Oakwood Hospital

National Labor Relations Board - Board Decisions

Nov 21, 1991

305 N.L.R.B. 680 (N.L.R.B. 1991)

680
305 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 For the reasons set forth by the judge, we adopt his findings that
the Respondent violated Sec. 8(a)(1) by denying Union Representa-
tive Roy Gonzales access to its cafeteria by causing and attempting
to cause his removal from the Respondent’s cafeteria, and by engag-
ing in surveillance of employees’ union activities.
3 While there are some inconclusive references in the transcript
which suggest that the action the Respondent invoked against
Gonzales might be a criminal proceeding, the General Counsel does
not so argue and it is apparent from the references to the action as
a ‘‘lawsuit’’ that the General Counsel is not asserting that the state
court proceedings are criminal. In any event, the record is insuffi-
cient to establish that the complaint for trespass was criminal in na-
ture.
4 Under Loehmann’s Plaza, supra, the Respondent’s filing of the
lawsuit and maintenance of the lawsuit up until the time the General
Counsel issued a complaint did not constitute a violation. In this re-
gard, we note that the lawsuit had a reasonable basis. We do not
pass on whether the lawsuit was filed for a retaliatory motive.
5 Contrary to our dissenting colleague, we do not believe that this
is a case where the lawsuit is over and the respondent-plaintiff has
lost. See Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747
(1983). Rather, the Michigan court has not ruled on the case, and
the case is subject to reinstatement pending the outcome of the in-
stant case. Our colleague further argues that Respondent’s lawsuit
cannot be reinstated. He bases this argument on the fact that the
Board has now decided that the expulsion of Gonzales from the caf-
eteria was unlawful. Our colleague ignores the fact that the Board’s
decision is subject to review by a Federal circuit court. Hence, there
is nothing to prevent the Respondent from seeking reversal and, if
successful, resuming its state court lawsuit.
6 If it takes this action within 7 days, the Board will not find a
violation. Loehmann’s Plaza, supra at 671.
7 In order to place Gonzales and the Union in the position they
would have been in absent the Respondent’s unlawful conduct, we
shall order the Respondent to make them whole for all legal ex-
penses, plus interest, incurred in the defense of the Respondent’s
lawsuit after the January 11, 1988 issuance of the complaint in this
proceeding.
Member Oviatt agrees in full with respect to the merits of this de-
cision and the rationale for it, as described above. He does not agree,
however, that this Respondent should be held monetarily liable for
its failure to seek dismissal of the state court action. He reads the
law, prior to the decision here, to have been somewhat unsettled;
compare the Board’s decision in Giant Food Stores, 295 NLRB 330
(1989). Accordingly, in this case he would not require the Respond-
ent to make the Union and Gonzales whole for their litigation ex-
penses in the state court action. In future cases he would agree, now
that Board law is settled on this issue, that the requirement that a
respondent pay the union’s litigation expenses incurred in defending
a state court suit from the date of the issuance of the complaint by
the General Counsel is an appropriate remedy if a respondent fails
to promptly seek dismissal of the state court injunction action.
Oakwood Hospital and Michigan Council 25, Amer-
ican Federation of State, County, and Munic-
ipal Employees, AFL–CIO. Cases 7–CA–27381
and 7–CA–27941
November 21, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 21, 1988, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party and the General Counsel filed an-
swering briefs. The Charging Party and the General
Counsel filed cross-exceptions and supporting briefs,
and the Respondent filed an answering brief.
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 as modified below.
The judge found that the Respondent’s actions in
maintaining a state court trespass complaint against
Gonzales did not violate Section 8(a)(1)2 The General
Counsel filed exceptions, urging, inter alia, that the
maintenance of the lawsuit was unlawful.3
In Loehmann’s Plaza, 305 NLRB 663, issued this
date, we found that once a complaint issues alleging
the unlawful exclusion of employees or union rep-
resentatives from the employer’s property, any state
court lawsuit concerning the question is preempted.
Further, the continued pursuit of such a lawsuit vio-
lates Section 8(a)(1). Applying Loehmann’s Plaza, we
find that the Respondent violated Section 8(a)(1) by
continuing to maintain the lawsuit against Roy
Gonzales after the General Counsel issued a complaint
alleging that the Respondent had unlawfully denied
Gonzales access to its cafeteria.4
In this case, the Respondent filed a state trespass
complaint against Gonzales on October 7, 1987. The
unfair labor practice charge was filed on October 9,
1987, and the General Counsel issued a complaint on
January 11, 1988. Subsequently, on March 4, 1988, a
Michigan state court dismissed the trespass complaint
without prejudice, subject to reinstatement depending
on the outcome of the unfair labor practice proceeding5
As we stated in Loehmann’s Plaza, supra, a respondent
has an affirmative duty to take action to stay the state
court proceeding following issuance of the Board com-
plaint6 There is no evidence that the Respondent took
any action to stay the court proceeding. We therefore
find that the Respondent violated Section 8(a)(1) by its
continued maintenance of the state court lawsuit after
the complaint in this proceeding issued on January 11,
1988.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Oak-
681OAKWOOD HOSPITAL
1 See Loehmann’s Plaza, 305 NLRB 663, 673–674 fn. 3, issued
this date (Member Devaney, dissenting).
2 As my conclusion that the Respondent’s filing and maintenance
of its lawsuit violated Sec. 8(a)(1) is not premised on any new legal
standard, no question of retroactive application of a new standard is
presented. Thus, I agree with the ordering of a remedy that includes
requiring the Respondent to reimburse Gonzales and the Union for
legal expenses incurred in defending against the Respondent’s law-
suit.
wood Hospital, Dearborn, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Prosecution, after the issuance of a Board com-
plaint, of state court trespass complaints seeking to
prevent the exercise of protected organizational activity
in the Respondent’s cafeteria at times when the orga-
nizers are conducting themselves in a manner con-
sistent with the purposes of the establishment.’’
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) Reimburse Roy Gonzales and the Union for all
legal expenses, plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), in-
curred after the January 11, 1988 issuance of the com-
plaint in this proceeding in the defense of the Re-
spondent’s lawsuit against Gonzales.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, concurring in part, dissenting in
part.
