Medical Center Hospitals

National Labor Relations Board - Board Decisions

Aug 30, 1979

244 N.L.R.B. 742 (N.L.R.B. 1979)

I)El(ISIONS OF NATIONAL. LABOR REL.ATIONS BOARD
Medical Center thospitals and Retail Store Employee
Union l.'wal 233, a/w Professional Division of
United Forod and Commercial Workers Interna-
tional Union, AFI-CIO.' Case 5 ('A 8935
August 30, 1979
D)ECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On January 23, 1979, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge, as
modified, and to adopt his recommended Order, as
modified herein.
Since the issuance of the Decision of the Adminis-
trative Law Judge, the Supreme Court, in N.L.R.B. v.
Baptist Hospital, Inc., 442 U.S. 773 (1979), has found
that the evidence in that case, viewed as a whole, was
insufficient to rebut the Board's presumption that the
needs of essential patient care did not require the
banning of all soliciation, at least as applied to the
cafeteria, gift shop, and lobbies on the first floor of
the hospital, although the needs were sufficient tojus-
tify such banning in the corridors and sitting rooms
on those floors housing either patients rooms, operat-
ing rooms, or therapy rooms. Applying a similar
analysis of the testimony given in this case we con-
clude, in accord with the Administrative Law Judge,
that there is insufficient evidence to justify banning
solicitation for the Union on the curved walk drive-
way immediately outside the Norfolk General Hospi-
tal's front entrance during the early morning and
mid-afternoon periods when the great majority of em-
ployees enter and leave the hospital. The solicitation
in this case occurred only on nonwork time, only out-
side the hospital, and did not coincide with periods
when patients generally leave or arrive.
I As of June 7, 1979. the name of the Charging Party Union has been
changed to reflect the merger of Retail Clerks International Union and
Butchers Workmen of North America into a new union identified as United
Food and Commercial Workers International Union. AFL-CIO.
2 The Administrative Law Judge inadvertently referred to 121 beds rather
than 721 beds in Respondent's hospital.
]We agree that the area outside the hospital's front entrance is not a
"work area" of the hospital without concluding that Respondent's argument
in that respect "borders on the frivolous."
Accordingly, we shall amend Conclusion of Law 3.
to read as follows:
"3. By maintaining and enforcing rules applicable
to nonpatient care areas such as the walkway and
driveway leading to the Norfolk General Hospital's
front entrance used by patients. visitors, and employ-
ees, which rules prohibit employees during their non-
working time from engaging in union solicitation
and/or the distribution of union literature, and by
threatening to cause the arrest of employees, and
causing a summons to be issued and the arrest of
employees because they engaged in union solicitation
and distribution of union literature during their non-
working time in such nonwork areas, Respondent has
engaged in, and is engaging in, unfair labor practices
in violation of Section 8(a)( 1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Medical
Center Hospitals, Norfolk, Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph (a):
"(a) Maintaining or enforcing any rule or policy
applicable to nonpatient care areas such as the walk-
way and driveway leading to Norfolk General Hospi-
tal's front entrance which prohibits employees during
their nonworking time from engaging in union solici-
tation and/or the distribution of union literature in
such nonwork areas."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NO] maintain or enforce any rule
applicable to nonpatient care areas such as the
walkway and driveway leading to the entrance of
Norfolk General Hospital which prohibits our
employees from soliciting on behalf of any labor
organization and/or from distributing any litera-
ture on behalf of any labor organization during
their nonworking time.
WE WILL NOT cause the summons or arrest of
any employee for soliciting on behalf of Retail
Store Union Local 233, a/w Professional Divi-
244 NLRB No. 116
742
MEDICAL CENTER HOSPITALS
sion of United Food and Commercial Workers
International Union, AFL-CIO, or any other la-
bor organization, during nonworking time in
such nonpatient care areas as the walkway and
driveway leading to the entrance of Norfolk
General Hospital.
WE WILL NOT threaten employees with arrest
for soliciting on behalf of the Union and distrib-
uting union literature in such nonpatient care
areas on hospital property during nonworking
time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of the National Labor Relations Act.
WE WILL reimburse employees John Long and
William Welch for all reasonable legal fees and
expenses incurred by them in connection with
their summons and arrest, respectively, on or
about September 30, 1977, and WE wiL.t, upon
their request, join in a petition to the Norfolk
Municipal Court and Police Department re-
questing that all records relating to said sum-
mons and arrest be expunged.
WE WILL post a notice which clearly informs
employees where they may engage in union so-
licitation and distribute union literature during
their nonworking time.
MEDICAL CENTER HOSPIIAI.S
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This pro-
ceeding involves allegations that the above-named Respon-
dent violated Section 8(a)(X) of the Act by the maintenance
and enforcement of an invalid no-solicitation and no-distri-
bution rule. The proceeding was initiated by a charge filed
by the above-named Union on October 7.' which charge
was amended on November 11, 1977. On December I a
complaint was issued and hearing was held in Norfolk, Vir-
ginia, on March 1, 1978.
Upon the entire record., including my observation of the
witnesses and upon consideration of the briefs of the par-
ties, I hereby make the following:
FINDINGS OF FACT
I. THE FACTS
Respondent is a Virginia corporation engaged in the op-
eration of Norfolk General Hospital and Leigh (Memorial
Hospital, both of which are nonprofit hospital facilities lo-
cated in Norfolk, Virginia.' The events herein involve only
Unless otherwise indicated all dates are in 1977.
2 Certain errors in the transcript are hereby noted and corrected.
Jurisdiction is not in issue. Respondent admits that it meets the Board's
standard for the assertion ofjurisdiction over nonprofit hospitals.
the Norfolk General Hospital. At the times herein relevant
the hospital was operating about 121 beds and had in ex-
cess of 600 patients. In addition, according to Hospital Ad-
ministrator Michael Madden, the hospital treats approxi-
mately 45,000 to 50,000 outpatients a year. outpatients who
come for specific tests, and approximately 50.000 emer-
gency room patients a year. The medical staff consists of
over 600 physicians, 100 medical residents. and a nursing
school with some 200 students. Madden testified that the
hospital employs 2,700 to 2.800 employees at this location.
In August or September Retail Store Employee Union
Local 233. a/w Professional Division of Retail Clerks Inter-
national Union. herein called the Union, began an organi-
zational campaign among Respondent's employees. The
front entrance of the hospital is on Gresham Drive and is
approached from the public sidewalk by a U-shaped drive-
way which is on hospital property. The entrance itself is
covered by a canopy and consists of four doors leading to
the main lobby. As part of its campaign to organize the
employees the Union posted employees at three points at
the main entrance of the hospital. One distributor was on
the public sidewalk at one end of the horseshoe entrance,
another was at the other end, and a third distributor was on
hospital property under the canopy a few feet from the
doors of the hospital. The distribution and solicitation was
conducted at shift changes from about 6:35 a.m. to about 7
a.m. and from 3 p.m. to about 3:30 p.m.
The visiting hours are from 12:30 p.m. to 2 p.m. and
from 6:30 p.m. to 8:30 p.m. Patients are discharged nor-
mally by I I a.m., and admissions start about the same time
or earlier.
On September 24, 29, and 30, and October 1 employees
of Respondent engaged in the distribution of leaflets on
behalf of the Union under the canopy at the main entrance,
and the) were threatened with arrest by agents of Respon-
dent on the ground that they were in violation of a no-
solicitation and no-distribution rule promulgated by Re-
spondent and maintained and enforced since on or about
August 12. 1975.' On September 30 and October I Respon-
dent caused a summons to be issued to employee John
Long and caused the arrest of employee William Welch for
soliciting on behalf of the Union and distributing union
literature at the front entrance on hospital property. On
October 17, after hearing, the charge against Long was dis-
missed. Respondent withdrew the charge against Welch.
'The rule provides as follows:
NO SOLICITATION OR DISTRIBUTION
Since it is the function of Medical Center Hospitals to serve the com-
munity by providing the highest standard of patient care, all of our
efforts must be spent in that direction. In order to insure an atmosphere
at Medical Center Hospitals most conducive to high quality patient
care, no outsiders are allowed on hospital premises at any time for the
purpose of distributing or soliciting our employees, patients, or visitors
for any cause whatsoever.
No solicitation or distribution is permitted to or by employees during
working time.
No distribution is permitted in working areas or areas frequented hb
patients or visitors.
No solicitation is permitted in areas frequented by patients or visitors.
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. ANALYSIS ANI) (ON('I.USIONS
The foregoing is either undisputed or is based on stipu-
lated facts. On the basis thereof General Counsel contends
that Respondent violated Section 8(a)( ) of the Act. He
contends that the no-solicitation/no-distribution rule is un-
lawful in prohibiting employees from soliciting on behalf of
the Union and distributing union literature during non-
working time outside the hospital, particularly at the en-
trance of the hospital on Respondent's property, and in all
areas within the hospital to which employees, patients, and
visitors have access other than immediate patient care
areas.
In Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978).
the Supreme Court upheld the Board's qualified extension
of the legal principle of Republic A viation Corp. v. N. L. R. B.,
324 U.S. 793 (1945), to hospitals and the Board's holding
that in other than immediate patient care areas rules pro-
hibiting solicitation and distribution of union literature in
nonwork areas on nonworking time were deemed to be pre-
sumptively unlawful, and the burden was on the hospital to
show special circumstances that would justify banning so-
licitation and/or distribution. In the instant case Respon-
dent has maintained a rule which bans solicitation and dis-
tribution "in areas frequented by patients or visitors" and
has interfered with solicitation and distribution of union
literature outside the front entrance to the hospital. On the
authority of Beth Israel it is clear that the rule is presump-
tively unlawful, and that the threats of arrest and the sum-
mons and arrest of employees for soliciting and distributing
union literature at the front entrance constituted unlawful
interference unless Respondent can show special circum-
stances to overcome the presumption.
In defense of the rule and its conduct relative to the dis-
tribution outside the hospital entrance Respondent ad-
vances several arguments. One argument, advanced by Re-
spondent in a brief filed before the Supreme Court in Beth
Israel, supra, is that a hospital's setting is sufficiently similar
to the retail setting to warrant prohibiting solicitation in all
public areas of the hospital. The argument was rejected by
the Court in Beth Israel, slpra.
A second argument, addressed to the employees' solicita-
tion and distribution at the front entrance, is that such area
is a work area. The argument is predicated on testimony of
Dr. Lehew, an obstetrician, that maternity patients leave
the hospital in a wheelchair escorted by an employee all the
way to the patient's automobile. Lehew also testified that
there would be occasions when an incoming patient would
be greeted at the entrance by an employee. He did not
describe what circumstances would dictate such procedure
or its frequency.
In my judgment, the contention that the area in question
is a work area because of the sporadic performance of this
limited service borders on the frivolous. It is clearly a public
area open to all making ingress or egress to or from the
hospital. Respondent's contention would have the public
moving at will in this area and would exclude only employ-
ees seeking to solicit other employees. In a sense this con-
tention is merely a restatement of Respondent's retail store
argument which has been rejected above. Moreover, there
is no showing that the solicitation and distribution that was
carried on here interfered in any way with the employees'
performance of this limited function. In this connection it is
noted that patients are discharged before 11 a.m., and new
patients are admitted shortly thereafter. On occasion they
are admitted earlier. The distribution conducted herein oc-
curred between the hours of about 6:15 a.m. to about 7 a.m.
and about 3 p.m. to about 3:30 p.m.. times when patient
ingress or egress was at a minimum.
Respondent also adduced testimony of the heavy traffic
in its hospital and, apparently, would justify a ban on solici-
tation and distribution in its corridors on the ground that
solicitation and/or distribution would add to the conges-
tion. It appears to me that a ruling upholding such a ban is
not warranted on this record. For one reason, whatever the
congestion, it was not the same at all hours, and Respon-
dent's ban would cover all hours of operation. For another.
despite the congestion, Respondent permitted at least the
credit union to set up a table in the corridor at the exit
doorway of the cafeteria and on occasion had a fire safety
literature table in the lobby area. For yet another reason.
no union solicitation or distribution of union literature was
ever attempted in the lobby area or any of the corridors. so
that a claim that such activity would cause disturbances in
either patient care or the well ordered operation of the hos-
pital is at best speculative.
Another argument of Respondent is that there are alter-
nate locations within and around the hospital facilities
which can be used by employees for solicitation and distri-
bution. Within the hospital they consist of 34 lounge areas;
outside the hospital they consist of parking lots and the
public sidewalks in close proximity to the front entrance.
As to this argument General Counsel contends that the
Board is not required to weigh alternative avenues of em-
ployee communication unless the employer first rebuts the
presumptive illegality of its rule. In Beth Israel, supra, the
Court acknowledged that such was the principle outside the
health care context, adding, however, "... it may be that
the importance of the employer's interest here demands use
of a more finely calibrated scale. For example, the avail-
ability of one part of a health care facility for organization-
al activity might be regarded as a factor required to be
considered in evaluating the permissibility of restrictions in
other areas of the same facility." However, here, as in Beth
Israel, that consideration is inappropriate.
As to the 34 lounge areas the record indicates nothing
more than the fact that such areas exist. Where they are
located. to which employees they are accessible, and during
what periods of time has not been shown. Moreover, there
is no showing that employees have ever been made aware
that they had the right to engage in solicitation and distri-
bution in such areas. The only instructions they have re-
ceived are those set forth in the no-solicitation/no-distribu-
tion rule which spells out no rights but rather recites broad
restrictions.
The availability of the public sidewalk at the front of the
hospital and the parking lot is relevant to the reasonable-
ness of a ban on solicitation under the canopy at the very
doors of the hospital. The record indicates that Respondent
has not interfered with solicitation and distribution on the
744
MEDICAl, CENE R HOSPITAIlS
public sidewalk.,' and the record indicates that many em-
ployees approach the hospital at points on the public side-
walk where they may be solicited. In addition. Respondent
asserts that employees engaged in organizational activity
have access to many other employees on the nearby parking
lot. Were the front entrance a work area or an area at
which solicitation and distribution presented any risk of
harm to patients a finely calibrated scale might move in the
direction of a ban on solicitation and distribution at such
location. However, it is not a work area. and, as noted
above. the times of distribution did not coincide with the
periods when patients were generally leaving or arriving.
Accordingly, as the record indicates that many employees
approach the front entrance without crossing the public
sidewalk at the front and that some employees are bussed
to the hospital from a distant parking lot (and presumably
disembark at the front entrance), a ban on solicitation and
distribution at the front entrance is not justified.
Mindful of the Board's holding in St. John's Hospital and
School of Nursing, Inc., 222 NLRB 1150 (1976). Respondent
asserts as its principal defense that it. unlike St. John's Hos-
pital, and Lutheran Hospital of Milwaukee. Inc.. 224 NL.RB
176 (1976). and Beth Israel, supra, has met its burden of
showing special circumstances tojustify the broad no-solici-
tation/no-distribution rule here under review. The basis for
this assertion are the testimony of psychiatric physician
Thomas Williams; internist James Baker; ear. nose, and
throat physician and surgeon Donald Sly: and obstetrician
and gynecologist Willet Lehew to the effect that union so-
licitation and distribution of union literature in any area of
the hospital property where a patient would be likely to
witness the distribution or overhear the conversation would
be detrimental to the patient's health. This testimony was
not based on any data or experience with union organiza-
tional campaigns or campaigns of any sort. In my judg-
ment, the testimony of the physicians is not evidence:
rather, they are the testimonial substitute for the argument
made in Beth Israel. supra, that the Board's conclusion re-
garding the likelihood of disruption to patient care which
solicitation in a patient access area would produce is essen-
tially a medical judgment outside the Board's area of exper-
tise. The Supreme Court rejected the argument and noted
in connection therewith. "It is not surprising or unnatural
that petitioner's assessment of the need for a particular
practice might overcompensate its goals and give too little
weight to employee organizational interests." The scope of
the ban in this case confirms the accuracy of the Court's
observation. I find that the physicians' testimony is insuffi-
cient to establish special circumstances justifying a broad
no-solicitation/no-distribution rule in other than immediate
patient care areas.
111. TE FFF('I OF IHE UNFAIR lABOR PRA('II(ES P()N
COMMERCE
The activities of Respondent set forth in section 1, above.
occurring in connection with operations described therein.
have a close, intimate, and substantial relationship to trade.
traffic, and commerce among the several States and tend to
Whatever remarks were made by security police to those soliciting on the
public sidewalk, no one was actually prevented from doing so.
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. IIi RME)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( I ) of the Act I find
it necessary to order Respondent to cease and desist there-
from and take certain affirmative action designed to effectu-
ate the policies of the Act. In particular. I shall order Re-
spondent to reimburse employees John long and William
Welch for all reasonable legal fees and expenses incurred b
them as a result of the summons issued to ong and the
hearing thereon and the arrest of Welch for engaging in
conduct protected by Section 7 of the Act. I shall also order
Respondent to join with L.ong and Welch in whatever pro-
cedures are necessary to have their names expunged from
the Norfolk Municipal Court and Police Department rec-
ords. Baptist Memorial Hospital 229 NLRB 45 (1977). Gen-
eral Counsel also requests that Respondent be ordered to
expunge from its records any written warnings or repri-
mands placed in the files of employees for violation of its
no-solicitation and no-distribution rule. This request is de-
nied, as there is no showing that any such written warnings
were issued or that any reprimands were placed in the tiles
of employees.
CON(I ISI()NS ()F l.AW
1. Medical Center Hospitals is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Store Employees Union l.ocal 233, a/w Proes-
sional Division of Retail Clerks International Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By maintaining and enforcing rules in other than im-
mediate patient care areas prohibiting employees from so-
liciting on behalf of labor orga nizations in areas frequented
by patients or visitors during nonwork time and prohibiting
employees from distributing union literature in a nonwork
area frequented b patients or visitors during nonworking
time, by threatening to cause the arrest of employees and
causing a summons to be issued and the arrest of employees
because they engaged in union solicitation and distribution
of union literature during their nonwork time in nonwork
areas Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)( I) of the Act.
Uipon the foregoing findings of tact conclusions of lay,.
and the entire record. and pursuant to Section 10(c) of' the
Act. I hereby issue the following recommended:
ORDER"
The Respondent. Medical ('enter Hospitals. Norfolk.
Virginia. its officers, agents, successors, and assigns shall:
1. ('ease and desist from:
In the event no exceptions are filed as prosided h Sec I02.46 iof the
Rules and Regulations of he Nalionl I bor Relations Board. the findings
conclusions, and recommended Order herein shall as proidedi in Sec. 10248
of the Rules and Regulations, he adopted h the Board and hecolme is
findings, conclusions, and Order. an and ll ohleclion Ihereit shall he deemed
aived for all purpose,.
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Maintaining and enforcing any rule or policy appli-
cable to other than immediate patient care areas which pro-
hibits employees from engaging in union solicitation during
nonworking time ad from engaging in the distribution of
union literature during nonworking time in nonwork areas
on or near hospital premises.
(b) Threatening employees with arrest and causing a
summons to be issued and the arrest of employees for solic-
iting other employees on behalf of a labor organization dur-
ing nonworking time and distributing union literature in
nonworking areas during nonworking time.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Reimburse John Long and William Welch for all rea-
sonable legal fees and expenses incurred by them in connec-
tion with the summons to court of the former and the arrest
of the latter on or about September 30, 1977, and, upon the
request of either of them, join in a petition to the Norfolk
Municipal Court and Police Department requesting that all
records reflecting a summons or arrest be expunged.
(b) Publish on its bulletin boards or other areas where
Respondent customarily attaches notices to its employees a
written notice which clearly, adequately, and unambiguous-
ly informs its employees where they may engage in union
solicitation and distribute union literature.
(c) Post at its places of business in Norfolk. Virginia,
copies of' the attached notice marked "Appendix."7 Copies
of the notice, on forms provided by the Regional Director
for Region 5, shall be signed by an authorized representa-
tive of Respondent, posted immediately upon receipt
thereof, and maintained for 60 consecutive days thereafter.
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
I In the event that 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."
746