in the State of California (Hillhaven),
d/b/a inter alia Hillhaven Highland House and Californian Care
Center, hereinafter Respondent, had violated Section 8(a)(1) of
the National Labor Relations Act as amended, hereinafter the
Act, by interfering with and restraining its employees in the
exercise of their rights under the Act.
Respondent’s answer denied the commission of any unfair
labor practice. A hearing was held before me in Los Angeles,
California on June 8 through 11, 1998. At the conclusion of the
evidentiary presentations I heard oral argument.
Based on that argument, and on the briefs and pleadings
submitted prior to the hearing, which are incorporated in the
record as Administrative Law Judge’s Exhibits 1 through 15,
and on the record as a whole I make the following findings.
Respondent is a corporation engaged in the operation of
nursing homes at various locations in California, including
skilled nursing facilities in Highland and Bakersfield.
Respondent in the conduct of its business purchases and re-
ceives at its Highland and Bakersfield facilities goods or ser-
vices valued in excess of $5,000.00 from, one, outside the state
and, two, from enterprises in California which receive such
goods from points outside the state.
Respondent derives gross revenues in excess of $100,000.00
from the operation of its California facilities. Respondent is
663
admitted to be, and I find is, an employer engaged in commerce
within the meaning of the Act.
It is admitted and I find that Hospital and Service Employees
Union Local 399 affiliated with the Service Employees Interna-
tional Union is a labor organization within the meaning of the
Act. It is uncontested, and I find that Service Employees Inter-
national Union Local 22 affiliated with Service Employees
International Union was a labor organization within the mean-
ing of the Act throughout 1994 and 1995.
Beginning no later than January, 1990, Respondent’s succes-
sive employee handbooks for its non-union service staff in
California have included a solicitation and distribution rule
with two provisions relevant to this proceeding.
The first states “When you are off duty, don’t return to the
facility unless you are picking up your paycheck or are making
an authorized visit.” The term “authorized visit,” was defined
in Respondent’s February 13, 1995 letter to counsel for General
Counsel as a return to the facility for “a work/job-related rea-
son.”
The period during which this provision was enforced is in
dispute. While Respondent has placed in evidence an em-
ployee handbook purportedly effective in January, 1995, which
does not contain the provision, that handbook unlike its prede-
cessors is not explicitly applicable to non-union service staff.
664
In addition, Respondent’s June 1, 1995 memo to the heads of
all its non-union California facilities provides “Employees are
not to return to their own facilities for reasons “other than
those contained in the handbook.”
I infer from this instruction that the handbook in effect for
non-union facilities was one other than the handbook which
appears in the record of this proceeding. This inference is sup-
ported by the evidence of Maria Favereaux, a stipulated super-
visor, who testified that, as of July 12, 1995, employees at the
Bakersfield facility were not allowed on Respondent’s premises
if they were not scheduled to work.
Parenthetically, I should note that testimony after that of Ms.
Favereaux by Respondent’s labor and employment counsel to
the effect that Favereaux was mistaken, even if credited, does
not negate Favereaux’s maintenance of the rule in July of 1995.
Respondent’s labor and employment counsel did not address
the June 1, 1995 memo in his testimony. For the foregoing
reasons I find that Respondent’s rule prohibiting off-duty em-
ployees from returning to Respondent’s facilities was in effect
through at least July 12th, 1995.
The second provision of Respondent’s solicitation and distri-
bution policy of significance here states, quote, “Non-
employees are not allowed to solicit or distribute material while
on facility property,” period, close quote.
665
It is uncontested that this provision, one, was in effect and
enforced by Respondent until at least the commencement of the
hearing of this case; and, two, prohibited the employees at one
of Respondent’s facilities from gaining access to the non-
working outside areas at any other facility for the purpose of
solicitation and distribution, including solicitation and distribu-
tion relating to union organizing.
On September 17th, 1994 three non-employee union organ-
izers and Alfredo Chavez, an employee at Respondent’s Alta
Vista facility assembled at Respondent’s Highland facility, just
prior to the 3 p.m. shift change. Chavez was asked by union
organizer Blanca Correa to hand out flyers and to talk with the
Highland employees in the parking lot outside the employees’
entrance at the back of the facility.