I agree with my colleagues’ adoption of the judge’s
findings that the Respondent violated Section 8(a)(1)
of the Act ‘‘by selectively and disparately denying and
attempting to deny nonemployee union organizer
[Gonzales] access to the cafeteria’’ and by engaging in
surveillance of employee union activities. Because I
find that the Respondent’s trespass lawsuit against
Gonzales had a retaliatory motive, I do not agree with
my colleagues’ conclusion that the Respondent’s filing
and maintenance of the lawsuit before it was pre-
empted did not violate Section 8(a)(1). I join that part
of the opinion where my colleagues hold that the Re-
spondent violated Section 8(a)(1) by maintaining the
lawsuit after it was potentially preempted1 by the Gen-
eral Counsel’s issuance of a complaint alleging that the
Respondent had unlawfully denied Gonzales access to
its cafeteria.2
During 1987, Union International Representative
Gonzales occasionally dined at the Respondent’s cafe-
teria, which was open to the public as well as to the
Respondent’s employees. During these visits, which
Gonzales admitted were primarily for the purpose of
organizing, Gonzales ordered food, sat at a table, and
met and talked with employees. On September 23, the
Union filed a petition seeking to represent the Re-
spondent’s registered nurses. When questioned by the
Respondent’s head of security during Gonzales’ visit
to the cafeteria on September 27, Gonzales stated that
he was organizing the registered nurses.
On his next visit to the cafeteria, on October 1, the
Respondent asked Gonzales to leave, but Gonzales re-
fused. The Respondent summoned the police, and
Gonzales complied with a police officer’s request to
leave.
A similar sequence of events occurred on October 5,
except that the police declined to ask Gonzales to
leave. Two days later the Respondent filed a complaint
for trespass against Gonzales in a Michigan court.
In considering whether the Respondent’s efforts to
exclude Gonzales from its cafeteria violated Section
8(a)(1), the administrative law judge noted that the Re-
spondent admitted that it had initiated efforts to expel
Gonzales from the cafeteria because it had learned that
he was there to organize the registered nurses. The
judge stated that the Board, with court approval, had
long held that an employer may not exclude non-
employee union organizers from an eating establish-
ment on its premises which is open to the public as
long as the organizers conduct themselves in a manner
consistent with the purposes of the restaurant.
The judge found that on each occasion that the Re-
spondent sought to evict Gonzales he was dining in the
cafeteria and talking to employees and was not
tablehopping, distributing literature, or engaging in any
unusual activity. Finding that the Respondent at-
tempted to exclude and excluded Gonzales from its
cafeteria for discriminatory reasons, i.e., because he
discussed organizational activity with employees, the
judge concluded that the Respondent violated Section
8(a)(1) by disparately and discriminatorily denying
Gonzales access to the cafeteria.
The essence of the violation found by the judge was
the Respondent’s discriminatory treatment of union or-
ganizer Gonzales. The Board precedent on which the
judge relied—holding unlawful an employer’s exclu-
sion of union organizers from an eating establishment
open to the public—is premised on the discriminatory
nature of the employer’s conduct. Moreover, the judge
noted the Respondent’s admission that it tried to expel
Gonzales once it learned that he was engaged in orga-
nizing activity. Inasmuch as the Respondent’s efforts
to invoke its property rights and exclude Gonzales
from its cafeteria were motivated by a discriminatory
reason, it is plain that its trespass lawsuit against
Gonzales—which sought the same end as the Respond-
ent’s requests to Gonzales to leave and was filed soon
after the police refused to expel Gonzales—was insti-
tuted for this same discriminatory reason. In my view,
the Respondent’s retaliatory motive in filing and main-
taining its lawsuit against Gonzales is obvious. Here,
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 461 U.S. 731 (1983).
4 As the Court stated:
If judgment goes against the employer in the state court . . . or
if his suit is withdrawn or is otherwise shown to be without
merit, the employer has had his day in court, the interest of the
State in providing a forum for its citizens has been vindicated,
and the Board may then proceed to adjudicate the . . . unfair
labor practice case. [Id. at 747.]
5 See, e.g., Machinists Lodge 91 (United Technologies), 298 NLRB
325 (1990).
the Respondent’s very assertion of its property rights
was for a discriminatory, retaliatory purpose.
In Bill Johnson’s Restaurants v. NLRB,3 the Su-
preme Court set forth the criteria for determining
whether a nonpreempted lawsuit violates the Act. The
Court’s principal concern in formulating its criteria
was that the Board not order a party to cease prosecu-
tion of a pending lawsuit that might be meritorious.
The Court emphasized that the Board could not find a
pending lawsuit violative unless the lawsuit both
lacked a reasonable basis in law or fact and had a re-
taliatory motive. Once the lawsuit was over and the
plaintiff had not prevailed, however, the possibility
that the Board might enjoin a meritorious lawsuit no
longer existed. Thus, there was no longer any reason
to require a showing that the lawsuit lacked a reason-
able basis.4 Accordingly, to establish a violation for a
lawsuit in that posture, only a retaliatory motive had
to be shown.5
Contrary to my colleagues, I find that in the present
case, the Respondent’s trespass lawsuit is over and the
Respondent did not prevail. The Michigan court dis-
missed the lawsuit. Although the dismissal was without
prejudice, reinstatement of the lawsuit was to depend
on the outcome of the present unfair labor practice
proceeding. Because we now find in this proceeding
that the Respondent’s expulsion of Gonzales from its
cafeteria violated Section 8(a)(1), it is clear that the
Respondent’s trespass lawsuit cannot be reinstated.
Consequently, as the Respondent’s lawsuit is over
and the Respondent did not prevail, it need not be
shown that the lawsuit lacked a reasonable basis in law
and fact, and my colleagues’ finding of no violation
based on the failure to make this showing is erroneous.
Rather, all that need be shown to establish that the
lawsuit violated the Act is retaliatory motive. As indi-
cated above, I believe the record clearly established
that retaliatory motive. Consequently, unlike my col-
leagues, I believe that the Respondent’s filing and
maintenance of its trespass lawsuit against Gonzales
violated Section 8(a)(1) from the outset.
The test for determining whether a preempted law-
suit violates the Act is not controlled by Bill John-
son’s. For reasons stated in my separate opinion in
Loehmann’s Plaza, supra, however, in determining
whether a preempted lawsuit violates Section 8(a)(1),
I look to whether the lawsuit had a retaliatory motive
or lacked a reasonable basis. As set out above, I found
the Respondent’s lawsuit here to be prompted by a re-
taliatory motive. In addition, since the Respondent’s
lawsuit has ended and the Respondent did not prevail,
the reasonable basis question is not relevant here.
In any event, having concluded that the Respond-
ent’s lawsuit from the outset violated Section 8(a)(1),
it would be incongruous indeed to then hold that after
the General Counsel issued his complaint the Respond-
ent’s lawsuit ceased to violate the Act. Accordingly, I
concur with my colleagues’ decision that the Respond-
ent’s maintenance of its lawsuit after it became pre-
empted violated Section 8(a)(1).
