Lenox Hill Hospital

National Labor Relations Board - Board Decisions

Sep 9, 1976

225 N.L.R.B. 1237 (N.L.R.B. 1976)

LENOX HILL HOSPITAL 1237
Lenox Hill Hospital and Allied International Union of
Security Guards and Special Police . Cases 2-CA-
13861 and 2-CA-13867
September 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 19, 1976, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision and a request to correct the recommended
notice.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Lenox Hill Hospital,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
i The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
2
We hereby grant General Counsel's request to conform the notice to the
Order Accordingly, we shall substitute our own notice for the one recom-
mended by the Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence and arguments, it has
been found that we violated the National Labor Re-
lations Act and we have been ordered to post this
notice. We intend to abide by the following:
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prohibits our em-
ployees from soliciting on behalf of any labor
organization on hospital premises, in other than
immediate patient care areas, during employees'
nonworking time, or from distributing literature
on behalf of any labor organization in nonwork
areas of our hospital during their nonworking
time.
WE WILL NOT impose any greater restrictions
on solicitation or distribution on behalf of a la-
bor organization by employees in the Security
Department than we impose on all other em-
ployees.
WE WILL expunge from our records any ex-
isting written warnings, reprimands, or reports
concerning the suspension of Carmine Romeo
and concerning alleged violations of any no-so-
licitation or no-distribution rule by Romeo or
any other employee.
WE WILL NOT discharge or refuse to reinstate,
or otherwise discriminate against, Joseph Kral
or any other employees in-regard to their hire or
tenure of employment in order to discourage
membership in or activities on behalf of Allied
International Union of Security Guards and
Special Police, or any other labor organization.
WE WILL NOT refuse to employ or to reinstate
any employees because charges may have been
filed by them or on their behalf with the Nation-
al Labor Relations Board.
WE WILL offer Joseph Kral immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges.
WE WILL make Joseph Kral and Carmine Ro-
meo whole for any loss of pay they may have
suffered as a result of the discrimination against
them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act, except to the extent that such
rights may be affected by an agreement requir-
ing membership in a labor organization as a
condition of employment, as authorized in Sec-
tion 8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of
1959.
LENOX HILL HOSPITAL
225 NLRB No. 181
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to charges filed by Allied International Union of Se-
curity Guards and Special Police (the Union) on August 18
and 27, 1975,1 a consolidated complaint was issued on Oc-
tober 8 against Lenox Hill Hospital (Respondent), alleging
that Respondent violated Section 8(a)(1) of the Act 2 by
maintaining unlawful no-solicitation and no-distribution
rules, and violated Section 8(a)(3) and (1) by discriminato-
rily suspending employee Carmine Romeo on August 17
and by discharging employee Joseph Kral on August 25
At the hearing, under circumstances set forth below, the
complaint was amended by the addition of an allegation
that Respondent violated Section 8(a)(4) and (1) by refus-
ing to reinstate Kral because a charge had been filed on his
behalf with the Board
Pursuant to due notice, a hearing was held before me in
New York City on December 11, 12, and 18. All parties
were represented by counsel and were afforded full oppor-
tunity to present oral and written evidence and to examine
and cross-examine witnesses. The parties waived oral argu-
ment. Briefs were later filed by the General Counsel and
Respondent.3
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a New York corporation, with its office
and place of business in New York City, is engaged in
providing patient care, treatment, and related services
During the past year, a representative period, Respondent
derived revenues in excess of $1 million During the same
period, Respondent, in the course and conduct of its busi-
ness , purchased and caused to be transported and deliv-
ered to its hospital goods and materials valued in excess of
$50,000 directly from outside the State of New York. Re-
spondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
B. The Union is, and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.
11. THE UNFAIR LABOR PRACTICES
This case arises out of a campaign on behalf of the
Union to organize the security guards employed by Re-
spondent Although the complaint alleges that the cam-
1 Except where otherwise stated, all dates herein are in 1975
2 National Labor Relations Act, as amended (29 U S C Sec 151, et seq )
3 Thereafter, on March 29, 1976, Respondent filed a motion to reopen the
record For reasons set forth below, that motion is denied
paign began "[o]n or about July 15," the evidence estab-
lishes that employee Carmine Romeo initiated preliminary
discussions of unionization among the guards around the
end of April or early in May. However, there was no evi-
dence of any active solicitation of union authorization
cards until around the middle or end of July. Romeo, the
leader of the union movement, signed his card on July 25.
The issues presented concern (1) Respondent's promul-
gation and/or maintenance of no-solicitation and no-dis-
tribution rules and the suspension of employee Romeo for
violation of the no-distribution rules, and (2) the allegedly
discriminatory discharge of and refusal to reinstate em-
ployee Joseph Kral
A. The No-Solicitation and No-Distribution Rules and the
Suspension of Employee Romeo
1 The facts
CHARITY APPEALS
There is only one general fund-raising activity
which the Hospital actively sponsors-The Greater
New York Fund-which helps over 425 charitable or-
ganizations in New York City, including our Hospital.
The Hospital also solicits contributions from
department heads and supervisors for the United Hos-
pital Fund annual campaign which helps support vol-
untary hospitals like ours
In January 1974 a further "revised" handbook was is-
sued. Like the earlier revision, the 1974 edition was gener-
ally distributed only to newly hired employees, although
William E. Hoffmann, Respondent's director of employee
relations, testified that " a number of them were distribut-
ed to various departments as well ,4 The 1974 revision did
not state that it superseded or otherwise affected the 1970
version
Near the beginning of the 1974 personnel manual the
following information appears:
Some of our employees, mainly those involved in serv-
ices and maintenance, are covered by a collective bar-
The motion of Respondent's counsel to strike the quoted testimony was
denied
In October 1970 Respondent issued a revised employee
handbook, a copy of which was given to each new employ-
ee, either upon or within a very short time after the com-
mencement of his employment. In that handbook appeared
the following:
RULES OF CONDUCT
Common sense, good judgment and acceptable per-
sonal behavior on the part of all employees are re-
quired for the well-being of all who work in the Hospi-
tal or who are treated here The following infractions
are considered injurious to Hospital discipline and will
result in disciplinary action or dismissal:
22. Unauthorized solicitation or distribution of litera-
ture on Hospital premises at any time.
The 1970 handbook also stated that:
LENOX HILL HOSPITAL 1239
gaining agreement with Local 1199, Hospital and
Health Care Employees Union.. . . If you are hired
for a job category covered by the Union Agreement,
you will be advised by the Personnel Department.
There is also the following provision:
VENDING AND SOLICITING
You are forbidden to solicit or conduct raffles,
pools, collections or to sell tickets or merchandise in
the Hospital without approval of Administration
The 1974 personnel manual also contains a section on
"Charity Appeals" similar to that in the 1970 revision, with
the addition of the following paragraph.
Employees also have the opportunity to contribute
by making a pledge to the Hospital's Building Fund
Campaign.
Like the 1970 revision, the 1974 edition has a section head-
ed "USING YOUR COMMON SENSE," in which rules are listed, un-
der the caveat that "An inability to comply with these rules
could result in dismissal." Among the "rules" enumerated
is: "Unauthorized distribution of literature on Hospital
premises."
On August 13 Romeo was summoned to a meeting with
Robert Liddell, who was then security and safety director,
and David LaBoy, assistant security director The major
part of the meeting, which consumed between 45 minutes
and I hour, concerned a discussion of each of several crit-
ical reports that Romeo had made concerning fellow em-
ployees. Then Liddell spoke about distribution of union
literature.
Liddell, called as a witness by the General Counsel and
examined under Rule 611(c) of the Federal Rules of Evi-
dence, testified:
We explained to Mr Romeo that . . if he wished to
hand out material off duty outside of the hospital lim-
its, that this was permissible, but it was not to be
passed out within the hospital.
He was not to pass it on to anybody who was on,
while they were working.
In his direct examination by counsel for the General
Counsel, Liddell said nothing about permissible activity
during breaks. At the beginning of Respondent's counsel's
examination, Liddell testified as follows.
Q. Did you mention in that conversation what ac-
tivity Mr. Romeo could or could not engage in during
breaks?
A. Yes
Q What did you say on that subject9
A. That so long as Mr Romeo was not on duty and
was off the premises, he may participate in union ac-
tivity, passing out material
Q. Did you use the word "breaks" in your conver-
sation with Mr. Romeo?