The flyers Chavez was given pointed out the benefits accru-
ing to union members, solicited the recipients to join the union
and contained a postage prepaid card which could be returned
for additional “information about joining the Service Employ-
ees International Union.”
Chavez spoke with approximately four employees before he
was joined shortly after 3 p.m. by Correa. Chavez spoke with
HILLHAVEN HIGHLAND HOUSE 655
four additional Highland employees before he and Correa were
approached by Carol Bowmen-Jones, the head of the Highland
facility.
It is undisputed that, one, Bowmen-Jones
666
saw Chavez distributing the same literature she had identified
when driving onto the property as union literature; two, Correa
identified Chavez as a Hillhaven employee, a fact which was
confirmed for Bowmen-Jones moments later by a Highland
employee; and, three, Bowmen-Jones ordered Chavez to leave
Respondent’s property.
Parenthetically, it should be noted that Respondent’s abso-
lute right to order non-employee union organizers to leave its
property is not in dispute in this proceeding.
At approximately 2 p.m. on January 26th, 1995 a group of
nonemployee union organizers and individuals employed by
Respondent at other facilities assembled at the Highland facility
in order to hand out union literature which, one, disputed Re-
spondent’s prior claim that the union made promises it “could
not keep,” and, two, invited the Highland employees to join the
union.
It is uncontroverted that approximately 45 minutes later Jack
Quiroz, the admitted maintenance supervisor at Highland, was
observed shutting the facility’s back gate which required the
gate thereafter to be manually opened to allow cars to enter or
exit the facility through that gate. The main entrance and exit
to the facility were at the front of the building.
Approximately 2 p.m. on July 12, 1995, Jenny Davenport, an
employee at Respondent’s Alta Vista facility, and union organ-
izers Gary Guthman and Carla Zombro met at Respondent’s
667
Bakersfield facility in order to speak with employees about
joining the union and to distribute literature soliciting inquiries
on “how to get involved in fighting for union rights for your
facility.”
Upon arriving, Davenport took some of the union literature
and went to an outdoor break area next to the parking lot on
Respondent’s premises. Once there, she began talking with a
Bakersfield employee about the benefits of unionization.
It appears uncontested that shortly thereafter Supervisor
Favereaux emerged from the building and approached Daven-
port. The latter’s credible testimony that she was wearing an
employee ID card provided by Respondent during this encoun-
ter was supported by Favereaux’s recollection that Davenport
was wearing an ID card which appeared to have Respondent’s
logo on it.
While the recollection of both witnesses was demonstrably
dimmed by the passage of time, it appears uncontested that
Davenport asserted a legal right as one of Respondent’s em-
ployees to be on the grounds of Respondent’s facility and
Favereaux reentered the building to call Respondent’s lawyer.
On balance, I find Favereaux’s testimony concerning the events
of July 12 to be more reliable than the conflicting, internally
inconsistent accounts of Davenport, Guthman and Zombro.
Favereaux thereafter reemerged from the building in the
company of Tim Haub, the admitted environmental services
manager and a stipulated supervisor at the Bakersfield facility.
It appears uncontested that Favereaux told Davenport that the
latter was required to leave the property thereby preventing
Davenport from speaking further with her fellow employees or
668
distributing union organizing literature.
As Haub and Favereaux escorted Davenport from the prop-
erty they were approached by Guthman, who had advanced
onto Respondent’s property. During the ensuing interchange
Haub stated that employees could not distribute materials on
Respondent’s property, quote, “unless they had the approval of
management.” Guthman’s testimony concerning Haub’s state-
ment is effectively unrebutted.
Given the foregoing findings and based on the record in its
entirety, I find that the solicitation and distribution engaged in
by Respondent’s employees on September 17, 1994; January
26th, 1995; and July 12, 1995 had an organizational objective.
Respondent argues that the Charging Party had an agenda
going far beyond merely organizing employees at the Highland
and Bakersfield facilities. I find it difficult to conceive of a
situation in which the organization of employees by their fellow
employees would not have an effect on many other goals held
by a labor organization.