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT deny or attempt to deny nonemployee
union organizers access to the cafeteria at our Hospital
while permitting other visitors and guests of hospital
personnel to use the cafeteria, or otherwise selectively
and disparately deny such organizers access to the caf-
eteria.
WE WILL NOT engage in surveillance of conversa-
tions and meetings between employees and union orga-
nizers, or engage in surveillance of other employee
union activity.
WE WILL NOT prosecute, after the issuance of a
Board complaint, state court trespass complaints seek-
ing to prevent the exercise of protected organizational
activity in our hospital cafeteria at times when the or-
ganizers are conducting themselves in a manner con-
sistent with the purposes of the cafeteria.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL reimburse Roy Gonzales and the Union for
all legal expenses, plus interest, incurred after the Jan-
683OAKWOOD HOSPITAL
uary 11, 1988 issuance of the complaint in this pro-
ceeding in the defense of our lawsuit against Gonzales.
OAKWOOD HOSPITAL
Ellen Rosenthal, Esq., for the General Counsel.
Paul H. Townsend Jr., Esq. and Mathew Derby, Esq., of De-
troit, Michigan, for the Respondent.
Ann Hildebrant, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Detroit, Michigan, on June 30 and
July 1, 1988. The charges were filed respectively on October
9, 1987, and April 1, 1988, by Michigan Council 25, Amer-
ican Federation of State, County and Municipal Employees,
AFL–CIO (the Union). The consolidated complaint, which
issued on May 19, 1988, alleges that Oakwood Hospital (the
Company or Respondent) violated Section 8(a)(1) of the Na-
tional Labor Relations Act. The gravamen of the complaint
is that the Company allegedly (1) denied Union Representa-
tive Roy Gonzales access to its cafeteria by causing and at-
tempting to cause his removal from the cafeteria; (2) filed
and maintained a complaint for trespass against Gonzales;
and (3) engaged in surveillance of employees’ union activi-
ties. The Company’s answer denies the commission of the al-
leged unfair labor practices. All parties were afforded full
opportunity to participate, to present relevant evidence, to
argue orally and to file briefs. General Counsel, the Union
and the Company each filed a brief.
On the entire record in the case, and from my observation
of the demeanor of the witnesses, and having considered the
briefs and arguments of the parties, I make the following
FINDINGS OF FACT
The Company, a Michigan corporation with an office and
place of business ln Dearborn, Michigan, is engaged as a
health care institution in the operation of an acute care hos-
pital providing medical and professional care services. In the
conduct of its operations the Company annually derives gross
revenues in excess of $250,000, and annually purchases, and
receives at its hospital, goods and material valued in excess
of $50,000 directly from points outside Michigan. The Com-
pany is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and a health care
institution within the meaning of Section 2(14) of the Act.
I. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. BACKGROUND: THE HOSPITAL FACILITY, PUBLIC
ACCESS TO THE HOSPITAL AND ITS CAFETERIA, AND THE
UNION’S ORGANIZATIONAL CAMPAIGN
The hospital is located on a tract of land in a predomi-
nantly residential area. On three sides the hospital premises
are separated from adjoining residential subdivisions by
berms or fences. On the fourth side is Oakwood Boulevard,
a public thoroughfare, and there is a public sidewalk (but no
hospital entrance) adjacent to the hospital premises. Across
Oakwood Boulevard is a church and parochial school. The
nearest commercial area is about one-quarter mile away. The
hospital’s main building is 10 stories, and its adjacent
Skellman Wing is 4 stories. The hospital also has a three
story parking garage. Nonemployees must pay to park. The
hospital building has four entrances: main, emergency, em-
ployee, and outpatient center. However there are no signs,
guards, or other barriers restricting access either to the hos-
pital grounds or the hospital building. Visitors may stop at
the information desk, but are not required to do so, and the
hospital does not issue visitor passes. Patient visiting hours
are nominally from 11:30 a.m. to 3:30 p.m. and 4:30 to 8:30
p.m., but in practice this restriction is not enforced.
The hospital can accommodate 615 in-patients. There are
about 3000 employees. The Union’s Local 2568 represents a
unit of some 625 service and maintenance employees. Li-
censed practical nurses (LPNs) are represented by an inde-
pendent labor organization. The remainder of the Company’s
employees, including registered nurses (RNs) are unorga-
nized. In January 1987 the Union commenced an organiza-
tional campaign among the approximately 688 RNs. Inter-
national Representative Roy Gonzales was assigned to the
campaign. Gonzales has no responsibilities or duties in con-
nection with the service and maintenance unit. In the course
of its campaign, the Union conducted meetings at its hall,
mailed and distributed literature, and solicited and obtained
authorization cards. The Union was assisted by an internal
organizing committee which consisted of about four employ-
ees, and by employee officers of Local 2568. The Union also
compiled a substantial although not complete list of the
names and addresses of the prospective unit employees. As
will be discussed, the Union and particularly Gonzales also
made use of the hospital cafeteria, and that activity is the
focal point of the issues in this case. On September 23, 1987,
the Union filed a petition for a Board-conducted election
among the RNs. The Company contended that a unit of all
professional employees was appropriate. A hearing on the
petition was held in October 1987. On October 21, 1987, the
Union withdrew its petition. From then until March 1988 the
Union suspended its organizational activity.
Until April 1987 the hospital had a 44-seat coffeeshop
which was intended for the use of visitors, and a 404-seat
cafeteria, open 24 hours, which was intended primarily as an
employee dining area. The coffeeshop was open until 8 p.m.,
after which only the cafeteria was available for dining. In
practice, as admitted by Company Director of Food and Nu-
trition Services Harriet Fisher, visitors were free to use the
cafeteria at any time of day or night. However the hospital
underwent construction which in April and May 1987 re-
sulted in a reduction of available dining space. The Company
closed the coffeeshop and reduced the size of the cafeteria.
The Company took some measures to offset some of this loss
of space. In January 1988 the Company opened a vending
machine area near the location of the former coffeeshop.
However these machines did not provide meals. The Com-
pany also rearranged the cafeteria chairs and tables in ‘‘mili-
tary layout,’’ specifically, with combined tables each seating
about 20 persons on one side of the cafeteria and 8 to 10
persons on the other side. The Company also made available
two smaller dining rooms, designated ‘‘A’’ and ‘‘B’’ respec-
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tively. However the total capacity of these three dining areas
was 344. (A separate dining room was available for doctors.)
The Company also provided an outdoor picnic area during
the summer of 1987, but did not provide such service in
1988.
In January 1988, when it opened the vending machine
area, the Company posted a sign near the cafeteria entrance
which was soon modified to read as follows:
RESERVED
Vending machines are available off the outpatient
surgery center lobby. We would appreciate your using
this area between the hours of
11:00 a.m.—1:00 p.m.
and
7:15 p.m.—8:15 p.m.
when our staff is given time for meals.
Thank You!
As indicated by the sign’s wording, the Company requested,
but did not direct visitors to refrain from using the cafeteria
at certain times. In January 1988 the Company began issuing
to incoming patients a 20-page ‘‘patient information’’ book-
let, with 3 additional inserts. Copies of the booklet were
available at the information desk, but not distributed to visi-
tors or employees. Assuming that the patient had the patience
(no pun intended) and fortitude to wade through this mate-
rial, he or she would no doubt have been fascinated to read
in the third insert that the cafeteria was ‘‘closed to visitors’’
from 11:30 a.m. to 1 p.m., 7:15 to 8 p.m. and 4 to 4:30 a.m.
The Company also has an administration policy and proce-
dure manual. In December 1986 the manual was amended in
part to prohibit nonemployees from soliciting employees or
distributing literature on company property without company
approval, except for suppliers and prospective suppliers to
the hospital. In January 1988 the manual was further amend-
ed, in sum, to limit public access to the hospital, in order
to ‘‘provide for proper security for employees, patients, and
visitors.’’ The provision limited access to the hospital to cer-
tain categories of persons, and by its terms would have ex-
cluded such persons as—guests of employees, e.g., their
friends and relatives, or those having personal business with
them. Company Assistant Vice President for Human Re-
sources Mark Jenkins testified that the January 1988 amend-
ment was promulgated because of Company concern about
‘‘non-employees coming in and being on the premises when
they really had no business being here.’’ The policy and pro-
cedure manual is not distributed or made available to em-
ployees, and no steps were taken to inform employees or
prospective visitors of its provisions.
Director of Food Services Fisher testified that the Com-
pany took measures to improve food service in response to
a complaint by Local 2568 that the public should be kept out
of the cafeteria in order to allow room for employees. Fisher
testified that in addition to measures described above, she
had a food service supervisor stand at the cafeteria entrance
from 11:30 a.m. to 1 p.m., asking nonemployees not to use
the cafeteria. Fisher further testified that food servers were
instructed to request (but not require) nonemployees to re-
frain from using the cafeteria during peak times. In fact
(apart form the incidents involving International Representa-
tive Gonzales, which will be discussed) the Company never
excluded the general public from using the cafeteria at any
time of day or night, and made only token gestures to dis-
courage such use at peak times. Nonemployees are readily
identifiable, because employees wear identification badges.
Every person who purchases food at the cafeteria must be
identified as either an employee or nonemployee, because
employees are charged at a lower rate. The cafeteria is pri-
marily used by employees, and most nonemployees using the
cafeteria are visitors to patients. However other members of
the public use the cafeteria without challenge, including use
at peak meal times. Construction workers, who are not em-
ployed by the Company and are easily identifiable by their
clothing and equipment, regularly dine in the cafeteria. Em-
ployees Diane Mays and Charlene Meyers testified in sum
that relatives have met and dined with them in the cafeteria.
Meyers testified that she met with an attorney in the cafe-
teria. Employee Robert Holbrook testified that he knew of a
family which frequently had their meals in the cafeteria, and
that the father of a kitchen employee comes in to visit her
and eats in the cafeteria. Employee (porter) Brad Kurczewski
testified that a friend visited him in the kitchen. International
Representative Gonzales testified without contradiction that
throughout the period since February 1987, during which
time he was often in the cafeteria at peak and other times,
no cafeteria supervisor or food server ever asked him not to
dine in the cafeteria. Employees Karen Burgess and Patricia
Kososki, who frequently dine in the cafeteria during the peak
lunch period, testified in sum that they never saw or heard
a cafeteria supervisor or food server ask a nonemployee not
to dine in the cafeteria. Employee Meyers testified in sum
that on an average of once in 3 weeks, she has seen a cafe-
teria supervisor stop a nonemployee, but that this was not a
regular practice. Cafeteria supervisors frequently station
themselves at the entrance to the cafeteria at noontime. How-
ever they do so primarily to keep the food service line or-
derly and assure that there is an adequate supply of utensils.
In fact, there is sometimes congestion and crowding in the
service line at peak times. However the evidence indicates
that although the cafeteria is normally crowded around noon
during the week (although not on weekends) there is always
available seating. No evidence was presented which would
indicate that any person has had to wait for a seat. The Com-
pany presented in evidence photos of sections of the cafe-
teria. Interestingly, one of them, which was taken at 12:20
p.m. (R-4) shows a number of empty seats. Even Director
Fisher testified that the present system has ‘‘worked out con-
sidering the tightness, pretty well.’’ As will be discussed,
management personnel had no difficulty finding seats near
Gonzales when they sought to engage in close surveillance
of his activities. In sum, I find that (1) the Company has no
practice of excluding the public from its cafeteria; (2) the
Company has no general practice of excluding or discour-
aging visitors and the general public from dining in the cafe-
teria during peak meal periods, and has made only token ef-
forts to discourage, but not prohibit such use; and (3) al-
though the cafeteria is often crowded at noontime, there is
no shortage of seating space.
685OAKWOOD HOSPITAL
1 All dates in this section are for 1987 unless otherwise indicated.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Unlawful Actions in Excluding or
Attempting to Exclude Gonzales From the Cafeteria
International Representative Gonzales testified that in con-
nection with the organizational campaign, he visited the hos-
pital on an average of three to four times per week during
the period from February to June 1987.1 He testified that he
followed a pattern which he continued throughout the cam-
paign. On each visit he went to the cafeteria, ordered food,
and sat down at a table, usually in the northeast corner of
the dining room. He met and talked with employees.
Gonzales wore a ‘‘Vote AFSCME’’ button. Gonzales testi-
fied that during the period from February to June he was
usually in the cafeteria for 3 to 4 hours at a time, between
11 a.m. and 3:30 p.m. Gonzales admitted that the meals were
incidental to his primary purpose of organizing. He testified
that he stopped visiting the hospital in June when he had to
conduct another campaign, and did not return until late Sep-
tember. Gonzales testified that on every occasion throughout
the campaign he went only to the cafeteria, except on one
occasion in January 1987 he went to Local 2568’s office on
the second floor to meet Local President (and employee)
Charlene Meyers. Company Assistant Vice President Jenkins
testified that to his knowledge Gonzales visited the cafeteria
at least six or seven times prior to September 1987, and that
he was observed talking with the Local leadership. Jenkins
testified that he knew there was an organizing campaign, and
suspected but did not know as a fact, that Gonzales was
present for the purpose of organizing the RNs. It is undis-
puted that the Company did not ask Gonzales to leave the
cafeteria or hospital premises prior to September. I agree
with the Company’s contention (Br. 6–7) that Gonzales in
his testimony probably exaggerated the extent of his presence
in the cafeteria during the spring of 1987. Charlene Meyers,
who was active in the organizing campaign, testified that she
usually saw Gonzales once every week or 2 weeks during
this period. None of General Counsel’s other employee wit-
nesses corroborated his presence in 1987. Rather, they testi-
fied concerning his presence in 1988. I find that Meyer’s tes-
timony most accurately reflects the extent of Gonzales’
present in the first half of 1987.
Gonzales testified that he returned to the hospital in late
September, and was present in the cafeteria on September 21
from 11 a.m. to 3:30 p.m., on September 23 from 11 a.m.
to 1:30 p.m. and 5 to 9 p.m., and on September 27 to 28
from 11:30 to 4:30 a.m. (a continuous period of 17 hours).
Gonzales testified that about midnight of September 27, two
supervisors came to his table and asked who he was and
what was his business. Gonzales answered that he rep-
resented the Union and was organizing the RNs. They said
he had no business being there. Gonzales disagreed, and the
supervisors summoned the Company’s head of security. A
similar dialogue ensued between the security officer and
Gonzales, with Gonzales insisting that he had a right to be
in the cafeteria. The officer said he would speak to Jenkins,
but upon returning, told Gonzales to enjoy his coffee. As in-
dicated, Gonzales remained until 4:30 a.m.
Gonzales testified that he next went to the cafeteria on Oc-
tober 1, arriving at about 5:30 p.m. There is no significant
dispute about what occurred on the occasion described by
Gonzales, except that Jenkins testified that the incident oc-
curred on September 24. Gonzales purchased food and sat
down at a table with three employees. Jenkins was informed
of his presence, and that he was talking to nonbargaining
unit employees. Jenkins testified that this was the first time
he learned of Gonzales’ presence in the cafeteria at a time
other than midday. Jenkins and a security officer approached
Gonzales and asked what he was doing. Gonzales said he
was organizing the RNs. Jenkins asked him to leave.
Gonzales said he had a right to be there, and had been per-
mitted in the past. Jenkins summoned two more security offi-
cers. Gonzales said they would have to call the Dearborn po-
lice, and Jenkins obliged. The police arrived, and after speak-
ing to Jenkins and questioning Gonzales, they told Gonzales
he was trespassing, and asked him to leave. Gonzales did so
(Gonzales testified that he left about 8:30 p.m. Jenkins testi-
fied that Gonzales left about 6:45 p.m.)
Gonzales next came to the cafeteria on October 5 at about
5 p.m. A similar sequence of events occurred as on the pre-
vious occasion, except that this time Company Labor Rela-
tions Supervisor Jill Beaver, instead of Jenkins, was the chief
company representative on the scene. Again the Company
summoned the police. However this time, after some internal
consultation, the police declined to arrest Gonzales or ask
him to leave. Instead they advised the Company to file a
complaint. Gonzales remained in the cafeteria until about 5
a.m. He did not return until March 1988. On October 7, the
Company filed a complaint for trespassing against Gonzales
in a Michigan court. On March 4, 1988, the court dismissed
the complaint without prejudice, subject to reinstatement de-
pending on the outcome of the present unfair labor practice
proceeding.
The complaint alleges that the Company violated Section
8(a)(1) by: (1) on or about October 1, denying Gonzales ac-
cess to the cafeteria by summoning security guards and po-
lice and causing his removal; (2) on or about October 5, at-
tempting to deny him access by summoning police and at-
tempting to cause his removal; and (3) filing and maintaining
its complaint for trespassing against Gonzales. Company can-
didly admits the reason for its actions (Br. 7): ‘‘Prior to Sep-
tember 1987, Oakwood had no knowledge of the purpose of
Gonzales’ visits. When Oakwood finally learned the purpose
of Gonzales’ visits on September 24, 1987, Jenkins person-
ally confronted Gonzales, and asked him to leave the cafe-
teria.’’ (See also Br. 28.) The Company’s course of conduct
was consistent with this admission. Throughout early 1987
the Company knew of and tolerated Gonzales’ presence on
the possibility that he may have been there in connection
with the service and maintenance unit. However as soon as
Jenkins learned that Gonzales was talking to nonunit employ-
ees, he immediately took steps to expel him. In sum, the
Company sought to deny Gonzales access to the cafeteria be-
cause of the subject matter of his conversations with employ-
ees at the dinner table, i.e., organizational activity. In light
of this admission, much of the evidence which the Company
introduced or sought to introduce is plainly irrelevant or im-
material, at least to the allegations discussed in this section
(the relevance of such evidence to the allegations of surveil-
lance in the spring of 1988 will be discussed in the next sec-
tion of this decision). The Company introduced evidence
concerning crowded conditions in the cafeteria. However the
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As indicated, Jenkins testified that he had no knowledge of
Gonzales’ presence during the evening until the events which he de-
scribed as occurring on September 24. However the Company does
not dispute that Gonzales remained in the cafeteria for some 17
hours, without any attempt by the Company to remove him (Br. 17).
Moreover, as a company supervisor authorized him to remain (there-
by indicating the Company’s policy), it is immaterial whether Jen-
kins personally knew of this matter.
3 The Company offered to prove that on occasions in August and
September 1987, at night, there were break-ins in the personnel of-
fice which seemed directed at obtaining personnel information. The
Company also offered to prove that during the period of January 18
through March 4, 1988, there were incidents of vandalism in the die-
tary department. The Company represented that it was not accusing
Gonzales of such misconduct. On the basis of that representation, I
rejected the proffer of evidence as irrelevant. If the Company was
not accusing Gonzales of misconduct, then it is difficult to see what
relevance these acts of vandalism would have to company actions
taken only against Gonzales, without regard to the thousands of
other people, including both employees and visitors, who have ac-
cess to the hospital both day and night. In rejecting the proffers, I
have proceeded on the premise that the asserted facts are true, but
irrelevant.
4 The present case is distinguishable from one involving a dining
facility which is not open to the public, but is available only for the
use of employees. See Intercommunity Hospital, 255 NLRB 468
(1981). In such cases the organizers would have a right of access
only if they lacked other reasonable means of effectively commu-
nicating with the employees, i.e., if they met the Babcock & Wilcox
standard (NLRB v. Babcock & Wilcox Co., 251 U.S. 105, 112–113
(1956), as applied by the Board under the standards of Fairmont
Hotel, 282 NLRB 139, 141–142 (1986). See also Montgomery Ward
& Co., 288 NLRB 126 fn. 8 (1988). As the Company’s cafeteria is
open to nonemployees, it is not necessary to consider the Babcock
& Wilcox standard. If the cafeteria were in fact restricted only to
employees, then I would find that the Company could lawfully ex-
clude Gonzales, because the Company’s property rights and the em-
ployees’ organizational rights would be relatively equal, and the
Union had reasonable alternative means of communicating with the
employees. See New Process Co., 290 NLRB 704, 706–707 (1988).
In applying either the Montgomery Ward line of cases or Babcock
& Wilcox, it is immaterial whether the employer permits commercial
vending on its premises. See Ameron Automotive Centers, supra at
fn. 10; and New Process Co., supra at 731–732.
Company tolerated Gonzales’ presence at noontime through-
out the spring of 1987. The Company acted to remove
Gonzales on two occasions, both in late afternoon, when the
cafeteria would not be crowded. The Company makes much
of the fact (Br. 17) that Gonzales often remained in the cafe-
teria for long periods of time. However on the occasions
when the Company attempted to evict Gonzales, he had pur-
chased food and had been seated less than 1 hour. In con-
trast, on an earlier occasion when Gonzales had been in the
cafeteria for over 12 hours, a company supervisor told him
to enjoy his coffee, i.e., that the Company had no objection
to his prolonged presence go long as he acted ln the manner
of a cafeteria patron. The difference was that Jenkins later
learned that Gonzales was engaged in organizational activ-
ity.2 On each occasion that the Company sought to evict
Gonzales, he was dining in the cafeteria and talking to em-
ployees. He was not tablehopping or distributing literature, or
engaging in any unusual activity other than conversation, if
that may be called unusual.3
The Board, with court approval, has long held that an em-
ployer may not exclude nonemployee union organizers from
a food service establishment located on its premises, whether
restaurant, cafeteria, or snackbar, which is generally open to
the public, ‘‘so long as [the organizers] conduct themselves
in a manner consistent with the purposes of the restaurant.’’
Therefore the Board and courts have held that an employer
violates Section 8(a)(1) by attempting to exclude or exclud-
ing the organizers, whether by a no-solicitation rule, obtain-
ing police assistance, or otherwise taking action to exclude
the organizers. Ameron Automotive Centers, 265 NLRB 511
(1982); Montgomery Ward & Co., 256 NLRB 800 (1981),
enfd. 692 F.2d 1115, 1122 (7th Cir. 1982); Montgomery
Ward & Co., 263 NLRB 233 (1982), enfd. as modified 728
F.2d 389, 391 (6th Cir. 1984). The test is not, as the Com-
pany argues (Br. 18), whether the organizers are primarily
present for dining purposes or for organizational activity. If
the organizers in the above-cited cases had gone to the din-
ing establishments primarily for the purpose of dining, there
would have been no occasion to litigate those cases. Rather,
as indicated, the test is whether the organizers conduct them-
selves in a manner consistent with the purposes of the estab-
lishment. If they do, by purchasing food or beverage, and be-
have themselves in an orderly fashion, then the employer
cannot censor their dining table conversation by excluding
them if they choose to discuss organizational activity. In the
above-cited cases, the eating establishments were each lo-
cated on the premises of a retail store. Therefore the estab-
lishments were normally patronized by employees and cus-
tomers of the stores. In the present case, the cafeteria is lo-
cated in a hospital. Therefore the cafeteria is primarily pa-
tronized by employees and visitors to patients. These are dif-
ferences without a distinction. In the present case the cafe-
teria, like the dining facilities in the cited cases, were gen-
erally open to the public. Therefore the Company could not
lawfully exclude Gonzales as a patron simply because he dis-
cussed organizational activity at the dining table. The Board
has not discussed the applicability of the Montgomery Ward
line of cases to a hospital cafeteria, or whether union orga-
nizers have an absolute right of access to nonpatient care
areas of a hospital. However the Board has held that a hos-
pital may not discriminatorily exclude union organizers from
its cafeteria, where the cafeteria is generally open to visitors
although primarily intended for and used by employees.
Southern Maryland Hospital, 276 NLRB 1349 fn. 2 (1985),
enfd. in pertinent part 801 F.2d 666 (4th Cir. 1986). In the
present case, the Company attempted to exclude and ex-
cluded Gonzales from its cafeteria for discriminatory reasons,
i.e., because he discussed organizational activity with em-
ployee patrons. Therefore Southern Maryland governs. I find
that the Company violated Section 8(a)(1) of the Act by dis-
parately and discriminatorily denying Gonzales access to the
cafeteria, specifically, by summoning police and security
guards and causing his removal, and by subsequently sum-
moning police and attempting to cause his removal. The
Company thereby interfered with the Section 7 rights of its
employees.4
However, I find that the Company did not violate the Act
by filing and maintaining a complaint for trespass asainst
Gonzales. General Counsel contends (Br. 22–23) that the
complaint was unlawfully maintained because the Union, by
filing the initial unfair labor practice charge, and General
Counsel by issuing the present complaint, deprived the state
687OAKWOOD HOSPITAL
5 All dates in this section are for 1988 unless otherwise indicated.
court of jurisdiction over the subject matter of the Com-
pany’s complaint. General Counsel does not contend that the
Company’s complaint was unlawful either because it lacked
any reasonable basis in fact of law or because it was moti-
vated by a desire to retaliate against the Company’s employ-
ees. Compare, Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731 (1983). General Counsel’s rationale is incomplete. A
state court proceeding is not enjoinable as an unfair labor
practice simply because it involves the same subject matter
as a pending Board proceeding. Rather there are other con-
siderations. First, does the state court proceeding involve in-
terests which are deeply rooted in local responsibility? Thus,
picket line violence may be the subject of both state court
and Board proceedings, because the maintenance of law and
order is a matter of strong local interest. Second, do the two
proceedings involve at least in part, significantly different
issues and remedies? Third, does the state court proceeding
create a real risk of interference with the Board’s jurisdic-
tion? See Sears Roebuck v. Council of Carpenters, 436 U.S.
180 (1978). These considerations mitigate asainst finding a
violation in this case. First, as Sears Roebuck makes clear,
the laws of trespass are a matter deeply rooted in local inter-
est and responsibility. Compare San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959), involving a state
court proceeding which dealt with the legality of alleged or-
ganizational picketing, i.e., an issue which did not involve a
compelling state interest. Second, although the issues in the
present unfair labor practice and state court proceedings
overlap, they are not entirely coextensive. The Company
could prevail in the unfair labor practice proceeding and still
be left without a remedy, because the Board would simply
dismiss the unfair labor practice proceedings. Therefore the
Company was justified in maintaining its trespass action in
order to preserve its legal position. Third, and most impor-
tant, the state court indicated that it would defer to Federal
law, and declined to proceed on the complaint pending dis-
position of the unfair labor practice proceeding. Therefore
there is little likelihood of a conflict between the state court
and Board proceedings. If the Board were to find a violation,
the state court ruled in favor of the Company, and the Com-
pany sought to enforce that judgement, then General Counsel
could take appropriate action. However in the present posture
of this case, a finding of a violation is not warranted.
B. Alleged Surveillance
The complaint alleges in sum that on numerous occasions
since March 21, 1988,5 the Company by various agents (all
female members of the Company’s personnel staff) engaged
in illegal surveillance of employee’s union activities by re-
maining in close proximity to Roy Gonzales while he was
in the hospital cafeteria, taking down names of employees
who met with Gonzales, and taking notes during employees’
conversations with Gonzales. The Company by its answer
denies these allegations ‘‘except to the extent that it admits
that it monitored the activities of Roy Gonzales while he was
on Respondent’s premises.’’
International Representative Gonzales testified concerning
the renewed organizational activity in 1988, and his testi-
mony was corroborated by employee witnesses for General
Counsel. Gonzales testified that he resumed his visits to the
cafeteria on March 21, and thereafter visited the cafeteria on
March 22 and 24, April 11, 12, 14, 18, 20, 26, and 28, May
9, 10, 17, 27, and 31, and June 6 and 7. He followed the
pattern which he began in the spring of 1987. Gonzales
would arrive in the cafeteria in late morning, order food, and
remain in the cafeteria for about 2 to 4 hours. He usually
seated himself at a table in the northeast corner, and talked
with employees. However if other employees invited him to
join them at their table, he would do so. On two occasions
Gonzales was accompanied by one or two other non-
employee union representatives. The Company did not at-
tempt to exclude or remove Gonzales. Instead the Company
used a different approach. On each occasion, female mem-
bers of the Company’s personnel staff would either be
present when Gonzales arrived or would arrive shortly there-
after. They included among others Labor Relations Super-
visor Jill Beaver and Employment Specialist Tina Braid, nee
Patton. On each occasion they would seat themselves as
closely as possible to Gonzales. If a seat opened up next to
Gonzales or an employee with whom he was speaking, one
of the office personnel would move in and occupy the seat.
If Gonzales moved to another table, the office person would
follow him and sit down at the other table. The office per-
sonnel operated sometimes in groups or pairs and sometimes
in rotation. Sometimes they had lunch on these occasions,
and other times they did not order food. On at least one oc-
casion Braid had a writing pad and was using it. (Whether
this occurred on more than one occasion is a matter in dis-
pute.) Employee Robert Holbrook testified that on one occa-
sion in March a person (identified by other witnesses as
Braid) accompanied by Jill Beaver, had a writing pad. They
were seated near a table where Gonzales, Holbrook, and
other dietary employees were talking. Holbrook commented
to Gonzales that it was sad that the men were upstairs having
coffee while the women were downstairs doing all the dirty
work for them. At this point Braid asked Holbrook his name.
Holbrook showed her his identification badge, and Braid
wrote down his name. Although Braid testified that she used
a pad only once, neither Beaver nor Braid denied that this
incident occurred. I credit Holbrook, and I find that the inci-
dent is evidence of the Company’s purpose in engaging in
this course of conduct. Gonzales testified that on two occa-
sions, when he commented to Beaver that what she was
doing was childish or ridiculous, Beaver replied that she was
only doing her job. Beaver, in her testimony did not deny
these conversations. I credit Gonzales, and I find that Bea-
ver’s replies confirm that her actions were part of an inten-
tional company policy (whatever the motive may have been).
The predictable effect of this course of conduct by the Com-
pany was to inhibit discussion of union activity among
Gonzales and the employees.
The Company’s witnesses, in sum, admitted that they
closely observed Gonzales and employees who spoke with
him while they were in the cafeteria. They advanced an as-
sortment of reasons for doing this. Assistant Vice President
Jenkins testified that Gonzales returned to the cafeteria on
March 14, that Jenkins was so informed by the personnel of-
fice, and that he and Supervisor Beaver immediately pro-
ceeded to the cafeteria to observe him. Beaver remained until
Gonzales left. The next day Beaver again observed Gonzales
while he was in the cafeteria, and followed him when he left.
As will be discussed, Beaver reported that she lost track of
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Gonzales, in his testimony, indicated that he observed Braid with
a pad on only one occasion. As Gonzales was the one person who
was invariably present when company observation took place, his
testimony was particularly significant. Employee Karen Burgess ini-
tially testified that she always saw Beaver and Braid with a writing
pad. However on being confronted with her affidavit she admitted
that she saw Braid with a pad only once, in March. None of General
Counsel’s other witnesses unequivocally described more than one
occasion when Braid was seen writing on a pad in the cafeteria.
Gonzales. Jenkins testified that as a result of this report, he
instructed Beaver, Braid, another personnel supervisor, and
eventually other members of the personnel staff to keep
Gonzales under constant observation while he was in the
hospital. Jenkins instructed them to ‘‘keep track of his
whereabouts and who he was talking to and where in the caf-
eteria, and if he was in any other area of the organization’’
and to record the information which they obtained. Jenkins
testified that when he learned that Braid used a note pad in
the cafeteria, he told her to stop this practice and to record
the information later. Jenkins testified that the Company en-
gaged in this course of conduct because (1) he was con-
cerned that Gonzales might have gone into patient care areas,
(2) he was concerned that Gonzales was talking to employees
on their worktime, and (3) he needed the information in con-
nection with the pending unfair labor practice charges. Bea-
ver testified in sum that on March 15 she followed Gonzales
out of the cafeteria and eventually lost track of him, and did
not see where he went, but that based on his movements, she
believed that he went upstairs. Beaver reported these move-
ments to Jenkins. However although the Company observed
Gonzales many times after that, no one asked him where he
went that day. Beaver testified that Jenkins told her to mon-
itor Gonzales’ activities ‘‘very closely,’’ that she did so, and
that the personnel staff including herself ‘‘sat closer to him
in the cafeteria,’’ and ‘‘walked out with him when he was
leaving.’’ Beaver corroborated Jenkins’ testimony concerning
the reasons for their course of action. She also testified con-
cerning three occasions on which she observed Gonzales
talking in the cafeteria to employees whom she had reason
to believe were on their worktime. On one occasion she saw
Gonzales talk to and leave the cafeteria with four dietary em-
ployees. She checked with a dietary supervisor, who said she
thought the employees were on duty. On a second occasion,
Beaver saw and heard dietary employee Brad Kurczewski
come over to Gonzales, saying ‘‘You’re usually not here
when I have breaks or lunch, so I’m going to take a couple
minutes now to talk to you.’’ Beaver inferred from this re-
mark that Kurczewski was on duty, but she did not check
with his supervisor. (Kurczewski testified that he did not
have fixed breaktimes.) On the third occasion, Beaver saw
Gonzales talking to a dietary employee who was working at
a grill. At no time did the Company take any disciplinary ac-
tion against an employee for allegedly engaging in conversa-
tions in the cafeteria on their worktime. Employment Spe-
cialist Braid, ln her testimony, admitted that pursuant to Jen-
kins instructions, she regularly observed Gonzales ln the caf-
eteria. Braid testified that on one occasion she used a note-
book in the cafeteria, but that Jenkins told her to stop this
practice, and she did so. I credit Braid in this regard.6
The problem with the Company’s explanations for its ob-
vious surveillance of Gonzales and employees who spoke
with him in the cafeteria, is that the explanations bear little
relation to the Company’s actions. In sum, the explanations
are demonstrably pretexts. The Company had no factual basis
for believing that Gonzales sought to enter patient care areas
or other areas that were closed to the public. No one ever
claimed to have seen him in such areas. Even if the Com-
pany had a good-faith belief that Gonzales was engaging in
such conduct (which it did not) this would not have justified
the Company’s conduct in listening in on employees’ con-
versations. If the Company had reason to believe that em-
ployees were taking breaks in the cafeteria on their working
time, then this would be a matter between the employees and
their immediate supervisors. However the Company took no
disciplinary or other action to curb this alleged practice,
other than to continue listening in on employees’ conversa-
tions concerning union activity, and to do so in a flagrant
and conspicuous manner. Gonzales admitted to the Company
from the time he was first asked, that he was engaged in or-
ganizing the RNs. Therefore the Company had no legitimate
reason to listen in on employee conversations for the purpose
of preparing for the present proceeding, even if the nature of
their conversations were an issue in this case. I find that the
reasons advanced by the Company are pretextural. Having
failed ln its efforts to exclude Gonzales from the cafeteria,
the Company sought to thwart organizational talk by con-
spicuously listening in on employees’ conversations with em-
ployees. The Company did so in an intimidating manner.
When employee Holbrook complained about this surveil-
lance, Braid asked him for his name and wrote it down on
her pad in his presence. Although Braid did this only once,
she was undisputedly acting as a company agent. Therefore
the Company was responsible for her actions. The Company
made its point. Moreover the Company continued to record
the names of employees who spoke to Gonzales ln the cafe-
teria, and admits that this was a purpose of its surveillance.
I find that the Company engaged in surveillance of Gonzales
and employees who spoke to him ln order to discourage such
conversation, and specifically in order to discourage con-
versation concerning organizational activity.
I find that the Company violated Section 8(a)(1) of the Act
by engaging in surveillance of employees’ union activities,
specifically, by its agents intentionally remaining in close
proximity to Gonzales while he was talking with employees
ln the cafeteria, and on one occasion openly taking down
names of employees who met with Gonzales. As the employ-
ees were engaging in lawful protected concerted activity by
meeting and talking with Gonzales, the Company acted un-
lawfully by engaging in surveillance of such activity. Mont-
gomery Ward & Co. v. NLRB, 728 F.2d 389, 391 (6th Cir.
1984). The Board has held that ‘‘management officials may
observe public union activity, particularly where such activity
occurs on company premises, without violating Section
8(a)(1) of the Act, unless such officials do something out of
the ordinary.’’ Metal Industries, 251 NLRB 1523 (1980).
However the Company’s reliance on this line of cases (Br.
25–26) is misplaced. First, dining table conversation, unlike
handbilling at a plant entrance, is not ‘‘public’’ union activ-
ity. See Hawthorn Co., 166 NLRB 251 (1967), enfd. in perti-
nent part 404 F.2d 1205, 1208–1209 (8th Cir. 1969), in
which the Board held that the employer engaged in unlawful
surveillance when its foreman sat at employees’ tables during
coffee breaks, in order to discourage them from engaging in
organizational activity. Second, in furtherance of its surveil-
689OAKWOOD HOSPITAL
7 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.
8 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.’’
lance, the Company acted in a manner which was plainly
‘‘out of the ordinary.’’ See Hoschton Garment Co., 279
NLRB 565, 566 (1986), cited by the Company (Br. 26), in
which the Board held that an employer engaged in unlawful
surveillance when its manager ‘‘stood very close’’ to a union
representative who was engaged ln handbilling at a plant en-
trance (plainly ‘‘public activity’’). See also Crown Cork &
Seal Co., 254 NLRB 1340 (1981); and New Process Co.
supra, 290 NLRB at 717 (employer engaged in unlawful sur-
veillance by taking notes while observing public handbilling).
Moreover, the surveillance was unlawful because it was un-
lawfully motivated, i.e., the Company sought to discourage
contact between Gonzales and the employees and to discour-
age talk of union activity. Thus the Board has held that al-
though an employer normally has the right to observe em-
ployees at their work stations, it cannot do so for discrimina-
tory reasons. New Process Co., supra, 290 NLRB at 717–
718.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
a health care institution within the meaning of Section 2(14)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in surveillance of employees’ union activi-
ties, and by selectively and disparately denying and attempt-
ing to deny nonemployee union organizers access to the cafe-
teria at its hospital, the Company has engaged, and is engag-
ing, in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid 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 Company has violated Section
8(a)(1) of the Act, I shall recommend that it be required to
cease and desist from such conduct and from like or related
conduct, and to post the usual notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Oakwood Hospital, Dearborn, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying or attempting to deny nonemployee union or-
ganizers access to the cafeteria at its Hospital while permit-
ting other visitors and guests of hospital personnel to use the
cafeteria, or otherwise selectively and disparately denying
such organizers access to the cafeteria.
(b) Engaging in surveillance of conversations and meetings
between employees and union organizers, or of other em-
ployee union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its hospital in Dearborn, Michigan, copies of
the attached notice marked ‘‘Appendix.’’8 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.