A Not that I remember, sir
Thereupon, without objection , Respondent ' s counsel
produced a document which Liddell identified as a memo-
randum concerning the meeting addressed by Liddell and
LaBoy to William H. Wilson, Respondent's assistant vice
president, on August 14. After Liddell's "recollection [was]
refreshed" by the memorandum, he testified that he told
Romeo that
. .. while he was on a coffee break and if the other
men were on their coffee break and they wanted to
discuss a thing like that, that would certainly be all
right so long as it did not interfere with his duties in
any way.
Also, if the other person wanted to listen, right?
On ensuing leading questions by Respondent's counsel,
Liddell said that he had used only the word "breaks,"
which "would consist of coffee breaks, rest breaks, meal
breaks. [It] means that the man is off duty at that particular
time, but on the premises." So far as here relevant, the
menorandum to Wilson reads:
Mr. Romeo was told that in compliance with the Na-
tional Labor Act on Union organizing, he must follow
the correct rules or action will be taken against him.
A. He is not to pass on to any member of the Secur-
ity Department any Union literature for the purpose
of organizing said department-
* * *
4. At anytime while on hospital premises.
5. He is not to interfere with the duties of any Security
Officer, in order to talk to him of Union Activity.
However, he may do so if both are on breaks at the
same time and the other person wants to listen.
* * *
7. When he is off duty, he may stand in front of the
hospital if he wishes, and hand material to officers
coming or going off duty but must not enter the
premises to do so or interfere with these persons in
any way, to do so. .
8 He is not permitted to leave notices, cards, pam-
phlets in the office, locker room or other locations
where personnel may pick it up.
Romeo's testimony in this regard was.
Mr Liddell then said he understands I'm a union man
and has no objection to that for he was a union organ-
izer himself once before, but if I'm going to give out
union literature, he has no objection to me standing
on 77th Street and Lexington Avenue at three-thirty
p.m , giving it to every Tom, Dick and Harry.
On cross-examination, Respondent's counsel did not ques-
tion Romeo, as he had questioned Liddell, as to whether
Liddell had made any reference to "breaks." LaBoy, a su-
pervisor and the only other person present during the con-
versation, was not called to testify
About 3 40 p.m on August 16 Romeo arrived at the
hospital where he was to begin working at 4 p.m. Security
Guard Mary Fallon, in uniform, was standing in front of
the door chatting with security Guard Charles Wasilewski.
As was his custom, Romeo obtained from Fallon a key to
the refrigerator where he stores the lunch he brings to
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work . About 5 minutes later Romeo came out of the build-
ing to the place where Fallon and Wasilewski were still
chatting. Romeo gave Fallon the refrigerator key and three
pieces of union literature in an envelope . So far as appears,
this consumed just a few seconds and no words were ex-
changed . Fallon was then approaching the end of her shift,
during which she had served as the security guard in the
reception room of Black Hall , which abuts 77th Street, the
rear of the hospital . The door at which Fallon was standing
is 13 feet 2 inches back from the building line and the
distance from the sidewalk to the door is covered , in part at
least , by a permanent set concrete canopy or similar pro-
tection . Respondent established that it owns the land as far
as the building line. But members of the public are free to
use the area , as they frequently do for such purposes as
seeking shelter from the elements or conversing outside the
stream of pedestrian traffic on the sidewalk.
Romeo testified , without contradiction, that the Black
Hall assignment is a "stationary," as distinguished from a
patrol , post . The guard assigned to that post is generally
expected to sit at a desk so located that the occupant can
see all the way down a corridor in the hospital . The guard
on duty in Black Hall is not expected to move from the
stationary position unless a special situation arises requir-
ing it . Mary Fallon testified that she "had gone to the door
for some reason . . . . Something had happened that
caused [her] to go to the door." She never said what had
happened or even that the "something " related to the per-
formance of her duties. She conceded that at the time of
the Romeo incident she was simply "shooting the breeze"
with Wasilewski.
At the end of the shift , at 4 p.m ., Fallon prepared and
sent to Assistant Vice President Wilson a memorandum
reading, in part'
Also from my dealing with Unions in my other posi-
tion , I know for a fact, that this should not be done
while an employee is on working time or within a
work location.
I think that this was handled entirely improperly,
and as an employee of Lenox Hill Hospital , for the
past 8 years as of October 1975, I feel this department
has no need for a union.
The next day Liddell informed Romeo that he was being
suspended and gave him an "Employee Warning Notice."
The form identified Romeo's "violation " as: "HAVING BEEN
PREVIOUSLY WARNED , VIOLATED RULE #22 , PAGE 23 ' EMPLOYEE PER-
SONNEL MANUAL ' SECTION TITLED ' RULES OF CONDUCT' WHICH
STATES 'UNAUTHORIZED SOLICITATION OR DISTRIBUTION OF LITERA-
TURE ON HOSPITAL PREMISES AT ANY TIME "' (The manual cited is
the 1970 revision .) In the ensuing text , the warning notice
states that it had previously been "clearly explained to [Ro-
meo] that [he was] within [his] rights to distribute that ma-
terial in front of the hospital to those members of the Se-
curity Department who are not on duty" but he "saw fit to
ignore that directive" and passed to Fallon , while she "was
on duty, an envelope that contained a recruitment card,
and several other items relative to union activity." When
shown to Romeo on August 17, the warning notice did not
recite that he had been suspended but he was so informed
by Liddell Romeo understood that he was being suspend-
ed indefinitely , whereas Liddell testified that he told Ro-
meo to telephone the next day. Romeo refused to sign the
form On August 19 he received a copy of the notice in the
mail That copy indicated that this was a "First Warning,"
with a " 1-day suspension." 5
Romeo returned to work on August 20 . Respondent
thereafter tendered a check for lost pay , but Romeo re-
fused the tender . On September 7 Supervisor Lakhram B.
Singh forwarded to Wilson a detailed memorandum by Se-
curity Officer John J. Sharkey reporting that while on pa-
trol on September 6 he had been approached by Romeo to
sign a union authorization card , which was attached to the
memorandum . Singh's covering memo to Wilson read:
SUBJECT: Re. Security Officer engaged with Union ac-
tivity while on duty on The premises on Sat Sept 6th
1975.
Relative to the above subject matter, I have to sub-
mit for your information, and guidance report submit-
ted by Security Office SHARKEY OF A conversation and
subsequent hand out of a Union card by Security Offi-
cer ROMEO , who is covertly engaged with the organising
[sic] of a UNION to infiltrate the Security & Safety
Dept.
Your's loyally,
/s/ Lakhram B Singh
Lakhram B. SINGH
Supervisor.
So far as appears there was no direct followup on this mat-
ter
On September 29 a memorandum by Hoffmann was
posted on the bulletin board in the hospital's security of-
fice. There is no dispute that, while the memorandum is
addressed to "ALL EMPLOYEES ," it was actually posted only in
the security office and applicable only to employees of the
security department . It reads'
RE NEW NO-SOLICITATION AND NO-DISTRIBUTION RULES
In order to prevent any interruption in the operations
of the Hospital , any interference with patient care, or
any inconvenience to our patients and their visitors,
the following rules governing solicitation or distribu-
tion of literature for outside organizations will now
apply'
1 - Employees may not solicit other employees for any
outside organization during either their working
time or the other employees ' working time.
2 - Employee may not distribute literature to other
employees for any outside organization either (a)
during their working time or the other employees'
working time , (b) at any time in their working areas
or the other employees ' working areas, or (c) at any
time in areas where patients are cared for or visitors
are present.
5 In this connection, it is significant that the printed form contains blanks
to indicate whether the warning is a first, second , third, or final warning It
then has a block to be marked indicating " Final Warning with Suspension
of - Days on " In the copy sent to Romeo only the box for
"First Warning" was checked , with the added notation " I-day suspension
8/ 17/75 "
LENOX HILL HOSPITAL 1241
3 - Off-duty employees (except when on Hospital
premises in connection with their jobs), and persons
not employees, may not engage in any solicitation
or distribution activities on Hospital premises at
any time.
Your cooperation in observing these rules is essential
and will be appreciated. Any violation of these rules
may result in disciplinary action including discharge.
Please note that these rules supersede both Rule 22 of
the Rules of Conduct in the Personnel Policy and Pro-
cedure Manual as well as the no-distribution rule on
page 37 of the Employee Handbook, but that in the
event of a conflict between these rules and a provision
of a collective bargaining agreement covering particu-
lar Hospital employees, the latter shall apply.
Respondent's collective-bargaining agreement with Local
1199 of the Hospital and Health Care Employees provides
in part:
No Employee shall engage in any Union activity,
including the distribution of literature, which could
interfere with the performance of work during his/her
working time or in working areas of the Hospital at
any time . . . .
