Lucile Salter Packard Childrens' Hospital

National Labor Relations Board - Board Decisions

Aug 21, 1995

318 N.L.R.B. 433 (N.L.R.B. 1995)

433
318 NLRB No. 49
LUCILE SALTER PACKARD CHILDRENS’ HOSPITAL
1 We disavow fn. 3 in the judge’s decision, which characterizes a
union contract as a form of insurance protection that labor organiza-
tions are in business to provide.
2 All dates are in 1994, unless stated otherwise.
3 The Respondent’s no-solicitation and distribution policy, set forth
in its supervisor’s manual, states that persons not employed by the
Hospital may not solicit or distribute literature on the Hospital’s
property for any purpose at any time. Employees also may not solicit
for any purpose during working time, or distribute material for any
purpose during working time or in working areas.
4 PEAC is a committee composed of employees and hospital ad-
ministrators that acknowledges major events in the lives of the em-
ployees and their families.
5 The judge noted that the parties also presented evidence concern-
ing the Respondent’s alleged cooperation with the Committee for
Recognition of Nursing Achievement during the committee’s 1991
organizational campaign. The judge concluded that it was unneces-
sary to analyze this evidence because the campaign was remote in
time and appeared to be of limited evidentiary value. No party ex-
cepted to the judge’s finding.
6 In Rochester General Hospital, the Board found that displays of
posters and blood collection by the Red Cross for the hospital blood
Continued
Lucile Salter Packard Childrens’ Hospital at Stan-
ford and American Federation of State, County
and Municipal Employees, District Council 57,
American Federation of State, County and Mu-
nicipal Employees, AFL–CIO. Case 32–CA–
13740
August 21, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND
TRUESDALE
On December 29, 1994, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The Respondent is engaged in the operation of an
acute care pediatric hospital located in Palo Alto, Cali-
fornia. In the beginning of January 1994,2 the Union
commenced an organizing campaign among nurses at
the Hospital. On February 14, Union Representative
Linda Kahn visited the Hospital to distribute union lit-
erature. When she sought to set up a table in the hall-
way outside the Hospital’s public cafeteria, she was in-
formed by Ellen Michelfelder, the human resources
vice president, that it was against the Hospital’s policy
for a nonemployee to engage in solicitation on its
property.3 Thereafter, the Union was not permitted to
engage in organizing activity in the Hospital.
The judge concluded that the Respondent violated
Section 8(a)(1) of the Act by enforcing its ban on
union solicitation in a discriminatory manner. The
judge found that the Respondent has an established
practice of permitting nonemployees to set up tables or
booths in the hallway adjacent to the cafeteria to solicit
and sell goods and services. The judge noted that non-
employee representatives are permitted to solicit tax-
sheltered annuity and health care insurance plans, and
that those plans are related to the Respondent’s fringe
benefits package offered to its employees. The judge
also noted that medical textbook vendors are allowed
to sell their products in the Hospital as part of the
Hospital’s educational enhancement practice.
The judge found that the Respondent also regularly
permits the Stanford Federal Credit Union, a Child and
Family Services representative, and a California Cas-
ualty property insurance representative to set up tables
outside the cafeteria for solicitation and distribution of
information. The judge noted that these products are
not a part of the employees’ regular benefit package.
Finally, the judge noted that a flower vendor, two
jewelry vendors, and a clothing vendor are authorized
by the Packard Employee Activity Committee
(PEAC)4 to sell their wares near the cafeteria. The
judge found that although the vendors must remit a
percentage of their proceeds to PEAC in exchange for
authorization, this did not negate the fact that such so-
licitation is inconsistent with the plain language of the
Respondent’s written policy of precluding solicitation
by nonemployees. Accordingly, relying on the pres-
ence of the PEAC-authorized vendors and the commer-
cial vendors offering products and services that are not
part of the employees’ regular benefit package, the
judge found that the Respondent applied its no-solicita-
tion and distribution policy in a selective manner.5
We agree with the judge that the Respondent dis-
criminatorily enforced its policy on union solicitation.
The record shows that on a regular basis the Respond-
ent permits nonemployee commercial organizations to
solicit and distribute materials in the hallway near the
cafeteria. Although the Respondent contends that the
nonemployee vendors and representatives are agents
acting on behalf of the Respondent and in furtherance
of its business, the record shows that these entities are
not agents of the Respondent nor an integral part of
the Hospital’s necessary functions.
We also find that this case is distinguishable from
the cases cited by the Respondent, Rochester General
Hospital, 234 NLRB 253 (1978), and George Wash-
ington University Hospital, 227 NLRB 1362, 1374 fn.
39 (1977), because in those cases the solicitation that
did not constitute evidence of disparate treatment was
an integral part of the employers’ health care functions
and responsibilities.6 Here, by contrast, the Respondent
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bank, sales by a volunteer group that donated proceeds to the hos-
pital, and displays of pharmaceutical products and medical books
were work-related activities that assisted the hospital in carrying out
its community health care functions, and not evidence of disparate
treatment as to require the employer to grant access to nonemployee
union organizers. Similarly, the Board in George Washington Uni-
versity Hospital adopted the judge’s finding that ‘‘white elephant
sales’’ and sales by the Women’s Board were an integral part of the
hospital’s necessary functions.
7 Member Browning finds it unnecessary to pass on the continuing
validity of the ‘‘isolated beneficent act’’ exception established in
Hammary Mfg. Corp.
8 Member Stephens, who dissented in Riesbeck, finds it distin-
guishable from this case. He viewed the respondent there as acting
pursuant to a nondiscriminatorily enforced rule against any solicita-
tion or distribution by any group that urged patrons not to patronize
the respondent. No such evenhanded application of a rule exists in
this case.
permitted various commercial organizations to solicit
sales of products such as insurance other than health
care and jewelry that are neither related to the hos-
pital’s health care function or, as discussed by the
judge, part of the employees’ regular benefit package.
See generally D’Alessandro’s, Inc., 292 NLRB 81
(1988).
The Board has recognized that an employer does not
violate Section 8(a)(1) by permitting a small number of
isolated ‘‘beneficent acts’’ as narrow exceptions to a
no-solicitation rule. Hammary Mfg. Corp., 265 NLRB
57 fn. 4 (1982).7 In Guardian Industries Corp. v.
NLRB, 49 F.3d 317 (7th Cir. 1995), denying enf. in
pertinent part 313 NLRB 1275 (1994), the court, citing
Hammary Mfg. with approval, found that the employer
did not act unlawfully by refusing to permit the union
to post announcements about organizational meetings
on the company’s bulletin boards where the employer
permitted only limited postings about sale items and
did not allow the posting of any general announce-
ments about meetings. The court distinguished Ries-
beck Food Markets, 315 NLRB 940, 941 (1994), in
which the Board relied on the judge’s finding that the
employer permitted ‘‘all kinds of civic and charitable
solicitation on its property for a total of almost two
months a year’’ to conclude that the employer’s refusal
to permit union solicitation of its customers was dis-
criminatory. Here, as in Riesbeck, the record shows
that the Respondent regularly allowed various commer-
cial entities to solicit their wares and services to em-
ployees despite its no-solicitation policy.8 See also Be-
Lo Stores, 318 NLRB 1 (1995). Accordingly, we adopt
the judge’s findings that the Respondent violated Sec-
tion 8(a)(1) by discriminatorily precluding union orga-
nizational solicitation while sanctioning other solicita-
tion.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lucile Salter Packard Chil-
drens’ Hospital at Stanford, Palo Alto, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Patricia M. Milowicki, Esq., for the General Counsel.
Laurence R. Arnold (Weissburg & Aronson), of San Fran-
cisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Oakland, California, on August 18, 1994. The charge was
filed on February 16, 1994, by American Federation of State,
County and Municipal Employees, District Council 57,
American Federation of State, County and Municipal Em-
ployees, AFL–CIO (the Union). On March 28, 1994, the Re-
gional Director for Region 32 of the National Labor Rela-
tions Board issued a complaint and notice of hearing, alleg-
ing violations by Lucile Salter Packard Childrens’ Hospital
at Stanford (the Respondent or the Hospital) of Section
8(a)(1) of the National Labor Relations Act. In its duly filed
answer to the complaint, the Respondent denies that it has
committed the unfair labor practices as alleged.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel
and counsel for the Respondent. On the entire record, and
based on my observation of the witnesses and consideration
of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation engaged in the
operation of an acute care pediatric hospital and facility lo-
cated in Palo Alto, California. In the course and conduct of
its business operations, the Respondent annually derives
gross revenues in excess of $250,000, and purchases and re-
ceives goods and services valued in excess of $50,000 di-
rectly from suppliers located outside the State of California.
It is admitted, and I find, that the Respondent is now, and
at all times material has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether the Re-
spondent has engaged in a violation of Section 8(a)(1) of the
Act by refusing to permit nonemployee representatives of the
Union from distributing union literature in a hallway area ad-
jacent to the Hospital’s cafeteria.
435LUCILE SALTER PACKARD CHILDRENS’ HOSPITAL
1 All dates or time periods hereinafter are within 1994 unless oth-
erwise specified.
B. The Facts
In the first part of January 1994,1 the Union commenced
an organizing campaign among the nurses at the Hospital.
On February 14, Linda Kahn, a union representative, sought
to set up a table in the hallway outside the Hospital’s public
cafeteria in order to distribute union literature. Kahn was ap-
proached by Ellen Michelfelder, vice president of human re-
sources, who told her that it was against hospital policy for
a nonemployee to engage in such activity on hospital prem-
ises. Thereafter, the Union was not permitted to engage in
organizing activity, and as a result the Union filed the instant
charge.
Set forth in the Hospital’s supervisor’s manual is the fol-
lowing section:
C. Solicitation and distribution of literature
on Hospital property
In order to prevent disruption in the operation of the
hospital, interference with patient care, and inconven-
ience to our patients and their visitors, the following
rules will apply to solicitation and distribution of lit-
erature on hospital property.
Outsiders
Persons not employed by the hospital may not solicit
or distribute literature on hospital property for any pur-
pose at any time.
Employees of the Hospital
Employees may not solicit for any purpose during
working time. Employees may not distribute literature
for any purpose during working time or in working
areas.
‘‘Working time’’ includes the working time of both
the employee doing the solicitation or distribution and
the employee to whom it is directed. Questions as to
the meaning of ‘‘working time’’ or ‘‘working areas’’
should be directed to the Administrator’s office.
The General Counsel maintains that the foregoing rule that
precludes ‘‘outsiders’’ from soliciting or distributing lit-
erature has not been followed in certain respects, and that the
Hospital is discriminating against union solicitation by pro-
hibiting such activity while permitting other forms of solici-
tation or distribution by ‘‘outsiders’’ in an area adjacent to
the Hospital’s public cafeteria.
The Respondent has an established practice of permitting
various entities, on a regularly scheduled basis, to set up ta-
bles or booths in the hallway adjacent to the cafeteria, from
which nonemployees solicit and sell goods and services.
Many of the entities are intimately related to the fringe bene-
fits that the Hospital offers its employees. Thus, as part of
its fringe benefit package, the employees are offered their
choice of several tax sheltered annuity plans, known as Sec-
tion 403(b) plans. Nonemployee representatives of these
plans are permitted to set up tables, and distribute literature
and answer employees’ questions in order to sell such annu-
ities to the employees. Similarly, the Hospital gives its em-
ployees their choice of various health care providers, and
these entities are permitted to solicit and sell their products
from tables near the cafeteria, and to answer questions that
employees may have about specific problems regarding their
health insurance. Also, medical textbooks are offered for sale
by vendors as a part of the Hospital’s practice of educational
enhancement.
Certain other services, apparently directed only to employ-
ees, are neither part of the Respondent’s fringe benefit pack-
age nor intimately related to the enhancement of health care.
Thus, the Stanford Federal Credit Union sometimes sets up
a table in order to solicit credit union membership and offer
employees a wide range of financial products similar to those
offered by any bank or savings and loan organization. Simi-
larly, a representative of child and family services sets up a
table outside the cafeteria on the third Wednesday of every
month. This representative answers employees’ questions re-
garding child care, distributes literature regarding child care
resources, and may refer potential clients to various child
care agencies both on and off the Stanford University cam-
pus. Finally, on the second Monday of each month, a rep-
resentative of an insurance company, California Casualty,
sets up a table near the cafeteria and sells insurance. Thus,
employees are solicited to change their current insurance car-
rier and contract with California Casualty for a wide range
of insurance products that any insurance company would
customarily sell: automobile, homeowners, renters, mobile
homes, vacation homes, rental property, and other products.
In addition, various nonemployee vendors are permitted to
set up tables or booths near the cafeteria and sell their prod-
ucts to employees and the general public for profit. In this
regard, a flower vendor with the business name ‘‘Not Just
Roses’’ sells flowers on the first and third Friday of every
month. Similarly, two jewelry vendors sell jewelry items, and
a clothing vendor known as ‘‘Scrub Duds’’ sells colorful
clothing outfits, known as scrub outfits, which pediatric
nurses customarily wear but which may be worn by others
as well. The foregoing vendors are authorized to sell their
wares by the Packard employee activity committee (PEAC),
a committee composed of employees and hospital administra-
tors; the highest ranking official on this committee is the Re-
spondent’s director of human resources. In return for being
permitted to sell their products, the vendors contribute be-
tween 10 and 15 percent of their gross receipts to the PEAC.
A considerable portion of the record evidence involves
events in the summer and fall of 1991, at the time when the
Respondent first opened. During this period of time there
was an organizational campaign by the Committee for Rec-
ognition of Nursing Achievement (CRONA), the labor orga-
nization that currently represents the nurses at both Stanford
Hospital and, in a separate unit, at the Respondent’s facility.
The two hospitals are at the same location; they are phys-
ically attached to each other, and even share certain health
care units. The evidence shows that during the period in
question in 1991, the Respondent’s administration cooperated
with CRONA representatives and permitted certain organiza-
tional or informational meetings to be held by nonemployees
on hospital premises. The Respondent maintains that to the
extent it did cooperate with CRONA by permitting union
meetings, it did so because a majority of its nurses were
hired directly from Stanford Hospital, and these nurses had
been represented by CRONA for over 30 years; thus, in es-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The record evidence shows that the Union was prepared to make
a contribution to the PEAC, if necessary, in order to obtain permis-
sion to set up a table and solicit employees.
3 Indeed, a union contract may be reasonably characterized as a
form of insurance protection that labor organizations are in business
to provide.
4 It appears unnecessary to analyze the abundant evidence regard-
ing the 1991 CRONA organizational campaign, and make the nec-
essary credibility resolutions in connection therewith, as such matters
are remote in time and, under the circumstances, appear to be of lim-
ited evidentiary value.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
sence, the organizational campaign among the Respondent’s
nurses appeared to be a mere formality, and the certification
of CRONA appeared to be a foregone conclusion. Neverthe-
less, the Respondent proffered evidence to the effect that it
continued to attempt to preclude nonemployee representatives
of CRONA from soliciting employees in the hallway outside
the cafeteria. The General Counsel has presented contrary
evidence in order to show that the Respondent had a past
practice of permitting nonemployee members of a labor orga-
nization to set up a table outside the cafeteria and solicit em-
ployees during an organizational campaign.
C. Analysis and Conclusions
From the foregoing, it is clear that the Respondent has not
adhered to the no-solicitation and distribution policy con-
tained in its supervisors’ manual. Thus, the rule precluding
‘‘outsiders’’ from ‘‘solicit[ing] or distribut[ing] literature on
hospital property for any purpose at any time’’ has not been
applied to a variety of vendors who have been permitted to
profit from the sale of flowers, jewelry, and clothing to em-
ployees and the general public as they approach the Re-
spondent’s cafeteria. The fact that such vendors are author-
ized to sell their wares by the Packard employee activity
committee, and must remit a percentage of their proceeds to
the PEAC in exchange for such permission, does not negate
the fact that the plain language of the rule that the Respond-
ent seeks to enforce specifically precludes such activity by
nonemployees.2
Similarly, the Respondent, on a regular basis, permits the
sale of all types of banking and insurance products to its em-
ployees by ‘‘outsiders.’’ These products are not a part of the
employees’ regular benefit package. Clearly, by granting
such permission the Respondent is not adhering to the plan
language of its rule that it seeks to enforce against the
Union.3
The Respondent argues in its brief that the nonemployee
vendors and representatives, of the other aforementioned
businesses are ‘‘agents’’ of the Respondent, acting on its be-
half, and therefore are not ‘‘outsiders’’ within the meaning
of the Respondent’s rule. Apparently, the Respondent consid-
ers an agent to be anyone with whom it has a voluntary rela-
tionship, and an outsider to be anyone who is not an agent.
Respondent’s argument is without merit.
From the foregoing, I conclude that the Respondent has
enforced its ban on union solicitation in a discriminatory
manner. Such conduct is clearly violative of Section 8(a)(1)
of the Act. Ameron Automotive Centers, 265 NLRB 511
(1982), and cases cited therein.4 Thus, in Ameron, the admin-
istrative law judge, stated:
From the foregoing it is apparent and I find that Re-
spondent’s application of their no-solicitation rule was
on a selective basis . . . . It is well established that
disparate application of even an otherwise valid no-so-
licitation proscription, so as to preclude union organiza-
tional solicitation while permitting or sanctioning other
solicitation, violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
by discriminatorily enforcing its no-solicitation and no-dis-
tribution rule so as to preclude the Union from engaging in
solicitation and distribution of materials in the hallway out-
side the Respondent’s public cafeteria.
4. The unfair practices set forth in paragraph 3 above con-
stitute unfair labor practices within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, I recommend that it be required to cease
and desist therefrom and from in any like or related manner
interfering with, restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act. Moreover,
the Respondent shall be required to post an appropriate no-
tice, attached hereto as ‘‘Appendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Lucile Salter Packard Childrens’ Hospital
at Stanford, its Palo Alto, California, officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Interfering with employees’ Section 7 rights by
discriminatorily enforcing its no-solicitation and no-distribu-
tion rule.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Respondent’s facilities copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 32, after
being duly signed by the Respondent’s representative, shall
be posted by it immediately upon receipt thereof, and be
437LUCILE SALTER PACKARD CHILDRENS’ HOSPITAL
maintained by the Respondent for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of The United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to permit nonemployee representa-
tives of American Federation of State, County and Municipal
Employees, District Council 57, American Federation of
State, County and Municipal Employees, AFL–CIO, or any
other labor organization, to solicit employees and distribute
material in the hallway outside the cafeteria in the same
manner and under the same conditions as we permit other
entities to engage in similar activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
LUCILE SALTER PACKARD CHILDRENS’ HOS-
PITAL AT STANFORD