290 N.L.R.B. 1011 (N.L.R.B. 1988)

Ohio Masonic Home

National Labor Relations Board - Board DecisionsAug 31, 1988

290 N.L.R.B. 1011 (N.L.R.B. 1988)

OHIO MASONIC HOME Ohio Masonic Home and District 1199, WV/KY/OH, National Union of Hospital and Health Care Employees , AFL-CIO. Case 9- CA-24009 August 31, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 14, 1987, Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order.I Relying on Tri-County Medical Center,2 the judge found, and we agree, for reasons explained below, that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing its no- access rule concerning off-duty employees. The Respondent's rule prohibits off-duty em- ployees "from entering [ its] premises to engage in publicly hostile or adverse confrontations." Eight days after the rule was publicized, and shortly before contract negotiations were to begin, em- ployees marched to the Respondent 's administra- tion building in an attempt to meet with manage- ment officials about resident care issues and em- ployee working conditions.3 The Respondent thereafter issued written reprimands for violating its rule to those off-duty employees who participat- ed in the march. In Tri County, the Board stated that a no-access rule concerning off-duty employees is valid only if it: (1) limits access solely with respect to the inte- rior of the plant and other working areas; â€¢(2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union ac- tivity. Finally, except where justified by busi- ness reasons , a rule which denies off-duty em- ployees entry to parking lots, gates, and other outside nonworking areas will be found in- valid. 1 The Respondent has requested oral argument . The request is denied as the record , exceptions, and brief adequately present the issues and the positions of the parties. 2 222 NLRB 1089 (1976). 3 Off-duty employees had engaged in similar marches on six other oc- casions . The judge found , and we agree , that the employees were en- gaged in protected concerted activities. 1011 In the instant case , the judge found that the rule is prima facie invalid because it excludes off-duty employees from all areas of the Respondent's prem- ises and is maintained and enforced for the purpose of preventing a repeat of employee marches on the administration building . The judge also found that the rule is ambiguous because it does not advise employees of what conduct is prohibited and the Respondent can easily ban any statutorily protected activity it decides is a publicly hositile or adverse confrontation. Generally, the Board has applied the principles of Tri-County to those situations where off-duty employees engaged in organizational activities.4 However, we agree that Tri-County should apply here, even in the absence of organizational activi- ties, because the Respondent's rule is so overly broad and vague that it could be interpreted to prohibit any type of statutorily protected activity, including organizational activity . Furthermore, the ambiguity of the rule tends to chill protected con- certed activities because employees cannot discern what type of activity will be prohibited and, there- fore, may avoid engaging in organizational activi- ties out of fear of being disciplined. Thus, the rule here effectively precludes employees from engag- ing in organizational activities . 5 Accordingly, we conclude that in circumstances where, such as here, an employer promulgates a no-access rule concerning off-duty employees , which , under a rea- sonable interpretation, could interfere with employ- ees' organizational activities , the legality of that rule will be analyzed under the principles of Tri- County. In this case , inasmuch as the rule could interfere with employees' organizational activities, and because, as the judge found , and we agree, that it does not meet the first and third criteria of Tri- County and the Respondent 's business reasons are insufficient to warrant its existence , we find that the Respondent 's maintenance and enforcement of its rule violates Section 8 (a)(1) of the Act.6 4 See Orange Memorial Hospital, 285 NLRB 1099 (1987); Woodvlew Re- habilitation Center, 265 NLRB 838 (1982). 5 The Respondent's argument that its no -access rule was not promul- gated to restrict union solicitation and other traditional organizational ac- tivity, nor applied to any such activity, misses the point . The issue is whether the rule, as written, would encompass any such activity . It is the potentially far and overreaching nature of the rule inherent in its broad and ambiguous language that offends , not whether the particular conduct to which it here was addressed involved organizational activity. a Member Johansen agrees with his colleagues that the Respondent's maintenance and enforcement of its vague and overly broad no-access rule violates Sec. 8(aXl) because it neither limits access solely to interior or other working areas nor applies to all off-duty employees seeking access to such areas for any purpose . Further, he agrees that the Re- spondent has not demonstrated that the rule is supported by legitimate business justification. Member Johansen finds it unnecessary, however, to comment on what specific union acitivity is chilled by a rule where all protected activity is prohibited because any such distinction would be un- founded in precedent . See, e.g., Independent Stations Co., 284 NLRB 394 (1987). 290 NLRB No. 122 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ohio Ma- sonic Home, Springfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Raymond D. Neusch, Esq., for the General Counsel. Dean E. Denlinger, Esq., for the Respondent. DECISION CLAUDE R. WOLFE, Administrative Law Judge. This case was tried before me at Springfield, Ohio, on 16 June 1987 pursuant to charges filed and served on 18 Febru- ary 1987 and complaint issued on 31 March 1987. The complaint alleges that Ohio Masonic Home (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining and enforcing the follow- ing rule since on or about 18 August 1986: Off duty employees may not enter the home's prem- ises to engage in publicly hostile or adverse con- frontations. Respondent admits maintaining and enforcing such a rule, but denies such conduct violated the Act, and prof- fers the following affirmative defenses: The Employer maintains a nursing home consist- ing of both buildings and grounds, all of which are used by its residents. Both the residents and their families expect that the premises, including buildings and grounds, can be used quietly, peacefully and serenely. The aver- age age of the residents is 83, with many residents in their 90s and over 100. Many of them are frail. The rule which the General Counsel claims is il- legal only prohibits "publicly hostile or adverse confrontations" on the Home's premises. This re- striction is essential to provide the residents peace, rest, and serenity that they expect and are entitled to. Peace, rest and serenity throughout the buildings and the grounds are precisely what the Home pro- duces for its customers. The existence of the rule is subject to the griev- ance and arbitration procedure under the Collective Bargaining Agreement, Articles XVII and XVIII. The Board policy for deferral to arbitration applies in this case. On the entire record, and after considering the post- trial briefs of the parties, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is an Ohio corporation engaged in the op- eration of a nursing home in Springfield, Ohio, providing medical and professional care services for the elderly. During the calendar year ending December 31, 1986, Re- spondent, in the course and conduct of these business op- erations, derived gross revenues in excess of $100,000. During the same period of time, Respondent, in the course and conduct of these business operations, pur- chased and received at its Springfield, Ohio facility prod- ucts, goods, and materials valued in excess of $5000 di- rectly from points outside the State of Ohio. Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning 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. II. LABOR ORGANIZATION The Union is now , and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent and the Union have been party to collec- tive-bargaining agreements covering Respondent's serv- ice and maintenance employees since 1973. On 29 July 1986,1 Respondent amended its written ad- ministrative policy by adding the following to a list of "Offenses which require disciplinary action": Off-duty employees may not enter any buildings or work areas for any activity which is not closely re- lated to or a part of an employee's job. Off-duty employees may not enter the Home's premises to engage in publicly hostile or adverse confrontations. These activities are threatening to the residents and are inconsistent with sympathetic care for the elder- ly. It is the second sentence of this instruction that is al- leged as an unlawful restriction on access to the prem- ises. Thomas D. Scott, Respondent's administrator, ex- plains the reason for this amendment was "[d]emon- strations and threats of demonstrations that bec[a]me so prominent that it was affecting very seriously the well being and attitude and security of the residents who live in the home. We felt obligated to curtail that sort of ac- tivity for everyone's benefit." Joyce McGonigal, the as- sistant administrator, agrees that this new restriction on access was caused by frequent demonstrations. She ex- plains that these demonstrations consisted of large groups of employees walking to the administration building for the purpose of presenting their protest of actions taken by Respondent. This, she states, caused too much confu- sion for the administrative staff and especially for the el- derly residents of the home. Off-duty employees did, under the leadership of union delegates, 2 several times gather in the home's parking lot in groups ranging from 50 to 100 employees. From there they proceeded in a column of twos to the administration building and attempted to meet with management. These processions, which Respondent calls marches, from the ' AU dates are 1986 unless otherwise stated 2 Delegates for the Union involved here perform the same functions as employees denominated stewards in other unions OHIO MASONIC HOME 1013 parking lot , past buildings lodging residents who, I find, could observe them if they chose to look out the window, and continuing to the administration building, took place six times , once in August , once in October, and twice in November 1985, and once in August and once in September 1986 There is some testimony by union delegates that these events were conducted with such decorum that one could hear a pm drop when the employees involved were in or at the administration building I have considerable doubt that a group of 50 or more employees bent on seeking redress for their per- ceived grievances were that quiet On the other hand, it does not appear that the conduct of the participants was unusually boisterous , offensive, or uncontrollable Ad- ministrator Scott does testify to a couple of marches that had television coverage as instances where the employ- ees involved were somewhat vociferous and given to chanting their demands Scott further testifies that when the first march occurred on 27 August 1985, he was called from a meeting with Respondent 's board to meet with the participating employees who had entered the building's lobby According to Scott, there was consider- able noise and hostility when he met with them for from 25 to 40 minutes and discussed the new rules prohibiting smoking in residents ' rooms and eating in patients' rooms He advised them Respondent wanted to meet with a union representative rather than an unruly mob The group dispersed without unusual incident After this first march, each succeeding march ended at the door of the administration building when Respondent 's security officer advised the participants that neither the adminis- trator nor the assistant administrator would meet with them I have noted that it is unlikely the demonstrations were attended by absolute silence On the other hand, Respondent 's evidence that the congregation of employ- ees was an "unruly mob," as Scott characterized it, con- sists only of general claims of considerable noise and hostility that do not warrant a finding the characteriza- tion was correct On the whole, it seems to me that given the television coverage of a couple of the proces- sions, which has been known to incite some of those pic- tured to perform for the camera , together with the strong feelings of the employees involved, it is most probable some of the employees did indeed voice their complaints in more than moderate terms, tone, and volume It is impossible to discern from the evidence before me exactly how loud the employees were or ex- actly what they said, but I am persuaded their behavior fell somewhere between the pindrop quiet and unruly mob opinions expressed by witnesses for the opposing parties I conclude, given the emotional content usually present in such confrontations, that there were some strong statements made by both employees and manage- ment at one point or another during the demonstrations but, as Scott concedes and I have previously noted, even in the presence of television coverage employee conduct was not overly boisterous or uncontrollable The new rule was announced to the Union by letter of 31 July 1986 , 8 months after the last previous march The reason for this timing , I am persuaded , was that the Union had requested negotiations on a new agreement, those negotiations were about to get underway, and Re- spondent feared a resumption of the marches That ex- pectation was met by a march on 7 August Thereafter, Respondent issued written reprimands to the participants The reprimands quoted the new rule and characterized the employees' conduct as publicly hostile , adversely confrontational , threatening to the residents , and incon- sistent with Respondent's obligation of providing sympa- thetic care for the elderly The reprimands were grieved under the collective-bargaining agreement Respondent denied the grievance, and the Union did not pursue it to arbitration Tn-County Medical Center, 3 on which the General Counsel relies, explains that a no-access rule concerning off-duty employees is valid only if it "(1) limits access solely with respect to the interior of the plant and other working areas, (2) is clearly disseminated to all employ- ees, and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those em- ployees engaging in union activity ," and that "except where justified by business reasons , a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid " Respondent 's rule is ambiguous and does not meet cnte- na (1) and (3) Moreover, it is prima facie invalid be- cause it bars entry to all areas of the facility's premises, and because it is maintained and enforced for the pur- pose of preventing a repeat of the employee marches on the administration building The marches marshaled by union delegates were protected union and concerted ac- tivity for the purpose of pressing employee complaints about working conditions Respondent sets forth its view that it has compelling business reasons for the no-access rule as follows There are three compelling business reasons that re- quire the Home to prohibit public, hostile confron- tations on its grounds by off-duty employees First, the Home's product is a peaceful , secure home for the elderly, and it is obligated to provide that at- mosphere for its residents Second , the Home pro- vides daily care to the frail , elderly residents, and it must protect the residents from activity that dis- turbs them or interferes with their care Third, the Home is financially dependent on the support of Ohio Masons, both as financial contributors and as the only source of future residents Hostile public activity on the grounds by the Home's employees threatens the Home's ability to continue receiving the Masons' financial support and to attract new residents The rule is necessary for these business reasons and is a valid restriction on off-duty em- ployee access to the property 4 Administrator Scott relates that of the 409 residents, 264 are ambulatory, the average age is 83, 82 residents 8 222 NLRB 1089 (1976) 4 The deferral to grievance and arbitration defense raised by Respond- ent in its answer to the complaint was expressly withdrawn by Respond- ent in its posttnal brief "in the interest of finally establishing the validity of its rules " The General Counsel contends deferral is inappropriate In- asmuch as no party requests deferral, its appropriateness in this proceed- ing need not be determined 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are between 90 and 100 years of age, 2 are over 100, 100 are between 85 and 89, 168 are 75 to 84, 44 are 65 to 74, and 13 are less than 64. To gain admission to the home, a resident must be a member of a Masonic Lodge or a member's spouse, must be sponsored by an Ohio Masonic Lodge, and must surrender 90-percent of his or her cur- rent and future assets to the home. In return, the resident receives total lifetime care as well as funeral and burial expenses. Respondent's premises consist of between 400 and 450 acres. Of this, about 120 acres are the site of Respond- ent's buildings of which four are occupied by residents. This site also includes outdoor parking, large grassed and wooded areas with benches and picnic tables, and a cem- etery for residents. There are benches in the cemetery. The open areas, with the probable exception of parking lots, are regularly frequented by ambulatory residents. Respondent argues that all the home's premises is one big patient care area . This view is also held by Dr. David Dienenfeld, who is an assistant professor of psy- chiatry and the director of the Division of Geriatric Psy- chiatry at the University of Cincinnati and whose cur- riculum vitae5 clearly demonstrates that he is an expert witness on geriatric psychiatry as the parties stipulated. Dr. Dienenfeld visited the home on 22 May 1987, toured the facilities, and interviewed four of the residents pre- sented by Respondent as individuals who might have suf- fered ill effects from the employee demonstrations and who were articulate enough to express their views to Dr. Dienenfeld. Dr. Dienenfeld concluded and testified that the resident care area of the home included the grassy and wooded areas as well as the buildings. In so con- cluding he noted there were many residents on the grassy area when he was there, and further explained that in his view residents are receiving the care of the facility even when no one is giving them direct service because the residents are provided with a reassuring psy- chological atmosphere of comfort, safety, and contain- ment of the entire facility. Dr. Dienenfeld emphasizes that each of the residents he spoke to spontaneously re- ferred to the home as "our home" and told him they considered the home to be the property of a community of Masons to which they elected to belong. He further states the fact the residents made the single payment for life care created a sense of ownership and community he had not seen in other systems where people pay monthly and can leave at will. He summarizes, "So, there's both the sense of commitment that results from the single pay- ment system and a sense of ownership and community that results from the affiliation of the home with the Masons to whom these residents belong." Dr. Dienenfeld further testified it was his opinion any hostile or adver- sary conduct on Respondent's premises would have a deleterious impact on residents. As a reason for that opinion , he recites that , as a general rule, hostility or dis- cord in the care system of a controlled community has an impact on the residents of the community who rely on the caretakers, and this impact is shown by anxiety, worry, or depression to some degree. He continues that the four residents he spoke to experienced worry, anxie- S R Exh 10 ty, and fear from either witnessing or hearing of the 1985-1986 employee processions. Many of their fears im- pressed him as beyond those a rational person outside the situation might have. One of the residents feared the Union would take over the home and make residents behave as it wanted them to. Two or three of the four interviewed were concerned there would be a strike, ad- versely affecting the care provided them. Dr. Dienenfeld stated that, as an expert, he thought that orderly proces- sions of the sort previously conducted by the employees would, if witnessed by residents, be viewed by them as evidence of some tension within the caretaking adminis- tration. In addition to the testimony of Dr. Dienenfeld, Ad- ministrator Scott's report that one elderly lady was so upset by one of the employee demonstrations that she could not eat, and some unspecific testimony that other residents were disturbed, Respondent, without objection by the General Counsel, placed a 29 November 1985 note from its medical director in evidence. It reads as follows: Re: Stress on the Elderly The elderly have less resistance to stress than their younger counter parts, it therefore takes less to upset the elderly because of loss of resilience. The residents here realize that they depend wholly on the employees for their care and daily living ac- tivities, food, clothing, etc., and when this care is threatened-real or otherwise-it causes severe emotional stress on an already compromise [sic] nervous and physical system. Rumors, strikes, picketing, marches and other ac- tivities of this nature along with the attitudes of the employees that take care of them have pronounced negative effect on the residents who are in the end our primary concern. One cannot question Respondent 's assertion that its product is a peaceful and secure home for the elderly. Nor can it be disputed that the avoidance of disruption of health care operations or the disturbance of patients in health care facilities are legitimate business objectives.6 There is no evidence that the employee activities that caused Respondent to adopt its current no -access rule in any way disrupted or tended to disrupt health care oper- ations at the home . I am persuaded , however , that the employee conduct giving rise to the rule did and would probably continue to cause some residents a degree of anxiety . This is unfortunate , but 1 do not believe this result warrants a rule so broad as that maintained by Re- spondent . It is clearly ambiguous , does not advise em- ployees of exactly what conduct is or will be banned, and leaves to the unpredictable discretion of Respondent the ad hoc determination of exactly what is meant by "publicly hostile or adverse confrontations," and wheth- er the purpose of an off-duty employee's entry onto Re- 6 Beth Israel Hospital v NLRB, 437 U S 483, 507 ( 1978), Mesa Vista Hospital, 280 NLRB 298 (1986) OHIO MASONIC HOME spondent 's premises is to engage in such conduct 7 More- over, with all due respect to Dr Dienenfeld 's expertise, I do not believe that the interview of 4 of 409 residents and the observation of residents present in the grassy and wooded areas on a single day, together with the provi- sion of benches and tables for their use, is sufficient pred- icate for his conclusion , and that of Respondent, that the entire 400 or even 120 acres of the premises are a health care area as such areas are contemplated in the various Board and court cases There is no objective evidence, and I seriously doubt, that a visitation to parking lots by a resident puts him or her in a health care area , or that any resident receives any kind of hands -on medical care in the home's outside areas Furthermore , while I have no doubt that a feeling of security and equanimity by residents is a desirable thing, I am not persuaded that im- portant protected activities may be proscribed where there is no persuasive showing , as here, that this overall psychological atmosphere has been seriously eroded by the conduct sought to be prohibited With respect to Respondent 's claim that the rule is necessary to preserve its financial structure, Greg Nelson , a witness with expertise in health care manage- ment, opined that hostile relations among the care pro- viders, which I conclude means management versus em-, ployees , would have an impact on future business of the home in that it would discourage others from living there This speculative testimony unsupported by any other evidence falls far short of establishing a reason for the rule on which Respondent can reasonably rely Conclusion Respondent's rule is an overreaction to a perceived threat without giving due weight to employee rights As the Supreme Court has noted , this is neither surprising nor unnatural 8 The evidence clearly shows that the rule was enacted in response to protected union and concert- ed activity by employees , and it is so ambiguous that it could easily be construed as banning any statutorily pro- tected activity that Respondent decided was a publicly hostile or adverse confrontation Employees have no way of knowing from a reading of the rule exactly what is prohibited The ambiguity of the rule , the precipitating reason therefor, the exclusion of off-duty employees from all areas of the home, and the failure of Respondent to convincingly show the rule is necessary to avoid dis- ruption of health care operations or disturbance of its residents,9 or is necessary to preserve Respondent's fi- nancial structure, require a conclusion the rule is invalid, and constitutes unlawful interference with and restraint and coercion of employees in the exercise of rights guar- anteed them by the Act T Cf Presbyterian/St Luke's Medical Center, 258 NLRB 93, 99 (1981), Solo Cup Co, 144 NLRB 1481, 1481-1482 (1%3) Â° Beth Israel, supra at 501 Â° In passing, I note but do not rely on the circumstance that the Board has previously rejected Respondent's contention it was necessary to pro- hibit the wearing of union buttons in order to protect the health and wel- fare of it residents Ohio Masonic Home, 205 NLRB 357 (1973) 1015 CONCLUSIONS OF I.AW 1 Respondent is an employer engaged in commerce within the meaning 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 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By maintaining and enforcing the following rule since 18 August 1986, Respondent has violated Section 8(a)(1) of the Act Off duty employees may not enter the home's prem- ises to engage in publicly hostile or adverse con- frontations 4 The unfair labor practice found above has an effect on commerce within the meaning of Section 2 (6) and (7) of the Act On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- edto ORDER The Respondent , Ohio Masonic Home, Springfield, Ohio, its officers , agents, successors , and assigns, shall 1 Cease and desist from (a) Maintaining or enforcing the following rule Off duty employees may not enter the home's prem- ises to engage in publicly hostile or adverse con- frontations (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Rescind the rule quoted above , remove it from its administrative policy , and advise the employees in writ- mg; it is no longer being maintained or enforced (b) Post at its offices at or near Springfield copies of the attached notice marked "Appendix " I I Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent 's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced , or covered by any other material 12 10 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended 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 pur- poses 11 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 " 12 The circumstances of this case do not warrant the visitatonal clause requested by the General Counsel 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director in writing within 20 WE WILL NOT in any like or related manner interfere days from the date of this Order what steps the Re- with , restrain , or coerce our employees in the exercise of spondent has taken to comply . the rights guaranteed them in Section 7 of the Act. WE WILL rescind the above rule and remove it from APPENDIX our written administrative policy. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government OHIO MASONIC HOME WE WILL NOT maintain or enforce the rule set forth in our administrative policy and reading as follows: Off duty employees may not enter the home's prem- ises to engage in publicly hostile or adverse con- frontations.