Respondent has not identified any authority indicating that
the existence of such goals on the part of the union should nul-
lify the Act’s protection of an employee’s right to organize his
or her fellows.
General Counsel contends that the provision which prevents
off-duty employees from returning to Respondent’s facility is
so
669
impermissively broad as to be invalid on its face.
Tri-County Medical Center, 222 NLRB 1089, invalidates
any rule denying off-duty employees entry to outside, non-
working areas on an employer’s property except where justified
by business reasons.
I agree that the language of this provision is sufficiently am-
biguous to run afoul of the rule in Tri-County Medical Center.
Because there is no probative evidence in the record which
would indicate the existence of a business justification for this
provision, I find it to be an unfair labor practice violative of
Section 8(a)(1) of the Act.
General Counsel and Charging Party argue that Respon-
dent’s interpretation of the rule which bars non-employee so-
licitation and distribution so as to include solicitation and dis-
tribution by off-duty employees of Respondent who are en-
gaged in organizational activities at one of Respondent’s facili-
ties other than the one at which they’re employed is unlawful.
More specifically, General Counsel and Charging Party ar-
gue that United States Postal Service, 318 N.L.R.B. 466, and
Southern California Gas, 321 N.L.R.B. 551, extend the Tri-
County rule to protect any off-duty employee seeking access to
the outside non-working areas of one of his employer’s facili-
ties other than the facility at which the employee works.
Respondent argues that the United States Postal Service and
Southern California Gas should be limited to the precise
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
670
facts of the two cases, that is, situations where employees at the
various facilities are part of the single, multi-facility bargaining
unit or share a “community of interest,” as that term is used in
making unit determinations.
The Board’s decision in United States Postal Service explic-
itly adopts certain elements of the Administrative Law Judge’s
decision, but makes no mention of the facts which Respondent
relies upon to distinguish that decision from the instant case.
Similarly, the Board’s decision in Southern California Gas is
summary in nature, does not mention the facts relied upon by
Respondent, but explicitly relies “particularly,” on the decision
in the United States Postal Service.
I therefore find that the factual distinctions between United
States Postal Service and Southern California Gas, on the one
hand, and the case before me, on the other hand, have not been
shown to be decisionally significant.
Accordingly, I conclude that Respondent is not justified in
treating an employees as a “non-employees” at ant of its facili-
ties other than the one at which the employee works. I, there-
fore, conclude that Respondent’s interpretation of the second
provision of its solicitation and distribution policy is also inva-
lid unless justified by business reasons.
Respondent argues that barring off-duty employees from
671
access to the outside non-working areas of its properties is re-
quired to prevent nursing home residents from potentially
harmful and disruptive effects.
None of the witnesses who testified concerning the rule had
a part in its formulation. Accordingly, there is no evidentiary
basis for a finding concerning the reason for which the rule was
initially promulgated. The head of Respondent’s Bakersfield
facility testified that the relevant portions of Respondent’s so-
licitation and distribution rule were required for “security rea-
sons,” in that Respondent is responsible for the well-being of its
residents.
Dr. Stone, Respondent’s expert on geriatrics, candidly admit-
ted that seeing a new face on Respondent’s premises could
have either a beneficial effect or a disruptive effect on the nurs-
ing home residents.
Even if one assumes that a ban on the presence of non-
employees might be justifiable, the record contains no convinc-
ing basis for distinguishing between the non-disruptive behav-
ior of off-duty employees who work at a facility and the non-
disruptive presence of off-duty employees from another facility
whom Respondent classifies as non-employees.
Indeed, it would seem a fair inference that all of Respon-
dent’s nursing home employees regardless of their place of
employment should understand the standard of behavior re-
quired
672
of them in the presence of Respondent’s residents. This would
seem especially likely in view of the uncontested evidence in
the record that the population of any given nursing home is
remarkably similar overall to the population of other nursing
homes.
There is no evidence that any resident of one of Respon-
dent’s nursing homes has ever been aware of, let alone com-
plained about or suffered any type of discomfort as a result of,
the activities of off-duty employees engaged in organizational
activities in the outside non-work areas of Respondent’s facili-
ties.
