Mesa Vista Hospital

National Labor Relations Board - Board Decisions

Jun 11, 1986

280 N.L.R.B. 298 (N.L.R.B. 1986)

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vista Hill Foundation d/b/a Mesa Vista Hospital
and Office & Professional Employees Interna-
tional Union, Local 30 , AFL-CIO, CLC. Cases
21-CA-20284 and 21-CA-20358
11 June 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 16 September 1982 Administrative Law
Judge David G. Heilbrun issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The Respondent operates a hospital where it is
engaged in providing acute psychiatric care, pri-
marily to patients suffering from psychoses. On 19
May 1981,1 after the onset of union activity by its
employees, the Respondent promulgated a rule
which read in pertinent part:
It has come to my attention that a number
of employees of the hospital are wearing
badges or insignia bearing the words "Local
30." I understand these badges or insignia to
have reference to the organizational efforts of
Local 30 of the Office & Professional Employ-
ees International (AFL-CIO). It is neither the
intent nor the purpose of hospital management
to infringe upon the rights of employees to
engage in organizational activity. However,
the wearing of these or any badges or insignia
(other than name badges) in patient care areas
is contrary to hospital policy regarding solici-
tation as set forth in the Employee Handbook
and must , of necessity, be restricted. Accord-
ingly, all employees are reminded that they are
absolutely prohibited from wearing any
badges, buttons or other insignia (other than
name badges) during working time or in work-
ing or patient care areas. The terms "working
or patient care areas" are defined as including
all areas of the hospital except employee
lounges, parking areas, and cafeteria during
scheduled employee meal hours and when no
patients [are] present.
i Unless otherwise specified , all dates herein refer to 1981
Although the rule on its face prohibits insignia of
all types, the Respondent concedes that the rule
was directed only against employees who wore
"contentious," "divisive," or "inflammatory" insig-
nia. Dr . Robert Moore, the Respondent 's medical
director and chief executive officer , testified that
the Respondent enforced the rule in this manner
because the wearing of contentious insignia by em-
ployees would disrupt the Respondent's approach
to patient care.2 On 15 June , pursuant to the 19
May rule, the Respondent suspended employees
who wore a yellow badge reading , "Local 30
Union Organizing Committee."
1. The judge concluded that the Respondent's 19
May rule was unlawfully broad . In doing so, he ac-
corded little weight to Dr . Moore's medical testi-
mony and found that it did not establish a business
justification for the rule. Although we agree that
the rule is unlawful , we do so only for the reasons
set forth below, and we do not rely on the judge's
analysis of Dr. Moore's testimony.s
In health care facilities, rules that contain restric-
tions of nonworking time solicitation outside imme-
diate patient care areas are presumptively invalid.
NLRB v. Baptist Hospital, 422 U.S. 773, 781 (1979).
The presumption is also applicable to rules restrict-
ing the wearing of insignia outside immediate pa-
tient care areas. George J. London Memorial Hospi-
tal, 238 NLRB 704, 708 (1978). See also Saint Vin-
cent's Hospital, 265 NLRB 38 (1982). An employer
may rebut the presumption by demonstrating that
the rule is "necessary to avoid disruption of health-
care operations or disturbance of patients."4 The
Supreme Court has observed that the Board's pre-
sumption "does no more than place on the hospital
the burden of proving , with respect to areas to
which it applies , that union solicitation may ad-
versely affect patients ."5 We find that Respondent
has not met its burden in this proceeding.
2 Dr Moore testified that the Respondent utilizes a "treatment team"
concept, in which psychiatrists and other staff members work together to
develop a treatment program for each patient The entire treatment team
works within the program and avoids any indication that it is divided as
to the proper course of treatment According to Dr Moore, this "coher-
ent" approach is necessary to allay the fears of psychotic patients and to
create an atmosphere of trust between patients and staff. Dr Moore testi-
fied that the wearing of contentious insignia by employees would demon-
strate to patients that there is a lack of cohesion within the staff, and
would undermine the patients ' trust and confidence in the treatment
team In Dr Moore's opinion, the yellow union badge herein is conten-
tious, while other buttons permitted by the Respondent are not. Dr.
Moore testified that buttons stating , inter alia, "Save the Whales," "Save
the Atlanta Children," and "Happy St Patrick 's Day," which the Re-
spondent permitted , would not indicate to patients that a clear division
exists within the staff
8 We find it particularly inappropriate that, in justifying his rejection of
Dr Moore's expert testimony, the judge disparaged Dr. Moore 's approv-
al of the occasional use of electroshock therapy on psychotic patients.
Beth Israel Hospital Y NLRB, 437 U S 483, 507 (1978).
