Saint John's Health Center

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2010

31-CA-029005 (N.L.R.B. Jun. 16, 2010)

JD(SF)–23–10
Santa Monica, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SAINT JOHN’S HEALTH CENTER
and Cases 31-CA-29005
31-CA-29315
CALIFORNIA NURSES’ ASSOCIATION/
NATIONAL NURSES ORGANIZING COMMITTEE
Katherine Mankin, Esq. of Los Angeles, California,
on behalf of the General Counsel.
Marcie Berman, Esq., Los Angeles, California,
on behalf of the Charging Party.
Robert Kane, Esq. (Stradling Yocca Carlson & Rauth)
Newport Beach, California, on behalf of Respondent.
DECISION
Statement of the Case
John J. McCarrick, Administrative Law Judge. This case was tried in Los Angeles,
California on March 8 and 9, 2010, upon the Order Consolidating Cases and Consolidated
Complaint (Complaint), issued on November 30, 2009, by the Regional Director for Region 31.
The complaint alleges that Saint John’s Health Center (Respondent) violated Section
8(a)(1) of the Act by interrogating employees about their union activities, by prohibiting
employees from wearing ribbons reading “St. John’s RNs for Safe Patient Care” in immediate
patient care areas, by threatening employees with discipline for wearing the ribbons, by
promulgating and maintaining a rule limiting off duty employee access to discourage employees’
from engaging in protected activities, by selectively and discriminatorily enforcing the access
rule to discourage employees from engaging in protected activities, by creating the impression
that employees protected activities were under surveillance and by threatening employees with
arrest because employees engaged in protected activities. In its answer, as amended,
Respondent admitted many of the operative allegations of the Complaint but denied it had
violated the Act.
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Findings of Fact
Upon the entire record herein1, including the briefs from the General Counsel,2 Charging
Party and Respondent, I make the following findings of fact.
I. Jurisdiction
Respondent admitted it is a California corporation with an office and place of business
located in Santa Monica, California, where it is engaged in the operation of an acute care
hospital. Annually, Respondent in the course of its business operations derived gross
revenues in excess of $250,000 and purchased and received at its facility goods valued in
excess of $50,000 in directly from points outside the State of California.
Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted and I find that the California Nurses Association/ National Nurses
Organizing Committee (Union) is a labor organization within the meaning of Section 2(5) of the
Act.
III. The Alleged Unfair Labor Practices
A. The Facts
1. Background
This case involves an organizing campaign that was conducted by the Union at
Respondent’s facility among its RNs in 2008, Respondent’s enforcement of a no access rule,
Respondent’s enforcement of a rule prohibiting wearing paraphernalia in patient care areas, and
Respondent’s threats to have employees arrested for violating its no access rules. Respondent
contends, inter alia, that wearing the ribbon was disparaging to Respondent.
By May, 2008, a petition3 to certify the Union as the representative of Respondent’s
Registered Nurses (RNs) was being circulated among Respondent’s employees. Approximately
235 to 240 RNs signed the petition. RN Lori Hammond (Hammond), RN Zhila Morrissi
(Morrissi), RN Jack Cline (Cline), and RN Lizabeth Wade (Wade) were among the nurses who
helped circulate the petition and deliver the petition to the CEO of the hospital, Lou Lazatin
(Lazatin). The petition was presented to Respondent on or about October 1, 2008. The
petition included a cover letter4 and included the following statement:

1 On September 30, 2009, Counsel for the General Counsel filed a Motion to Correct the
Record. Good cause having been shown and no opposition filed, the Motion is granted.
2 On October 14, 2009, Counsel for the General Counsel filed and Errata to Post Hearing
Brief. As the Errata corrects a clerical error and there is no opposition, I accept the Errata.
3 GC Exh. 2.
4 R. Exh. 6.
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Enclosed are Saint John’s RNs’ signatures on a petition calling for compliance with
California safe staffing laws and regulations, for fair compensation that will enable our
hospital to attract and retain quality registered nurses, and for ending all expenditures on
anti-union consultants.
2. The Alleged Interrogations
a. Interrogations by Trudi Hemmons
Approximately the second week of October 2008, Nurse Manager Trudi Hemmons
(Hemmons), an admitted 2(11) supervisor, discussed the petition with 5 to 6 RNs in her Unit.
The discussions took place at a nursing station in the Medical Surgery Unit during a change in
shift. As the RNs were sitting at the nursing station, Hemmons went from person to person,
addressing 1 to 2 RNs at a time. Hemmons asked all the RNs why they had signed the
Petition. None of the RNs responded except for RN Cline. During the discussions, Hemmons
said, “we don’t need a third party representation at Saint John’s.”5 and continued to refer to the
Union as a third party. RN Cline responded to Hemmons by stating that “the union wasn’t a
third party [and] that the nurses at Saint John’s would make up the union.”6 The RNs’
testimony was credible and uncontroverted. I will credit their testimony.
2. Interrogations by Janice Frost
Between approximately October 7, 2008 and October 15, 2008, Janice Frost (Frost)
Respondent’s Interim Director of In-Patient Oncology initiated conversations about the petition
with RN Morrissi, RN Ann Chan (Chan), RN Colleen O’Grady (O’Grady), RN Lynn Larson
(Larson), RN Steven Weisbaum (Weisbaum), and RN Sunny SunSheil Choy (Choy). The
parties stipulated that Frost was a supervisor of Respondent within the meaning of Section
2(11) and/or an agent of Respondent within the meaning of Section 2(13).7 Each of the
conversations, besides RN Choy’s, took place at the nurses’ station in the Oncology Unit. The
conversation with RN Choy took place in Frost’s office. During the conversations, Frost asked
the RNs questions about the their signatures on the petition, including whether they knew that
the petition would be presented to Respondent’s administration and why they thought
Respondent’s nurses needed a union. Frost did not assure the RN’s that their participation was
voluntary or that there would be no repercussions or reprisals.
With regard to Frost’s November 2008 conversations about the petition with RNs
Morrissi and Chan, the following also occurred: Frost told both of them that some nurses felt
pressure to sign the petition. Morrissi asked Frost, “What do you mean they felt pressure?”
Frost indicated that the nurses did not know what they had signed. Morrissi responded, “I didn’t
put [a] gun to anyone’s head to sign this paper. I asked them to read it carefully.” Frost then
approached RN Chan and said “Ann, do you know why you signed the paper?” Chan appeared
angry and responded, “What?” Chan then told Janice that she didn’t sign the petition. At this
point, Frost started looking through the petition to find Chan’s name. Morrissi indicated that
Chan did not sign the petition and that she did not even bother approaching Chan because she
knew she was anti-union. Chan again stated she did not sign the petition.8 At the time of the
conversations, no unfair labor practices had been filed by the Union against Respondent. At

5 Transcript at pages 199, 201.
6 Ibid.
7 GC Exh. 3.
8 Transcript at pages 103-106.
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the time of the conversations, Frost was not seeking to verify a union’s claimed majority status
or to investigate facts related to issues raised in a complaint. I credit the RNs’ unrebutted
testimony.
3. The Ribbon
In early November 2008, Union organizers gave RNs at Respondent a white ribbon,
stating “Saint John’s RNs for Safe Patient Care” (ribbon).9 The ribbon was distributed to other
RNs employed by Respondent. For approximately two weeks, RNs wore the ribbon throughout
Respondent’s facilities, including patients’ rooms. The ribbons were worn as an expression of
Union solidarity, as well as a concern about Respondent’s non-compliance with a staffing law
dealing with nurse-patient ratios.
The RNs’ uncontradicted and credited testimony indicated that neither patients nor
persons visiting patients commented or asked questions about the ribbon. The RNs’
unrebutted testimony established also that none of their supervisors or managers asked them
about whether patients and persons visiting patients had commented or asked about the ribbon.
On November 7, 2008, Respondent’s Vice President of Human Resources Steven
Sharrer (Sharrer), an admitted 2(11) supervisor, e-mailed10 Respondent’s supervisors and told
them that employees could not wear the ribbon in “immediate patient care areas.” In his e-mail,
Sharrer defined “immediate patient care areas” as “patient rooms, treatment rooms, surgery,
etc.” Sharrer indicated that employees could, however, wear the ribbon in, “the hallways, break
rooms or other areas that are not immediate patient care areas.” Sharrer explained that the
rational for prohibiting the ribbon in immediate patient care areas was that it was “detrimental
and disruptive to patient care.” Sharrer testified that the only investigation Respondent
undertook was to determine what departments the ribbon was being worn in. According to
Sharrer, he assumed that if a nurse was wearing the ribbon in the department, they would wear
it wherever they went.11
On approximately November 20 or November 21, 2008, Respondent’s Director of
Women’s Health Services Irena Zuanic (Zuanic), an admitted 2(11) supervisor, spoke with RN
Hammond, RN Melinda Bishop (Bishop), RN Martina Munoz-Friedman (Munoz-Friedman), and
RN Christina Craig (Craig) in the conference room of the Labor and Delivery Unit. During the
discussion, Zuanic instructed the RNs that they were not to wear the ribbon in immediate
patient care areas and that if they continued to wear the ribbon they would be written up for
insubordination.
The RNs have worn a variety of other insignias on their uniforms in immediate patient
care areas from 2008 to 2010. Organ donor badges, cancer awareness bracelets, diabetes
and cancer ribbons, political buttons supporting Obama, religious symbols and badges, and St.
John’s issued buttons that said “Saint John’s mission is patient safe care” and “Just Ask,” were
among the insignias worn at Respondent’s facilities. Union insignias were also worn in
immediate patient care areas, including CNA badge lanyards and CNA buttons that said
“Respect and Dignity” and “Saint John’s Nurses –the Heart of Healthcare.” Respondent took
no action against RN’s for wearing buttons or insignias except for the ribbon at issue.

9 GC Exh. 6.
10 GC Exh. 7.
11 At the time he issued the email. Sharrer incorrectly thought the ribbon said: “Saint John’s
RNs for Safer Patient Care.”
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4. Off-Duty Access and Surveillance
a. Written Policies Regarding Off-Duty Access
Respondent had a policy, effective June 2003 that dealt with solicitation and distribution
(the old policy).12 The old policy did not address employee off-duty access.
Respondent also maintained a handbook which was distributed until approximately
August 2005 (handbook).13 The handbook was never rescinded. The handbook states the
following:
The access of employees to the interior of Saint John’s premises and to working areas
of the exterior of the premises while not on duty shall be permitted only for the purpose
of visiting a patient.
Up until August 2005, handbooks were handed out to employees and signed by
employees during the new hire process. RNs Wade and Cline signed employee
acknowledgement forms14, indicating receipt of the handbook. Sharrer was unaware of the
existence of the handbook and any written rule with respect to off-duty access until January
2010, when he complied with the subpoena in this matter. Before January 2010, Mr. Sharrer
believed that Respondent’s off-duty access rule was a matter of practice.

Respondent’s current Solicitation and Distribution Policy 830.08 (current policy) became
effective January 1, 2009.15 The currrent policy states the following:
Off-duty employees are not allowed access to the interior of the Health Center’s
buildings or to other working areas at the Health Center. Off-duty employees are
permitted access to the cafeteria and are also permitted access to the building to attend
Health center sponsored events, such as retirement parties and baby showers.
Employees are expected to arrive at their work area at or shortly before the beginning of
their scheduled shift, and are expected to leave their work area promptly after
completing their shift.
Sharrer said that the current policy was revised in January 2009 to reflect what
Respondent’s practices were at that time. In determining Respondent’s practices regarding off-
duty access, Sharrer consulted the nursing director and various clinical directors. The policy
was eventually posted on Respondent’s shared intranet and could be first accessed by
employees at some point in May 2009.
In March 2009, Sharrer spoke with Kevin Litzenberger, Respondent’s Security
supervisor and told him that off duty employees should not be in the hospital.

12 GC Exh. 9.
13 GC Exh. 10, page 42.
14 R. Exhs. 3 and 4.
15 GC Exh. 8.
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b. History and Workplace Culture Regarding Off-Duty Access
The evidence disclosed that RNs have gone to the interior of the hospital while off-duty
many times throughout their employment at Saint John’s. Some of the off duty visits included
collecting personal belongings, picking up items ordered from other nurses and staff, checking
the schedule, requesting vacation, attending baby showers and birthday parties, attending
personal or family Dr. appointments and procedures, and simply visiting with friends and co-
workers. The RNs often would come into the hospital while off-duty and end up working a shift.
Charge nurses, supervisors, and managers observed RNs on numerous occasions in the
hospital while off-duty and RNs were never told that they couldn’t be in the hospital until after
May, 15, 2009.
c. May 14, 2009 Incident16
At approximately 9:30 p.m. on May 14, 2009, RNs Wade and Cline went to the nurses’
lounge in the Post-Coronary Care Unit to talk with other nurses about CNA and distribute CNA
literature. The nurses’ lounge is considered a non-working area. Wade was off-duty and was
wearing street clothes and her hospital badge.17 Cline was also off-duty but still had on his
uniform, as well as his hospital badge.18 After approximately 20 minutes, Charge Nurse “Louis”
came in and asked Wade and Cline what they were doing. Wade and Cline introduced
themselves, identified themselves as being from Labor and Delivery, and explained that they
were campaigning for CNA.
At approximately 10:00 p.m. on May 14, 2009, house supervisor, Ann DeBello (DeBello)
called Sharrer and told him that two “union organizers” were speaking to staff in the employee
lounge. Sharrer claimed he was under the assumption that the union organizers were non-
employees and that it was not until after the incident that he learned that the Union organizers
were employees. Sharrer instructed the house supervisor to tell security to go to the lounge
and tell the union organizers to leave. Sharrer also instructed the house supervisor to tell
security that if the individuals refused to leave, security should call the police.
A few minutes later, two security guards responded to the incident. Standing outside of
the doorway to the nurses’ lounge, security guard “Bert” asked RNs Wade and Cline what they
were doing. Wade and Cline identified themselves as hospital nurses and explained that they
were campaigning for CNA, that they were allowed to be there, and that they weren’t disrupting
patient care. Another nurse who was present in the lounge got up and shut the door on the
security guards. After a few minutes, the door was opened and security guard “Bert” insisted
that they leave the premises. Wade and Cline then left the nurses’ lounge. As they were
passing the nurses’ station, Wade told the security guards that what the guards were doing was
wrong and that it was harassment and intimidation. Security guard “Bert” instructed her that she

16 Wade and Cline’s testimony was not contradicted. Their testimony was detailed,
consistent and credible. I will credit their testimony.
17 RN Wade testified that her current hospital badge has a CNA lanyard attached to it and
that she has been wearing it for approximately 1 year prior to the hearing –i.e. prior to May 14,
2009. However, after being shown her Board affidavit, RN Wade admitted that she may have
received the CNA lanyard after May 14, 2009. This minor discrepancy does not otherwise affect
Wade’s credibility.
18 While RN Cline testified that his current hospital badge has a CNA lanyard attached to it,
he indicated that he has only been wearing the CNA lanyard for approximately 6 months –i.e.
post May 14, 2009.
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could be arrested by the police and charged with trespassing if they did not comply. Wade and
Cline then left the immediate area and there was no disruption in the care of the Unit. The
security guards then followed Wade and Cline to the elevators.
d. May 15, 2009 Incident
At approximately 9:00 a.m. on May 15, 2009, RN Cline went to the hospital with Eric
Schmidt (Schmidt) to retrieve Cline’s wallet. Cline was off-duty and was wearing street clothes
and his hospital badge. Schmidt was not an employee and was wearing street clothes. As
Cline was walking through the south entrance of Saint John’s, a security guard19 yelled, “Stop,
Jack.” The guard also told him, “No union business.” Cline responded, “I’m here to get my
wallet. I have no intention o[f] doing union business.”20 The guard insisted that he stop. Cline
explained that he was an employee and that he could proceed. The security guard yelled to
another security guard and told the guard, “Follow Jack up there.”21 At this point, Cline and his
friend went to the Medical/Surgical Unit to retrieve Cline’s wallet from the break room. During
this period, the security guard followed Cline throughout the hospital. As Cline passed the
nurses’ station, he told the guard, “I’m a Saint John’s employee. You shouldn’t be following us
around the hospital.”22 Cline and Schmidt then left the hospital facilities.
e. Post-May 15, 2009 Notifications23
Employees were not notified about the existence of an updated policy regarding off-duty
access until after May 15, 2009. Sometime in the last 2 weeks of May 2009, Manager Zuanic
held an impromptu staff meeting at the nurses’ station in the Labor and Delivery Unit. RNs
Hammond, Wade, Christafuli, and Chavez were present at the meeting. At the meeting, Zuanic
said she wanted to discuss a policy regarding off-duty access to the hospital and indicated that
the policy had been in effect since January 2009. Zuanic told the RNs that they were forbidden
to come into the Unit while off-duty and explained that they were only allowed in the hospital six
minutes before a shift and six minutes after a shift. Zuanic told the RNs that there were limited
situations when they could still come into the Unit while off-duty including staff meetings, a new
baby, or to bring a cake for an occasion. Zuanic showed Hammond and Wade a copy of the

19 RN Cline testified that he thought the security guard’s name was “Lee.” It is somewhat
unclear, however, whether the security guard Cline thought he saw was in fact security guard
“Lee King,” or was another security guard named “Hobson.” Cline described “Lee” as an
African American with a goatee. He also described him as a “little overweight.” Sharrer
testified that there was a security guard at Saint John’s named “Lee King.” Sharrer described
“Lee King” as an “African American, probably 5’8” to 5’10”, slightly overweight, meaning he has
a pot belly.” Sharrer also noted that Lee King had been known to have a goatee. However,
Sharrer indicated that “Lee King” was not scheduled to work on May 15, 2009. Sharrer testified
that “Hobson” was the only African American security guard scheduled to work on May 15,
2009. Sharrer described Hobson as an African American, 5’8” to 5’10”, who had a goatee at
times, but was “not slightly overweight.” I do not find this discrepancy to affect Clines’ otherwise
uncontroverted and credible testimony. The Respondent’s ADR Report for May 15, 2009 does
not reflect the incident with Cline and Schmidt. GC Exh. 13. However, I find those reports
unreliable since they do not reflect whether the hours reported refer to May 14 or May 15, 2009.
20 Transcript at page 216.
21 Ibid.
22 Transcript at page 218.
23 The RNs’ testimony concerning this was not contradicted or rebutted. Their testimony
was detailed and given in an honest and forthright manner. I will credit their testimony.
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policy dated January 2009. Zuanic also indicated that the policy could be found on the
intranet.24 Following the meeting, the policy was posted in the team room and in the break
room in the Unit. Hammond and Wade testified that they had never seen the policy before.
Hammond said that the RNs were concerned about this sudden change in policy and cited
examples to Zuanic when they had previously came into the hospital while off-duty and that they
were never told that they couldn’t be in the Unit. Zuanic responded by stating that the policy
had always been in place and that it was the employees’ responsibility to know Respondent’s
policies and procedures.
Approximately May 21, 2009, RN Cline received an e-mail from Respondent regarding
Respondent’s solicitation and distribution policy. Prior to this e-mail, Cline had not received any
other e-mails concerning Respondent’s policies.
B. The Analysis
1. The Hemmonds’ Interrogation
In Complaint paragraph 6 it is alleged that in late September 200825, Hemmonds
interrogated employees about their support for the Union and about a petition relating to the
Union or wages, hours or working conditions.
In Westwood Healthcare Center, 330 NLRB 935 (2000) the Board discussed the test to
determine whether interrogation is unlawful under Section 8(a)(1) of the Act. In Westwood the
Board applied the totality of the circumstances test adopted in Rossmore House, 269 NLRB
1176 (1984). The Board said it would look at five factors to determine whether the questioning
of an employee constitutes an unlawful interrogation:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to the
boss's office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.26
The Board added:

24 The intranet can be accessed at a computer terminal at Respondent’s facilities. RN
Hammond indicated that she cannot access the intranet from her home. Hammond also
indicated that while it is possible to access the intranet while on-duty, it is difficult due to patient
assignments.
25 While the Complaint alleges that the Hemmonds’ interrogation took place in September
2008, the record reflects the interrogations occurred in October 2008. Since the matter was
fully litigated, I will consider the conduct which occurred in October 2008 as supporting the
allegations contained in Complaint paragraph 6. Hi-Tech Cable Corp., 318 NLRB 280 (1995).
26 Westwood at page 939.
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In the final analysis, our task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising rights protected by
Section 7 of the Act.27
In this case there is evidence through its letter to employees28 that Respondent was
opposed to its employees’ organizing activities. Hemmond’s interrogations must be measured
in this context. Hemmonds was a high level supervisor in charge of two departments. The
information solicited by Hemmonds went directly to the heart of identifying and discouraging
employees’ protected-concerted activity. Hemmonds demonstrated Respondent’s hostility
toward the Union and she interrogated the RNs one by one. Most did not venture a reply.
I find that Hemmond’s interrogation was calculated to coerce employees so that they
would feel restrained from engaging in Section 7 activities. In view of the Frost interrogations
discussed below, this was not an isolated incident. I conclude that Respondent violated Section
8(a)(1) of the Act as alleged in Complaint paragraph 6.
2. The Frost Interrogation
Complaint paragraph 7 alleges that on about October 7, 200829 Frost interrogated
employees about their support for a petition relating to the Union or wages, hours or working
conditions.
The evidence reflects that Frost, Respondent’s Interim Director of In-Patient Oncology, a
high level supervisor, interrogated at least 6 RNs about their participation in a Union petition. As
noted above, this interrogation occurred in the context of anti Union statements by
Respondent’s high level managers and supervisors. The effect of such interrogations about
fundamental employee union and protected-concerted activity could have no purpose other than
to discourage those activities particularly in view of the fact that Frost did not assure the RN’s
that their participation was voluntary or that there would be no repercussions or reprisals for
their participation and in view of the fact that no unfair labor practices or election petition had
been filed which might have justified some investigation into the Union’s majority status or into
the basis of unfair labor practice charges. I conclude that Frost’s interrogation of employees
violated Section 8(a)(1) of the Act as alleged in complaint paragraph 7.
3. The Policy Prohibiting Employees from Wearing Ribbonsin Immediate Patient Care Areas.
Complaint paragraph 8 alleges that since about November 7, 2008 Respondent has
prohibited employees from wearing ribbons stating “Saint John’s RNs for Safe Patient Care” in
immediate patient care areas.

27 Id. at page 940.
28 GC Exhs. 15 and 16.
29 The evidence adduced at the hearing reflects that Frost engaged in similar interrogations
of several employees on dates between October 7, 2008 and November 2008. Since the matter
was fully litigated, I will consider the conduct which occurred in October and November 2008 as
supporting the allegations contained in Complaint paragraph 7. Hi-Tech Cable Corp., 318
NLRB 280 (1995).
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Counsel for the General Counsel contends that Respondent’s prohibition on wearing the
ribbons in immediate patient care areas is not valid since the evidence demonstrates that the
ribbons had no adverse effect on patients or health care operations. To the contrary,
Respondent argues that its ribbon policy is presumptively valid.
After Congress passed the 1974 Health Care Act granting the Board jurisdiction over
hospitals, the Board adopted a dual standard for employee solicitation in hospital facilities in St.
John’s Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976). The Supreme Court cited
St. John’s Hospital with approval in NLRB v. Beth Israel Hospital, 437 U.S. 483 (1978). The
Board’s dual test, as approved by the Supreme Court, permits a hospital to prohibit solicitation
in non work time in immediate patient care areas. However, such prohibitions in areas other
than immediate patient care areas are invalid absent a showing of disruption to patient care or
health care operations if solicitation were permitted in those areas. In NLRB v. Baptist Hospital,
Inc., 442 U.S. 773 (1979), the Supreme court concluded that the hospital had established
special circumstances that validated the applicability of its no solicitation rule to areas outside
immediate patient care areas including patient ward corridors and waiting areas but not to other
areas of the hospital.
In subsequent cases the Board has had occasion to review hospital no solicitation rules
that prohibited employee solicitation in areas other than immediate patient care areas. In
George J. London Memorial Hospital, 238 NLRB 704, 708 (1978), the Board affirmed it does not
prohibit rules forbidding organizational activity in operating rooms, patients' rooms, and
patients' lounges but a rule proscribing solicitation in all areas is improperly overbroad. The
Board again restated this principle in Casa San Miquel, 320 NLRB 534, 540 (1995), where the
Board stated:
[E]mployees have the right to wear union insignia even while at work. A hospital’s
prohibition of the wearing of insignia, however, on working and even on nonworking time
in immediate patient care areas is presumptively valid. Outside immediate patient care
areas, and outside other areas where the hospital establishes an adverse effect on
patient care, employees retain the right to wear union insignia while working. An
employer may further restrict the right by demonstrating ‘‘special circumstances.”
In Mt. Clemens General Hospital, 335 NLRB 48, 50 (2001), the Board adopted the
rationale of the ALJ who found that the hospital’s requirement that employees remove union
insignia from their uniforms in all areas of the hospital was overbroad. While recognizing the
general rule that, “Respondent’s prohibition of wearing the FOT button in hospital patient care
areas, under Board precedent, such a position is normally presumptively valid,” the
administrative law judge concluded that the rule was invalid because:
First, the Respondent did not prohibit the wearing of any other insignia or union buttons
in all areas of the hospital including patient care areas. . . .Second, while Respondent
Vice President of Medical Affairs Dr. Michael Tonie testified that the wearing of the FOT
button in patient care areas of the hospital could cause possible disruptions, he never
put his reasons for such speculation in writing. Likewise, he did not know of any
complaints from patients or their families that the wearing of the FOT button was
disruptive or caused a dialogue to take place with the RN’s. Moreover, Dr. Tonie
admitted that no hospital administrator made an official report that the wearing of the
FOT button caused any disruption or interfered with patient care or safety. . . .Third,
Horde admitted that the wearing of the FOT button did not cause a work stoppage or sit-
down strike and she did not have any evidence that the RN’s discussed the FOT button
with patients. Likewise, she acknowledged that the Respondent did not conduct a survey
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or make any inquiries of patients or their families that the wearing of the FOT button
interfered with patient care or safety.
Recently in Sacred Heart Medical Center, 347 NLRB 531, 531-532 (2006) rev. and
remanded 526 F. 3d 577 (9th Cir. 2008), the Board restated its hospital solicitation rules in a
case where the hospital prohibited the wearing of a union button reading “RNs Demand Safe
Staffing” in those parts of the hospital where employees might encounter patients or their
families. The Board stated once again:
In healthcare facilities, restrictions on the wearing of union-related buttons are
presumptively valid in immediate patient care areas. Casa San Miquel, 320 NLRB 534,
540 (1995). Outside immediate patient care areas, such restrictions are presumptively
invalid. Id. An employer may rebut the presumption of invalidity, however, by showing
“special circumstances,” i.e., that the restriction is “necessary to avoid disruption of
health care operations or disturbance of patients.” Beth Israel Hospital v.NLRB, 437 U.S.
483, 507 (1978).
In Sacred Heart Medical Center the Board concluded that the rule was valid since,
“Respondent has rebutted the presumption of invalidity by showing “special circumstances” that
justify the restriction.” The Circuit Court reversed the Board and concluded that the evidence
did not establish special circumstances sufficient to overcome the presumption of invalidity of
the rule outside immediate patient care areas.
In the instant case there is no dispute that Respondent’s rule prohibited RNs from
wearing the “Saint John’s RNs for Safe Patient Care” ribbon only in immediate patient care
areas that included patient rooms, treatment rooms, and surgery but they were permitted to be
worn in the hallways, break rooms or other areas that are not immediate patient care areas.
Here Counsel for the General Counsel argues that the Board’s “special circumstances” test
should apply to rebut the presumption of the validity of no solicitation rules limited to immediate
patient care areas. Contrary to General Counsel’s assertion in its brief, nothing in Sacred Heart
Medical Center, suggests that the “special circumstances” test may be applied to rebut the
validity of rules limited to immediate patient care areas. The Board in Sacred Heart Medical
Center limited its finding to a no solicitation rule that applied outside immediate patient care
areas and was thus subject to a rebuttable presumption. While the Board in Mt. Clemens
General Hospital, supra, seems to have adopted the Administrative law judge's rationale that
the “special circumstances” rule applied to immediate patient care areas, this finding was dicta,
since the issue before the ALJ was whether the rule was invalid because it applied beyond
immediate patient care areas. I conclude that the rule prohibiting RNs from wearing the “Saint
John’s RNs for Safe Patient Care” ribbon only in immediate patient care areas was
presumptively valid. Moreover, the absence of complaints from patients or their families about
the ribbons or the lack of inquiry by Respondent into whether the ribbons disturbed patients or
their families is insufficient to overcome the presumption of the rule’s validity. Sacred Heart
Medical Center, 347 NLRB 531, 531-532 (2006) rev. and remanded 526 F. 3d 577 (9th Cir.
2008). I will dismiss this allegation.
There is no allegation in the Complaint that the ribbon rule was disparately enforced.
However at the hearing, contrary to Respondent’s assertion that there is no evidence of
disparate enforcement, Counsel for the General Counsel adduced evidence, including evidence
from Respondent’s Vice President for Human Resources Sharrer, that Respondent permitted
RNs to wear a wide variety of ribbons and other insignia in immediate patient care areas of the
hospital without restriction. I find the issue of disparate enforcement of the ribbon rule was both
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fully litigated and is closely related to an extant Complaint allegation. Hi-Tech Cable Corp., 318
NLRB 280 (1995).
The record is replete with instances in which Respondent has permitted its RNs to wear
insignia in immediate patient care areas from 2008-2010 including organ donor badges, cancer
awareness bracelets, diabetes and cancer ribbons, political buttons supporting Obama, religious
symbols and badges, and St. John’s issued buttons that said “Saint John’s mission is patient
safe care” and “Just Ask.” Union insignias were also worn in immediate patient care areas,
including CNA badge lanyards and CNA buttons that said “Respect and Dignity” and “Saint
John’s Nurses –the Heart of Healthcare.”
In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB 1110 (2007) a
majority of chairman Battista and members Kirsanow and Schaumber with members Liebman
and Walsh dissenting reversed a long line of Board cases dealing with discriminatory
enforcement of work rules. Citing two 7th Circuit decisions30 the Board adopted a new standard
for determining if an employer’s discriminatory enforcement of work rules violates Section
8(a)(1) of the Act. The Board held it would no longer be sufficient to show that an employer
merely disparately enforced its rules but it must be shown that,
. . . unlawful discrimination consists of disparate treatment of activities or
communications of a similar character because of their union or other Section 7-
protected status, and we shall apply this view in the present case and in future cases.”31
In an attempt to define what constitutes similar activities the Board elaborated:
For example, an employer clearly would violate the Act if it permitted employees
to use e-mail to solicit for one union but not another, or if it permitted solicitation
by antiunion employees but not by prounion employees. In either case, the
employer has drawn a line between permitted and prohibited activities on Section
7 grounds. However, nothing in the Act prohibits an employer from drawing lines
on a non-Section 7 basis. That is, an employer may draw a line between
charitable solicitations and noncharitable solicitations, between solicitations of a
personal nature (e.g., a car for sale) and solicitations for the commercial sale of a
product (e.g., Avon products), between invitations for an organization and
invitations of a personal nature, between solicitations and mere talk, and
between business-related use and non business-related use.32
Even under a Register-Guard analysis of the ribbon policy, Respondent has engaged in
disparate treatment of activities or communications of a similar character because of their union
or other Section 7-protected status. Thus, Respondent has permitted RNs to wear St. John’s
issued buttons that said “Saint John’s mission is patient safe care” and CNA badge lanyards
and CNA buttons that said “Respect and Dignity” and “Saint John’s Nurses –the Heart of
Healthcare.” Clearly, the ribbon represented a working condition, staffing ratios, that RNs made
part of their organizing campaign. Respondent’s promulgation of the ribbon rule was motivated
by RN’s protected concerted activity and was discriminatory application of a no solicitation rule
in violation of Section 8(a)(1) of the Act.

30 349 F.3d 968 (7th Cir. 2003) and 49 F.3d 317 (7th Cir. 1995).
31 351 NLRB at page 1118.
32 Id. at page 1118.
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4. The Enforcement of the Rule Regarding the Wearing of Ribbons
Complaint paragraph 9 alleges that on about November 14, 2008, Zuanic threatened
employees with discipline if they wore ribbons in immediate patient care areas.
Having concluded that the Respondent has applied the ribbon rule in a disparate fashion
in violation of Section 8(a)(1) of the Act, it follows that Zuanic’s November 20, 2008 threat to
enforce the rule also violates Section 8(a)(1) of the Act as alleged in paragraph 9 of the
Complaint.
5. The Promulgation of New Access Rules
Complaint paragraphs 10(a) and (b) allege that in about March 2009 Respondent
promulgated and maintained a rule limiting access of off duty employees to the hospital to
discourage its employees from engaging in protected-concerted activity.
Counsel for the General Counsel contends that Tri-County Medical Center, Inc., 222
NLRB 1089 (1976), controls this case and that Respondent enforced its access policy in a
discriminatory fashion. Respondent contends that its access policy meets the Tri County test.
Respondent also takes the position that there is no disparate treatment of activities or
communications of a similar character because of their union or other Section 7-protected status
under Register-Guard.
In Tri County the Board held that a rule denying off-duty employees access to the
employer’s premises 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 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 activity. Finally, 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.
In this case Respondent maintained a handbook that states the following:
The access of employees to the interior of Saint John’s premises and to working areas
of the exterior of the premises while not on duty shall be permitted only for the purpose
of visiting a patient.
Respondent had a policy, effective June 2003 that dealt with solicitation and distribution
(the old policy). However, the old policy did not address employee off-duty access.
Respondent’s current Solicitation and Distribution Policy 830.08 became effective
January 1, 2009. The current policy limits off-duty employees access to the interior of the
Health Center’s buildings or to other working areas at the Health Center but allows access to
the cafeteria and access to the building to attend Health Center sponsored events, such as
retirement parties and baby showers.
Respondent’s new access policy meets the first prong of the Tri County test in that it
limits access solely with respect to the interior of the plant and other working areas. However
Tri County also requires that an employer’s access policy is clearly disseminated to all
employees. While the new access policy became effective January 1, 2009 it was not
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effectively disseminated to employees until after May 15, 2009. No posting of the new access
policy and no oral communication of the new policy was disseminated to employees at least
until May 15, 2009. It was not until May 21, 2009, that RN Cline received an e-mail from
Respondent regarding Respondent’s new solicitation and distribution policy. While the
employer at some point placed the new policy on its intranet, RNs could not access
Respondent’s intranet from home. Given their busy patient care responsibilities, expecting RN’s
to access the intranet from work computers and then surf the intranet to find a new access
policy is neither realistic nor effective communication of the policy to them. I find that prior to
May 21, 2009, Respondent did not fulfill its Tri County obligations and that until that point its
implementation and enforcement of the access rule violated Section 8(a)(1) of the Act.
6. The Enforcement of the New Access Rules
Complaint paragraph 10(c) alleges that on May 14, 2009, DeBello and two security
guards enforced the new access rule selectively and disparately against employees who
support the Union or engage in protected-concerted activity.
Complaint paragraph 10(d) alleges that on May 15, 2009, Respondent’s security guards
enforced the new access rule selectively and disparately against employees who support the
Union or engage in protected-concerted activity.
General Counsel contends that Respondent’s security guards were acting as
Respondent’s agents when they engaged in enforcement of the access rule, created an
impression employees’ activities were under surveillance, and threatened employees with
calling the police and arrest.
It must first be determined if Respondent’s security guards acted as its agents in
enforcing the new access policy, in engaging in surveillance and in threatening to call police and
have RNs arrested for trespass.
The Board has held that an employer may be liable for unfair labor practices committed
by security guards acting in their official capacity. Opryland Hotel, 323 NLRB 723 fn. 3 (1997);
Bakersfield Memorial Hospital, 315 NLRB 596 (1994); Southern Maryland Hospital Center, 293
NLRB 1209 (1989).
The guards in this case were acting under the direct authority of Respondent’s Vice
President for Human Resources in carrying out Respondent’s access policy on May 14 and May
15, 2009. As such their actions are attributable to Respondent.
Since I have found the new access policy did not meet the Tri County test for validity
until after May 21, 2009, any enforcement of the rule during this period also violated Section
8(a)(1) of the Act.
Thus, the removal of Cline and Wade from the hospital on May 14 and the removal of
Wade from the hospital on May 15, 2009, pursuant to the invalid access policy violated Section
8(a)(1) of the Act as alleged in the Complaint.
7. Impression of Surveillance
Complaint paragraphs 11 and 13 allege that on May 14, and May 15, 2009,
Respondent’s security guards created the impression that employees’ union activities were
under surveillance.
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In Promedica Health Systems, Inc., 343 NLRB 1351, 1352 (2004), the Board reaffirmed
long held Board law that an employer who creates the impression employees’
protected/concerted activities are under surveillance violates Section 8(a)(1) of the Act.
The Board’s test for determining if an employer has created an impression of
surveillance is:
. . . whether the employee would reasonably assume from the statement in question that
his union activities had been placed under surveillance [citation omitted]. U.S.
Coachworks, Inc., 334 NLRB 955, 958 (2001).
In this case on May 14, 2009, two security guards were called to the nurses’ lounge, a
non working area, where RNs Wade and Cline were engaged in union activities on behalf of
CNA. The guards stood in the door of the nurses’ lounge and remained there after the door was
closed. After a period of time the door was opened and the guards were still there and insisted
that they leave the premises. RN Wade and RN Cline then left the nurses’ lounge.
On May 15, 2009, RN Cline went to the hospital with Eric Schmidt to retrieve Cline’s
wallet. Cline was off-duty. As Cline was walking through the south entrance of Saint John’s, a
security guard yelled, “Stop, Jack.” The guard also told him, “No union business.” RN Cline
responded, “I’m here to get my wallet. I have no intention o[f] doing union business.” The
security guard yelled to another security guard and told the guard, “Follow Jack up there.”
During this period, the security guard followed Cline throughout the hospital.
I find in both instances the guards created the impression or actually engaged in
surveillance of employees’ union activities in violation of Section 8(a)(1) of the Act as alleged in
the Complaint. Clearly, on May 14 Cline and Wade were engaged in union activity and the
guards’ continued presence immediately outside the nurses’ lounge would have led them to
reasonably assume their protected activities were under surveillance. It has already been
established that Respondent’s new no access policy did not meet the Tri County test. Thus,
there was no legitimate reason for the guards to be present to enforce this policy.
On May 15, while Cline was not at the hospital to engage in union activity the guard’s
statement to Cline, “Stop, Jack. No union business,” would have led to a reasonable suspicion
that Respondent thought Cline was engaged in union activity and following Cline throughout the
hospital would have further led to the impression that his protected activities were under
surveillance particularly in view of the lack of notice to employees of a new no access policy.
8. Threats to Call the Police
Complaint paragraph 12 alleges that on May 14, 2009, Respondent’s security guards
threatened employees with calling the police and having them arrested for trespassing because
they support the Union or engage in protected-concerted activity.
The Board has held that threats to call police in the context of an invalid no solicitation
policy violate Section 8(a)(1) of the Act. Labor Ready, Inc., 327 NLRB 1055, 1057-1058 (1999).
On May 14, 2009 Security guard “Bert” instructed RNs Wade and Cline her that they
could be arrested by the police and charged with trespassing if they did not leave the hospital.
As noted above, there was no legitimate reason for the guards to be present to enforce
Respondent’s new access policy since it did not meet the Tri County standard. Similarly, the
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guards had no legitimate basis to threaten Wade and Cline with arrest by the police for trespass
if they did not leave the hospital. I find that the guards’ threat call the police and have Cline and
Wade arrested for trespass violated Section 8(a)(1) of the Act as alleged.
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engaging in the following acts and
conduct:
a. Interrogating employees about their union and other protected concerted
activities.
b. Threatening employees with discipline for engaging in union or other
protected concerted activities.
c. Threatening employees with calling the police and having them arrested for
engaging in union or other protected concerted activities.
d. Creating the impression that employees’ union activities were under
surveillance.
e. Discriminatorily maintaining and enforcing a no solicitation rule prohibiting
employees from wearing ribbons that stated “Saint John’s RNs for Safe
Patient Care.”
f. Promulgating, maintaining and enforcing a rule which limits employees’
access to its facility without providing adequate notice of the rule to
employees.
4. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent violated the Act as set forth above, I shall order that it
cease and desist there from and post remedial Board notices addressing the violations found.
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Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.33
ORDER
The Respondent Saint John’s Health Center, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
a. Interrogating its employees about their union and other protected-concerted
activities.
b. Threatening employees with discipline for engaging in union or other protected
concerted activities.
c. Threatening employees with calling the police and having them arrested for
engaging in union or other protected concerted activities.
d. Creating the impression that the employees’ union activities were under
surveillance.
e. Discriminatorily maintaining and enforcing a no solicitation rule prohibiting
employees from wearing ribbons that stated “Saint John’s RNs for Safe Patient Care.”
f. Promulgating, maintaining and enforcing a rule which limits employees’ access to
its facility without providing adequate notice of the rule to employees.
g. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designated to effectuate the policies of the Act:
a. Cease discriminatorily giving force and effect to the rule prohibiting employees
from wearing ribbons that stated “Saint John’s RNs for Safe Patient Care.”
b. Cease giving force and effect to a rule which limits employees’ access to its
facility without providing adequate notice of the rule to employees.

33 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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c. Within 14 days after service by the Region, post at its Los Angeles, California
facility copies of the attached notice marked “Appendix.”34 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
Respondent has gone out of business or closed any of the facilities involved in these
proceedings, the Respondents shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondents at any time since
October 7, 2008.
e. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., June 16, 2010.
____________________
John J. McCarrick
Administrative Law Judge

34 If this Order is enforced by a Judgment of the 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.”
JD(SF)–23–10
Santa Monica, CA
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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly:
WE WILL NOT threaten you with discipline for wearing ribbons that state, “Saint John’s RNs for
Safe Patient Care.”
WE WILL NOT ask you questions about your Union support or activities or the Union support
and activities of other employees.
WE WILL NOT threaten you with calling the police or with arrest for trespass because you
engaged in union or other protected-concerted activities.
WE WILL NOT create the impression that we are spying on your union activities.
WE WILL NOT discriminatorily enforce a rule which prohibits you from wearing ribbons that
state, “Saint John’s RNs for Safe Patient Care.”
WE WILL NOT promulgate, maintain or enforce a rule which limits you access to our facilities
without giving you adequate notice of the creation of the rule.
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Santa Monica, CA
WE WILL rescind our Solicitation and Distribution Policy 830.08 which limits employee access
to our facility until such time as adequate notice has been given to all employees of the policy.
SAINT JOHN’S HEALTH CENTER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Los Angeles, California Regional office set forth below. You may also obtain information from
the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, California 90064-1824
(310) 235-7351, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (310) 235-7424.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board’s Offices at the
address and telephone number appearing immediately above. The final decision and this notice
are available in either English or Spanish.