Rochester General Hospital

National Labor Relations Board - Board Decisions

Jan 16, 1978

234 N.L.R.B. 253 (N.L.R.B. 1978)

ROCHESTER GENERAL HOSPITAL
Rochester General Hospital and 1199 National Union
of Hospital and Health Care Employees, RWDSU,
AFL-CIO. Case 3-CA-6639
January 16, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 15, 1977, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief as
well as an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I Respondent's motion to remand to the Administrative Law Judge for
clarification of certain findings made in her Decision is hereby denied.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on July 14, 1976, by 1199 National
Union of Hospital and Health Care Employees, RWDSU,
AFL-CIO, herein called the Charging Party or the Union,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3 (Buffalo,
New York), issued a complaint and notice of hearing on
December 16, 1976. The complaint, as amended at the
hearing, alleges in substance that Rochester General
Hospital, herein called the Respondent, on or about July 8,
1976, at various parking lots on hospital premises and at
the hospital's main entrance, told nonemployee union
organizers to leave the hospital premises and threatened
them with arrest if they did not leave, when these
organizers were attempting to engage in union organiza-
tional activity among the Respondent's employees, and
notwithstanding that alternate channels for the Union to
234 NLRB No. 44
communicate with these employees were unavailable,
ineffective, or unreasonably burdensome; has since July 8,
1976, discriminatorily applied a no-solicitation, no-distri-
bution policy to distribution of union literature to the
Respondent's employees on hospital premises by nonem-
ployee union organizers; and has by the foregoing conduct
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act,
and thereby engaged in unfair labor practices in violation
of Section 8(aXl) of the National Labor Relations Act, as
amended. The Respondent, in its answer duly filed and at
the hearing, admitted certain factual allegations of the
complaint, but denied the commission of the alleged unfair
labor practices.
Pursuant to due notice, a hearing was held before me at
Rochester, New York, on March 21 and 22 and April 20
and 21, 1977. All the parties appeared at the hearing and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evi-
dence. At the opening of the hearing the General Counsel
made an opening statement. At the close of the hearing all
the parties waived closing argument. Subsequent to the
hearing, on or about June 27, 1977, the General Counsel,
the Respondent, and the Charging Party filed briefs, which
have been duly considered. The Respondent also filed a
motion to correct the transcript. This motion, unopposed
by the other parties, is hereby granted, and the transcript is
hereby corrected.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FnDINos OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been, a not-for-profit corporation duly organized under,
and existing by virtue of, the laws of the State of New
York. The Respondent at all times material herein has
maintained a hospital on Portland Avenue, in Rochester,
New York, herein referred to as the hospital. It is engaged
at the hospital, the only facility involved in this proceeding,
in the business of providing and performing hospital and
health-related services. During the past year the Respon-
dent, in the course and conduct of providing these services,
received gross revenues in excess of $250,000, and received
goods valued in excess of $50,000 that were transported to
its place of business in interstate commerce directly from
States of the United States other than the State of New
York. The complaint alleges, the Respondent in its answer
admits, and I find that the Respondent is, and at all times
material herein has been, an employer engaged in com-
merce and a health care institution within the meaning of
Section 2(6), (7), and (14) of the Act.
11. THE LABOR OROANIZATION INVOLVED
I find, as the complaint alleges and the Respondent in its
answer admits, that the Union is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Stipulations of the Parties
The complaint alleges violations of Section 8(a)( 1) of the
Act since on or about July 8, 1976. It was stipulated by the
parties at the hearing that on that date nonemployee union
representatives were stationed on hospital property at
various employee parking lots and at the main entrance at
approximately 6:30-8 a.m., and again at the entrance for a
few minutes about 3:20 p.m.; that they were at these times
engaged in soliciting and distributing union literature to
persons including employees of the hospital; that security
personnel of the hospital approached these union represen-
tatives and, after ascertaining their identity, ordered them
to leave the Respondent's premises; that in doing so the
security personnel were acting in furtherance of hospital
policy which, on that date and all times since then, has
been to prohibit nonemployees from soliciting or distrib-
uting literature to employees on the grounds or within the
hospital building; that July 8, 1976, was the only day
during 1976 and 1977 on which nonemployee union
representatives solicited or distributed to the hospital
employees on or adjacent to the Respondent's property;
and that the Respondent did not on that date, and would
not at any time since that date, allow nonemployee union
representatives to solicit the hospital employees or to
distribute literature on the hospital grounds or in the
building owned by the Respondent. The parties also
stipulated that the Union has not filed a petition with the
Board seeking representation of any of the hospital
employees, and that the Respondent did not file charges
against the nonemployee union representatives, and no
arrests were made, as a result of the July 8 incidents.
On July 9, 1976, counsel for the Union sent a letter to the
Respondent stating as follows:
It has come to our attention that the security personnel
of Rochester General Hospital is interfering with the
rights of your employees to organize and select repre-
sentatives for the purposes of collective bargaining.
Your security personnel are so interfering by refusing
to permit representatives of 1199 to distribute leaflets at
and around access roads to Rochester General.
As the Union is guaranteed the right of reasonable
access to employees for the purposes of [organizing],
we request that you either:
1. Inform us of areas where our organizers may
effectively distribute leaflets to your employees on or
around your property, or
2. Submit to the Union ... a list of the names and
addresses of your employees in the following catego-
ries: professional employees including registered nurses
and medical technologists but excluding physicians
serving as interns or residents at the Hospital, all
technical employees including licensed practical nurses,
medical technicians, laboratory technicians, X-ray
technicians and similar categories; all service and
maintenance employees including nurses aides, ward
aides, unit clerks, stock room employees and related
categories, and all employees characterized as being
business office clerical. Excluded from this request are
all supervisors and guards as defined by the National
Labor Relations Board Act.
Your prompt compliance with this request will aid in
assuring your employees full enjoyment of their rights
under federal law.
The Union filed the charge herein on July 14, 1976.
Counsel for the Respondent, on July 19, 1976, replied to
the Union's letter as follows:
I had every intention of answering your letter. However
in the interim, the Hospital received an unfair labor
practice charge. While the charge does not allege the
facts on which it is based, it leads me to believe that
your letter of July 9 was a fishing expedition. If that
belief is incorrect, please let me know.
The parties stipulated that there was no reply by the Union
to this letter.
B. The Hospital Premises
There are six hospitals in Rochester, of which the
Respondent is the second largest as to employees and beds.
The parties stipulated that the hospital has about 2,250
employees, of whom about 1,500 work full time and the
others part time. There are about 480 inpatients and about
400 outpatients daily. Most categories of employees work
three shifts. There are some variations but generally the
first shift is from 7:30 a.m. to 4:30 p.m., the second from
3:30 p.m. to 12 midnight, and the third from 11:45 p.m. to
7:45 a.m. Over 80 percent of the employees are on the first
shift, about 12 percent on the second, and about 6 percent
on the third. The hospital visiting hours are from noon to 8
p.m., 7 days a week.
Some employees are required to wear uniforms at work.
The uniforms, of different colors, are furnished and
laundered by the hospital. Some employees wear the
uniforms to and from the hospital but others wear their
own clothes and change in the locker rooms. The hospital
also issues decals about the size of a half-dollar to
employees who park at the hospital. The decals, affixed to
the left side of the rear window on the driver's side of the
car, indicate by their color the parking area used by the
employee.
The hospital, located on Portland Avenue, a major artery
between the city and its northern suburbs which was
widened in 1976, is on about 31 acres in the northeast
section of the city about 2-1/2 miles from the downtown
area. The main building has 7 floors and about 30
departments as well as employee lounges and locker rooms
in the basement, a main conference room, a cafeteria on
the ground floor which is used by employees and visitors
and may be used also by outpatients and doctors, and a
coffeeshop on the ground floor used by employees, visitors,
and sometimes patients. There are also a mental health
building, an animal laboratory connected to the hospital by
a tunnel, and a nursing school in a wing of the hospital that
has three floors and contains research facilities also.
254
ROCHESTER GENERAL HOSPITAL
The parties stipulated that about 93 percent of all the
hospital employees and approximately 97 percent of the
employees in the service and maintenance unit live in
Rochester or one of several contiguous towns, and that
Rochester has a population of about 250,000 and Monroe
County about 400,000. There is access to the hospital by
car, bus, on foot, motorcycle, and bicycle, but most of the
employees come to work by car. There are six parking
facilities at the hospital and a seventh to be available
sometime in 1977, accommodating hundreds of cars. Some
parking facilities are restricted to employee use only, and
some are also used by visitors and outpatients. There is also
a bicycle rack.
The hospital's main entrance, which has a lawn in front,
is used by staff members, employees, outpatients, and
visitors. There are other entrances as well. Employees may
use any of the entrances. There is a bus stop on Portland
Avenue at a gravel footpath about 800 feet from the main
entrance that is used by employees and others going to and
from the hospital. A nearby loop is difficult for regular
large buses to turn in but is used by smaller Dial-A-Bus
vehicles and by cars to drop and pick up people.
The Respondent owns all the parking facilities on its
premises, and the North, West, and South Roads at the
perimeters. The lot line extends to the sidewalk on Portland
Avenue, to South Road on the south where the lot line is
marked by a chain, to Carter Street, where there is an
overpass, on the west, and to a cyclone fence on the
northern boundary. There are no sidewalks at the northern
boundary or on a one-way road into the hospital used by
employees and others. There are traffic lights at the nearby
Portland Avenue intersection, and a traffic turn lane in
front of the hospital. Traffic lights to the north and south
halt traffic and slow it down at the Portland Avenue main
entrance to the hospital. There are three points on Portland
Avenue where vehicles enter the hospital and a walkway
for pedestrians. There are also roads and pedestrian walks
on the hospital grounds which are owned by the Respon-
dent. There is a traffic light with a pedestrian button at an
enclosed bus stop that was erected by the city transit
company and is used by employees and others. Traffic
islands extending into the right-of-way from the sidewalk
are in part public and in part the property of the
Respondent. Nicholas Ustick, the hospital's director of
employee relations, testified that the Respondent has no
jurisdiction over Portland Avenue, over the gravel foot-
path, or over the enclosed bus stop which abuts the
sidewalk.
Ustick is in charge of security. The hospital formerly
contracted for guard service but, since June 1976, has
employed about 27 security personnel. Security people are
stationed at the information desk in the hospital lobby and
patrol the roads in the hospital area.
There are located in the vicinity of the hospital a St.
Ann's Home, a Norton Home, a Wilson Health Center, a
Northside Professional Center, a small shopping center,
gasoline stations, and residential areas. Portland Avenue
and other nearby roads are heavily traveled particularly
during the morning and evening rush hours.
I The General Counsel presented testimony of these pre-Sec. I 0(b) events
as background only.
C. Union Attempts To Organize
1. In 1974
The General Counsel called three witnesses to testify
about the Union's attempts to organize the hospital
employees, Lawrence Fox, James Blain, and Jennifer
Ferguson.
Fox, the Rochester area director of the Union, testified
that the first campaign activity took place during a 2-week
period in about September or October 1974.1 At a later
point, however, Fox testified that he went into the hospital
to try to organize on two occasions in July 1974; that one
time he did not get past the lobby, and the other time he
was in the cafeteria; that on both occasions a security
guard, after inquiries about why he was there, escorted him
out; and that other union organizers who entered the
hospital reported to him that they received the same
treatment.
Fox testified, as to the September-October activity, that
the Union obtained from members employed at Strong
Memorial Hospital names of persons employed elsewhere,
but that none of those named were employed by the
Respondent. Fox then directed Moore, an organizer, to
apply himself at that time primarily to organization of the
Respondent's employees, and to report to Fox daily.2 Fox
testified that he told Moore to try to reach employees at the
bus stops starting with the enclosed bus stop, but Moore
reported that very few passengers were there from 6 to 8
a.m., a total of about 30 "passengers at the enclosed bus
stop, and passengers getting off at the main entrance, when
the bus pulled in to the bus loop"; that he told Moore to
stand at the main entrance, where the passengers got off
the bus, but Moore reported being asked to leave there;
that he said Moore could not "stand at the bus stop,
because it was on the hospital property," so he should ride
the bus in the afternoon, observing who got on at the
hospital, and talk with them during the ride; and that in
that way the Union obtained a few names and addresses
and met with some employees of the Respondent. Fox
testified that the Union learned from them that very few
hospital employees ride the bus to work, and that most of
those who did were black whereas the hospital employees
were "predominantly white"; that those who took the bus
told Moore, and told Fox during home visits Fox made,
"that they didn't see white workers, that they tended to eat
in the locker rooms by themselves, while the white workers
tended to eat in the cafeteria. And they didn't - couldn't
make contact with the white workers." Fox testified further
that a meeting was held of those who indicated an interest
in the Union; that word of the meeting was spread only by
word of mouth; that fewer than 20 attended, all of whom
were black; that they were "very anxious to organize" but
said they were "afraid to talk to the white workers"; and
that the union representatives stated to the group that they
would try to reach the white workers and "would keep in
constant touch" with this group.
Fox then assigned union delegates from Strong Memori-
al Hospital, on their days off, and other union organizers,
2 Moore was not called to testify.
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a drive coordinated by Fox and Moore to have at least
one person go into the hospital every day to make contact
primarily with the white workers. Asked then over what
period of time this took place, Fox answered, "Well, our
intention was to do it as much as was necessary to try and
reach in and get those contacts; that is the contact of,
primarily, of white workers, but, we were critically short
circuited because, in fact, every time we tried to go in to
Rochester General Hospital we were escorted out of the
building promptly." On cross-examination, Fox stated that
this activity went on "I'd say between a week and two
weeks." Fox also testified that in the course of this activity
the organizers made contact with only about 30 individuals
but obtained fewer than 30 names.
Fox testified that the last effort made in 1974 was to
leaflet one day in October; that he did so with several
others but no employees of the Respondent participated;
that the leafleting began at various locations at 6 a.m.
because, while the main shift change occurred at 7:30,
some came to work earlier; that the leafleters tried to
concentrate on entrances to the hospital and to the parking
lots as they were not sure if the access roads, some of which
were a considerable distance from the hospital, were
Respondent's property; and that a security guard told him
to leave or be arrested, said the access roads were hospital
property, and escorted the leafleters off the premises. Fox
testified that they then tried to leaflet cars coming from
Portland Avenue to the access road which leads to most of
the parking lots on North Road; that they were on the curb
next to the passenger side of the cars, many of which had
no passengers; that a traffic officer came to the intersection
at about 7 a.m. and directed drivers who tried to slow down
to drive on and they did; and that, after trying from about
6:30 to 8 a.m., the organizers were unable to pass out one
leaflet.
Fox testified that they distributed about 60 or 70 leaflets,
most before they were escorted off the property, and some
to those walking in from Portland Avenue; that in the
approximately 2- to 3-month period of these efforts, they
made fewer than 50 contacts and obtained about 20
addresses; and that he was unable to form a committee as
the organizing efforts "only reached into one department,
the housekeeping or environmental service department."
Ferguson, who was unemployed at the time of the
hearing, had previously been employed at Strong Memorial
Hospital and while there was a member of the Union from
December 1974 to December 1975. She testified that she
made one attempt to leaflet the Respondent's employees in
the fall of 1974; and that she went to the women's locker
room with the leaflets and was talking about the Union to
some employees for about 5-10 minutes when a security
guard walked in, demanded that she leave under threat of
arrest, and escorted her out.
Ustick testified that he has observed that black and white
employees mingled freely in the employee lounge and
cafeteria. He also testified that the leafleting attempt in the
hospital locker rooms and parking areas occurred on
October 9, 1974; that the organizing activities of nonem-
ployees were brought to the attention of security personnel
3 Blain was admittedly very vague as to dates and other particulars and
changed some of his answers on further interrogation.
by complaints of employees; and that security personnel
put a stop to nonhospital-related activities that interfere
with hospital work, in accord with the hospital policy,
whether engaged in by union organizers or by solicitors for
a church.
2. In 1976
Blain, who was not employed at the time of the hearing,
worked for the Respondent as an orderly about 6 months
and then quit. He testified that he traveled for a time and
then went to work as an organizer for the Union in June
1975, but was laid off on February 16, 1977; and that he
did not recall but he may have sat in on negotiations of the
Union with another employer in April 1976. 3 Blain testified
that Fox, whom he had known since 1973, was a good
friend of his; that they were in communication while he
was employed by the Respondent; but that he was not
asked to, and did not, engage in any union activity during
that period. Blain participated in both morning and
afternoon leafleting on July 8, 1976. He testified that all the
leafleters wore paper hats identifying the Union; that 1,000
leaflets were prepared, of which, be estimated, 600 were
handed out in the morning and 200 in the afternoon.
Ferguson testified that she participated in leafleting at
the hospital in the morning and afternoon on one day in
July 1976; that she and other organizers were on the
sidewalk by the main door at about 6 a.m. when a security
guard asked them to leave and said they had no right to be
on Respondent's property; that the organizers said they
had that right and suggested the guard check with Fox who
was behind the building; that he left to do so and they
distributed for about 15 minutes; that at about 7 a.m. Fox
came to where they were distributing and said they should
stop and get off the property; and that she and Piccus,
another organizer, then "went down to the sidewalk that
runs along, next to the enclosed bus stop on Portland
Avenue.... We continued to pass out Union leaflets, but
no people came by, or got off the buses to hand a leaflet to.
So, we stood there a few minutes, and then left the
premises"; and that there was no attempt at that point to
leaflet automobiles. Ferguson testified that she and Mark
Rita, another organizer, were leafleting at the entrance to
the Respondent's parking ramp at about 2:30 that after-
noon; that after about 10 minutes a security guard
approached and said if they did not leave the property they
would be arrested; that they left the property and stood on
Portland Avenue "on the gravel footpath that is next to the
traffic light near the entrance to the parking ramp," one
standing on the footpath, the other on the sidewalk; that
"we attempted to leaflet the cars coming in and out for a
very short period of time, because it proved to be
impractical standing there.... we observed that it was
very difficult for cars coming in and out to stop for us, and
we also felt it was very dangerous for us to stand in that
particular spot .... because of the speed of the cars going
by, in and out." Ferguson testified that they stayed there
"Maybe 15 minutes" and then left because they were
unable to leaflet the passing cars.
256
ROCHESTER GENERAL HOSPITAL
Fox testified that two attempts to leaflet were made on
July 8, 1976, and that he was present at the one in the
morning. He also testified that the organizers tried first to
reach the contacts made in 1974, but most had left the
Respondent, "so, we discovered that, in fact, we were
starting from scratch again"; that, after this leafleting on
July 8, the Union received about 5-10 telephone calls from
hospital employees, made 2 or 3 home visits, held, he
thought, 3 meetings at the union office, and had fewer than
5 employees attending 2 of the meetings but 20 to 30 at the
third; and that no committee had as yet been formed
among these employees.
Fox testified that, as a matter of general policy, the
Union does not use advertising by airplane streamers,
sound trucks, or bullhorns, because the noise would disturb
hospital patients; that it uses bumper stickers in regard to
elections but not in organizing campaigns as they cannot
be made sufficiently informative; and that the Union does
not attempt to obtain names from car license plate
numbers for various reasons, including the fact there are
large numbers of cars going in and out of the hospital,
organizing in Rochester is frequently done in the darkness
of early morning or when plates are covered by snow so
they cannot be read, it is difficult to write down numbers
on moving vehicles as the Union does not have access to
the parking areas, the car may be registered to someone
who is not a hospital employee, and some individuals
would resent this invasion of privacy by the Union. Fox
admitted that the Union might consider this method
"useful" in organizing a smaller institution or one in a
smaller town. Fox testified further that the Union does not
use spot radio advertising as it is too expensive, may not be
heard by those whom the Union is trying to reach, and may
antagonize the community by referring to a union cam-
paign at an unorganized hospital before the Union has
talked to the employees; that the Union does not advertise
on television as it is even more expensive; that it does not
advertise in the local newspapers for similar reasons; and
that the Union does not parade on the street with banners
or advertise by bus placards as it considered these to be
ineffective means to reach the employees.
Fox testified that, after the activities on July 8, 1976, the
Union had the names of about 20 current employees of the
Respondent but only about 10 to 15 with addresses. Fox
testified further, on cross-examination, that he had given
an accurate and complete description of the Union's
activities in trying to organize the Respondent's employees,
that there were no further activities after the July 8
leafleting, and that during these activities none of the union
agents were employees of the Respondent.
D. Activities Permitted on Hospital Premises
Ustick testified that the hospital's no-solicitation, no-
distribution policy or rule, which is not alleged to be
unlawful, was in effect when he came to work at the
hospital in December 1973, that it is not posted but is in an
employee handbook given to all employees, that the large
number of bulletin boards located throughout the hospital
are basically for management use and may be used by
employees only with approval by the public relations
department, and that he assumed permission would not be
granted to post union literature. Ustick also testified that
the Respondent tries to maintain quiet throughout the
hospital area, to avoid any conduct that might impede
employees' service to patients, and to assure access to the
hospital by emergency vehicles 24 hours a day. He also
testified that the Respondent did not interfere with a group
soliciting on the Portland Avenue sidewalk for a church or
with a group soliciting there in 1974 for the Union.
Counsel for the General Counsel, directed in response to
the Respondent's bill of particulars to show the dates or
approximate dates and the names of nonemployees or
nonemployee organizations permitted to distribute litera-
ture or solicit on hospital premises, answered as follows:
I. On or about October 5, 1976, Respondent did
allow the Genesee Valley Nurses Association to solicit
on hospital premises.
2. Additionally, on unknown dates between Sep-
tember 1974 and April 1975, Respondent did allow
distribution or solicitation within the hospital by the
following types of organizations and non-employees:
(a) Unidentified representatives of drug com-
panies whose corporate names are presently
unknown.
(b) Unidentified representatives of medical
products manufacturers whose corporate names
are presently unknown.
(c) Volunteer hospital auxiliary group, the
name of which is presently unknown.
(d) American Red Cross
The General Counsel presented testimony as to this
matter, including testimony, as background, of Blain, who
left the Respondent's employ in about March 1975. Blain
testified that while he was employed at the hospital he saw
in a small hallway displays by medical book publishers and
drug companies, and that the book display personnel
buttonholed interns to sell books, and the drug detail men
handed out drug samples or pens and other advertising
souvenirs. Blain also testified that he saw Red Cross blood
drive posters announcing that blood could be donated
during working hours, and that he donated blood during
his worktime. Blain also testified that there were sales of
craft products by Twig, a group of volunteers.
The General Counsel also presented evidence with
regard to a meeting of the Genesee Valley Nurses Associa-
tion, referred to herein as GVNA, that was held in the
hospital conference room on October 5, 1976. The evidence
shows that GVNA comprises District 2 of the state nurses
association, which is affiliated with the national associa-
tion, but that GVNA has its own membership, officers,
board of directors, bylaws, programs, and dues, and
functions autonomously. Most of its board members and
officers are employed in supervisory positions. The Gener-
al Counsel presented evidence that the state association has
filed election petitions and was viewed by Regional Offices
of the Board, in regard to the processing of those petitions,
as a labor organization. There is no evidence, however, that
GVNA has ever functioned as a labor organization.
Moreover, June McDowell, a registered nurse who is
regional coordinator of the state association, testified, as a
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness for the Respondent, that the state association has a
separate program under which it engages in collective
bargaining, but that the state association and its districts,
including GVNA, are separate incorporated entities, that
GVNA has never functioned as an organizing or bargain-
ing agent for nurses or in any other labor organization role,
and that GVNA is not even notified when collective-
bargaining activity is undertaken in its district by the state
association.
The GVNA membership committee sent a letter, ad-
dressed to "Dear Colleague," to 10,000 nurses in a 6-
county area.4 The letter, undated but apparently sent in
about September 1976, announced a program of four
meetings, to be held on four dates in October and
November at four locations, to consider "professional and
health care issues." The letter also invited membership in
GVNA and suggested that those who chose "not to attend
an informational meeting but would like to join GVNA
please complete the attached application and mail it to us
with your remittance." The attached sheet listed the
"Objectives" and the "Advantages" of GVNA member-
ship, with places to designate thereon whether an applica-
tion was for membership in GVNA at a $15 fee, in the state
association only at $50, or in GVNA and the state and
national associations at $100.
The first meeting listed was that of October 5, 1976, at 7
p.m., to be held in the Respondent's main conference room
and to be a "Combination Meeting: Busi-
ness/Program/Membership." 5 Dorothy Blewitt, executive
director of GVNA, testified, as a witness for the General
Counsel, that GVNA, in preparing its program, planned to
have a doctor on the staff of the hospital speak on his
medical specialty and demonstrate with certain hospital
equipment, and arranged the October 5 meeting at the
hospital for that reason. The doctor later became unavail-
able but another doctor, also on the staff of the hospital in
the same special field, was substituted as the speaker and
used the hospital equipment for demonstration purposes.
Carol Vacanti, chairman of the membership committee
and member of the program committee of GVNA, and
employed as a director of nursing at St. Mary's Hospital,
testified, as a witness for the Respondent, that she helped
prepare the October 5 program; that she got in touch with
the doctor who was scheduled to speak the previous July;
that in July she also told Linda McKenna, a nurse at the
hospital who was engaged in nursing service staff develop-
ment, who booked the conference room, that the meeting
would present a program, including a talk by a hospital
staff doctor, but made no mention of a membership drive
at this meeting; and that the program calendar, prepared
about August 1 and mailed to the entire membership about
mid-August, lists events for various dates from September
I to December 7, including the "General Busi-
ness/Program Meeting" from 7 to 10 p.m. on October 5 at
the hospital, states the subject matter of the business
meeting to be held at 7 p.m., identifies the hospital doctor
and his subject to be presented at 8 p.m., and makes no
reference to membership.
4 The names and addresses were obtained from the state association.
5 The other meetings were listed to take place at Alfred University,
Keuka College, and Avon Nursing Home. The letter did not state the
Blewitt and Vacanti, who were at the October 5 meeting,
both testified that about 50-60 were present; that the
meeting was open to all members, not the Respondent's
nurses only; and that they did not recall whether any of the
Respondent's employees were present. Blewitt also testified
that she did not recall any discussion of membership, and
that she believed there was an announcement that applica-
tions were available, and they may have been, but she did
not see them distributed. Vacanti testified that membership
cards were on a table but she did not see anyone sign one,
and that Blewitt made a few remarks at the end of the
meeting about the purposes of GVNA as those present
were walking out, but there was no "active solicitation" of
membership and no specific reference to signing applica-
tions.
The Charging Party was permitted, over the Respon-
dent's objection, to recall Ustick as a rebuttal witness and
to question him about use by nonemployees of hospital
premises within the 10(b) period. Ustick at this time
testified that the Red Cross blood drive occurs twice a year,
that posters in the hospital announce the drive, that the
Red Cross at the announced time draws blood from donors
in the main conference room, that the blood is for the
blood bank, and that this is in effect hospital solicitation as
the blood drive is for the benefit of the hospital communi-
ty.
Ustick also testified that posters in the hospital advertise
annual sales by Twig of handcraft products; that Twig is
an organization of women volunteers whose services and
funds are devoted to the benefit of the hospital; that it is
under hospital sponsorship as it is part of the Women's
board which is part of the board of directors of the
hospital; and that the annual fund-raising sale, advertised
throughout the area as well as in the hospital, is held at the
county fairground, and all the proceeds are contributed to
the hospital.
Ustick also testified that drug detail men and medical
book publishers are permitted to put up displays very
infrequently; that he never saw detail men distribute
samples of over-the-counter drugs or advertising souvenirs,
and the drugs displayed are not for sale to employees or
doctors but to the hospital pharmacy based on what the
doctors prescribe; and that the books displayed are of
interest to doctors, and there is no medical bookstore in the
hospital.
E. Contentions of the Parties
The General Counsel urges that the hospital is bounded
by busy highways and by access roads owned by the
hospital; that many hospital employees drive to work and
park on one of the several hospital parking lots; that the
Union has been trying to organize units of hospital
employees since 1974, and tried in 1974 to reach the
employees by unsafe and unproductive methods at the
hospital perimeter; that nonemployee organizers should be
given the right of access to parking lots and nonpatient
care areas of the hospital because of the inaccessibility to
the hospital employees and the ineffectiveness of other
purpose of these meetings but the testimony shows they were membership
meetings only.
258
ROCHESTER GENERAL HOSPITAL
reasonable alternative means of effective communication
with them; that the Respondent applies its no-solicitation,
no-distribution rule discriminatorily as it grants access to
nonpatient care areas of the hospital to others, but bars
union organizers there and on the parking lots; and,
therefore, that the Respondent's refusal on July 8 to give
nonemployee organizers access to employees at the parking
lots was violative of Section 8(a)( 1) of the Act.
The Respondent maintains that the Union did not
exhaust other available means of communication with the
hospital employees; that the Union tried to organize only
on a few days in 1974, and for short intervals on one day in
1976 and 1977 up to the date of the hearing; and that other
nonemployee solicitation is permitted on hospital premises
only if related to hospital business and health care. The
Respondent maintains further that all the evidence present-
ed by the General Counsel with regard to disparate
application of the Respondent's policy pertained to pre-
Section 10(b) matters except the GVNA meeting of
October 5 in the hospital conference room; that there was
no notice to the Respondent that this meeting pertained to
GVNA membership or to any subject matter other than a
lecture to an organization of nurses on a medical subject by
a hospital doctor using hospital equipment to demonstrate
his talk; that there was no actual solicitation of member-
ship at the meeting; that there was no evidence that
employees of the Respondent attended the meeting; and
that there was no evidence that GVNA had labor organiza-
tion status.
Concluding Findings
Much of the evidence presented in this case is based on
agreement of the parties or on unrefuted testimony. There
are, however, some conflicts in the testimony. I found
Ustick, who was called as a witness at different points in
the hearing by the General Counsel and the Charging Party
as well as the Respondent, a candid, believable, and
convincing witness. I therefore credit his testimony where it
is in conflict with that of Fox or Blain, witnesses called by
counsel for the General Counsel, whose demeanor and
testimony I found less reliable than that of Ustick.
The General Counsel argues that certain activities that
took place on hospital premises show discriminatory
application of the Respondent's policy or rule. The activi-
ties include Red Cross postering and blood collection in
the hospital for the blood bank, postering of sales by a
volunteer group which donates all the proceeds to the
hospital, displaying of pharmaceutical products that doc-
tors might prescribe and the hospital pharmacy might
therefore purchase, and displaying of medical books of
interest to the doctors. I find, on the record as a whole, that
these were work-related activities that assisted the hospital
in carrying out its community health care functions and
responsibilities, and not such disparate application of a
valid no-solicitation, no-distribution rule as to require the
6 The Supreme Court has held, in N.L.R.B v. United Steelworkers of
Amenrca, CIO [Nutone, Incorporatedl. 357 U.S. 357, 364 (1958), that "the
Taft-Hartley Act does not command that labor organizations as a matter of
abstract law, under all circumstances, be protected in the use of every
possible means of reaching the minds of individual workers, nor that they
are entitled to use a medium of communication simply because the
Respondent to waive its rule and permit access to its
premises by nonemployee union organizers. I find further
that the GVNA meeting was booked in the conference
room for what the Respondent was informed would be a
lecture to an organization of nurses by a staff doctor on the
subject of his medical specialty, demonstrated on special
hospital equipment, with no reference to a membership
drive, and that this meeting likewise does not establish such
discriminatory application of the rule as to require that the
Respondent give the nonemployee union organizers access
to its premises. 6
The General Counsel has established that it is difficult
for the Union, lacking access to hospital premises, to
organize the units of employees it seeks to represent.
Factors contributing to the difficulty are the size of the
hospital premises and the number of employees who drive
to and from work from widely dispersed geographical areas
and park in one of the several parking areas on hospital
premises; the problem of identifying the employees of the
Respondent, some but not all of whom wear uniforms to
and from work in an area where various other health
establishments are located; and the heavy traffic on
adjoining public roads, particularly at the time of shift
changes; and the Respondent's ownership of access roads.
The Respondent maintains that the Union did not make
a reasonable effort to organize the hospital employees
before seeking to gain access to hospital premises.
The Union carried on some organizing activity for a very
short period in about September-October 1974, and made
contact with some of the hospital employees who were
interested in organizing. Although, as Fox testified, the
union organizers assured these hospital employees that
they "would keep in constant touch," the next, and only,
further organizing activity took place on one day in July
1976. As Fox also testified, in July 1976 the union
organizers tried to reach the contacts made in 1974, but
most of them had left the Respondent "so, we discovered
that, in fact, we were starting from scratch again." Some
turnover among the employees in question during this long
interval was surely to be expected. In any event, "starting
from scratch" involved leafleting activities for part of one
day, July 8, 1976, following which the charge herein was
filed.
The record does not show that the Union made a
reasonable effort to form a nucleus of the employees
recruited in 1974 to recruit other employees. I do not credit
the assertions that it was not possible for the black
employees who expressed a desire for union organization
to communicate with the white employees and find that
these groups did mingle on hospital premises, as Ustick
testified. Moreover, no union effort was made to organize
through white employees like Blain, an old friend of Fox's,
and evidently sympathetic to union organization. The
evidence also does not show that the Union made reason-
able efforts to leaflet at different hours and in different
traffic situations at the several intersections where cars go
employer is using it." See also Super X Drugs of Wert Virginia, Inc., 169
NLRB 264(1968); Block-Southland Sportswear, Inc., Southland Manufactur-
ing Company, Inc., 170 NLRB 936, 946 (1968); The May Department Stores
Company d/b/a Famous-Barr Company, 174 NLRB 770 (1969); Serv-Air,
Inc., 175 NLRB 801 (1969); ef. George Washington University Haspital, a
Division of the George Washington University, 227 NLRB 1362 (1977).
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and out of the hospital premises and at the several bus
stops. Further, although the Respondent is the second
largest hospital in Rochester, the Union has organized the
largest. And as to the lack of identifying uniforms on some
of the hospital employees, many plants are organized
where none of the employees wear uniforms.
The Union has likewise not used radio, television, or
newspaper advertising, bus placards, bumper stickers, or
displays of union signs on Portland Avenue, nor has it tried
to obtain names and addresses from license plate numbers
in attempting to organize the Respondent's employees. Fox
testified that these methods were not tried because, as a
matter of union policy, they are considered too costly
and/or ineffective. As the General Counsel's brief points
out, the Board does not require a union to utilize means of
communication shown to be too costly or ineffective for
organizational purposes. The methods are referred to not
as a list of what a union must do to organize but as an
indication of the various means of communication avail-
able to nonemployee union organizers without access to
the employer's premises. The General Counsel also points
to the very small percentage of unit employees whose
names and addresses the Union was able to obtain as
showing the great difficulty of organizing these employees
without access to the Respondent's premises. This may
equally be the result, however, of an inadequate organizing
effort by the Union.
The United States Supreme Court, in N.L.R.B. v. The
Babcock & Wilcox Company, 7 pointing to the distinction to
be made between rules of law applicable to employees and
those applicable to nonemployees, held that "an employer
may validly post his property against nonemployee distri-
bution of union literature if reasonable efforts by the union
through other available channels of communication will
enable it to reach the employees with its message and if the
employer's notice or order does not discriminate against
the union by allowing other distribution." The Court stated
further that accommodation between an employer's prop-
erty rights and employee organization rights "must be
obtained with as little destruction of one as is consistent
with the maintenance of the other. The employer may not
affirmatively interfere with organization; the union may
not always insist that the employer aid organization." The
Court went on to state that "when the inaccessibility of
employees makes ineffective the reasonable attempts by
nonemployees to communicate with them through the
usual channels, the right to exclude from property has been
required to yield to the extent needed to permit communi-
cation of information on the right to organize." The Court
concluded that the plants involved in that case "are close to
small well-settled communities where a large percentage of
the employees live. The usual methods of imparting
information are available.... The various instruments of
publicity are at hand. Though the quarters of the employ-
ees are scattered they are in reasonable reach. The Act
.... does not require that the employer permit the use of
r 351 U.S. 105 (1965); see also Central Hardware Company v. N.LRKB.,
407 U.S. 539 (1972); Hudrens v. N.L.R.B., et al., 424 U.S. 507, 521 (1976).
s The Court referred, with regard to a union's usual methods of
imparting information, to contacts with employees not only by distributing
literature to some but also by sending them literature through the mails,talking to them on the streets, going to their homes and talking with them
its facilities for organization when other means are readily
available."s
The Board has declared, in considering, on remand, the
rights of access in organizational and picketing situations,
that "Section 7 of the Act was intended to protect the rights
of employees rather than those of nonemployees ....
seeking to organize them"; that a violation found in this
situation is based on the principle that "it is the employees'
right to receive information on the right to organize that is
abrogated when an employer denies nonemployee union
organizers access to the employer's property"; and that
"[I ]n an organizational campaign, the group of employees
whose support the union seeks is specific and often is
accessible by means of communication other than direct
entry of the union organizers onto the employer's property,
such as meeting employees on the street, home visits,
letters, and telephone calls." 9 Further, the Board requires
that the evidence must show that a union is unable by
reasonable efforts through other available channels of
communication to reach the employees with its message
before it will require an employer to grant nonemployee
organizers access to its premises, and has set forth various
available methods whereby a union may reach employees
without access to an employer's premises.i 0
I find that, while the General Counsel has shown in this
case that it was difficult for the nonemployee union
organizers to organize the Respondent's employees in the
units the Union seeks to represent, the record does not
establish, in all the circumstances of this case, that the
Union was unable by reasonable efforts through various
available channels of communication to reach the Respon-
dent's employees, or that the Union made a reasonable
effort to do so, or that the difficulty has been shown to
warrant requiring the Respondent to waive its rule and
grant the nonemployee union organizers access to its
premises. I likewise find that the record does not establish
that the Respondent has discriminatorily applied its valid
no-solicitation, no-distribution policy or rule to prevent
union activities on its premises by nonemployee union
organizers. Accordingly, I find, in conclusion, on the basis
of the foregoing and the evidence in its entirety that the
General Counsel has failed to establish, by a preponder-
ance of the credible and probative evidence, that the
Respondent has engaged in unfair labor practices in
violation of Section 8(aXl) of the Act.l I shall therefore
recommend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Rochester General Hospital is an employer engaged
in commerce and a health care institution within the
meaning of Section 2(6), (7), and (14) of the Act.
there, and talking with them on the telephone. See also Central Hardware
Company v. N.L. R. B., supra; Mike Yurosek d Son, 229 NLRB 152 (1977).
9 Scott Hudgens, 230 NLRB 414.416(1977).
i' The Falk Corporation, 192 NLRB 716 (1971).
II See G. C. Murphy Company., 171 NLRB 370(1968); Monogram Models,
Inc., 192 NLRB 705 (1971); The Falk Corporation, spra, Mike Yurosek &
Son, supra; Forest City Tool Company, 231 NLRB 370 (1977).
260
ROCHESTER GENERAL HOSPITAL
2. 1199 National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has, as
alleged in the complaint, engaged in unfair labor practices
in violation of Section 8(aX)(1) of the Act.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDER 12
It is ordered that the complaint herein shall be, and it
hereby is, dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
261