NLRB v. Baptist Hospital, supra at 781
280 NLRB No. 27
MESA VISTA HOSPITAL
As noted above, the 19 May rule prohibits the
wearing of insignia in "working or patient care
areas," which the rule defines as "all areas of the
hospital except employee lounges, parking areas,
and cafeteria during scheduled employee meal
hours and when no patients [are] present." The
rule thus permits employees to wear insignia in
only three locations within the hospital. In view of
this broad restriction with respect to location, the
Respondent must demonstrate an adverse impact
on patient care in those areas of the hospital where
the ban applies. To meet this burden, the Respond-
ent must establish that employees and patients have
contact in such areas, since the Respondent does
not contend that the wearing of insignia by em-
ployees in locations inaccessible to patients presents
any risk of an adverse impact on patient care.6
However, the Respondent introduced virtually no
evidence concerning the other areas of the hospital,
outside immediate patient care areas, in which the
ban is applicable. The record contains little evi-
dence describing such areas and little evidence of
the frequency with which patients use those areas.?
Absent such evidence, we are unwilling to assume
that patients have contact with employees in every
part of the hospital except the three areas set forth
in the rule. Our analysis comports with NLRB v.
Baptist Hospital, supra, in which the Supreme
Court upheld the Board's finding that a hospital
unlawfully banned solicitation in the cafeteria, gift
shop, and first-floor lobbies, where the hospital had
presented no clear evidence of the frequency with
which patients used those areas."
s In NLRB v. Baptist Hospital, supra at 781 fn 11, the Supreme Court
observed that
a hospital may overcome the presumption by showing that solicita-
tion is likely either to disrupt patient care or disturb patients. The
distinction is an important one. Solicitation may disrupt patient care
if it interferes with the health -care activities of doctors , nurses, and
staff, even though not conducted in the presence of patients And so-
licitation that does not impede the efforts of those charged with the
responsibility of caring for patients nonetheless may disturb patients
exposed to it [Emphasis added ]
Here , the Respondent contends only that patients may be harmed by ex-
posure to contentious insignia . It does not argue, and the record does not
reflect , that contentious insignia displayed outside the presence of patients
would interfere with the health care activities of doctors, nurses, and
staff.
r Porfirio Trillas, a senior janitor who was suspended for wearing the
union badge, testified that he was not involved in patient care , but that
he did have contact with patients. However , the record does not disclose
the locations within the hospital where this contact occurs Cynthia
Mongan, another of the suspended employees , was an insurance clerk in
the business office on 15 June She testified that she was not involved in
patient care , but that she did have contact with patients who sought to
place personal property in the Respondent 's safe Joanne Fox, who was
also suspended , worked in the business office as an insurance and billing
clerk . She indicated that she discharges patients who are ready to leave
the hospital , and that patients sometimes come to the business office to
sign insurance forms. We cannot find that the Respondent has met its
burden of justifying its broad ban by adducing this limited evidence of
patient-employee contact in and around the business office
8 NLRB v. Baptist Hospital, supra at 786-787. We also note that in
Presbyterian/St Luke 's Medical Center, 258 NLRB 93, 98-99 (1981), enfd.
299
In view of the foregoing, we fmd that the Re-
spondent has not demonstrated that the wearing of
insignia would have an adverse impact on patient
care in all those areas of the hospital where the ban
is applicable . Consequently, we find that the 19
May rule is overly broad with respect to location
and violates Section 8(a)(1).9
2. In addition to restricting the locations in
which employees may wear insignia, the Respond-
ent's rule also prohibits the wearing of insignia
"during working time." We fmd that the rule's re-
striction in terms of time is also unlawfully broad.
In contrast to the presumptive validity of rules
proscribing verbal solicitation of working employ-
ees, the Board and the courts have long recognized
that employees have the right to wear union insig-
nia even while at work. 10 A hospital's prohibition
of the wearing of insignia, however, on working
and even on nonworking time in immediate patient
care areas is presumptively valid." Outside imme-
diate patient care areas, and outside other areas
where the hospital establishes an adverse effect on
patient care,12 employees retain the right to wear
union insignia while working. An employer may
further restrict the right by demonstrating "special
circumstances."' 3 The Respondent argues that
such circumstances have been established by Dr.
Moore's testimony that contentious insignia would
adversely affect patient care. For the reasons
below, we reject the Respondent's argument.
Even if we again assume that the wearing of
union insignia poses a threat to patient care, the
Respondent cannot rely on this alone as a "special
circumstance" to restrict the wearing of union in-
signia at all times when employees are working.
We note that in United Parcel Service, 195 NLRB
441 (1972), upon which the Respondent relies, the
Board upheld a rule which was tailored to restrict
insignia only at those times when "special circum-
723 F.2d 1468 (10th Cir. 1983), the Board found that the hospital 's solici-
tation ban encompassed a wide variety of areas, including some not de-
scribed in the record, which were generally used by patients , employees,
and the public The Board observed that, while some of these areas may
have been involved in patient care or may have been utilized by patients,
the hospital had not introduced sufficient evidence to justify the applica-
tion of the ban to those areas.
9 We shall modify the judge's recommended Order to require that the
Respondent rescind the 19 May rule. See Presbyterian/St. Luke 's Medical
Center, supra at 112; A. T. & SF Memorial Hospitals, 234 NLRB 436, 437
(1978).
