Saint Joseph Medical Center

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 456 (N.L.R.B. 1985)

456 SAINT JOSEPH MEDICAL CENTER
Saint' Joseph Medical Center and Sarah J. Camp-
bell. Case 31-CA-113 3 8
24 September 1985
DECISION AND ORDER-
By MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 30 December 1982 Administrative Law
Judge Joan Wieder issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief to the Respondent's exceptions. .
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Saint Joseph Medical Center, Burbank,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
"(a) Discriminatorily promulgating, maintaining,
or enforcing a rule or policy which revokes the
privilege of the Operating Room Employees Asso-
ciation to hold their meetings, or engage in' other
activities, protected by Section 7 of the Act, in the
Operating Room Lounge, as in the past."
-2. Delete paragraph 2(a) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE TO' EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations. Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize. '
To form, join, or assist any union
To bargain, collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these
rights.
WE WILL NOT discriminatorily promulgate,
maintain, or enforce a rule which revokes our per-
mission for you or the Operating Room Employees
Association (OREA) to use our Operating Room
Lounge for meetings, as in' the past.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the National Labor Relations Act, including the
right to file unfair labor practice charges against us,
as provided in the Act.
SAINT JOSEPH MEDICAL CENTER
Ralph Perez, Esq., of Los Angeles, California, for the
General Counsel.
Harry R. Stang, Esq. (Musick, Peeler & Garrett), of Los
Angeles, California, for the Respondent.
Sarah J. Campbell, of Panorama City, California, pro se.
DECISION
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 To conform the recommended remedial language to the judge's find-
ings, we shall include the word "discnminatonly" in par 1 (a) of the
judge's recommended Order, and we shall substitute a new notice ac-
cordmgly.
As the "cease and desist" language in par. 1(a),of the recommended
Order sufficiently remedies the unfair labor practice found, we shall
delete par 2(a) of the recommended Order.
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was tried at Los Angeles, California, on August 10 and
11, 1982.' The charge and first amended charge were
filed by Sarah J. Campbell on July 16 and October 16,
respectively. The complaint issued December 15, as
amended on July 16, 1982, alleges that Saint Joseph
Medical .Center (Respondent) promulgated and thereafter
maintained a rule prohibiting the Operating Room Em-
' All dates are in 1981 unless otherwise indicated.
276 NLRB No. 53
SAINT JOSEPH MEDICAL CENTER 457
ployees Association (OREA or Association)2 from fur-
ther conducting meetings in the operating room lounge
or by disparately applying this rule to UREA meetings
to'discourage the employees from joining, supporting, or
assisting the OREA and engaging in concerted activities
for the purpose of collective bargaining or other mutual
aid and protection, in violation of -Section 8(a)(1) of the
National Labor Relations Act _
All parties were` given full opportunity to participate,
to- introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which were timely filed on behalf of the General Coun-
sel and Respondent, have been carefully considered.
On the entire record, including especially my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
As noted by the parties in their briefs, most of the rel-
•evant facts are not in dispute. Respondent is a health
care institution3 located in Burbank, California, and op-
erated by a religious order. The parties further stipulated
,that the following employees are supervisors within the
meaning of Section 2(11) of the Act: James E. Sauer,
hospital administrator and chief executive officer; La-
Vonne Potter, division director for the operating room;4
Beverly McFarland, assistant supervisor in the operating
room;5 and Greta Knudsen, head nurse/OR coordinator
in the operating room.e
OREA was formed in the spring of 1980 by nonsuper-
visory operating room employees, primarily registered
nurses (RNs), to address such concerns as rotation, filling
vacant positions, and other terms and conditions of em-
ployment. Maxine Jones was the president of OREA
from its inception until May 1982, when Charging Party
Sarah Campbell assumed the office. Jones retired shortly
thereafter. The Association adopted a constitution and
bylaws and conducted regularly scheduled meetings in
the operating room lounge (OR lounge) from February
1980 to May 1981; also OREA held special meetings.
The Association conducted approximately 17 meetings in
the OR lounge, usually on Mondays commencing be-
tween 3 and- 3:30 p.m. and lasting about 30 to 60 minutes.
The usual attendance at these meetings was between 20
and 30 employees.? Notice of the meetings was posted
2 The parties stipulated , and I find , that the OREA is a statutory labor
organization within the meaning of Sec. 2(5) of the Act It was also stipu-
lated that the General Counsel was not contending that Respondent was,
at any time material , obligated by law to recognize , or bargain collective-
ly with, OREA or any other labor organization
3 The parties stipulated, and I find , that Respondent is an employer en-
gaged in commerce and in ' a business affecting commerce within the
meaning of Sec 2(6) and (7) of the Act and health care institution within
the meaning of Sec 2(14) of the Act
* Potter is responsible for directing the nursing activities in all of Re-
spondent's operating rooms
s McFarland is Potter 's assistant.
6 Knudsen coordinates the daily scheduling of cases for-the operating
rooms (OR), assigns employees to cases, and arranges lunch relief. .