Under the foregoing circumstances, I conclude that Respon-
dent has not demonstrated a business justification for its rule,
see Ohio Masonic Home, 290 N.L.R.B. 1011 (1988), in paren-
thesis. I therefore conclude that the rule as interpreted by Re-
spondent to bar off-duty employees from engaging in organiza-
tional solicitation and distribution at its facilities other than the
one at which they work is unlawful.
Accordingly, Respondent’s enforcement of this rule and the
exclusion of its employees from its property on September
17th, 1994 and July 12, 1995 are violations of Section 8(a)(1)
of the Act, as is the distribution rule promulgated by Haub on
July 12, 1995. Respondent’s actions on January 26th, 1995
were not shown to have interfered with the exercise of its em-
ployees’ Section 7 rights. An appropriate order will issue.
Are there any other matters to take up before I close the
673
record?
MR. STROM: Yes, Your Honor.
JUDGE CHARNO: Yes.
MR. STROM: With respect to the scope of the remedy—
JUDGE CHARNO: Yes.
MR. STROM:—the Charging Party would request that the
remedy go state-wide. And the basis for that is that Respondent
put in evidence that the policy was a policy which applied state-
wide. And under a Big Buy Foods, 315 N.L.R.B. 1083, the
Board made the following finding, “We find that company-
wide posting requirement appropriate in light of the Judge’s
finding that the Respondent unlawfully denied access at the six
stores pursuant to company-wide solicitation guidelines which
discriminatorily exclude unions,” period.
MR. NORDLUND: Your Honor, if I might—
JUDGE CHARNO: Before you do, does General Council
have a position on that?
MS. RUBIN: I do. Initially the Charging Party made this
request at the inception of the litigation. During the time of the
investigation, the Region took the position at that time we
would not—it was General Council’s position that we would
not be seeking that because at that point we didn’t have evi-
dence that the rule was in effect at more than the facilities in
question.
Now, in light of the record as it now stands and the fact
674
that it’s now been established that the rule was in effect
throughout the State of California or multiple facilities, we
would now join in that request.
JUDGE CHARNO: Your Honor, there is no evidence in the
record that the rule was publicized or enforced at any facilities
other than Highland and Bakersfield on the dates in question.
HILLHAVEN HIGHLAND HOUSE 657
JUDGE CHARNO: What do I do with that June 1st memo-
randum, June 1st, 1995 memorandum to all of the administra-
tors in California at non-union facilities?
MR. NORDLUND: But that was not published to employ-
ees. The notice is for the purposes of informing employees of
their Section 7 rights. It’s not to inform the administrators.
MR. STROM: Your Honor, I believe that Respondent is
stopped from making this argument. Respondent argued previ-
ously and presented evidence claiming that the handbooks were
distributed to all employees, whether or not you found that.
JUDGE CHARNO: I don’t believe that’s the case. I think
he’s bent over backwards to avoid making a representation of
that fact.
MR. NORDLUND: Yes, Your Honor. And we did say that
the rule was in effect, which I believe to be true. But the fact of
the matter is, there’s no evidence that it was known to employ-
ees anywhere and the only places that it was enforced is High-
land and Bakersfield. And it would seem to be rather an ex-
treme remedy when—you know, it was like somebody writing
a rule and putting in a desk and nobody ever saw it. It was only
enforced at two locations. And only enforced as to non-
stranger employees, if you will, use my shorthand, and 3 years
ago.
JUDGE CHARNO: I think I really would have preferred
that as part of the oral argument on the case.
MR. NORDLUND: If I might, Your Honor, I think that we
were not on notice at this request. I had conversations with
General Council and the only place they were seeking an order
was at Bakersfield and Highland, and I don’t think she will
deny that we had that conversation.
MS. RUBIN: That’s true. I’m just responding to a request
by Charging Party for a position.
MR. NORDLUND: Well, I think on the facts of this case
where nobody’s been disciplined, nobody’s been injured, two
people, there’s only evidence of two individuals in the State of
California that were asked to leave the premises, that a posting
at those locations should be adequate 3 years ago.