1O Ohio Masonic Home , 205 NLRB 357 (1973), enfd . 511 F 2d 527 (6th
Cir 1975). See Republic Aviation Corp. v NLRB, 324 U.S. 802 fn 7
(1945).
11 See George J. London Memorial Hospital, supra, Saint Vincent's Hos-
pital, supra.
12 As we have found, the Respondent has not met its burden of estab
lishing that the wearing of insignia would adversely affect patient care in
those areas , outside immediate patient care areas, where the rule applies
13 Ohio Masonic Home, supra; Floridian Hotel of Tampa, 137 NLRB
1484 (1962)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances" warranted the restriction. In that case the
employer, in order to preserve its public image,
prohibited its employees from wearing intraunion
campaign buttons. The Board emphasized that the
restrictions applied only to the employer's drivers,
and only when they were in uniform, making deliv-
eries to customers, and otherwise meeting the gen-
eral public. The Board found no evidence that the
employer's notice restricted the display of insignia
when drivers were out of uniform and working in
the terminal, away from customers and the public.
Thus, the employer in United Parcel Service did
not forbid all working-time display of insignia.
When out of uniform and away from the public,
drivers were permitted to wear insignia on working
time. In contrast, the Respondent has forbidden all
working-time display of insignia even for employ-
ees who do not have contact with patients during
much of their working time. In view of the forego-
ing, we find that the Respondent has not estab-
lished "special circumstances" to justify the broad
applicability of the 19 May rule.14
3. In addition to alleging that the 19 May rule is
unlawful on its face, the complaint alleges that the
Respondent further violated Section 8(a)(1) when it
enforced that rule 15 June by suspending employ-
ees who wore union insignia.
The Board has consistently found that an overly
broad rule governing solicitation and distribution is
invalid for all purposes, and that consequently any
discipline pursuant to such a rule is unlawful. y s
This principle is also applicable to rules governing
the wearing of insignia.16 We have found above
that the Respondent's 19 May rule is unlawfully
broad, and consequently we find that the 15 June
suspensions , which were based on that rule, violat-
ed Section 8(a)(1).17
4. The complaint also alleges that, apart from the
19 May rule prohibiting the wearing of insignia,
the Respondent maintained another rule governing
solicitation and distribution. The General Counsel
14 We also find that this case is distinguishable from Evergreen Nursing
Home, 198 NLRB 775 (1972), where the Board upheld a strict dress code
which required licensed practical nurses and nurses aides to wear all-
white uniforms with no adornments. The Board found, inter alia , that the
dress code contributed to the nurses' neat and professional appearance,
which was an important part of the hospital 's image to both the patients
and the public . The Board specifically observed that the union buttons
detracted from the dignity of the nurses ' all-white uniforms. Here, the
Respondent's public image is not at issue , and there is no evidence that
the Respondent required the suspended employees , who were not nurses,
to wear uniforms . To the contrary , employee Dodd testified that he wore
his own clothes to work . In view of the differing circumstances, Ever-
green is not controlling herein
15 Presbyterutn/St Luke 's Medical Center, supra at 99; A. T. & SF. Me-
morial Hospitals, supra; Times Publishing Co., 231 NLRB 207, 208 (1977).
George J. London Memorial Hospital , supra at 708.
's As we did in Presbyterian/St Luke's Medical Center, supra at 99, we
find it unnecessary to make a separate finding that the rule was "discn-
minatonly" applied . We note that the make-whole remedy for the sus-
pended employees will be the same in any event
does not contend that the rule is unlawful on its
face, but does contend that it was selectively and
disparately enforced by the Respondent's supervi-
sor, Fomaris.
The rule provides, inter alia, that employees may
distribute materials in the Respondent's cafeterias
during scheduled employee meal hours . In agree-
ment with the judge, we fmd that on 19 May em-
ployee Michele Busch distributed union literature
inside the cafeteria during the employees' lunch
hour.18 Supervisor Fomaris approached Busch and
told her that she was not allowed to distribute the
literature, and that she would have to leave the
cafeteria.
The judge found that the Respondent enforced
the rule unlawfully, inasmuch as employees were
permitted to engage in nonunion solicitation and
distribution in the cafeteria during nonworking
time. The record discloses two such incidents of
nonunion solicitation and distribution, but there is
no evidence that the Respondent was aware of
those incidents. Therefore, we do not fmd that the
Respondent enforced the rule disparately.
Nonetheless, we find that Fomaris' instruction to
Busch was unlawful. Busch's right to distribute
union literature in the cafeteria during nonworking
time, which activity the Respondent's rule does not
even purport to restrict, is protected by Section 7.
Thus, Fomaris' instruction to the contrary violated
Section 8(a)(1).