The evidence establishes that Respondent still permits
solicitation on behalf of The Greater New York Fund and
the United Hospital Fund, as well as the hospital's own
annual building fund campaign.
There are apparently several employee locker rooms in
the hospital There is a cafeteria open to employees at all
times and to hospital visitors except in peak hours. Addi-
tionally, there is a vending machine room, with tables and
chairs, available to employees and visitors. Employees do
most of their off-duty lounging in the cafeteria. There also
are open areas for the use and convenience of hospital
visitors and patients.
2. Discussion and conclusions
The rules
It is beyond question that the 1970 rule prohibiting all
"unauthorized solicitation or distribution of literature on
Hospital premises at any time" is at least presumptively
invalid, and Respondent adduced no evidence of any spe-
cial circumstances warranting such restrictions. Groendyke
Transport, Inc., 211 NLRB 921 (1974), enfd. 530 F.2d 137
(C.A.D.C., 1976).
In its brief Respondent says that in 1974 Rule 22 of the
1970 handbook "was revised from `unauthorized solicita-
tion or distribution of literature on Hospital premises at
any time' . . . to `unauthorized distribution of literature on
Hospital premises."' Apparently Respondent contends
that because Rule 22 was "superseded" it cannot now be
found violative of the Act. However, as stated above, in
August 1975 Romeo was disciplined for violating both
Rule 22 of the 1970 manual and the 1974 rule.6 As the
6 In view of Respondent's invocation of the 1970 Rule 22 it ill behooves
its counsel to argue, as he does in his brief, that "Attacking Rule 22 as
General Counsel points out, the 1974 manual, unlike the
1970 edition, does not expressly purport to supersede any
prior documents. Respondent's conduct "hardly reflect[s] a
good faith and unambiguous publication by Respondent to
its employees that Rule [22] was revised to comport with
their protected rights under the Act." FMC Corporation,
211 NLRB 770, 775 (1974). I conclude, therefore, that Rule
22 of the 1970 manual was maintained during the period
here involved.'
The 1974 rules forbade employees to "solicit in the Hos-
pital without approval of Administration" or to distribute
anywhere on Respondent's premises. In so providing, the
1974 prohibitions are as invalid as Rule 22 Groendyke
Transport, Inc, supra, 211 NLRB at 922.
In its brief Respondent apparently contends that the
rules were not violative because "[t]here is no record evi-
dence . . . that any guard called by the General Counsel
knew of the rule." If it were true that the employees gener-
ally were unaware of the rules, Respondent's conduct
would appear all the more reprehensible in that it would
have been lying in wait with a concealed weapon to be
used against the unwary, as it was used against Romeo.
Although Respondent apparently never made any effort to
call to the employees' attention the terms of the rules, the
record establishes that at least some of the supervisors and
employees were aware of restrictions on solicitation and
distribution on behalf of the Union. Security guards Fallon
and Sharkey believed that brief and casual incidents of
union solicitation and distribution by Romeo were suffi-
ciently important to warrant detailed written reports.' Su-
pervisor Singh deemed the Sharkey report of such impor-
tance as to warrant it being forwarded to an assistant vice
president, bypassing Liddell, Singh's immediate superior in
charge of security. Significantly, the sole emphasis in the
two reports and in Singh's transmittal memorandum is on
union solicitation and distribution, with no suggestion that
Romeo's offense lay in his having violated any general rule
or interfered with Respondent's operations.
The rules orally stated by Liddell to Romeo on August
13 are at least as vulnerable as the printed rules heretofore
discussed. In answer to nonleading questions, Liddell testi-
fied that he had said that "so long as Mr. Romeo was not
on duty and was off the premises, he may participate in union
activity, passing out material." (Emphasis supplied.) Ro-
meo could hardly have avoided the inference that if he was
either on duty or on hospital premises he could not distrib-
ute union literature This inference was strengthened by
Liddell's indication that Romeo was free, on his own time,
to distribute on the public sidewalks. By clear implication,
Liddell precluded distribution outside of the main door to
the hospital, since Respondent owns the land to the side-
walk and considers that land as part of its "premises " As
stated above, Respondent conceded that the public was
free to use that property. Thus employee distribution was
the complaint did, was flogging a dead horse, and it is distressing that Board
resources are still being devoted to the task "
If it were found that the 1970 rule had been "superseded." its invocation
in the Romeo matter would be found to be a reinstitution and a violative
promulgation
" Respondent's counsel adduced evidence that an apparently similar re-
port was made by Security Guard Moore
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prohibited in an area open to the public for purposes unre-
lated to the hospital's business. Respondent could not law-
fully place the entrance to the hospital off limits to employ-
ees and thus relegate them to the public sidewalks. Bulova
Watch Company, Inc., 208 NLRB 798 (1974).
When asked a nonleading question, Liddell testified that
he could not recall having referred to "breaks" when he
spoke to Romeo. Even when Respondent's counsel "re-
freshed his recollection" by a long memorandum purport-
edly written by Liddell and LaBoy to Wilson, Liddell re-
called only that he had told Romeo he could discuss the
Union on breaks with willing listeners "so long as it did not
interfere with his duties in any way," the obvious implica-
tion being that his activities were subject to restrictions
even during breaks. There is no evidence of any similar
restrictions on discussions other than those concerning the
Union Cf. IMCO Container Company, 208 NLRB 874, 879
(1974). And there is no evidence, even in the detailed mem-
orandum of the August 13 conversation with Romeo, that
Liddell ever mitigated the restrictions on distribution.
Respondent apparently contends that its various no-so-
licitation and no-distribution rules were not violative of the
Act because they were not strictly enforced. In support of
this contention, Respondent points to the fact that employ-
ees Sharkey and Moore submitted reports concerning solic-
itation by Romeo during working time but "the Hospital
took no action against Romeo whatsoever." There was no
competent evidence that Romeo had violated the rules on
the occasions referred to. Any evidence in this connection
was, at best, sheer hearsay.' It may well be that
Respondent's investigations failed to support the reports.
In any event, it is well established that the very existence of
improper rules governing solicitation and/or distribution
are violative of the Act and the violation is not negatived
by the employer's failure to enforce the rules against pro-
tected union activity. N.L.R.B. v. Speed Queen, a division of
McGraw-Edison Co., 469 F.2d 189, 192 (C.A. 8, 1972);
Wagner Electric Corporation, 216 NLRB 392 (1975); Robo-
tron Corporation, 216 NLRB 396 (1975); Shaw Industries,
Division of Crystal Springs Shirt Corp, 218 NLRB 1196
(1975).
The September rules for the security department are
somewhat less restrictive than the earlier hospitalwide
rules. But, as if to counterbalance the improvement, they
inject new ambiguity and discrimination. A major source
of ambiguity and discrimination is the use of the words
"outside organization," which is not defined. The parties
are apparently in agreement that both Local 1199 and the
Charging Party are "outside organizations." Solicitation
and distribution on behalf of Local 1199 is governed by
liberal contractual provisions. Employees covered by that
agreement, apparently the great majority of the employees,
are prohibited only from engaging in those activities
"which could interfere witn the performance of work dur-
ing his/her working time or in working areas of the Hospi-
tal at any time." Romeo's activity on August 16, for exam-
9 Sharkey's report to his supervisor is in the file, but Sharkey did not
testify There was brief testimony concerning Moore's having made such a
report, but the report itself was not introduced into evidence and Moore did
not testify
ple, would not have been prohibited under the contractual
provision but would be by the "new" rules posted in Sep-
tember, as well as by the earlier rules.
Respondent observes that Local 1199's preferred status
arises from its collective-bargaining agreement. In this con-
nection Respondent's brief says: "Surely the General
Counsel does not mean that any solicitation-distribution
provision negotiated by a union which is more generous to
unions than the law requires, must be applied to all of the
employer's other employees." Obviously an employer is
not required to afford identical treatment to all units of
employees. However, special considerations apply where
statutorily protected rights are involved. Employees have a
basic, statutorily protected right to solicit for unions, which
can be restricted only to the extent necessary for protection
of the employer's legitimate interests. As said by the Eighth
Circuit in McDonnell Douglas Corp v N.L R.B, 472 F.2d
539, 547 (1973), an employer
. . cannot interfere with its employees' rights to dis-
tribute literature and orally solicit on behalf of unions
except to the extent it is necessary to maintain produc-
tion, discipline, security or other important interests.