JUDGE CHARNO: Well, I would hate for this to be the
first decision that I ever issued that wasn’t appealed by every-
one. I’m going to deny your requests and the remedy incorpo-
rated in my order will go only to the two facilities.
MR. STROM: Your Honor, not even to the facility, the Alta
Vista facility? That seems—
JUDGE CHARNO: Oh, I’m sorry, Claremont.
MR. STROM: They don’t own Claremont.
JUDGE CHARNO: I would be interested in your position
on that. Initially it seems to me that, yes, it would be appropri-
ate since one of the employees whose rights were infringed,
i.e., the right to organize their fellows. Both of the employees
involved were Alta Vista, is that correct?
MS. RUBIN: Yes, Your Honor.
JUDGE CHARNO: So, it would be those three facilities.
MR. NORDLUND: Well, Your Honor, we would object to
that. Again, my conversations with General Council, they’re
only seeking Bakersfield and Highland. And this is a change of
position at a very—I was not even—this was not even raised
before the decision was issued.
JUDGE CHARNO: True.
MR. NORDLUND: And I think it’s a little late in the day
and I was not—another surprise, big surprise.
MR. STROM: Counsel for the Charging Party’s within its
rights. If we had briefed this, we would have requested it in a
brief. I mean, it’s not—so, in that sense, there’s no ---
MR. NORDLUND: Your Honor, it could have been re-
quested in a brief, but it would have only been requested by
Charging Party because General Council had informed me that
she was not going to request it.
JUDGE CHARNO: Well, the devil by the demon of logical
consistency, I’m going to go for three, but certainly not state-
wide. Any other matters to take up before I close the record?

(No response.)

JUDGE CHARNO: The hearing in this matter is closed.
Thank you very much for your cooperation and patience over
the last week.

(Whereupon, the hearing in the above-mentioned matter was
closed.)

APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the 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 con-
certed activities.

WE WILL NOT do anything that interferes with, restrains,
or coerces you with respect to these rights.
More specifically,
WE WILL NOT maintain or enforce any rule which provides
that our off-duty employees may not return to the facility at
which they work except to pick up a paycheck or make an au-
thorized visit.
WE WILL NOT deny our off-duty employees, who are en-
gaging in solicitation and/or distribution on behalf of the Hospi-
tal and Service Employees Union, Local 399, affiliated with
Service Employees International Union, the Service Employees
International Union, Local 22, affiliated with Service Employ-
ees International Union, or any other union, access to parking
lots and other outside nonwork areas on the premises of facili-
ties other than the ones to which those employees are assigned
to work.
WE WILL NOT enforce our rule against solicitation or dis-
tribution by nonemployees on facility property in a manner so
as to preclude our off-duty employees, who are engaging in
solicitation and/or distribution on behalf of the Hospital and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
Service Employees Union, Local 399, affiliated with Service
Employees International Union, The Service Employees Inter-
national Union, Local 22, affiliated with Service Employees
International Union, or any other union, from having access to
the parking lots and other nonwork areas at facilities other than
the facilities to which those employees are assigned to work.
WE WILL NOT promulgate, maintain, or enforce a rule that
prohibits you from distributing literature which we have not
approved in nonwork areas during nonworktimes.
WE WILL NOT inform you that you may not distribute lit-
erature in nonwork areas during nonworktimes.
WE WILL, to the extent we have not already done so, re-
scind the rule contained in our employee handbook which states
that our employees who are off duty may not “return to the
facility unless [they] are picking up [their] paycheck or making
an authorized visit” and we will notify you, in writing, that we
have done so.
WE WILL permit our off-duty employees, whether or not
they are assigned to any particular facility, access to our park-
ing lots and other outside nonwork areas for the purpose of
engaging in solicitation and/or distribution on behalf of the
Hospital and Service Employees Union, Local 399, affiliated
with Service Employees International Union, the Service Em-
ployees International Union, Local 22, affiliated with Service
Employees International Union, or any other union.

VENCOR NURSING CENTERS WEST, LLC
D/B/A, INTER ALIA, HIGHLAND NURSING &
REHABILITATION CENTER, CALIFORNIAN
CARE CENTER AND ALTA VISTA HEALTH
CARE