CONCLUSIONS OF LAW
1. Vista Hill Foundation d/b/a Mesa Vista Hos-
pital is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Office & Professional Employees International
Union, Local 30, AFL-CIO, CLC is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By promulgating, maintaining , and enforcing a
rule prohibiting the wearing of union insignia,
while employees are at work, outside immediate
patient care areas, and outside other specifically
identified areas where the wearing of union insignia
would adversely affect patient care, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By suspending employees, pursuant to the
above-described rule, for wearing union insignia
while at work, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
1 8 There is no evidence that patients were present in the cafeteria at
the time that Busch distributed the literature.
MESA VISTA HOSPITAL
5. By instructing an employee to cease distribut-
ing union literature in the cafeteria during the em-
ployee's lunch hour, the Respondent has engaged
in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
6. The above-described unfair labor practices are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(1) of the Act, we shall order the Respondent
to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act. Accordingly, we shall order the Re-
spondent to make whole the employees suspended
15 June for any loss of earnings they may have suf-
fered as a result of their unlawful suspensions, with
interest to be computed in the manner described in
Florida Steel Corp., 231 NLRB 651 (1977).19
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Vista Hill Foundation
d/b/a Mesa Vista Hospital, San Diego, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining , or enforcing any
rule, regulation, or other prohibition which forbids
the wearing of union insignia while employees are
at work, outside immediate patient care areas, or
outside other specifically identified areas where the
wearing of union insignia would adversely affect
patient care.
(b) Suspending employees pursuant to an overly
broad rule governing the wearing of insignia.
(c) Instructing employees to cease distributing
union literature in the cafeteria during employees'
lunch hour.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
19 The judge did not include employees Pam Holy and Michele Bar-
anek in his recommended Order, since he found that the evidence did not
establish that they were among the employees suspended 15 June In-
stead, he left the matter to be determined at the compliance stage of this
proceeding We note, however, that par 9 of the complaint specifically
includes Holy and Baranek in the list of suspended employees. In its
answer, the Respondent admits that on 15 June it sent home all of the
named employees "for an asserted violation of a hospital rule or policy
and for failing to obey the instruction of a supervisor " The Respondent
otherwise denies the allegations Thus, although it demes that its conduct
was unlawful, the Respondent admits as a factual matter that it suspended
the named employees, including Holy and Baranek, pursuant to the 19
May rule We shall therefore modify the recommended Order to provide
a make-whole remedy for Holy and Baranek
301
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind its 19 May rule governing the wear-
ing of insignia to the extent that it prohibits em-
ployees from wearing union insignia while at work,
outside immediate patient care areas , or outside
other specifically identified areas where the wear-
ing of union insignia would adversely affect patient
care.
(b) Make whole employees Henry Dodd, Cyn-
thia Mongan, Joanne Fox, Wallace Kearns, Rich-
ard Quintero, Porfirio Trillas, Pam Holy, and Mi-
chele Baranek for any loss of earnings they may
have suffered as a result of their unlawful suspen-
sions, plus interest, in the manner set forth in the
section of this decision entitled "The Remedy."
(c) Remove from its files any reference to the
unlawful suspensions of Henry Dodd, Cynthia
Mongan, Joanne Fox, Wallace Kearns, Richard
Quintero, Porfirio Trillas, Pam Holy, and Michele
Baranek, and notify them, in writing, that this has
been done and that evidence of the unlawful sus-
pensions will not be used as a basis for future per-
sonnel actions concerning them.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its San Diego, California facility
copies of the attached notice marked "Appen-
dix."20 Copies of the notice, on forms provided by
the Regional Director for Region 21, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
20 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 Nation-
al 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 "
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT promulgate, maintain , or enforce
any rule, regulation, or other prohibition which
forbids the wearing of union insignia while employ-
ees are at work, outside immediate patient care
areas, or outside other specifically identified areas
where the wearing of union insignia would ad-
versely affect patient care.
WE WILL NOT suspend employees pursuant to an
overly broad rule governing the wearing of insig-
nia.
WE WILL NOT instruct employees to cease dis-
tributing union literature in the cafeteria during
employees' lunch hour.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind our rule, issued on 19 May
1981 , governing the wearing of insignia, to the
extent that it prohibits employees from wearing
union insignia while at work , outside immediate pa-
tient care areas, or outside other specifically identi-
fied areas where the wearing of insignia would ad-
versely affect patient care.
WE WILL make whole employees Henry Dodd,
Cynthia Mongan , Joanne Fox, Wallace Kearns,
Richard Quintero, Porfirio Trillas, Pam Holy, and
Michele Baranek for any loss of earnings they may
have suffered as a result of their unlawful suspen-
sions, plus interest.
WE WILL remove from our files any reference to
the unlawful suspensions of Henry Dodd , Cynthia
Mongan, Joanne Fox , Wallace Kearns, Richard
Quintero, Porfirio Trillas, Pam Holy, and Michele
Baranek, and WE WILL notify them, in writing, that
this has been done and that evidence of the unlaw-
ful suspensions will not be used as a basis for future
personnel actions concerning them.
VISTA HILL FOUNDATION D/B/A
MESA VISTA HOSPITAL
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge. This
case was heard at San Diego, California , on May 6, 1982,
based on a consolidated amended complaint alleging that
Vista Hill Foundation d/b/a Mesa Vista Hospital (Re-
spondent) violated Section 8(a)(1) of the Act by discri-
minatorily prohibiting union-related solicitations and dis-
tributions as well as promulgating , maintaining, and dis-
criminatorily enforcing a rule prohibiting employees
from wearing certain insignia of Office & Professional
Employees International Union , Local 30, AFL-CIO,
CLC (the Union) and on this basis unlawfully dismissing
certain employees from a work shift.
On the entire record , my observation of witnesses, and
consideration of posthearing briefs, I make the following
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
On May 19, 1981 , this Employer posted the following
notice:
It has come to my attention that a number of em-
ployees of the hospital are wearing badges or insig-
nia bearing the words "Local 30." I understand
these badges or insignia to have reference to the or-
ganizational efforts of Local 30 of the Office & Pro-
fessional Employees International (AFL-CIO).
It is neither the intent nor the purpose of hospital
management to infringe upon the rights of employ-
ees to engage in organizational activity. However,
the wearing of these or any badges or insignia (other
than name badges) in patient care areas is contrary
to hospital policy regarding solicitation as set forth
in the Employee Handbook and must, of necessity,
be restricted. Accordingly, all employees are re-
minded that they are absolutely prohibited from
wearing any badges, buttons or other insignia (other
than name badges) during working time or in work-
ing or patient care areas . The terms "working or
patient care areas" are defined as including all areas
of the hospital except employee lounges, parking
areas, and cafeteria during scheduled employee
meal hours and when no patients [are] present.
At that point in time an organizational effort was under-
way, concerning which the Union supplied 1-inch diame-
ter buttons and, for key adherents, a yellow blouse or
lapel badge approximately 2 by 3 inches in size with
three lines of black lettering reading, "LOCAL 30
[larger caps]-UNION ORGANIZING-COMMIT-
TEE."' The small button was worn openly and uncon-
troversially, while the badge saw use only by committee
persons, until June 15, either during duty status in nonpa-
tient care areas only or as a constant, open, unchallenged
wearing.
Theodore R. Scott, for the General Counsel.
Richard R . Pace, of Los Angeles, California, for the Re-
spondent.
' All dates and named months hereafter are m 1981 unless shown oth-
erwise
MESA VISTA HOSPITAL
This mental health care facility is one in which ap-
proximately 400 persons overall are employed, and its
patient census was predominately those undergoing treat-
ment for psychotic illness.2 Medical Director Robert A.
Moore, Respondent's chief executive officer and a diplo-
mate of the American Board of Psychiatry and Neurolo-
gy, testified that the hospital relied on a "treatment
team" approach to care, believing that an appropriately
balanced array of psychotherapeutic techniques, group
therapies, drugs, and clinical and general supportive
services would greatly enhance a course of treatment to
hoped-for recovery.
In this context matters of general patient awarenesses
during their waking hours were a matter of alert con-
cern. David Grey, Respondent's administrator, testified
that the above-described rule had not, in fact, been en-
forced as an "absolute prohibition," but in conjunction
with Dr . Moore a consensus had been reached that the
Union's yellow badge was a deleteriously "contentious"
type of insignia tending to manifest as "inflamatory" or
"divisive" to an individual having delusional, untrusting,
or disoriented symptoms of the, psychotically afflicted.
Dr. Moore's considered professional opinion was that the
badges would be destructive of a patient's "sense of co-
hesion and unity . . . within the treatment team."
Matters peaked on Monday, June 15, when an abnor-
mally high number of employees displayed one or both
types of insignia after hospital management had prepared
itself for this eventuality. In the business office Joannne
Campbell, its manager , spoke to accounts payable clerk
Cynthia Mongan and insurance and billing clerk Joanne
Fox, each of whom testified that ostensibly as wearers of
the Union's badge Campbell prevailed on them to leave
work for the day. Hurriedly completed notices of sus-
pension, effectuating a partial nonpay status for the day,
were delivered before actual employee departure. These
read:
HOSPITAL RULES PROHIBIT SOLICITATION OF YOUR
FELLOW EMPLOYEES ON WORKING TIME, WHETHER
BY LITERATURE OR BY THE WEARING OF A BADGE
ON THE HOSPITAL PREMISES. THE ONLY EXCEPTION
TO THIS PROHIBITION IS THAT SOLICITATIONS MAY
BE MADE ON NON-WORKING TIME IN THE EMPLOYEE
LOUNGES, PARKING LOTS, AND IN THE CAFETERIA
(EXCEPT DURING PATIENT MEAL HOURS). YOU
HAWE BEEN EXPRESSLY ASKED BY YOUR SUPERVISOR
TO REMOVE SUCH BADGE OR TO CEASE DISTRIBU-
TION OF LITERATURE IN VIOLATION OF THE ABOVE
RULES.
YOU ARE, THEREFORE , HEREBY NOTIFIED THAT
UNLESS YOU IMMEDIATELY COMPLY WITH THESE
RULES YOUR SUSPENSION IS TO TAKE EFFECT IMME-
DIATELY AND WILL CONTINUE UNTIL COMPLIANCE;
9 Respondent operates a hospital facility in San Diego, California,
where acute psychiatric care is provided, annually deriving in the course
and conduct of such business operations gross revenues in excess of
$250 ,000 and annually purchasing and receiving goods and products
valued in excess of $5000 directly from suppliers located outside Califor-
nia. On these admitted facts I find that Respondent is an employer en-
gaged in commerce within the meaning of Sec 2(6) and (7) of the Act,
and otherwise that the Union is a labor organization within the meaning
of Sec 2(5).
303
OR, IF YOU CHOOSE NOT TO COMPLY WITHIN A REA-
SONABLE TIME, YOU WILL BE DISCHARGED AS AN
EMPLOYEE OF MESA VISTA HOSPITAL.
Campbell 's testimony was that in keeping with directives
from above she had advised those of her jurisdiction
how the badges were prohibited, and that Mongan and
Fox both quietly left without exercising the offered
choice of removing the badges as a condition for remain-
ing at work. Each of these employees credibly testified
contrarily that no choice was offered them, but instead
they were abruptly directed to leave. Mongan and Fox
added specifically that prior to seeing the prohibitory
notice of May 19 they had been unaware of any rule
concerning the wearing of buttons or badges.
Two other employees affected by that morning's
action were mental health worker Henry Dodd and psy-
chiatric technician Wallace Kearns, each of whom work
directly for daytime nursing coordinator Jeanne Ferrar.
As with business office employees both credibly testified
that they were not given the option of removing the
"committee" badge, only that Ferrar confronted them,
advised they should leave, and caused delivery of the
same suspension notice. Dodd stayed only long enough
for his function to be covered by a replacement, having
acquired "common knowledge" that wearing the badge
for the first time from actual start of shift would lead to
banishment. Kearns, an 18-year employee, was similarly
expectant based on "rumor," and further was not aware
of any prior policies on the subject. Ferrar's version is
that she offered employees the choice of removing offen-
sive publicity, then saw employee Bizjak holding a rank-
and-file caucus from which a collective, tacit refusal to
comply or elect ensued.3
Still another pair of employees experiencing the direc-
tive of June 15 were Richard Quintero, working directly
for Director of Plant Operations Harry Hodges, and Por-
firio (Pepe) Trillas, a senior custodian immediately super-
vised by Director of Environmental Services Mary Cald-
well. Quintero, an alert-seeming person of impressive
credibility from demeanor standpoints, testified that
Hodges dismissed him for balance of that June 15 shift
without mention of the union badge being worn. This is
contradicted by Hodges, who testified to having express-
ly extended Quintero the option of staying at work if of-
fending insignia were removed. The same pattern
emerged with respect to the conversational exchange be-
tween Trillas and Caldwell. The former worked a par-
ticularly early shift commencing at 5 a.m., so when Cald-
well obtained her ultimate understanding of how to pro-
ceed that morning, his workday was more than half
done. This episode, as among the several in which direct
implementation forms the essence of this case, was rather
ethereal for cultural or other reasons. Trillas, a nick-
named long-service employee speaking highly accented
English, testified to taking his experience with Caldwell
as one which at the time had a foregone conclusion. He
S Ferrar had mistakenly taken management 's position to also include
the mere union buttons and, based on this, similarly scooted employee
Ann McGuire home for the day. This separate action was promptly rem-
edied with an apology to McGuire and refund of pay lost for the day.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was expecting to be sent home and made no protest, nor
did he seek clarification, justification, or evan a basic ex-
planation. Rather, as testified to by Caldwell, he hugged
her, had the demonstrativeness returned, and left. Trillas
could not recall losing any pay for the partial shift not
worked.
Other items previously worn in this setting included
St. Patrick's Day buttons (up to 5 inches in diameter),
"Save the Whale" buttons, green ribbons as an Atlanta
children vigil, nutrition awareness buttons, and those
supporting San Diego Charger football. Night-shift em-
ployee Pam Holy had on occasion worn a prominent
black and white badge reading, "Question Authority," al-
though there is no evidence that this fact reached man-
agement's attention. Hodges often bedecks himself with
lapel ribbons or badges reflecting his patriotic feelings
and a prideful military career.
Regarding a secondary phase of the case Dodd testi-
fied that during the 11 a.m. through noon period of cafe-
teria use reserved primarily for employees, rank-and-file
person Michele Busch was distributing a union flyer in
May and her activities were interdicted by Director of
Nurses Carmen Fomaris. Dodd recalled that prior to this
he had seen cinema tickets passed in the cafeteria during
the same hour, while Mongan added the less significant
testimony of catalog merchandise sales being solicited
during breaktime in the cafeteria when it would be rare
for a patient to appear.
On these facts the General Counsel contends that an
otherwise lawful rule about no-solicitation and no-distri-
bution has been discriminatorily applied, that the May 19
notice is overbroad as pertaining apart from patient care
areas, and the requisite special circumstances are not
present to permit generally prohibiting the yellow union
badge. Overall probative evidence of the case supports
these assertions. For an enterprise such as this, a barring
of solicitation and distribution in immediate patient care
areas is presumptively valid. St. John's Hospital, 222
NLRB 1150 (1976). See also Beth Israel Hospital v.
NLRB, 437 U.S. 483 (1978). However, disparity of appli-
cation is the alleged vice here, and for this reason the
narrower question of whether comparable stimulations
have been tolerated is to be examined. Pay `N Save Corp.,
247 NLRB 1346 (1980), enfd. 641 F.2d 697 (9th Cir.
1981).
Regarding the no-solicitation/no-distribution rule itself,
this is shown to have been selectively enforced against
the Union as credibly described by Dodd, and Respond-
ent's defense to barring the Union's badge similarly fails
on the showing of disparate application. It was extensive-
ly established and tacitly admitted that numerous patriot-
ic, seasonal, or cause-related insignia have been worn by
employees (and by Supervisor Hodges) during material
times and were not challenged. The testimony of Grey
about "department head-level discussion" of the Union's
badge, taken in conjunction with recollections of Ferrar,
Caldwell, and Hodges, indicate that immediately before
the purging of June 15 Respondent's top management
had formed a belief that such insignia was perilously of-
fensive to a point warranting condemnation. This leads
directly to Respondent's defense of asserting that an un-
settling fear of "divisiveness" would likely emanate
throughout much of the patient population were the
Union's badge to be tolerated. The contention is argued
from United Parcel Service, 195 NLRB 441 (1972), and
Evergreen Nursing Home, 198 NLRB 775 (1972), both
being cases in which the Board elevated the desirability
of circumspect employee attire to the point of constitut-
ing "special circumstances" which could justify barring
union insignia within the meaning of precedent such as
Floridan Hotel of Tampa, 137 NLRB 1484 (1962). Re-
spondent anticipated a countering argument based on
Davison-Paxon Co., 191 NLRB 58 (1971), but distin-
guishes that holding on grounds that it is here the unique
characteristics of ill and disoriented mental patients that
must be taken into account. In the effort to so distingusih
the permissible wearing of a "noticeable" yellow union
button in Davison-Paxon, the uncontradicted testimony of
Dr. Moore is repeatedly emphasized as the most compel-
ling for resolution of the special circumstances issue. I
have duly considered the foundationally sound expert
opinion of Dr. Moore in this regard,4 yet must hold that
on a more generalized and appropriate basis his concerns
do not control. To the extent that a mentally ill person
benefits from soothing collaboration of staff in the sur-
roundings, divisiveness could be seen in any of the per-
sonal, value-oriented characteristics that exude from indi-
viduals. Here one range of expression was seen in pathos
of a small green ribbon deploring the Atlanta children
crimes, and contrasting this with the superficially cheery
greeting of St. Patrick's Day buttons. The General
Counsel raised the spectre in examination of witnesses
that certain individuals could reason, notwithstanding a
diseased impairment of mental processes, about how any
person not wearing a green ribbon during early 1981 was
barbarically apathetic to child murders, while an Irish
celebrant could conjure up an unsettling association with
violence and discord as it reportedly haunts environs of
that land. This is but one example of unforseeable specu-
lation that can result merely from visual perception, and
it becomes infmitely compounded by passage through a
mind already disoriented from psychotic disorder. Dr.
Moore may be right, partially right, or arguably right;
however, the realm of his expert medical opinion is so
nebulous that it must be subordinated to the greater need
of giving fair sway to policies of the Act and their appli-
cation in the diverse work places of such jurisdiction.
In Beth Israel Hospital, supra, the Court explicated this
very point at 500-501 in saying:
It is the Board on which Congress conferred the
authority to develop and apply fundamental nation-
al labor policy. Because it is to the Board that Con-
gress entrusted the task of "applying the Act's gen-
eral prohibitory language in the light of the infinite
combinations of events which might be charged as
violative of its terms," Republic Aviation, 324 U.S.,
at 798, that body, if it is to accomplish the task
which Congress set for it, necessarily must have au-
thority to formulate rules to fill the interstices of
* As claimed , Dr. Moore is Board-certified in psychiatry and has been
since 1959. Directory of Medical Specialists, vol 2, 2963 (20th ed. 1981-
1982).
MESA VISTA HOSPITAL
the broad statutory provisions . It is true that the
Board is not expert in the delivery of health-care
services , but neither is it in pharmacology , chemical
manufacturing , lumbering , shipping , or any of a
host of varied and specialized business enterprises
over which the Act confers jurisdiction . But the
Board is expert in federal national labor relations
policy , and it is in the Board , not petitioner, that the
1974 amendments vested responsibility for develop-
ing that policy in the health-care industry . It is not
surprising or unnatural that petitioner 's assessment
of the need for a particular practice might overcom-
pensate its goals , and give too little weight to employ-
ee organizational interests . Here, as in many other
contexts of labor policy, "[t]he ultimate problem is
the balancing of the conflicting legitimate interests.