By granting to employees represented by Local 1199
considerable freedom to solicit and distribute, Respondent
has clearly indicated that protection of its legitimate inter-
ests does not require the broad restriction contained in the
September rule posted in the security office. Respondent
has not claimed or attempted to show that its interests
would be adversely affected if the guards were permitted to
solicit and distribute to the same extent that other employ-
ees are permitted.10 That the more liberal provisions gov-
erning solicitation and distribution on behalf of Local 1199
are embodied in a contract does not alter their probative
value in establishing the limits of the restrictions necessary
to protect Respondent's legitimate interests. A collective-
bargaining relationship is not a license for an employer to
engage in invidious discrimination between its organized
and unorganized (and organizing) employees.
Similarly, the sponsorship and/or authorization of chari-
table campaigns tends to establish that the breadth of the
rules is discriminatory as applied to the Union."
Finally, the September rule prohibits distribution "for
any outside organization . . . at any time in areas where
visitors are present." As noted above, the principal
place where employees meet when on breaks is the cafete-
ria, which is open to visitors except at peak hours. The
Board has expressly held that health care institutions may
not restrict employee activities in such area during non-
working time. St John's Hospital and School of Nursing,
Inc, 222 NLRB 1150 (1976):
As to the restriction in visitor access areas other than
those involved in patient care, the possibility of any
disruption in patient care resulting from solicitation or
10 Indeed, it is likely that such activity by the guards would be less of a
problem than that by employees directly engaged in patient care
11 Respondent's observation that permission for solicitations by nonem-
ployees for the United Hospital Fund has not been alleged as violative of
the Act is, of course, beside the point The point is that Respondent has not
shown the need for greater restrictions on union solicitation than are im-
posed on such nonemployee charitable solicitation
LENOX HILL HOSPITAL 1243
distribution of literature is remote. As to the re-
strictions in patient access areas such as cafeterias,
lounges, and the like, we do not perceive how patients
would be affected adversely by such activities. On bal-
ance, the interests of patients well enough to frequent
such areas do not outweigh those of the employees to
discuss or solicit union representation.
Additionally, Respondent maintains that the entrance to
Black Hall, being on property owned by Respondent, is
part of the hospital premises. On this view, the September
rules would prohibit off-duty soliciting or distributing at
the entrance. Such a prohibition is violative of the Act.
Tri-County Medical Center, Inc, 222 NLRB 1089 (1976).
On the foregoing considerations, I find that the mainte-
nance of the no-solicitation and no-distribution rules con-
tained in the 1970 and 1974 employee manuals or hand-
books was violative of Section 8(a)(1) of the Act. Similarly,
the promulgation and maintenance of the oral rules an-
nounced by Liddell to Romeo on August 13, 1975, and of
the purported "new" rules posted in the security office on
September 29, i975, violate Section 8(a)(1).
Since the rules which Romeo was charged with having
broken were improper, the discipline meted out to him was
unlawful 12 The fact that Respondent "[i]n order to avoid
legal expense and involvement . . . decided to rescind that
warning and suspension" on September 26, some 6 weeks
after a charge relating thereto had been filed, does not ob-
viate the necessity for a finding of violation and a remedial
order. It is important that notices be posted informing the
employees of their rights and assuring them that they will
not be disciplined for alleged violations of invalid no-solic-
itation and no-discrimination rules. It is at least equally
important that resumption or repetition of the unfair labor
practices be barred by a continuing obligation. N L R.B v.
Mexia Textile Mills, Inc., 339 U.S 563, 567 (1949)
On March 29, 1976, Respondent filed a motion to re-
open the record for the receipt in evidence of revised no-
solicitation and no-distribution rules, which it states were
posted on March 25, to conform to the Board's decision of
February 25, 1976, in St. John's Hospital and School of
Nursing, Inc, supra, 222 NLRB 1150. Even if it be assumed
arguendo that since the hearing in this case Respondent has
adopted valid rules,13 Respondent's motion must be de-
nied. The recent promulgation of valid rules would not
affect the findings and decision herein and would not obvi-
ate the necessity of the present order. See Mason & Hanger-
Silas Mason Co, Inc. v. N.L.R.B., 405 F 2d 1, 4 (C.A. 5,
1968). 14
12 Although it is essentially immaterial in view of the basis of this deci-
sion, note should be taken of Respondent ' s assertion in its brief that Romeo
was "interfering with [Fallon's] performance of her duty" when he handed
her union literature in front of the hospital on August 16 There is not a
shred of evidence to support any such statement The distribution consumed
a few seconds while Fallon was "shooting the breeze" with another, off-duty
guard
is No opinion is here expressed as to the validity or propriety of the rules
attached to Respondent's motion
14 "Even if a new and properly narrow rule exists at this time, the Board's
order with respect to maintenance and enforcement of the no-solicitation
rules is proper [Citations omitted ] [A] company cannot inhibit the
Board's cease and desist power by merely narrowing an overbroad no-solici-
tation rule 11
B. Joseph Kral
1. Kral's employment history
Joseph Kral was first employed by Respondent as a
part-time security guard in June 1974 and became full time
on January 21, 1975. His regular shift was from midnight
to 8 a.m , 5 days a week. Initially his days off were Monday
and Tuesday, but early in 1975, at Respondent' s request,
were changed to Tuesday and Wednesday. In May or early
June, at Kral's request, they were changed to Friday and
Saturday, to enable him to spend time with his family on
his wife's days off from her job. Also at Kral's request, his
days off were changed for 2 weeks at the end of July and
the beginning of August so that he could take advantage of
a summer cottage his family had rented with friends.
Ms. Kral is employed as a correction officer at the
Women's House of Detention on Riker's Island . During
the period here involved her regular work hours were 4
p.m to midnight. Kral normally cared for their three
young children while Ms Kral was at work.15
On her job Ms. Kral was required to work overtime
when needed. When he went on full-time duty for Respon-
dent Kral informed Liddell, then director of security and
safety at the hospital, that, because of the nature of his
wife's job, occasionally Kral might have to arrive at work
late, leave early, or even not appear at all if Ms. Kral had
to work a double shift. At the time Liddell said something
to the effect that they would work things out if and when
problems arose.
After serving a 3-month probationary period guards em-
ployed by Respondent are entitled to three types of leave:
(1) sick leave at the rate of 1 day per month, (2) 4 days of
"personal" leave (or "free" time) per year, and (3) vaca-
tions. In the 14 months preceding his dicharge on August
26, Kral used 9 days of paid sick leave and 7 days without
pay, as well as his personal leave and some vacation time.16
In addition, he reported to work late on 18 occasions and
left early 13 times.
On June 14 Ms. Kral telephoned Kral at the hospital to
report that she was being detained overtime on her job.
Her brother, who was then caring for the Kral children,
had to leave to go to his job Kral spoke to Harold Wheal,
the supervisor then on duty, who authorized Kral to leave
work As Kral was about to leave work the next day, he
was confronted by LaBoy, who irately complained that he
had been unable to find Kral the previous night and that
none of the employees he questioned was able to state
where Kral was In response Kral angrily objected to La-
Boy's having made inquiry of fellow employees rather than
checking with Wheal, the supervisor. After leaving the hos-
pital Kral composed himself, thought the matter over and
returned to the hospital, where he apologized to LaBoy for
statements he had earlier made in anger. LaBoy said that
Kral's having returned to apologize would save him a great
deal of trouble. LaBoy thereupon tore up a report of the
15 For the very brief period when Ms and Mr Kral were traveling to and
from their home, respectively, Ms Kral's brother apparently filled in as
ysitterba
There is some confusion in the evidence as to the precise figures How-
ever, the discrepancies are minor and unimportant in the overall picture
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident that he apparently was then preparing to send to
Liddell. Since LaBoy and Wheal did not testify, Kral's tes-
timony is uncontradizted and is credited
Despite LaBoy's reassurance, on June 16 Kral received a
memorandum concerning his "leaving the hospital without
permission or informing other members of the late tour."
The reprimand, written by Liddell and said to be based on
information received from LaBoy, invited Kral to "leave a
written explanation to the above charges" giving his "side
and any other explanation." In a reply memorandum dated
June 22 Kral explained the situation and stated that he had
since "made other arrangements so the same thing would
not happen again ." Kral then had in mind arrangements
that had been made for a new babysitter.
On June 24 Kral left work 1-1/2 hours early. This early
departure was presumably authorized, since Respondent at
no time has suggested that it contributed to his discharge.
On the morning of July 6 his wife telephoned and informed
him that, because of an emergency situation, she had to
report to her job immediately. Kral spoke to his supervisor
and then signed out at 6.30 a.m When he reported to work
the next day he found that his signout time had been
changed, presumably by LaBoy, to read 4:30 and Liddell
had circled the 4.30 and written "Again?" Because of the
notation Kral sent Liddell a note explaining his departure
and stating that he "signed out at approx 6:30 A.M." Since
LaBoy did not testify, it is assumed that Kral left at 6.30,
as he testified he did. Kral then signed in 20 minutes late
on July 13 and 45 minutes late on August 8.