' The meetings were held at or near the change of shift to maximize
opportunity for attendance The average complement of RNs for the first
shift is 26, exclusive of supervisors , 11 technicians, 3 secretaries, and 2
on two blackboards located in the restricted area of the
operating room facilities at the hospital,8 and a bulletin
board located in the operating room lounge, which is not
within the restricted area.
The OR -lounge is at the opposite end of the floor
from the restricted area and is a room approximately 25
by 30 feet furnished with couches, tables, and chairs
which will seat about 20 people. Smoking is permitted in
the OR lounge.9 Except for staff and in-service meetings,
no work is -performed in the OR -lounge. Use of the
lounge is restricted to the OR staff, including nurses,
technicians, doctors, housekeeping, and environmental
control personnel and their visitors, such as relatives,
friends, and sales representatives who use the lounge to
sell medical supplies and/or to demonstrate products to
the OR staff. Adjoining the OR lounge is a locker room
which can only be entered or exited through the OR
lounge. The locker room is used by the female nurses;
female technicians; female physicians, who cannot use
the physicians' lounge for it lacks coeducational facilities;
and any other women who must change into and out of
scrub greens.
The lounge is used for coffeebreaks, lunches,' ° parties,
staff meetings, in-service meetings, personal visits, solici-
tations for gifts," for sales of such items as Tupperware
and Avon products, and by medical supply salesmen.
Visitors and salesmen were not shown to need' special
permission to enter- the OR lounge nor was there any
claim that they had to check in upon entering the gener-
al OR area, exclusive of the restricted area.
OREA's Activities
OREA meetings followed the Roberts Rules of Order
and were attended primarily by members although occa-
sionally nonmembers attended. In February 1980, after
the organization was founded, OREA submitted a list of
requests concerning wages and other terms and condi-
"environmentalists" (janitorial staff) The first shift generally starts at 7 30
a.m and ends at 3 30 p in Some employees commence work at 6 30 a in.
and finish work at 3 p in, a much smaller group works a late afternoon
shift of 3 to 11 30 p in
6 The restricted area is that portion of the surgical area limited to per-
sonnel properly attired in scrub greens, shoe coverups, hats, masks, and
other apparel , apparently 'required to maintain necessary standards of
sepsis in the operating rooms and areas proximate thereto Smoking is
prohibited in the restricted area The entrance to the surgical facility, in-
cluding the OR lounge , is through a doorway marked , "Surgery, author-
ized personnel only " Family and friends of employees, as well as solici-
tors, are affored access to some portion of the surgical area, including the
OR lounge
9 Smoking is also permitted in the male attendants ' lounge and the doc-
tors' lounge.
10 The OR staff has no scheduled lunch or break periods These re-
spites are scheduled around operations, or when an employee is relieved
by another. Most , if not all , breaks and approximately 50 percent of the
lunches are taken in -the OR area due, at least in part, to the dress re-
quirements and time limits The extent of use of the OR lounge for these
or other purposes between 3 and 4 30 p in. was not addressed on -the
record
11 For example, solicitations of contributions for gifts for marriages,
births, ' deaths or for employees leaving the hospital No permission is
ever sought for any of these solicitations , nor has Respondent ever re-
quired permission be granted to engage in such activities The parties
stipulated that Respondent knew these activities rules regarding solicita-
tion and distribution , it is not averred that this rule is unlawful or that the
rule restricted use of the OR lounge to prohibit meetings of the OREA
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of employment12 to Potter. Similar communica-
tions were submitted to Potter by OREA about August
5, 1980; September 15, 1980; November 5, 1980; January
12, 1981; February 3, 1981; and November 30, 1981. All
the letters, except the first, stated the messages were
from OREA, and several requested responses from-
Potter. 113 The OREA also sent a letter to Sauer, dated
October 20, 1980, in which "the Operating Room Em-
ployee Association hereby registers its objection both to
your attempt to solicit donations for the Hospital Build-
ing Fund-and to the manner in which it was handled."
This missive was signed by Maxine Jones, president, Op-
erating Room Employees Association, Saint Joseph Med-
ical Center. The second letter Jones sent to Sauer, simi-
larly signed, was dated February 9, 1981, and was re-
ceived about that date. This letter informed Sauer that
OREA "formed a liaison committee 14 to serve as a com-
municative [sic] conduit between Operating Room Per-
sonnel and hospital administration." 15 '
There is no record of a direct reply. to this letter.
However, on February 18, about 7 a.m., Sauer met with
the OR personnel in the OR library.16
Potter introduced Sauer. According to the uncontro-
verted testimony of both Jones and Campbell, Sauer dis-
cussed a study of various hospitals, addressed wages and
benefits, asked the employees to express their concerns,
and mentioned a program he implemented called brown-
bag-it-with-the-boss, which had previously been an-
nounced in notices posted in the cafeteria. The program
invites the employees to join the boss for lunch in the
12 For example , cleanup time, relief procedures , regular staff meetings,
supply needs, scheduling of surgeries , the size of the -work crew , and the
need to acquire smaller-sized uniforms
i2 The record is silent as to whether Potter did in fact respond verbal-
ly or otherwise
14 The committee was identified as Sarah Campbell , Joan Horowitz,
Maxine Jones , and Patricia Monolias
15 The letter further stated.
Our liaison committee will, in our estimate , remedy the most egre-
gious inadequacies our current mode of exchanging information. On
the one hand , we have been authorized to represent our fellow-
workers, we do, then, constitute a valid sample . Moreover, we
intend to introduce issues for discussion which, having been pro-
posed at planery meetings of our colleagues , will reflect our consen-
sus regarding priorities and, incidentally , should leave you with little
doubt regarding our aims.