The function of striking that balance to effectuate
national labor policy is often a difficult and delicate
responsibility , which the Congress committed pri-
marily to the National Labor Relations Board."
[Emphasis added.]
It was recently settled that certain major political expres-
sions founded on constitutional grounds could not sur-
vive under secondary boycott provisions of the Act.
Longshoremen ILA v. Allied International, 456 U.S. 212
(1982), and on a less esoteric level, more germane to this
actual litigation, the holding in Presbyterian/St. Luke's
Medical Center, 258 NLRB 93 (1981 ), bears attention.
There expert or near-expert medical testimony was given
as to patients in a traditional "acute care" facility being
in a "mixed emotional state" involving "fear [and] won-
derment," leading the institution to make efforts at
achieving a calming, happy aura of "tranquillity [and]
quietness." Such testimony was discounted as based on
"abstract notions" without observation of an actual "ad-
verse effect" from union solicitations . I recognize that
Respondent argues here it should not jeopardize the deli-
cate recovery processes of its patients by unnecessarily
testing their equanimity ; however , it is on that very
plane that the balancing of interests must occur. As the
General Counsel argues should be done, I accept George
J. London Memorial Hospital, 238 NLRB 704 (1978), as
principal controlling authority on the narrow issue of
law that was most vigorously contested . In George J.
London Memorial Hospital roundish union buttons 2 or
more inches in size were worn, and the claimed "poten-
tial adverse effect upon patients" in that psychiatric hos-
pital was not deemed to be recognizable "special circum-
stances" even within the particular meaning of Evergreen
Nursing Home .5 Further, it is both popularly and esoteri-
° In its adopting the London Memorial Hospital decision, the Board ex-
pressly skirted any treatment of this type issue when exceptional "nature
and seventy of the mental disturbances to be found among the patients"
might be involved
305
cally known that the word "solidarity," an antonym of
divisiveness , is associated to the labor movement both
domestically and in foreign nations. 6 Finally, the field of
psychiatry itself is not free of dispute about treatment
modes, and Dr. Moore's listing of electroshock therapy
as an occasional part of Respondent's collective treat-
ment program would leave certain commentators on his
own profession aghast.'
For these reasons I hold that adequate business justifi-
cation has not been shown for singling out this insignia
of the Union, and Respondent's actions of June 15 were
violative of employee rights of self-organization.8 The
corollaries are a showing that Respondent 's otherwise
presumptively valid rule, associated to traditional union
soliciting and distributing, was also disparately applied
and the notice of May 19 is facially overbroad in its ref-
erence to "working time [and] working areas," thus per-
mitting separate findings that the Act has also been vio-
lated in those regards.9 Accordingly, I render conclu-
sions of law that Respondent, by discriminatorily apply-
ing a no-solicitation and no-distribution rule,10 by pro-
mulgating a rule which prohibited its employees from
wearing any union insignia in other than patient care
areas , and by dismissing various employees from their
work shifts for wearing union insignia but without the
requisite presence of justifying special circumstances, has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and Section 2(2), (6), and (7) of the
Act.11
[Recommended Order omitted from publication.]
6 The monthly house journal of International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of America is so
titled Also see "Solidarity One Year Later (Poland)," Time, Sept 14,
1981 at 53.
7 See Hapgood, "Electroshock- The Unkindest Therapy of All," The
Atlantic, Jan. 1980 at 53-59
8 The evidence demonstrates that the smaller button , treated frequently
during the course of hearing as G.C Exh. 5, could have been readily dis-
cerned as the insignia of a labor organization by any persistent observer.
Cf Holladay Park Hospital, 262 NLRB 278 (1982)
9 Here, as in Presbyterian/St Luke's Medical Center, supra, Respondent
does not "seriously contend" otherwise , and that holding coupled with its
citations to Republic Aviation , supra, St. John's Hospital, supra, and Beth
Israel Hospital, supra, amply highlights these separate violations of the
Act.
10 I do not rely on evidence of Pam Holy's having worn a "Question
Authority" badge , for there is no evidence of management 's being aware
such was done.
11 Individuals suffering monetary loss as a result of this latter conduct
were Henry Dodd, Cynthia Mongan, Joanne Fox, Wallace Kearns, Rich-
ard Quintero , and Porfino (Pepe) Trillas The General Counsel initially
alleged that Pam Holy and Michele Baranek were similarly dismissed
from their work shift on June 15 ; however, it was neither stipulated that
this was the case nor did particular evidence establish the fact Overall
implication of the situation would suggest it to be the case though, and
there was passing reference to the general group that lost pay on that
occasion . For these reasons the remedy to be associated with the recom-
mended Order to follow runs definitively only about the named six indi-
viduals, yet as a compliance matter should it develop both Holy and Bar-
anek are similarly situated , a required course of action would be for Re-
spondent to extend them the same monetary remedy as for the six wit-
ness-discrumnatees