There were no repercussions from the tardinesses on
July 13 and August 8 or the early departures on June 24
and July 6. However, the June 14 early departure was re-
opened. On August 5 Wilson apparently wrote a memoran-
dum on the subject to Liddell and Liddell replied.17 Then,
at Wilson's request, Liddell sent Kral's personnel file to
Wilson. On August 11 Wilson again wrote Liddell, as fol-
lows:
This is in response to your reply to my memo of Au-
gust 5th concerning the absence of Mr. Joseph Kral
on June 14th. I have known that Mr Kral has prob-
lems because of his wife's position as a correction offi-
cer. However, as far as I am concerned, either his posi-
tion at Lenox Hill Hospital takes priority, or he should
get himself another fob
On August 14 Wilson pursued the Kral matter in a memo
to Liddell reading-
During 1975, it would appear that most of Mr. Joseph
Kral's sick days took place either after or before week-
ends or holidays. I suggest, when you have your dis-
cussions of his job priority, that you also discuss with
him this matter of calling in sick, as related above.
Liddell and LaBoy went to the hospital at 6 a.m on
Sunday, August 24, for the purpose of talking to Kral. Lid-
dell spoke about Kral's attendance generally and specifi-
cally referred to his early departure on June 14, discussed
above. According to Kral's credited testimony, he in-
formed Liddell that his wife's schedule was in the process
17 These memoranda are not in evidence
of being changed so that "the whole problem with being
late and being absent would be ironed out " Liddell said
"he was glad to hear it."
About I 1 p.m. on August 24 Ms. Kral called her home
and informed Kral that, unexpectedly,18 she was being held
over for another shift. Kral thereupon telephoned the hos-
pital and spoke to William Barlow, who was then acting as
supervisor. While still on the phone with Barlow, Kral ex-
cused himself long enough to make a call from a neighbor's
telephone in an unsuccessful attempt to get a babysitter.
Being unable to answer Barlow's repeated question as to
precisely when he would arrive at work, Kral finally told
Barlow to mark him out as sick. Although Barlow did not
testify, there was evidence of a special shortage of guard
services that night. Another guard, Leroy Halls, had al-
ready called in sick and, because the key to the kitchen and
cafeteria had been misplaced, it was necessary to keep a
stationary guard posted in that area. Barlow made a writ-
ten report of the incident.
The next morning Liddell telphoned Kral at home and
told him that he was being discharged. Later that day Kral
received a telegram to the same effect.
2. The General Counsel's case
Respondent's union animus is clearly established by the
8(a)(1) and (3) violations heretofore found.
There is no question that Romeo instigated the union
campaign. Around April or May he took preliminary steps,
distributing some union literature and authorization cards.
However, he did not actively solicit membership or author-
ization cards until sometime in July. Romeo signed his
union card on July 25
Joseph Cervone and Kral signed cards on August 5.19 It
appears from Romeo's testimony that Cervone and Kral
served at least as conduits between Romeo and the guards
on the midnight shift.20 Halls testified that Romeo, Cer-
vone, and Kral were working on the campaign.
Discussion of possible unionization of the guards began
at the hospital around May or June. Several guards held
several such conversations in the security office around the
midnight change of shifts, in the presence of both Coleman
Fogarassy, the 4 p in. to midnight supervisor, and Singh,
the midnight to 8 a.m. supervisor. Kral testified, without
contradiction, that in one such conversation the employees
spoke of Wilson's having threatened to discharge an em-
ployee who spoke disparagingly of LaBoy's bypassing Lid-
18 She was scheduled to work on Monday. August 25 She credibly testi-
fied that it was most unusual for a correction officer to be held over for an
additional shift if he was regularly scheduled for work on the ensuing day
19 Respondent contends that "Kral was the last unit employee to sign a
union card " This contention is based on the absence from the record of any
clear proof that any cards were signed later Leroy Halls' card bears an
altered date of August 6 but his testimony as to when he signed it is con-
fused Since the number and dates of union authorization cards as such
were not directly relevant to any allegation in the complaint, and the Gener-
al Counsel did not request a bargaining order, I reject Respondent's conten-
tion that the four cards in evidence establish that Kral was the last employee
to execute a card
20 Romeo testified "Q Did Mr Halls ever give an Allied card signed by
himself hack to you 9 A I don't recall if he gave it to me personally or
gave it to Cervone or Kral to in turn give it to me " Romeo did receive
a card executed by Halls
LENOX HILL HOSPITAL 1245
dell to speak directly with Wilson. Kral stated the view that
"if a man can't voice his opinion ... [the guards] have to
have somebody behind [them]." Singh expressed his agree-
ment with Kral, and Fogarassy said "that if he was not a
supervisor, he would go along with the union."
Cervone similarly testified to a conversation in June
among some of the guards and Supervisors Singh and Fo-
garassy. On this occasion Kral said he had a particular
union in mind and that he and Romeo "were going to
pursue it" if they could get enough members. According to
Cervone, both Singh and Fogarassy indicated that they
would support the Union if they were not supervisors. Cer-
vone further testified that the guards talked about the
Union openly in the security office and in the hospital's
main lobby-"any place there was a meeting place." He
added that "Mr. Fogarassy was present many times and
Mr. Singh on a couple of occasions" when the Union was
discussed.
As stated above, Kral and Cervone signed union cards
on August 5. As they were doing so, in the main lobby of
the hospital, Supervisor Fogarassy entered, whereupon the
men put their cards away. Cervone testified that later dur-
ing that shift Fogarassy asked what the men had been
doing. Cervone told him, showed him the cards, and jok-
ingly asked if Fogarassy wanted to sign one Fogarassy
then asked Cervone how many guards had signed cards.21
The volume of union talk among the guards progres-
sively increased during the summer. In one or more con-
versations the guards discussed an incident in which two
engineers had been caught removing hospital property
from the premises. The view was expressed that the initial
discharge of the engineers had been reduced to a suspen-
sion solely through the intervention of their union. Foga-
rassy was present at at least one conversation in August in
which Kral stated that it was lucky for the two engineers
that they had a union behind them Kral, as well as others,
revealed that the midnight shift was virtually unanimous
for the Union, the evening shift was about evenly divided,
and nobody on the daytime shift had signed a card. In one
conversation in the security office Kral spoke emotionally
against the "unjust" suspension of Romeo. Singh, who was
present at the time, advised the guards to confine their
expressions of enthusiasm for the Union within the con-
fines of hospital rules.
Singh did not expressly contradict the employee testimo-
ny summarized above. However, while acknowledging that
he was present many times when the guards discussed the
Union, he maintained that the discussions occurred only in
August and September. Fogarassy did not testify, although
he is still in Respondent's employ.22 The employee testimo-
ny as to Singh's and Fogarassy's knowledge of the union
sympathies and activities of the guards, including Kral, is
credited.23 It is thus established that Fogarassy knew of
21 Cervone's response does not appear
22 For an undisclosed reason, Fogarassy has since been demoted from
supervisor to guard
27 Much of the employee testimony discussed was corroborated by John
Flanagan, formerly a building systems operator in the hospital's engineering
department Based on his demeanor, I should find Flanagan to be a reliable
witness However, because of other circumstances shown in the record, I do
not rely on his testimony as the basis of any findings
Kral's signing a union card and both Fogarassy and Singh
knew of Kral's prounion sympathies.
Even if the supervisors' knowledge were not automati-
cally imputable to Respondent, the evidence as a whole
requires an inference that such knowledge was actually im-
parted to management. Liddell acknowledged receiving in-
formation of union activities from several guards. Wilson
testified that all the supervisors reported such information
to him It will be recalled that Singh forwarded to Wilson a
guard's report of Romeo's brief and casual handing of a
union literature to the guard outside the building. In his
covering memorandum, signed "Loyally yours," Singh said
Romeo was "`covertly" engaged in union solicitation. In
view of this, it is inconceivable that Singh did not "loyally"
report to Wilson all available information concerning the
union sympathies and activities of all the guards.
Fogarassy's failure to testify requires an inference adverse
to Respondent.
To support his contention that Kral was the victim of
disparate treatment , the General Counsel refers to guard
Michael Healy, whose timesheets covering 24 weeks 24 re-
cord 29 tardinesses, averaging 41 minutes, as contrasted
with Kral's being late an average of about 50 minutes 18
times in 60 weeks.25 According to Cervone, Healy's tardi-
ness was so habitual that "everybody in the department
was taking notice," the guard who was held over from the
prior shift until Healy's arrival complained, and eventually
it became a practice to send a guard to cover Healy's post.