We would like to meet with your chosen representative at your
earliest convenience-preferably be next week Our, purpose is to air
our grievances and to offer ameliorative proposals If it is not feasi-
ble to schedule the meeting at a time when all four members of the
committee can be, freed from their nursing duties, we would appreci-
ate your scheduling it at the end of the work day We consider it
imperative that the full committee meet with you on this, and all
future , occasions
16 There was no showing that such meetings were regulary scheduled,
that Sauer had a policy of meeting with the different staff groups, of
which this is an example; that there was any purpose other than that rea-
sonably inferrable from the timing; a response to the February 9 letter.
According to Campbell's testimony , Sauer stated he had not been to the
operating room area before during the 2 years he had been at the hospi-
tal., Potter testified Sauer had previously met with OR personnel , but the
reason for such a meeting , the location of the meeting and the staff at-
tending this prior meeting were undisclosed As noted below, Campbell is
found to be the more credible witness demonstrating clear recall and
forthright demeanor . Therefore, it is concluded that the February 18
meeting is a departure from Sauer 's usual practice which was occasioned
by the February 9 letter
cafeteria. One of the registered nurses, Betsy Stocking, i 7
asked Sauer to meet with the liaison committee .18 Sauer
replied that he did not meet with any special or, small
groups of employees, that such a course was too politi-
cal, and that he wished to use established lines of com-
munication.19 Sauer did, however, offer to meet with the
employees individually20 through the brown-bag-it-with-
the-boss program. -
Approximately 1 week later, Sauer again met with the
OR staff about 7:30 a.m. in the OR library. According to
the unrefuted testimony of Jones, Sauer: "started the
meeting by stating he had gone over some of the re-
quests that we had made the previous year that Dr.
Collom had,21 and then he apologized for talking so
much of the last meeting so that we were unable to ask
questions and have any communication with him. And
then he opened the meeting for any questions ..." Em-
ployees Jane Coffey and Mary Nassiff22 individually re-
quested Sauer meet with the liaison committee, and he
replied negatively, stating that the employees should ob-
serve the .established lines of communication and see
Potter. However, Sauer did offer to answer the' employ-
ees' questions during the meeting.-
The "liaison committee," about February 22, met with
David Bullock, a representative of the American Federa-
tion of Nurses, Local 535 (AFN), and the brother of
Jones, to ascertain how to deal effectively with manage-
ment and to get advice about organizing. Bullock an-
swered their questions , gave some advice on how to ap-
proach management and some pointers on certifying let-
ters. There is no indication that this meeting was held in
contemplation of obtaining representation by AFN or
that Respondent knew about this confabulation.
On March 3, OREA, by Jones, renewed its requests
that Sauer meet with them23 to actively engage in col-
lective bargaining. Sauer sent a letter dated March 11 to
all persons working in the surgical division advising that
the OREA's March 3 and February 9 letters were ' en-
closed as attachments, and "As Federal labor laws make
it clear it would be improper for the Medical Center to
grant special recognition to the Association,24 its request
[for recognition as a bargaining representative ] will be
denied."
19 Stocking did not testiy in this proceeding
18 According to the testimony , Stocking did not specify that the liai-
son committee was the same as that referred to in the February 9 letter
and Sauer did not inquire about the committee she was referring to
Potter understood the liaison committee to be a creature of OREA
19 Apparently the line of communications referred to was the supervis-
roy line , requiring communications first with McFarland and Potter who
would then report to their supervisors
20 Potter also testified about the meeting . Her testimony did not direct-
ly contradict the more detailed testimony of Campbell and Jones and she
admitted she did not have a clear recollection of the subjects discussed
and statements made by various individuals Therefore any inferrable dis-
panties in testimony are resolved by crediting Jones and Campbell Inter-
estingly, Sauer, who was not sequested , did not testify as to the meeting
and did not contradict Jones and Campbell or corroborate either
21 Dr. Collom is Sauer's assistant.
22 These employees were also members of OREA They did not testify
in this proceeding.
22 The members of the liason committee were named as the representa-
tives of OREA.
24 OREA.
SAINT JOSEPH MEDICAL CENTER
Campbell told members that contact had been made
with an AFN representative and "anyone who is inter-
ested in pursuing a campaign effort with the' AFN was
welcome. to come to an April 23rd meeting" with the
AFN representative. Campbell further testified, "But the
AFN campaign was separate from the Association
[OREA], and that it would continue to be until the mem-
bers voted to align themselves." About 15 people attend-
ed the April 23 meeting.
The parties stipulated that AFN, which was at all ma-,
terial times a labor organization within the meaning of
the Act, commenced organizing activities among Re-
spondent's employees about April-23, and that Respond-
ent became aware of these activities between April 23
and May 19. -
Also during April and May, several registered nurses
employed by Respondent who were not associated with
OREA nor employed in the surgical division-were circu-
lating a petition addressed to Sauer to "request the op-
portunity for direct dialogue on a continuing basis with
our administration." Campbell became aware of this peti-
tion in early May and asked to join in'the drafting of the
cover letter. Respondent -learned of this petition about
April 16. The drafters of the letter, Ann De Leon, Dolo-
res Farquar, and Campbell, prepared the missive about
May 6 and at that time devised the name "Intercom
Committee" for the group. The letter was delivered to
Respondent about May 8. Campbell stated that she
knows of no such organization as Intercom at the hospi-
tal, that it is not an adjunct or part of OREA; AFN, or
UNAC. There was no showing that Respondent, knew
that the phrase was merely coined for the purposes of
transmitting the petition. It was stipulated that the peti-
tion said Intercom was a committee of nonsupervisory
registered nurses formed to communicate with Respond-
ent regarding issues relating to personnel benefits and
working conditions.
UNAC, an acronym for the United Nurses Association
of California, was at all material times a labor organiza-
tion within the meaning of the Act; which began orga-
nizing activities among Respondent's employees about
June 16.
Restrictions on Use of OR Lounge
On May 13, at a regular Wednesday morning staff
meeting,25 Potter , pursuant to Sauer 's instructions, an-
nounced that the. OREA could no longer hold its meet-
ings in the OR lounge or use the blackboards to an
nounce such meetings after work. Potter admits stating
the following reasons for the prohibition: (1) it was not
in the hospital's best interest-or it was not the hospital's
business; and (2) it made some unidentified individuals
feel uncomfortable. Campbell inquired if they26 could
use the library for the meetings, and Potter said no. An
employee named Jane Coffey pointed out that the lounge
was used for parties.27 Potter replied that the parties
25 Sauer was not present.
2e There is no question that both Potter and Campbell understood the
prohibition to refer to OREA
87 Potter admitted lack of clear recollection regarding some of the
matters discussed that day. Campbell's clear uncontroverted testimony
about this meeting is credited.
459
could be stopped also. Campbell then asked Potter if the
proscription on use applied to all employees, and if it
was' a new rule. Potter did not reply. Campbell then
opined that if it was a new rule which did not apply to
all, it may be construed as an unfair labor practice.
Potter- said she would -look into it. With respect to the
blackboards and bulletin boards, Campbell asked and re-
ceived permission from Potter to continue using the bul-
letin board in the OR lounge but the blackboards were
restricted to use only for hospital business.
At the staff meeting held the following Wednesday,
Campbell 'asked Potter if she could have a written' rule
regarding use of the OR lounge, and Potter said yes.
Potter did not prepare such a written document. Potter
then went on vacation so Campbell renewed her request -
to McFarland who told Campbell she would have to get
a statement from Sauer. On June 1, Campbell wrote
Sauer- requesting a written rule. About June 17, Sauer '
sent Campbell the following memorandum:
As you probably know, the purpose of the Employ-
ee's lounge in Surgery is to provide a restful.and
tranquil environment for all surgery personnel when
they are off duty or in between cases. Accordingly,
meetings or other conduct which may be disruptive
of the intended purpose of the Surgery Lounge are
inappropriate.
Respondent has issued general rules regarding solicita-
tion and distribution in several versions . Neither party
asserts that these rules clearly prohibit OREA's use of
the OR lounge or that some exigency arose on May 13
which brought into effect the existing rules which were
not previously enforced.
Positions of the Parties
Respondent argues that since the OREA- meetings vir-
tually preempted the use of the lounge at times when su-
pervisors had to , pass through the room to reach the
locker room , the proscription was necessitated to avoid
providing unlawful assistance to a minority labor organi-
zation,28 particularly in light of the organization activity
of other labor organizations ; 29 to protect itself from po-
tential or unforeseen allegations of violations of the
law;S° to avoid creating the impression of unlawful sur-
veillance; 31 and the disruptive nature of the OREA's use
of the lounge permitted the Employer to lawfully deny
the Association the use of the.lounge.32
28 Citing, among others, Homemaker Shops, 261 NLRB 441 (1982);
Comet Corp , 261 NLRB 1414 ( 1982); Hoover, Inc, 240 NLRB 593 (1979),
Rideout Memorial Hospital, 227 NLRB 1338, 1342 (1977), Duquesne Uni-
versity, 198 NLRB 891 , 892, (1972); Webb •Mfg., Inc , 154 NLRB 827, 832
(1965); and Machinists Y. NLRB, 311 U.S. 72, 78 (1970)
29 Citing Topps Kerrmill, Inc., 143 NLRB 694 , 698 (1963), and Coamo
Knitting Mill, 150 NLRB 579 (1964)
90 Citing Pacific Grinding Wheel Co , 220 NLRB 1389, 1398 (1975)
sr Citing Porta Systems Corp, 238 NLRB 192 , 195 (1978); Boston Pet
Supply, 227 NLRB 1891 , 1896 (1977); and Computed Time Corp., 228
NLRB 1243 (1977)
32 Citing Farah Mfg. Co., 202 NLRB 666 (1973).
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel asserts that Respondent was dis-
criminatorily motivated in the promulgation of the rule
prohibiting OREA from further use of the OR lounge.
As noted above, while Respondent had several rules ap-
plicable to solicitation and distribution33 if effect during
the time here pertinent, and that the latest versions of .the
rules appear to exclude the OR lounge from coverage of
these edicts. Furthermore, the General Counsel argues,
others continue to use the lounge for functions more dis-
ruptive than the OREA meetings . Accordingly, it is
argued, considering OREA is a labor organization, the
composition of the group, and the nature of their activi-
ties, denial of access is a violation of Section 8(a)(1) of
the Act for the proscription was based on a proscribed
-reason, animus, as reflected by the timing of the rule
change and the continued use of the lounge for more dis-
ruptive activities. Citing Northeastern University, 235
NLRB 858 (1978).
That other organization efforts were commenced by
other labor organizations is not a defense, states the Gen-
eral Counsel, since no rival labor organizations sought to
use the lounge or were denied that privilege.34 Nor has
Respondent asserted that another organization requested
33 G C Exh B, a document entitled "Administrative Policies," and
dated March 20, 1978, generally prohibits solicitation for any purpose
during working time without the expressed permission of the administra-
tor This document also proscribes the request for gifts on a personal
basis and the sale of any product or service without written approval of
the administrator This document also proscribes the request for gifts on
a personal basis and the sale of any product or service without written
approval of the administrator G.C. Exh A, also entitled , "Administrative
Policies," and dated October 19, 1981, superseded the March 20, 1978
policy and also proscribes solicitation "during working time for any pur-.
I Employees may not distribute literature during working time,
for any purpose
2 Employees may not distribute literature at any time, for any
purpose, in working areas Working areas are all areas in the Medical
Center except the cafeterias , gift shops, employee lounges, lobbies,
and parking areas -
c Working Time-Working time includes the working time of.
both the employee doing the soliciting or distributing and the em-
ployee to whom the soliciting or distributing is directed Working
time does not include break periods, meal times or any other speci-
fied periods during the workday when employees are properly not
engaged in performing their work tasks
G C. Exh D is an administrative policy dated March 28, 1982, which su-
persedes the policy dated October 19, 1981, and provides-
(1) Employees may not distribute literature during working time,
for any purpose
(2) Employees may not distribute literature at any time, for any
purpose, in working areas . Working areas are all areas in the Medical
-Center except the cafeteria , gift shops, employee lounges, lobbies,
and parking areas
c. Working Time-Working time includes the working time of
both the employee doing the soliciting or distributing and the em-
ployee to whom the soliciting or distnbutmg is directed Working
time does not include break periods , meal times or any other speci-
fied periods during the work day when employees are properly not
engaged in performing their work tasks
There is no allegation that patient care was a consideration in the deci-
sion to prohibit further OREA meetings in the OR lounge Therefore the
rules relating to patient care and public areas of the hospital have not
been quoted or discussed herein
94 Citing Goshen Litho, Inc, 196 NLRB 977, 983 ( 1972), enfd as modi-
fied 476 F 2d 662 (2d Cir. 1973), Maryland News Co., 138 NLRB 215, 218
(1962); and Signal Oil & Gas Co., 131 NLRB 1427, 1431 (1961).
and had been denied privileges similar to those granted
OREA.3.5 -
Regarding Respondent's contention that use of the
lounge by OREA would invite or cause unlawful sur-
veillance, the General Counsel argues that the employ-
ees' election to use the Employer's premises precludes
complaint,38 and no such complaint has ever been made
by OREA. Also, it is asserted that the fear of unlawful
surveillance was never advanced by Sauer or Potter to
Campbell or any other representative as a basis for the
rule change.
Analysis and Conclusions
The issue is whether the rule revoking permission to
conduct OREA meetings in the OR lounge and preclud-
ing posting announcements thereof on the two black-
boards in the surgical area was improperly motivated or
warranted by factors constituting "special circum-
stances," or for "any legitimate , nonpretextual reason
which does not include any element of antiunion
animus ." Vulcan-Hart Corp., 248 NLRB 1197 (1980),
modified in part 642 F.2d 255 (8th Cir. 1981), decision-on
remand 257 NLRB 979 (1981).
In determining motive in this case, the factors consid-
ered are analogous to those used in determining motive
for implementing unilateral changes in wages and, other
terms and conditions of employment where the relation-
ship between the employer and employees, as here, is-not
governed by a collective-bargaining agreement. These
factors include: the timing of the rule change; the Em-
ployer's reason for the change; the Employer's knowl-
edge of union activity by the employees; and other,evi-
dence of union animus by the Employer such as.threats,
discharges or other unfair labor practices.
As noted in Vulcan-Hart Corp.; ibid, employees' use of
the employer's premises to conduct activities protected
by Section 7 of the Act37 is not a matter solely or who-
lely within the employer's discretion. It is a violation of
the Act if the employer's withdrawal of permission for
use of its premises is unlawfully motivated. Cf. Methodist
Hospital of Gary, 263 NLRB 411 (1982).
The timing of the announcement of the rule followed
increased concerted activity including the circulation of
the petition by the Intercom Committee in mid-April, the
organizing attempts by AFN, including the signing of au-
thorization cards by some members, and the requests to
Sauer by several nurses for meetings between OREA
and Sauer during the unusual meetings Sauer held with
the surgical department staff in February, shortly after
Jones sent her February 9-. letter to Sauer regarding a
meeting to "air grievances." No specific incident was
noted as the basis for the decision to change the rule.
OREA had been conducting meetings since February
1980 with the knowledge and acquiescence of Respond-
35 Citing Kaiser Foundation Hospital, 223 NLRB 322 (1976), Jolog
Sportswear, Inc, 128 NLRB 886 (1960), and Longchamps, Inc, 205 NLRB
1025 (1973)
36 Citing Porto Systems Corp, supra.
37 It is undisputed and clearly shown on the record that the OREA is
a labor organization and that its meetings were protected activities direct-
ed to improving wages and other terms and conditions of employment.-
SAINT JOSEPH' MEDICAL CENTER 461
ent. The complaints mentioned by Suaer and Potter were
not clearly shown to be one of the bases for the decision
announced on May 13. While two supervisors and one
"unidentified female" employee stated they were uncom-
fortable going into the OR lounge during the OREA
meetings , there was no showing that the discomfort was
frequent, was justified, and if either or • both was an
actual basis for the promulgation of the rule.38 Rather,
the long time over which the meetings were conducted,
the timing of the meetings at the end of the largest shift,
and their conduct pursuant to Roberts Rules of Order,
cojoined with the factors discussed below, indicate that
the meetings themselves were not sufficiently disruptive
to warrant their discontinuance as a "special circum-
stance" or employer need.
If Respondent's apparently reasonable claim that the
.lounge was to be a rest place and this purpose was un-
dermined by the OREA meetings, then why were they
permitted for 15 months is unexplained and this failure
supports a finding that the reason is a pretext.
Buttressing this conclusion is the disparate application
of the no-meeting rules. After May 13 there were a
number of parties held in the OR lounge39 during work-
ing hours which were much noisier than OREA meet-
ings , disputing the claim that the lounge was devoted to
"tranquil" rest during break periods or other nonwork-
time. See Saint Vincent's Hospital, 265 NLRB 38 (1982).
The other reasons advanced by the Employer during
the May 13 meeting are also found to be pretexts. The
reason that the meetings were not in the best interest of
the hospital appears, absent further explanation, to be a
euphemism , raising the inference of antiunion animus.40
This conclusion is supported by the above-found dis-
criminatory application of the rule,,disputing the stated
need to provide peace and quiet in the OR lounge and
the admission inherent in one of the reasons for the rule
advanced by Potter, "it was not hospital business." Even
if parties are arguably considered hospital business, the
sale of Avon products or Cambridge diet aids are not
argued to fall within the term "hospital business"; and
thus the actual uses of the lounge permitted by Respond-
ent contrasted to the reasons advanced for the prohibi-
tion of OREA meetings, further supports the conclusion
that such reasons are pretexts..
Another reason advanced by Respondent for the rule
is that the Association did not permit attendance at the
38 It is noted that no complaints were made to the OREA and Re-
spondent did not discuss the asserted problem with OREA to explore
methods of resolving the "problems " Further, the record is silent as to
when other complaints were lodged ; therefore they cannot be considered
factors which precipitated the invocation of the rule
99 For example, the 1981 Christmas party was held around midday.
There was a party for Joyce Mills in June during working hours. There
was a retirement party for Ruth Smith on July 9 , during working time
Further , solicitations for sales of diet aids and other nonjob-related com-
modities does not appear to have stopped, and it was stipulated that Re-
spondent never prevented or prohibited nor attempted to prevent or pro-
hibit solicitations of the character described above , which , prior to May
1981, occurred approximately once a month , with about the same fre-
quency as OREA meetings These uses of the lounge cannot be classified
as isolated instances which would remove the taint of discriminatory ap-
plication of the rule Respondent's policy permits solicitation and distri-
bution in the lounge . Only OREA meetings were prohibited.
40 See, for example, the use of euphemisms to indicate antiunion
animus in C-E Cast Equipment-Furnace Systems, 260 NLRB 520 (1982).
meeting by persons authorized to resolve their com-
plaints. This reason is equally unconvincing. If Respond-
ent was worried about committing unlawful surveillance,
then why would it wish to have a supervisor in attend-
ance at the meetings. Why the attendance of someone
who could resolve the complaints rendered the meetings
more tolerable is a question left unexplained in this
record by the proponent of this reason.
The Employer tolerated the meetings for 15 months.
Potter was aware of the meetings from their inception
and Sauer received a letter from the Association as early
as October 20, 1980, and again on February 9, 1981. The
Employer's change in policy, as noted above, was ex-
plained in terms found probative of animus and not the
result of lack of knowledge 'or needed clarification of a
rule. The reasons for the rule are found to be pretexts
which evidences animus."
Other evidence of animus includes Sauer's sudden re-
quest,_ to solicit -grievances during the February meeting,
which was not a routine practice, which has been found
to have been in response to OREA's February 9 letter.
This departure from routine occurred prior to knowl-
edge of any organizing activity by AFN and UNAC.
Also, Jones and Campbell, whose testimonies are cred-
ited ,4 2 stated that in a conversation on June 3 with
Potter, Potter said that unions are not professional; sug-
gested 'that those employees interested in organizing
could go to another hospital to work; inquired if Jones
and Campbell realized they would have to do what the
union officials dictated; that she could not think of any-
thing lower-than someone walking a picket line; that reg-
istered nurses did not want to be represented by the
same union as either laundry workers or kitchen work-
ers; and that unions do not help nurses and cannot help
the hospital.
According to Campbell's uncontroverted testimony, a
few days later,. about June 5, Sauer held a meeting and
discussed unions, stating unions could not hire nurses,
unions never staffed the floor, unions just could not do
41 Actual motive , a state of mind , being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive , trier of fact may infer
motive from the total circumstances 'proved Otherwise, no person ac-
cused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the administrative trier of fact
required to be any more naif than is a judge . If he finds that the stated
motive for a discharge is false , he certainly can infer that there is another
motive. More than that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at least where, as in this
case , the surrounding facts tend to reinforce that inference Shattuck
Denn Mining Corp. Y. NLRB, 362 F 2d 466, 470 (9th Cir. 1966) Accord
Folkins v NLRB, 500 F.2d 52, 53 (9th Cir 1974); Famet, Inc. v. NLRB,
490 F.2d 293, 295 (9th Cir 1973), and cases cited therein.
Similarly, where the stated motives for a rule are pretexts, the infer-
ence is that there is an unlawful motive . As indicated in this case, the use
of the euphemisms, disparate enforcement of the rule , and other evidence
of record eliminate any question concerning the motive for imposition of
the rule
42 This finding is based on clear recall, candor , demeanor, their respec-
tive status as current and retired employees , and inherent consistency and
probabilities in their testimonies See Northridge Knitting Mills, 223
NLRB 320, 325 (1976).
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything for nursing, and hospitals that had unions were
worse off than Respondent.43
Campbell further testified that while in the OR lounge,
she heard McFarland "talking about unions in general
and the private property was private property and her
husband and, [sic] his business would fire summarily
anyone who gave him any trouble." This comment was
not addressed directly to Campbell. McFarland denied
making the statement. Campbell's testimony is credited
based on clarity of recall, candor, and inherent probabil-
ities . All these statements lend weight to the finding that
the rule was promulgated` for the unlawful reason to in-
hibit Respondent's employees from engaging in protected
concerted activities. OREA did not hold any meetings in
the OR lounge after May 13, and - held only one other
meeting44 thereafter. Thus, the rule did "tend to inter-
fere with the free exercise of employee rights under the
Act." American Freightways Co., "124 NLRB 146, 147
(1959). Accordingly, it is found that-Respondent violated
Section 8(a)(1) of the Act by selectively barring. OREA
meetings from the OR lounge and disparately applying
its no-solicitation/no-distribution rule. Pay N Save Corp.,
247 NLRB 1346 (1980), enfd. 641 F.2d 697 (9th Cir.
1981); Vulcan-Hart Corp., - supra, modified 642 F.2d- 255
(8th Cir. 1981), on remand 257 NLRB 979 (1981).
That Respondent never explicitly granted OREA per-
mission to hold meetings in the OR lounge does not alter
the finding, for it, knowledgeably permitted these activi-
ties for more than a year, which sufficiently establishes a
policy and practice which was revoked for proscribed
reasons and, hence, the, right to hold meetings was un-
lawfully terminated. Vulcan-Hart Corp., ibid. That
OREA is a labor organization does not alter this conclu-
sion, for "the right to engage in union- activities (distribu-
tion, solicitation) on non-work time, in- non-work areas
has -long been protected." Trustees of Columbia Universi-
ty, 225 NLRB 185 (1976), citing Avon Convalescent
Center, 200 NLRB 702, 705 (1972); Groendyke Transport,
211 NLRB 921 (1974); Republic Aviation Co. v. NLRB,
324 U.S. 793, 803-804' (1945); - NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 110-111 (1956). Even if OREA
were not a labor organization, the same holding would
obtain. Northeastern University, 235 NLRB 858 (1978),
enfd. 601 F.2d 1208 (1st Cir. 1979).
That other labor organizations expressed interest in or-
ganizing Respondent 's employees is similarly not an ex-
culpatory fact. UNAC did not begin organizing activities
until about June 10, 1981, and Respondent became aware
of AFN's 'organizing activities between April 23 and
May 19, 1981, possibly after imposition of the rule on
May 13, revoking OREA's -permission to use the OR
lounge and blackboards. Further ,. in stating the reasons
for the prohibition, no reference was made to AFN's ac-
tivities. As noted in Sauer's June 17 letter to Campbell,
the reason advanced for the hospital 's action is "meetings
49 These statements were not alleged to be violative of the Act and the
issue was not fully and fairly tried in this proceeding It is also noted that
Sauer, during the same meeting , said that Respondent would not dis-
- criminate against any employee who was active in the Union or who
signed a card ; the administration would stand on their record and- that
there was a place in management for staff nurses to affect policy
44 This meeting was held in Respondent 's cafeteria. -
or other conduct which may be disruptive of the indicat-
ed purpose of the surgery -lounge are inappropriate."
Therefore the stated fear of violating Section 8(a)(2) of
the Act as a reason for propounding the rule is found to
be a pretext. Further, there was no showing that AFN or
any other labor organization sought and was refused
equal privileges. As stated in Signal Oil & Gas Co., supra,
131 NLRB at 1431:
Under such circumstances it did not constitute. un-
lawful support or interference with employees' ac-
tivities to permit use of the Company's premises for
ERF meetings. On the contrary, a charge of dis-
crimination or interference might conceivable 'be
brought were facilities, available to other employee
groups, denied to their labor organization! It is not
claimed that management representatives controlled
or attended these meetings.
As noted by the General Counsel, there is no evidence
that AFN, UNAC, or any other organization sought and
were denied- the use of the OR lounge for meetings or
provided their assistance "exceeding the bounds of per-
missible cooperation. [constituting] unlawful "aid and as-
sistance." Kaiser Foundation Hospital, supra. There is no
showing of any support of OREA by Respondent or its
agents;. the hospital merely, permitted a nonworking area
to be used for meetings during nonworking hours.45 Cf.
United Mine Workers Retirement Fund, .192 NLRB 1022
(1971); Hesston Corp., 175 NLRB 96 (1969).
. That supervisors had to occasionally enter the OR
lounge during OREA meetings does not justify Respond-
ent's actions. As noted by the General Counsel, OREA
never complained about surveillance and, as held in Porta
Systems Corp., supra, 238 NLRB at 192: •
The Board has held that "[u]nion representatives
and employees who choose-to engage in their union
activities at the Employer's premises should have
no cause to complain that management observes
them." Since the employees herein passed out leaf-
lets and met with union organizers on Respondent's
own parking lot we find that no unlawful surveil-
lance occurred. -
Furthermore, one of the reasons advanced by Respond-
ent for revoking OREA's privilege to conduct their
meetings in the OR lounge was the discomfort of.the su-
pervisors since all business and discussion ceased when
supervisors were present, ensured no surveillance, oc-
curred.
In sum, it is concluded that the application and dispar-
ate enforcement of the rule for a proscribed reason, in
contravention of employees' Section 7 rights, violates
Section 8(a)(1) of the Act.
" 45 Respondent never asserted that 'meenngs during the cusp of two
shifts were during working hours or were the meetings shown to be more
disruptive than other allowable use of the lounge, which have been previ-
ously and subsequently deemed permissible -
SAINT JOSEPH MEDICAL CENTER 463
II THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth above occur
ring in connection with Respondents operations de
scribed above have a close intimate and substantial re
lationship to trade traffic and commerce among the sev
eral States and tend to lead and have led to labor dis
putes burdening and obstructing commerce and the free
flow of commerce
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) (6), and (7) of the Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 By promulgating and enforcing a rule prohibiting
meetings of the Operating Room Employees Association
(OREA) a statutory labor organization in the Operating
Room Lounge a privilege they enjoyed since the incep
tion of OREA Respondent has interfered with re
strained and coerced its employees in the exercise of
their rights under Section 7 of the Act and has thereby
engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices in violation of Section 8(a)(1)
of the Act I shall recommend that the Respondent be
ordered to cease and desist therefrom and from miring
mg in any like or related manner upon its employees
Section 7 rights and that it take certain affirmative
action designed to effectuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed46
46 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
ORDER
The Respondent Saint Joseph Medical Center Bur
bank California, its officers agents, successors and as
signs shall
1 Cease and desist from
(a) Promulgating maintaining or enforcing a rule or
policy which revokes the privilege of the Operating
Room Employees Association to hold their meeting or
engage in other activities protected by Section 7 of the
Act in the Operating Room Lounge as in the past
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Permit its employees and the OREA to use the Op
erating Room Lounge for meetings in the same manner
or to the same extent they were permitted to use the
lounge prior to May 13 and notify them that they have
permission to do so
(b) Post at its facilities in Burbank California, copies
of the attached notice marked Appendix 47 Copies of
said notice on forms provided by the Regional Director
for Region 31 after being signed by the Respondents
authorized representative shall be posted by the Re
spondent 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 Respond
ent to ensure that said notices are not altered defaced or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
Board and all objections to them shall be deemed waived for all par
Poses47 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board