Yet Healy was not disciplined. While Healy's record on
punctuality was far worse than Kral's, he apparently never
left early and he took very few days of leave. As Respon-
dent observes, early departure may cause more inconve-
nience than late arrival because, in the latter situation, a
guard may be held over from the preceding shift whereas
there may be nobody available to substitute for a guard
who leaves early.
The General Counsel next points to guard Sharkey, who
was discharged along with Kral on August 25 but almost
immediately reinstated. Sharkey's discharge was based on
his having disappeared while on duty on the midnight to 8
a.m. shift on August 24. According to Respondent,
Sharkey's dereliction was ascribable to a "nervous condi-
tion" from which he was suffering and for which he was
hospitalized at the time of the hearing in this case . Respon-
dent maintains that Sharkey's discharge was rescinded be-
cause of the belief that he needed treatment rather than
discipline. The General Counsel counters that an unstable
person like Sharkey would be particularly undesirable as a
security guard. It is perhaps worth noting that Sharkey un-
dertook to report to management Romeo's solicitation on
behalf of the Union. Thus, Sharkey's retention is ground
for some suspicion as to Respondent's motivation in dis-
charging Kral
The evidence does tend to show a somewhat relaxed atti-
tude by management toward attendance, which renders the
24 Healy's timesheets in the record go from February 16 through October,
1975. with those for March 30 through April 12 and August 17 through
September 27 missing
5 Respondent is in error in saying in its brief "There is a naked claim
that guard Michael Healy was late more than Kral yet the General
Counsel offered no evidence of Healy's latenesses to substantiate the
claim "
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
severity and finality of Kral's discipline somewhat suspect.
However, the record does not clearly establish that other
guards with overall attendance records as bad as Kral's
were not disciplined.
There can be no question that Kral's attendance left a
great deal to be desired. He conceded that before he signed
his union card he had heard rumors that his job was in
jeopardy. In July Fogarassy told Cervone to warn Kral to
be careful because he was being "watched." Cervone
opined that everybody, including Fogarassy, was being
"watched." But the fact that there are grounds for dis-
charge does not negative a discriminatory motivation in
the eventual discharge. It is at least suspicious if an em-
ployer who has long indulged an employee's poor atten-
dance finds it intolerable when the employee becomes in-
volved in union activities. It is essential, therefore, to
examine the timing of Kral's discharge.
Kral's contretemps with LaBoy concerning the June 14
early departure presumably had been put to rest when Kral
promptly apologized. Yet LaBoy apparently reported it to
Wilson, bypassing Liddell, LaBoy's immediate superior.
Then the matter was apparently finally resolved by Kral's
memorandum to Liddell on June 22. Nothing more was
heard of it until Wilson wrote a memorandum to Liddell
on August 5, the very day on which Fogarassy had seen
Kral and Cervone sign union cards. Then came Wilson's
memorandum of August 14 concerning Kral's use of sick
leave "before or after weekends or holidays" throughout
1975. Although it was common knowledge that at least
some employees were using sick leave, paid and unpaid, as
virtually equivalent to personal leave, management did
nothing to stop the practice until July 7, when a memoran-
dum over Liddell's signature was posted addressed to the
problem created by employees' "failing to report for work
and then later calling in and requesting that one of the
days that they have on the books be used to cover their
unauthorized day off." The memorandum said that in the
future employees must request days off at least a week in
advance. There followed the statement that FAILURE TO RE-
PORT IN WILL RESULT IN YOUR BEING GIVEN AN 'EMPLOYEE'S WARN-
ING NOTICEAND ANY EMPLOYEE WHO HAS ACCUMULATED THREE OF
THESE NOTICES WILL BE TERMINATED" The second paragraph of
the memorandum was addressed to sick leave, as follows:
IT HAS ALSO BEEN NOTICED THAT CERTAIN EMPLOYEE'S [SIC]
ARE REPORTING "SICK" ON WEEK-ENDS AND HOLIDAYS YOU ARE
REMINDED THAT THE EMPLOYEE'S MANUAL MAKES CLEAR REF-
ERENCE TO THE SUBMITTING OF A DOCTOR'S LETTER IF THE DE-
PARTMENT HEAD SO REQUESTS THIS DEPARTMENT IS NOW AD-
VISING YOU THAT FROM NOW ON, YOU HAD BETTER SUBMIT THIS
LETTER
So far as appears, no doctors' reports were requested or
submitted pursuant to Liddell's memorandum, which went
largely ignored.26 Kral was not asked to submit any doc-
tors' reports and did not receive any "Employee Warning
Notices" referred to in the memorandum, although he took
26 The memorandum was later supplanted by a similar one issued by Mr
Gambdlo, who replaced Liddell as director of security on October 6, with
sick leave on July 26, the day before a "holiday," personal
leave on Monday, August 3, and leave without pay on
Monday, August 10. Romeo credibly testified that Liddell
had told him, shortly after he was hired, that "the hospital
prefers that [the employees] use [their] sick leave." And in
its brief Respondent expressly states that: "Kral was not
fired, of course, for using allowable sick days."
The evidence concerning the ultimate responsibility for
the discharge is also noteworthy. Liddell testified that he,
and he alone, had decided to discharge Kral. Yet he
showed sufficient solicitude to telephone Kral about it to
soften the blow before Kral received the formal discharge
telegram. And as director of safety, Liddell gave Kral a
very favorable recommendation for another job.
Cervone credibly 2' testified that Liddell had disclaimed
responsibility for Kral's discharge. Cervone testified that
when he strongly urged Liddell at most to suspend rather
than fire Kral, Liddell replied that "he didn't like the idea
of firing Mr. Kral. It wasn't his idea. It was Mr Wilson's
idea, not his." Ms. Kral also testified that when she tele-
phoned Liddell after the discharge he said "that he really
didn't want to terminate [her] husband, it was Mr. Wilson."
In answer to her inquiry, Liddell said "by all means" she
should call Wilson.
Wilson testified that the absence of guards was danger-
ous, as follows:
Q. . . . Were you [aware] about Mr. Kral's early
departure and other absences due allegedly to his
wife's employment position)
A. Very much so
Q. Why?
A. Well, I'm responsible-I'm responsible for the
well-being of 600 patients and perhaps 500 employees
on the shift that Mr. Kral would normally work
We had an example last night of five people being
admitted from the Blue Angel fire. If we're short of
security help, there's no one to direct traffic, to control
reporters.
There's no one to perform the duties that a security
officer normally would have to perform.
It puts people in jeopardy. That's why.
Yet Respondent discharged Kral and refused to reinstate
him without arranging for a replacement Respondent's
failure to take any steps to replace Kral strongly suggests
that Respondent was concerned with ridding itself of Kral
rather than with assuring an adequate, dependable security
force.
Wilson's position essentially was that he alone had de-
cided to "stand pat" on the discharge and Hoffmann "con-
curred" in the decision without any discussion as to the
advisability of reinstating Kral. So far as his testimony dis-
closes, Wilson did not consult Liddell, who, according to
Respondent, had made the discharge decision on his own.
Hoffmann said he spoke to Liddell but did not reveal the
content of their discussion
Liddell remaining as director of safety Gambillo's memorandum is appar- 27 Cervone gave this testimony reluctantly because he believed it would be
ently being enforced damaging to Liddell, whom Cervone obviously likes
LENOX HILL HOSPITAL
Respondent advanced no reason why Wilson, an assis-
tant vice president, had become involved in the details of
apparently routine personnel matters in an institution of
some 500 employees. Singh did not undertake to explain
why he had sent to Wilson rather than to Liddell, his im-
mediate superior, the report of Romeo's very brief and
nondisruptive distribution of union literature to Fallon. It
is difficult to escape the inference that Kral's conduct, like
Romeo's, was given special scrutiny, at a high management
level, because of the known union organizing campaign.
Finally, the postdischarge events are crucial As previ-
ously stated, on the morning of August 24 Kral informed
Liddell (and LaBoy) that a change in his wife's schedule
was "in the process" of being made so that the problem of
his late arrival at or early departure from work would not
recur Kral's statement was based on the fact, attested by
Ms. Kral, that as of that time she had spoken to a deputy
warden concerning the possibility of a change of hours. On
August 27, the second day after Kral's discharge, Ms. Kral
spoke to her own supervisor, who then and there reas-
signed Ms. Kral to a 2 to 10.30 p in. schedule, effective the
next week.
About 10 a.m. on Monday, August 25, right after Liddell
told Kral he was being discharged, Ms. Kral called Liddell.
She explained that her having to work an extra shift on
Sunday had been most unusual. Liddell suggested that she
talk to Wilson or Hoffmann. She then called Wilson and
pleaded for a second chance for her husband, since he
loved his job and she was the cause of his default on Sun-
day. Wilson rejected her entreaty, saying "the decision
stands." She then tried to telephone Hoffmann but was
informed that he was away on vacation until after Labor
Day. After Labor Day she called Hoffmann, who said he
knew nothing about the matter but would look into it.
When she telephoned again Hoffmann said that there was
to be a hospital "board meeting" at which the question
would be considered. A day or so later she telephoned
again and Hoffmann said that the Board meeting had been
held and "the decision still stands." She renewed her plea
that Kral be given another chance, repeating that the prob-
lem caused by her schedule had been solved. She suggested
that Kral be suspended and/or placed on probation for 6
months. Hoffmann replied "that he would have reconsid-
ered it but things had gone too far with the Labor Board."
The charge concerning Kral's discharge and the Union's
representation petition had been filed on August 27. She
said that they would withdraw the charge and waive back-
pay. Hoffmann remained adamant that things "had gone
too far" and "the decision stands." He said that accepting
her proposal would subject Respondent to further unfair
labor practice charges. In this connection, Ms. Kral's testi-
mony was, in part:
[Hoffmann] said that to take Joe back, it would be an
unfair labor practice. . . . That the union and ev-
erybody would start crying it was an unfair labor
practice.
I said, "We'll drop everything with the union. The
union will have nothing to say with it, because if my
husband doesn't come through with the charges, they
don't have any type of a case."
1247
Q. And what did he say in response to that?
A He said, "No. Things had gone too far now."
. .. He said he could have considered it if things
hadn't gone so far. . . . [W]ith the union and the Na-
tional Labor Relations Board.
Then he had, also, mentioned it that to take Joe
back at this point, that the union would throw in un-
fair labor tactic Those were his exact words. . . .
kept telling him that he would take everything back.
She denied that Hoffmann had discussed the reasons for
the discharge. She testified that she raised the question of
Kral's poor attendance and explained that she had solved
the problem by having her work schedule changed. She
told Hoffmann that if he had any question concerning her
statement, he could call her employer. He did not indicate
that he doubted her statement.
Hoffmann testified that he first spoke to Kral, who
asked for his job back. According to Hoffmann, Kral said
he did not care about backpay and offered to withdraw the
charge then on file with the Board.28 When asked if he had
told Kral that "things had gone too far," Hoffmann replied
that he did not "now exactly what [he] said at the time."
He testified that Kral said that he had no desire to have the
charge filed but had been solicited for that purpose by the
Union. Hoffmann testified that in reply he said "that [he]
was not fully aware of all the outside influence involved in
this thing and [he] couldn't give [Kral] a decision at the
time."
Hoffmann testified that thereafter he had several conver-
sations with Ms. Kral, who said much the same as Kral
had. According to Hoffmann, Ms Kral said that they ap-
preciated the fact that Kral's schedule had previously been
changed to accomodate to her schedule. He acknowledged
that Ms. Kral advised him that she had had her schedule
changed to solve the problem. He did not indicate in any
way that he doubted her word.
Hoffmann further testified that he discussed the matter
with Liddell, Wilson, and Vice President Black. As a result
of these discussions, "[i]t was determined, after reviewing
all of the facts, it would not be in the best interests of the
hospital or the morale of the department for maintaining
discipline in the department to reverse the decision." He
did not elaborate.
Wilson testified that he learned of the discharge as a fail
accompli. He said he had discussed the Kral matter with
Hoffmann but at no time was consideration given to res-
cinding the discharge Wilson's testimony was in many re-
spects unclear or inconsistent. For example-
Q.... At any point did you sit and discuss [with
Hoffmann] whether or not you would take Mr. Kral
back into the hospital?
s
A. No way, no.
28 In its brief Respondent notes that "Kral testified that he had no conver-
sation with the Hospital in which the NLRB or unfair labor practices were
mentioned " Respondent had recalled Kral as a witness for the sole purpose
of adducing that bit of testimony I find it unnecessary to resolve this con-
flict between Kral and Hoffmann
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Didn't Mr. Hoffmann tell you that [Ms. Kral]
had called and said that the problem was over and
that he wanted his job back, he dropped the charges
and he didn't want any back pay?
A. We had no proof of that. We had nothing to go
on.
Q . . . Didn't he tell you that, that she said that?
A. [He] probably did. She told me that, too. I knew
that from my personal experience. . . . I had first-
hand knowledge of that, of what she said. She said it
to me.
Q. What did Mrs. Kral say to you?
A. That things had changed and that it was her
fault that he was missing time and leaving early and
that things would be different and asked me to take
him back. . . . That's the only conversation I had
with her.
He later testified that Ms. Kral had not told him about the
change in her schedule but he had learned from Hoffmann
that that was her claim At another point Wilson testified
that he doubted Ms. Kral's statement that her schedule had
been changed because he "had [been] shown no documen-
tary evidence or anything else for that matter which would
indicate that she was telling the truth." He then modified
his testimony to indicate he doubted only that things
would improve, since similar assurances in the past had
been unfulfilled. Nobody accepted Ms. Kral's suggestion
that Hoffmann check with her place of employment con-
cerning her schedule change.
Both Hoffmann and Wilson indicated that they were un-
impressed by Ms. Kral's promise that things would be bet-
ter because Respondent had previously changed Kral's
schedule in an attempt to accomodate to the exigencies of
Ms. Kral's schedule. But the only changes made in Kral's
schedule involved his days off; one was made for
Respondent's convenience, one to enable Kral to share his
days off with his wife and children, and one for a period of
2 weeks to permit Kral to avail himself to a summer cot-
tage he had rented with friends. The fact is that no changes
had been made in Kral's schedule to adjust to Ms. Kral's
exposure to overtime beyond the midnight close of her
shift.
3. Section 8(a)(3)
In its brief, in line with Wilson's statements to Ms. Kral,
Respondent contends that "reinstating Kral on condition,
solicited by his wife . . . that he not give testimony in sup-
port of the Union's charge . . would have violated Sec-
tion 8(a)(1), (3) and (4) of the Act." Respondent cites Ever-
age Brothers Market, Inc, 206 NLRB 593 (1973); Peoples
Outfitting Company, 184 NLRB 432 (1970); D D Bean &
Sons Co., 79 NLRB 724 (1948); and Mountain Pacific
Chapter of the Associated General Contractors, Inc, 119
NLRB 883 (1957). None of these decisions supports
Respondent's position. These cases hold that an employer
or a union violates the Act if it threatens or coerces an
employee to forego recourse to the Board. For example, in
Everage the employer discharged an employee because of
her "persistence in pursuing her rights including the seek-
ing of backpay" and filing a charge. In Peoples Outfitting
the employer "attempt[ed] to buy off an unfair labor prac-
tice charge" by offering to drop its opposition to the
employee's unemployment compensation claim. (184
NLRB at 435.) In D. D Bean the employer tried "to in-
duce [an employee], by threats of reprisal or benefit, to
withdraw his charge of discrimination . . . and to sign a
statement that he had been laid off for enonomic reasons."
(79 NLRB at 726) Similarly, in Mountain Pacific the re-
spondent union threatened that an employee would be de-
nied work unless he withdrew his charge against the union.
In all those cases the respondent initiated the proposal as a
means of coercing the employee. In the present case, it was
the employee who initiated the proposal. Kral's offer was
in no sense a bar or obstacle to his reinstatement, which
Respondent was free to grant without reference to Kral's
proposed quid pro quo 29 Respondent apparently recognized
this when it rescinded Romeo's suspension and offered him
backpay. The credited evidence establishes that Respon-
dent would have considered reinstating Kral if no
charge(s), and, presumably, no representation petition, had
been filed. Respondent's reliance on Kral's proposal as a
reason for not considering reinstatement reinforces the in-
ference of discriminatory motivation. This postdischarge
conduct clarifies the ambiguity of the facts leading to the
discharge. D. D. Bean & Sons, supra, 79 NLRB at 726.
As is usual in cases like this, there is no direct evidence
that Kral's union sympathy and activities played a role in
his discharge. And, as is also frequently true, there was
ample ground for the discharge Kral's absence on August
25, within a day after he had been spoken to by Liddell
and LaBoy, obviously might so anger management as to
dictate immediate discharge.
But I find that the evidence as a whole preponderates in
favor of the view that the discharge was motivated at least
in part by the union campaign. Among the most salient
facts are- the "resurrection" of the June 14 incident, which
presumably had been closed; the later addition of the al-
leged abuse of sick leave, although such conduct had gen-
erally been condoned; the failure to give Kral the three
employee warning notices called for in Liddell's memoran-
dum of July 7; the unwarranted reference to prior schedule
changes; and the summary refusal to consider reinstate-
ment, allegedly because of Kral's offer to waive backpay
and drop the charge. Perhaps the most persuasive factor is
Wilson's role. I discredit Liddell's assumption of responsi-
bility for Kral's discharge. Significantly, the situation was
not handled as a routine personnel matter in the security
department; it was initiated and prosecuted throughout at
a higher level. Kral was a ready, visible, and available vic-
tim through whom Respondent's antiunion message could
be effectively conveyed.
Accordingly, on all the evidence I find that Kral was
discharged and thereafter denied reinstatement at least in
part because of his union sympathies and activities, in con-
travention of Section 8(a)(3) and (1) of the Act.
29 While Respondent could not legally demand such quid pro quo, it may
be noted that a good-Faith, employee-initiated agreement like that proposed
by Kral is not necessarily reprehensible Cf Hilton Hotels Corporation d/h/a
Stotler Hilton Hotel, 193 NLRB 197, 204 (1971)
LENOX HILL HOSPITAL 1249
4 Section 8(a)(4)
The complaint, in customary language, alleged that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
discriminatorily discharging and refusing to reinstate Kral
In his opening statement at the hearing counsel for the
General Counsel said:
We will also show that the-and I want to make this
explicitly clear-that the failure to reinstate Mr. Kral
even after the problem with respect to his wife's sche-
duling had been cleared up, and the hospital was so
notified-was based on his union activity and, in addi-
tion, was based on the fact that charges had been filed
on Mr. Kral's behalf before the National Labor Rela-
tions Board in this case.
During the hearing, without objection by Respondent, evi-
dence was adduced concerning Mr and Ms. Kral's pleas
for his reinstatement. The General Counsel's witnesses
were cross-examined and Respondent's representatives tes-
tified about these conversations.
After Respondent had rested, counsel for the General
Counsel "move[d] to conform the pleadings to the proof
that has been adduced in the proceeding " He then went
on: "In particular . . I want to note one portion that we
feel is encompassed within that and to give the hospital a
chance to respond to it rather than have a due process
argument come up later" He then repeated his opening
position that the refusal to reinstate Kral was due in part to
the charge filed on Kral's behalf. He then added' "In es-
sence, we would be adding a quasi 8(a)(4) allegation to the
complaint " Respondent's counsel objected to the motion,
maintaining that he "[a]bsolutely [did] not" understand the
General Counsel's position at the outset of the hearing.
Counsel then requested and was granted an opportunity to
consult with his client. Thereupon counsel stated his inten-
tion to recall Mr. Wilson as a witness However, before the
examination of Wilson began, the General Counsel moved
to amend the complaint specifically to add an allegation of
violation of Section 8(a)(4) That motion was granted.
Thereafter Respondent's motion for an adjournment
was denied "unless [counsel] indicate[s] . . the nature of
the further investigation necessary to meet evidence" previ-
ously adduced.J° Respondent's counsel then requested and
was granted a recess of 2-1/2 hours. After the recess Re-
spondent recalled Wilson and Mr. and Ms. Kral and exam-
ined them on the postdischarge facts. Respondent's coun-
sel then requested an opportunity to produce "further
evidence . . concerning just the 8(a)(3) branches of this
case": he had "[n]othing further insofar as the 8(a)(4)
branch of the case is concerned." He stated that he desired
to investigate further Kral's truthfulness in attributing his
poor attendance to Ms Kral's schedule. Counsel's request
was denied
If Respondent had any evidence of Kral's untruthfulness
at the time of his discharge or when he was denied rein-
statement, such evidence should reasonably have been pre-
sented before Respondent rested.31 If any evidence im-
pugning Kral's honesty were to be developed by subse-
quent investigation, it would have no probative value as to
Respondent's motivation at the time of the discharge and
refusal to reinstate on requests made within a few days.
Since the relevant conduct was fully litigated after full
disclosure of the General Counsel's position, an appropri-
ate finding and conclusion would be in order even if the
complaint had not been specifically amended to allege a
violation of Section 8(a)(4).
Accordingly, I find and conclude that Respondent re-
fused to reinstate Kral in violation of Section 8(a)(4). It
may be added that even without a 8(a)(4) allegation and
finding, the conduct would violate Section 8(a)(1) and the
affirmative remedy would be the same. D. D Bean & Sons
Co, supra, 79 NLRB 724.
CONCLUSIONS OF LAW
1. By promulgating, maintaining, and enforcing unduly
restrictive and discriminatory no-solicitation and no-distri-
bution rules, Respondent has restrained and coerced its
employees in violation of Section 8(a)(1) of the Act
2 By suspending Carmine Romeo from employment on
August 17, 1975, for violation of an invalid no-distribution
rule, Respondent has coerced and restrained its employees
in violation of Section 8(a)(3) and (1) of the Act.
3. By discriminatorily discharging Joseph Kral on Au-
gust 25, 1975, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(3)
and (l) of the Act
4 By failing and refusing since August 25, 1975, to rein-
state Joseph Kral, thereby discriminating in regard to his
tenure of employment and conditions of employment, and
discouraging membership in the Union and resort to the
Board, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(3),
(4), and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and take appropriate affirmative ac-
tion to remedy its unfair labor practices Since it has been
found that Respondent discriminatorily discharged one
employee and suspended another, I shall recommend the
issuance of a broad cease-and-desist order Ford Motor
Company, 221 NLRB 663, In 2 (1975).
Since it has been found that Respondent unlawfully dis-
charged Joseph Kral and has unlawfully refused to rein-
state him, I shall recommend that it be required to offer
him immediate and full reinstatement, with backpay to be
computed in the usual manner prescribed in F. W Wool-
worth Company, 90 NLRB 289 (1950), with interest in ac-
cordance with Isis Plumbing & Heating Co, 138 NLRB 716
(1962).
10 There had been a 6-day adjournment between the General Counsel's
and the Respondent 's cases
7t Respondent's records negate any such knowledge or belief For exam-
ple, on August II, in a memorandum to Liddell, Wilson said "I have
known that Mr Kral has problems because of his wife's position "
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated above, Respondent "rescinded" Romeo's sus-
pension and tendered him the day's pay he lost on August
17, but Romeo refused to accept the check. There is no
suggestion that the amount tendered included interest.
More significant is the fact that the tender was said to be
made "[i]n order to avoid legal expense and involvement"
and thus in effect amounted to an attempted accord and
satisfaction. Respondent did not then rescind or in any
manner modify the invalid no-distribution rule which Ro-
meo had allegedly violated. Thus, Romeo's rejection of the
tender was justified. Accordingly, Respondent will be re-
quired to expunge from its records any reference to the
discipline of Romeo and to give him backpay with interest
at the rate of 6 percent per annum.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER32
Respondent, Lenox Hill Hospital, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any rule or
regulation prohibiting its employees from soliciting on be-
half of any labor organization, during nonworking time, on
Respondent's premises, other than immediate patient care
areas, or prohibiting the distribution of union literature in
nonworking areas during employees' nonworking time.
(b) Imposing greater restrictions on solicitation or distri-
bution on behalf of any union by any class or unit of em-
ployees than are imposed on all other employees.
(c) Discriminatorily discharging or disciplining any em-
ployees because of their union sympathies or activities.
(d) Refusing to reinstate or otherwise discriminating
against any employee because a charge has been filed with
the Board by him or on his behalf.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
32 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
(a) Rescind its rules (1) restricting the areas in which
employees in its security department may solicit on behalf
of a labor organization during the employees' nonworking
time insofar as it applies to other than immediate patient
care areas; (2) prohibiting distribution of literature during
employees' nonworking time in nonworking areas of its
premises; and (3) to the extent that they impose greater
restrictions on solicitation and distribution by employees
in the Security Department than are imposed on such ac-
tivities by other employees.
(b) Offer Joseph Kral immediate and full reinstatement
to his former job or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make him
whole in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Remove from its records any and all references to
the suspension of Carmine Romeo for distributing union
literature on August 16, 1975, and make him whole in the
manner set forth in the Remedy section of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its New York City hospital, copies of the
attached notice marked "Appendix." 3 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Respondent's motion to reopen the record, filed on
March 29, 1976, is hereby denied.
73 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "