Saint Vincent's Hospital

National Labor Relations Board - Board Decisions

Oct 8, 1982

265 N.L.R.B. 38 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saint Vincent's Hospital and Local 1199, National
Union of Hospital and Health Care Employees,
Retail, Wholesale and Department Store Union,
AFL-CIO. Cases 10-CA-15828, 10-CA-16214,
and 10-CA-16444
October 8, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 26, 1981, Administrative Law Judge
Philip M. Browning issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and Respondent filed a brief in support of
certain portions of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. The Administrative Law Judge found that,
pursuant to its no-solicitation policy, Respondent
lawfully discharged employee LaCosta Miles and
lawfully reprimanded Miles and employee Linda
Menefee. In his exceptions, the General Counsel
does not argue that the policy is unlawful on its
face, but does contend that Respondent applied its
policy in a discriminatory fashion to discourage
union activity. We find merit to the General Coun-
sel's contentions, and we find for the reasons below
that Respondent violated Section 8(a)(1) by discri-
minatorily enforcing its no-solicitation rule, and
violated Section 8(a)(3) and (1) by reprimanding
Miles and Menefee and by discharging Miles for
soliciting on behalf of the Union.
Respondent's policy governing solicitation and
distribution reads, in pertinent part:
No distribution of any kind, including circulars
or other printed materials, shall be permitted
in any work area at any time.
No solicitations of any kind, including solicita-
tions for memberships or subscriptions, which
may interfere with patient care or disturb pa-
tients will be permitted in immediate patient
care areas ....
No solicitation of any kind, including solicita-
tion for memberships or subscriptions, will be
permitted at any time by associates who are
265 NLRB No. 6
supposed to be working, or in such a way as
to interfere with the work of other associates
who are supposed to be working. Anyone who
does so and thereby neglects his or her work
or interferes with the work of others will be
subject to disciplinary action.
The record supports the Administrative Law
Judge's finding that prior to issuing the oral "clari-
fication" of its policy on August 7, 1980,1 Re-
spondent permitted solicitations which were incon-
sistent with the policy. 2 Thus, Supervisor Virginia
Wallace testified that wedding invitations were
placed on the bulletin board in the locker room,
and Supervisors Linda Vann and Joy Dobinson in-
dicated that solicitations for flower funds were per-
mitted. As the Administrative Law Judge noted,
employee Charlene Weeks testified that in June she
purchased two raffle tickets from a nursing student
during working hours. Additionally, employee
Mellow Smith recalled that in the summer of 1980
a student and part-time clerk asked several employ-
ees during working time to buy raffle tickets.
Smith further recalled that sometime in August an
employee tried during working time to sell tickets
to a "whiskey bash" to other employees. Also in
August, according to Smith, employee Mahalia
Brown sold Avon products during working time to
employees at the nurses' desk in the labor room.
The Administrative Law Judge also noted employ-
ee Queen Ester Steen's testimony that, at some
point between May and July during working time,
she was asked to purchase raffle tickets by a stu-
dent nurse who claimed that the hospital adminis-
tration had authorized the selling of such tickets.
Steen further recalled that in the summer of 1980
an employee engaged in working-time sales of
candy to other employees, and another employee
sold her a ticket to a raffle.3
On August 7, Respondent's attorney "clarified"
the policy by informing supervisors that solicita-
tions were prohibited for flower funds, shower and
i Unless otherwise specified, all dates herein refer to 1980.
2 Respondent has not excepted to the Administrative Law Judge's
finding in this regard.
' We note that there is no evidence that supervisors were present
during the incidents about which Weeks, Smith, and Steen testified.
However, we find that the incidents were sufficiently open, frequent, and
widespread to warrant drawing an inference that Respondent had knowl-
edge of the solicitations. See Hammary Manufacturing Corporation, a Divi-
sion of U.S Industries Inc., 258 NLRB 1319 (1981); The Timken Compa-
ny, 236 NLRB 757, 758 (1978). We also base this inference on the testi-
mony of Supervisors Wallace, Vann, and Dobinson that other types of
solicitation were tolerated, and we note that Respondent did not except
to the Administrative Law Judge's finding that prior to August 7 solicita-
tions were permitted contrary to Respondent's rule.
It is not entirely clear whether some of the above incidents occurred
just before or soon after August 7. In either case the incidents form part
of a widespread pattern of solicitation which warrants a finding that Re-
spondent knew of and permitted substantial deviations from its policy
prior to August 7.
38
SAINT VINCENT'S HOSPITAL
wedding invitations, and the selling of such items
as Avon products, doughnuts, and candy. Respond-
ent's employees were orally advised by their super-
visors of the clarification. However, it is undisput-
ed that after August 7 hospitalwide solicitation for
the United Appeal continued with Respondent's
approval.
Pursuant to its policy, Respondent took several
disciplinary measures after August 7 against em-
ployees who engaged in union activities. Supervi-
sor Betty Eaford gave employee LaCosta Miles a
written reprimand4 on October 1 for distributing
union literature in the conference room in the in-
tensive care unit and in the conference room on
"Third-East." On October 15, Miles delivered a
written invitation to a union meeting to employee
Inez Jackson, who was working in the coronary
care unit. On October 27, Miles was summoned to
a meeting with Eaford and Surgical Division Man-
ager Joyce Williams, who told Miles that giving
another employee an invitation to a union meeting
was a form of solicitation. Williams then informed
Miles that she was terminated for soliciting in pa-
tient care areas.5
Additionally, it is undisputed that employee
Linda Menefee was given a written reprimand on
September 16 for soliciting employees during
working time. The reprimand cited five separate in-
cidents in which Menefee, an active union advo-
cate, either questioned employees concerning their
views on the Union or asked employees to attend
union meetings.
As the Administrative Law Judge found, Re-
spondent continued to condone some types of non-
union solicitation subsequent to August 7. The
record discloses several examples of Respondent's
undisputed tolerance of the hospitalwide solicita-
tion for the United Appeal. Thus, Supervisor Linda
Vann testified that after August she witnessed so-
licitations for the United Appeal on working time
in patient care areas, and employee Steen testified
that in December United Appeal cards were dis-
tributed on working time in the presence of Super-
visor Virginia Wallace. On September 22, during
working time, employee Charlene Weeks was
4 The reprimand was dated September 26, and indicated that Miles
would be terminated for any further violations of Respondent's policy.
I The Administrative Law Judge found that at the time of Miles' dis-
charge Eaford was unaware that the solicitation involved an invitation to
a union meeting, and he apparently found that Eaford alone made the de-
cision to terminate Miles. However, Eaford's undisputed testimony dis-
closes that the decision to terminate Miles was made jointly by Eaford
and Williams. Further it is clear that Williams knew that the invitation
concerned a union meeting, since, as found by the Administrative Law
Judge, Williams informed Miles at the termination interview that an invi-
tation to a union meeting was a form of solicitation. No exceptions were
raised to the Administrative Law Judge's finding in this regard. We
therefore find that Respondent knew that the invitation involved a union
meeting at the time that it discharged Miles.
given a United Appeal card by another employee
in front of the nurses' desk on "Second-East."
Apart from the United Appeal solicitations, the
Administrative Law Judge found that Respondent
permitted solicitations which were inconsistent
with its policy on three occasions after August 7. 6
In October, Supervisor Sharon Blankenship distrib-
uted wedding invitations to employees during their
working time in the locker room of the labor
room, and Supervisor Belle Snyder handed a dollar
to employee Charlene Weeks, telling her to "get
something going" for an employee who was sick.
Snyder said nothing to Weeks concerning when or
where the contributions were to be solicited, and
until early November Weeks solicited money from
19 or 20 employees, at least 4 of whom were work-
ing at the time of the solicitation. The record also
discloses that in September or October, prior to a
morning change-of-shift report, Supervisor Roberta
Smith invited some employees to a housewarming
party. The Administrative Law Judge concluded
that, even though Respondent tolerated such activi-
ties while simultaneously enforcing its rule against
Miles and Menefee, its conduct did not "rise to the
level of discriminatory enforcement of the no-so-
licitation rule."
The Administrative Law Judge recognized that
Respondent did not enforce its rule before August
7, but he evaluated only the evidence arising after
that date in determining whether Respondent en-
forced its rule in a discriminatory manner. He did
so because he apparently believed that Respond-
ent's August 7 clarification was not prompted by
its employees' union activities. Consequently, he in
effect gave Respondent a clean slate and failed to
give weight to those instances of inconsistent en-
forcement arising before August 7. Contrary to the
Administrative Law Judge, we do not view the
clarification to have been simply Respondent's
good-faith reaction to the confusion of its supervi-
sors over the breadth of the rule. Rather, we find
that the purpose of the clarification was to provide
Respondent with a basis for the subsequent en-
forcement of its rules against employees who en-
gaged in union solicitation.
Such a conclusion is warranted from the circum-
stances in which the clarification took place. With
respect to its timing, we note that the clarification
occurred while the organizational campaign was in
progress, and we note especially that shortly after
August 7 Respondent suddenly began to enforce its
d No exceptions were raised to the Administrative Law Judge's finding
in this regard.
I The Administrative Law Judge noted Supervisor vann's testimony
that she and others had requested clarification of the policy because they
were uncertain as to what constituted solicitation.
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule against employees who engaged in union so-
licitation, while simultaneously continuing to dis-
play tolerance of some types of nonunion solicita-
tion. Thus, Menefee was reprimanded on Septem-
ber 16, and Miles was reprimanded on October 1
and discharged on October 27. In examining the
context of the clarification, we also find it relevant
that Respondent had previously engaged in unlaw-
ful activity of a similar nature. From 1978 until
September 15, 1980, Respondent maintained an
overly broad rule governing the wearing of insig-
nia,8 and, as found infra, it unlawfully enforced
that rule on April 16 against employee Cynthia
Hildreth by instructing her to remove her union
button.9 Additionally, as found infra, Respondent
unlawfully interrogated employee Hildreth on Sep-
tember 1 concerning her union activities.' 0
In view of the foregoing, we find that the clarifi-
cation merely marked the point at which Respond-
ent began to strictly enforce its rule as a response
to its employees' union activities, and therefore we
are not restricted to evaluating only the evidence
of discriminatory enforcement arising after August
7. Consequently, we find that Respondent's toler-
ance of widespread nonunion solicitation prior to
that date, when coupled with the activities which it
permitted afterwards, constitutes substantial evi-
dence of discrimination and demonstrates that Re-
spondent had no interest in enforcing its rule until
its employees began to engage in union activities. It
is well settled that an employer violates Section
8(a)(1) by failing to enforce a no-solicitation rule
against activities similar to those involved here,
while simultaneously enforcing the rule against so-
licitation on behalf of a union.'l Similarly, disci-
pline of an employee pursuant to a no-solicitation
rule violates Section 8(a)(3) and (1) where the rule
has been selectively applied to prohibit union activ-
ities. 2 In view of the foregoing, we find that Re-
spondent violated Section 8(a)(1) by discriminatori-
ly enforcing its no-solicitation and no-distribution
rule, and violated Section 8(a)(3) and (1) by repri-
manding and discharging Miles and by reprimand-
ing Menefee for engaging in union solicitation.' 3
We would reach the same result even if we uti-
lized the Administrative Law Judge's analysis and
considered only the evidence of discrimination aris-
s See sec. 3, infra
9 See sec. 4, infra.
'0 See sec. 2, infra.
XI See, e.g., Westinghouse Electric Corporation, 240 NLRB 905, 916
(1979); Imco Container Company, 208 NLRB 874, 878-879 (1974).
12 See, e.g., Westinghouse Electric Corporation. supra at 916; Capitol
Records, Inc., 233 NLRB 1041, 104546 (1977).
la See Hammary Manufacturing Corporation, supra; Capitol Records.
Inc., supra. In light of our decision herein, we find it unnecessary to
reach the question of whether the conference room in the intensive care
unit is an immediate patient care area.
ing after August 7. Viewing the evidence in such a
light, we find that the Administrative Law Judge
gave insufficient weight to the instances of incon-
sistent enforcement occurring after that date. Thus,
he acknowledged that Respondent permitted work-
ing-time solicitation for the United Appeal, but he
apparently did not consider such an exemption to
be evidence of discrimination. Although the Board
has found that an employer's tolerance of isolated
beneficent solicitation does not by itself constitute
sufficient evidence of discriminatory enforce-
ment, "'4 it has never granted a blanket exemption
to all charitable solicitation. Indeed, the Board has
consistently evaluated evidence of such solicitation
in determining whether a rule has been discrimina-
torily enforced. 15
Here, the activities on behalf of the United
Appeal occurred in conjunction with the three
other instances of solicitation outlined above, and
we find in the circumstances that all of these inci-
dents cannot be dismissed as "isolated," particular-
ly since some of the activities consumed a consider-
able amount of time. Thus, it is clear that United
Appeal solicitations persisted over a period of sev-
eral months, since the record discloses that em-
ployee Weeks was solicited in September and since
United Appeal cards were distributed in the pres-
ence of Supervisor Virginia Wallace in December.
Supervisor Linda Vann indicated that she had wit-
nessed working-time activities on behalf of the
United Appeal since August. Additionally, Weeks'
collection for a sick employee pursuant to Supervi-
sor Snyder's request continued over a significant
amount of time during October and November.
These activities, when coupled with Supervisor
Blankenship's distribution of wedding invitations in
October and Supervisor Smith's invitation to a
housewarming party in September or October, con-
stitute substantial evidence that Respondent discri-
minatorily enforced its rule, even if the period after
August 7 is viewed in isolation. We emphasize that
this evidence assumes added significance in light of
the active participation of supervisors in the con-
duct, which occurred so soon after Respondent an-
nounced that it would no longer condone solicita-
tion. Such supervisory conduct further demon-
strates that Respondent had no interest in enforcing
its rule, apart from its desire to inhibit its employ-
ees' union activities. Therefore, we find that the
'4 See Emerson Electric Co., US Electrical Motors Division, 187 NLRB
294, fn. 2 (1970); Serv-Air, Inc., 175 NLRB 801, 802, fn. 3 (1969). See also
Hammary Manufacturing Corporation, a Division of U.S Industries, Inc.,
265 NLRB No. 7 (1982).
18 See, e.g., Lance, Inc., 241 NLRB 655, fn. 5 (1979); Imco Container
Company, supra at 878-879. See also Paceco, a Division of Fruehauf Corpo-
ration. 237 NLRB 399, 401(1978).
40
SAINT VINCENT'S HOSPITAL
result herein would not be altered by excluding the
evidence of discrimination arising before August 7.
2. The Administrative Law Judge found that Su-
pervisor Linda Vann did not interrogate employee
Cynthia Hildreth on September 1 outside the
locker room on "Third-Main." We find merit to
the General Counsel's exceptions in this regard,
and we find for the reasons below that Vann inter-
rogated Hildreth in violation of Section 8(a)(1).
On September 1, Vann was sitting at the nurses'
station on Third-Main when she noticed Hildreth
walking by. Vann approached Hildreth and asked
whether she had just come out of the locker room.
Hildreth turned to face Vann and answered affir-
matively, and at that point Vann observed that Hil-
dreth was holding union literature in her hand.
Vann then asked her what she was doing there and
whether she had left any literature in the locker
room. Asserting that her conduct was legal because
she was on her own time, Hildreth confirmed that
she had distributed the literature. Vann asked her
to state her name and to indicate whether she was
on a break, and Hildreth gave her name and re-
plied that she was on her lunch period. Vann then
inquired as to Hildreth's work location, and Hil-
dreth responded that she worked on "Seventh-
Main." At that point Vann and Hildreth terminated
their encounter.
The Administrative Law Judge observed that
Vann was policing the locker room area since
there recently had been several thefts of billfolds
from both patients and employees. He also found
that the encounter had occurred in a pleasant at-
mosphere, that the questioning was not part of any
"systematic and intensive" interrogation, and that
Vann neither reprimanded nor scolded Hildreth.
Relying on these circumstances, the Administrative
Law Judge found that Vann's questioning of Hil-
dreth did not violate Section 8(aX)().
Although it is clear, as the Administrative Law
Judge found, that the propriety of Vann's attempt
to police the area cannot be questioned, it is equal-
ly clear that in doing so Vann was not free to in-
terrogate Hildreth as to her union activity. After a
careful review of the record, we find that, while
Vann may have originally stopped Hildreth for se-
curity reasons, her inquiries quickly exceeded her
policing function and interfered with Hildreth's
Section 7 rights. We note especially that, when
Vann recognized at the outset that Hildreth was
holding union leaflets, she immediately began
asking questions related to Hildreth's union activi-
ty, including inquiries as to why she was in the
area and whether she had distributed the leaflets in
the locker room. In response to Hildreth's assertion
that she could distribute literature on her own
time, Vann pursued the issue by asking whether
Hildreth was on lunchtime or breaktime. It was in
this context of discussing her union activity that
Vann asked Hildreth to state her name and to
reveal her work location. When the record is
viewed as a whole, it is clear that Vann's questions
focused on Hildreth's union activity and were un-
related to security considerations. It is also note-
worthy that Vann failed to inform Hildreth of her
purpose"6 and did not mention the theft problem
or her policing function.
In examining the context of the incident, we also
recognize that Vann's questioning of Hildreth did
not occur in a vazuum, since it was a prelude to
Respondent's discriminatory application of its no-
solicitation rule. 7 We note further that it was Hil-
dreth against whom Respondent had previously en-
forced its unlawful rule governing the wearing of
insignia. 1 8
We also find that the Administrative Law Judge
erred in relying on the pleasant atmosphere sur-
rounding the encounter. The Board has frequently
found that inquiries concerning union activities are
unlawful even when conducted in such an atmos-
phere,' 9 and consequently questioning need not be
systematic, intensive, or harsh in order to be found
unlawful. The test is "whether the employer en-
gaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employ-
ee rights under the Act."2 0 We therefore find
under all of the circumstances that Respondent vio-
lated Section 8(a)(1) by questioning Hildreth as to
whether she was engaged in the distribution of
union literature and by attempting to ascertain her
identity in that context.2 '
3. We agree with the Administrative Law Judge
that prior to September 15 Respondent's rule gov-
erning the wearing of insignia was overly broad,
since the rule prohibited such insignia at all loca-
tions on Respondent's property while employees
were on duty or in uniform. However, the Admin-
istrative Law Judge did not provide a remedy for
the violation in view of Respondent's promulgation
of a revised rule on September 15.22 In agreement
with the General Counsel, we find that the Admin-
istrative Law Judge erred in not providing such a
I6 See Pacific Southwest Airlines, 201 NLRB 647, 650-651 (1973).
17 See Hanes Hosiery, Inc., 219 NLRB 338 (1975).
i" See sec. 4, infra
'' See, e.g., Jody Tootique, 245 NLRB 734, 739 (1979); Hanes Hosiery.
Inc., supra at 338, fn. 2.
20 American Freightways Co.. Inc., 124 NLRB 146, 147 (1959).
1' Cf. Fremont Manufactunng Company. Inc., 224 NLRB 597. 604
(1976). See also Montgomery County MH/MR Emergency Service. 239
NLBR 821, 824 (1978).
22 The General Counsel does not contend that the revised rule of Sep-
tember 15 is unlawful. Therefore, the issue of whether the rule is valid is
not before us.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy. Under certain circumstances an employer
may repudiate its unlawful conduct and thereby re-
lieve itself from liability.2 3 In the instant case,
however, Respondent has made no effort to repudi-
ate its conduct, and we find that Respondent's
mere revision of the rule does not constitute an ef-
fective repudiation.
We also find that this is not a case in which the
violation is insufficiently serious to warrant the is-
suance of a remedial order.2 4 We consider Re-
spondent's maintenance of the rule over a period of
approximately 2 years to be a serious restriction of
the Section 7 rights of its employees, 2 5 and there-
fore we shall make appropriate modifications to the
Administrative Law Judge's recommended Order.
4. The Administrative Law Judge found that Re-
spondent did not violate the Act when its supervi-
sor, Linda Piccard, acting pursuant to the unlawful
rule governing insignia, told employee Cynthia Hil-
dreth on April 16 to remove the union pin which
she was wearing in a patient care area. The Admin-
istrative Law Judge reasoned that Piccard's con-
duct would have been unlawful if Hildreth had
been disciplined in connection with the incident.
We find merit to the General Counsel's contentions
concerning this issue.
Contrary to the Administrative Law Judge's
conclusion, formal disciplinary action is not a pre-
requisite to finding that an overly broad rule has
been unlawfully enforced. The Board has found
that enforcement of an invalid rule violates the Act
even where the enforcement consists merely of in-
structing an employee to cease engaging in union
activity. 2 6 We therefore find that Respondent vio-
lated Section 8(a)(1) by telling Hildreth to remove
her button. 27
CONCLUSIONS OF LAW
1. Saint Vincent's Hospital is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale and De-
partment Store Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
23 To be effective, a repudiation must be timely, unambiguous, specific
in nature to the coercive conduct, and free from other proscribed illegal
conduct. The repudiation must be adequately published, and the employ-
er must not engage in proscribed conduct after the publication. Pas.savant
Memorial Area Hospital, 237 NLRB 138 (1978). Cf. Baldor Electric Com-
pany, 245 NLRB 614 (1979).
a4 See, generally, Carolina American Textiles. Inc., 219 NLRB 457
(1975); Texberry Container Corporation, 217 NLRB 58 (1975).
25 See Custom Trim Products, 255 NLRB 787 (1981), where the Board
adopted an administrative law judge's issuance of a cease-and-desist order
for an overly broad rule which was maintained for only 20 days.
25 Winn-Dixie Stores. Inc., 224 NLRB 1418, 1428-29 (1976).
27 See Schwan's Sales Enterprises, Inc., 257 NLRB 1244 (1981).
3. By permitting nonunion solicitation during
working time while prohibiting union solicitation
during working time, by interrogating employee
Cynthia Hildreth concerning her union activities,
by instructing its supervisor, John Gilbert, to
engage in surveillance of its employees' union ac-
tivities, by maintaining an overly broad rule gov-
erning the wearing of insignia, and by enforcing
that rule against employee Cynthia Hildreth, Re-
spondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By reprimanding employee Linda Menefee
and by reprimanding and discharging employee La-
Costa Miles because of their union activities, Re-
spondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
5. The above-described unfair labor practices are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
6. All other allegations of the complaint herein
that Respondent has engaged in unlawful conduct
have not been supported by substantial evidence.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act, we shall order Respondent to
cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act. Accordingly, we shall order Respond-
ent to offer LaCosta Miles immediate and full rein-
statement to her former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and to
make her whole for any loss of earnings she may
have suffered as a result of the discrimination prac-
ticed against her by paying to her a sum equal to
what she would have earned, less any net interim
earnings, plus interest. Backpay shall be computed
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon to be computed in the manner de-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). 2
We shall also order Respondent to expunge from
its records any reference to the unlawful discharge
of Miles and to the unlawful reprimands issued to
Miles and Linda Menefee.
21 See, generally, Isis Plumbing & Heating Cao., 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
42
SAINT VINCENT'S HOSPITAL
In accordance with our decision in Hickmott
Foods, Inc., 242 NLRB 1357 (1979), we shall also
provide a narrow cease-and-desist order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Saint Vincent's Hospital, Birmingham, Alabama, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, reprimanding, or otherwise dis-
criminating against employees because they engage
in union activities.
(b) Discriminatorily enforcing its no-solicitation
and no-distribution rule against employees who
engage in union activities.
(c) Maintaining a rule which prohibits employees
from wearing insignia, pins, or buttons at all loca-
tions on its property while employees are on duty
or in uniform.
(d) Enforcing against employees a rule which
prohibits the wearing of insignia, pins, or buttons at
all locations on its property while employees are
on duty or in uniform.
(e) Interrogating employees concerning their
union activities.
(f) Instructing or ordering its supervisors to
engage in surveillance of its employees' union ac-
tivities.
(g) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer LaCosta Miles immediate and full rein-
statement to her former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make
her whole for any losses incurred by reason of the
discrimination practiced against her in the manner
set forth in the section of this Decision entitled
"The Remedy."
(b) Expunge from its files any reference to the
discharge of LaCosta Miles and to the reprimands
issued to LaCosta Miles and Linda Menefee, and
notify each of them, in writing, that this has been
done and that its unlawful conduct will not be used
as a basis for future personnel actions concerning
them.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Birmingham, Alabama, facility
copies of the attached notice marked "Appen-
dix."2 9 Copies of said notice, on forms provided by
the Regional Director for Region 10, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaints be,
and they hereby are, dismissed insofar as they
allege violations of the Act not specifically found
herein.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, reprimand, or oth-
erwise discriminate against our employees be-
cause they engage in union activities.
WE WILL NOT discriminatorily enforce our
no-solicitation and no-distribution rule against
employees who engage in union activities.
WE WILL NOT maintain a rule which prohib-
its our employees from wearing insignia, pins,
or buttons at all locations on our property
while our employees are on duty or in uni-
form.
WE WILL NOT enforce against our employ-
ees a rule which prohibits the wearing of insig-
nia, pins, or buttons at all locations on our
property while our employees are on duty or
in uniform.
WE WILL NOT interrogate our employees
concerning their union activities.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT instruct or order our supervi-
sors to engage in surveillance of our employ-
ees' union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer LaCosta Miles immediate
and full reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to her seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
her whole, with interest, for any losses in-
curred by reason of the discrimination prac-
ticed against her.
WE WILL expunge from our files any refer-
ences to the discharge of LaCosta Miles and to
the reprimands issued to LaCosta Miles and
Linda Menefee, and WE WILL notify each of
them, in writing, that this has been done and
that our unlawful conduct will not be used as
a basis for future personnel action concerning
them.
SAINT VINCENT'S HOSPITAL
DECISION
STATEMENT OF THE CASE
PHILIP M. BROWNING, Administrative Law Judge:
Upon a charge filed on May 14, 1980, and an amended
charge filed on June 25, 1980, by Local 1199, National
Union of Hospital and Health Care Employees, Retail,
Wholesale and Department Store Union, AFL-CIO
(hereinafter the Union), against St. Vincent's Hospital
(hereinafter Respondent), the General Counsel of the Na-
tional Labor Relations Board (hereinafter the General
Counsel), through the Regional Director for Region 10
of the Board, issued his complaint and notice of hearing
dated August 12, 1980, in Case 10-CA-15828. Upon a
charge filed by the Union on September 4, 1980, against
Respondent, the General Counsel issued his complaint,
order consolidating cases, and notice of hearing dated
September 26, 1980, in Cases 10-CA-16214 and 10-CA-
15828. Upon a charge filed by the Union on November
21, 1980, against Respondent, the General Counsel issued
his complaint (as amended January 9, 1981), order con-
solidating cases, and notice of hearing dated December
31, 1980, in Cases 10-CA-16444, 10-CA-16214, and 10-
CA-15828.
Respondent, by its duly filed answers to each of the
indicated complaints, essentially denied and placed in
issue the allegations of unfair labor practices contained
therein.
A hearing was held in Birmingham, Alabama, on
March 9 and 10, 1981, in which all parties participated.
Post-hearing briefs were filed on behalf of all parties by
counsel and have been carefully considered.
Upon the entire record in these consolidated cases, and
from my observation of the testimonial demeanor of the
witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
A. Respondent
At all material times, Respondent has been and is an
Alabama corporation with office and place of business
located in Birmingham, Alabama, where it is engaged as
a health care institution in the operation of a hospital
providing inpatient and outpatient medical and profes-
sional care services. During the representative 12-month
period immediately preceding issuance of the original
complaint in Case 10-CA-15828, Respondent received
gross revenues exceeding $250,000 in the course and con-
duct of that business and received at its Birmingham, Al-
abama, institution supplies valued in excess of $5,000 di-
rectly in interstate commerce from places outside the
State of Alabama. I find that Respondent is, and at all
times has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
B. The Union
The answers admit, and I find, that at all material
times the Union is and has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues Involved
The basic issues were set forth in the brief of the Gen-
eral Counsel, viz, whether a preponderance of credible
evidence supports findings that Respondent: (1) main-
tained and enforced rules that prohibited employees from
displaying union insignia in nonpatient care areas, in vio-
lation of Section 8(a)(1) of the Act; (2) interrogated em-
ployees concerning their membership in union activities
and desires in violation of Section 8(a)(1) of the Act; (3)
instructed its employees to surveil their fellow employ-
ees' activities on behalf of the Union, in violation of Sec-
tion 8(aXl) of the Act: (4) reprimanded its employee,
Linda Menefee, because she engaged in activities on
behalf of the Union, in violation of Section 8(a)(3) and
(1) of the Act; and (5) reprimanded and discharged its
employee, LaCosta Miles, because she engaged in activi-
ties on behalf of the Union, in violation of Section 8(aX3)
and (1) of the Act.'
I Respondent's contentions with respect to the procedural issues raised
by it on brief, vlr (I) that the General Counsel's earlier withdrawal of the
charges relating to the warning given Linda Menefee and to the termina-
tion of LaCosta Miles bars their subsequent filing herein and (2) that the
absence of an embracing charge in the case of the alleged warning given
Miles warrants its dismissal, have been considered and, in the absence of
a showing that the filing of the related complaints was in any way barred
by Sec. 10(b) of the Act or that the contentions otherwise are meritori-
ous, are not found to constitute an impediment to a consideration of the
enumerated issues on the merits.
SAINT VINCENT'S HOSPITAL
B. The Dress Code
1. The facts
The first complaint alleges in essence that Respondent
maintains and has enforced an overly broad rule that
prohibits the wearing of union insignia or buttons at all
times while on hospital property. In its answer Respond-
ent admits that its employee handbook, published in
1978,2 contained a rule with respect to identification
badges which included, inter alia, the following para-
graph:3
In addition to the official hospital identification
badge, associates are permitted to wear official
school or occupational pins, but no other insignia,
pins, or buttons are permitted to be worn by asso-
ciates while on duty or while in uniform on hospital
property.
In an amended answer to the first complaint, Respond-
ent indicates that its employee handbook was amended
on September 15 to contain, inter alia, the following re-
vised paragraph with respect to identification badges:4
In addition to the official hospital identification
badge, associates are permitted to wear official
school or occupational pins, but no other insignia,
2 All dates hereinafter are in 1980 unless otherwise indicated.
s The entire rule reads:
IDENTIFICATION BADGES
St. Vincent's Hospital follows official personnel identification pro-
cedures to maintain hospital security for patients, visitors, and asso-
ciates.
All associates are provided with identification badges when they
are employed. It is a requirement that these badges be worn by all
associates when they are on duty.
There is no charge for the first badge. When a badge is lost or
mutilated, the associate contacts the Personnel Department for a new
badge. A nominal fee is charged for the replacement badge.
An associate who leaves the employment of the hospital may not
receive a final paycheck until the identification badge is returned to
the Personnel Department.
In addition to the official hospital identification badge, associates
are permitted to wear official school or occupational pins, but no
other insignia, pins, or buttons are permitted to be worn by asso-
ciates while on duty or while in uniform on hospital property.
' The entire revised rule (after September 15) reads:
IDENTIFICATION BADGES
Photo Identification Badges are issued to all associates by the Per-
sonnel Department. Associates are required to wear identification
badges at all times while on hospital premises.
An associate who changes name, job title, or department is re-
quired to have a new badge made. This badge is issued without
charge.
For lost, mutilated, or destroyed badges, a nominal fee will be
charged for replacement.
At termination the associate is required to return the badge to the
hospital.
In addition to the official hospital identification badge, associates
are permitted to wear official school or occupational pins, but no
other insignia. pins, or buttons are permitted to be worn by asso-
ciates in immediate patient care areas which include the patients'
rooms, operating rooms, and places where patients receive treatment
(such as X-Ray and therapy areas), corridors and sitting rooms ad-
joining or accessible to patient rooms and treatment rooms, and ele-
vators or stairways used substantially to transport patient[s].
pins, or buttons are permitted to be worn by asso-
ciates in immediate patient care areas which include
the patients' rooms, operating rooms, and places
where patients receive treatment (such as X-Ray
and therapy areas), corridors and sitting rooms ad-
joining or accessible to patient rooms and treatment
rooms, and elevators or stairways used substantially
to transport patient[s].
It is uncontroverted that, prior to the promulgation of
the September 15 revision, Respondent, through its as-
sistant director of nurses, enforced the rule.
For several days in April (April 10-16) employee Cyn-
thia Hildreth wore her union button to work. Hildreth
testified that, on April 16, Medical Nursing Manager
Linda Piccard advised her the union pin (Local 1199)
she was displaying was contrary to hospital policy, not
part of the uniform, and that she was not to wear any-
thing on her uniform but a name tag and her school des-
ignation. Hildreth responded by inquiring whether the
practice of other employees in wearing various pins,
flowers, and other insignia was against hospital policy
also, to which Piccard replied in the affirmative. The
conversation took place in front of the nurses desk in a
patient unit known as "Seventh-Main." Piccard testified
that on that day she had inspected employees on various
shifts for the proper display of the identification badges
required of all employees and their general compliance
with the hospital dress code, i.e., to make certain they
had on the pins they were supposed to and were not
wearing things that were prohibited. She found employ-
ees were wearing various types of paraphernalia, such as
bunny rabbits, extra pins, chickadees, etc. She asked
them to remove all except their identification badges and
nurse's or school pins. A nurse's pin denotes the school
conferring the nursing degree and usually also indicates
whether the wearer is a registered, or a licensed practi-
cal, nurse. Nurses are required to wear their pins. While
Piccard had on a number of previous occasions request-
ed employees to remove other pins, buttons, etc., she tes-
tified she had never previously directed the removal of a
union button. On the occasion in issue, Piccard ap-
proached Hildreth from a distance and noted the latter's
school pin and "another pin" and asked if the other pin
was a nursing pin. When Hildreth replied in the nega-
tive, Piccard requested its removal. It was only when
Hildreth was in the process of removing it that Piccard
noted what kind of pin it was.
2. Analysis and concluding findings
The undisputed facts are that prior to September 15
Respondent maintained a rule prohibiting employees
from wearing insignia, other than those of a professional
nature, which was not restricted to patient care areas. It
is also undisputed that the rule was amended effective
September 15 as to apply only to patient care areas. I
find that the rule maintained prior to September was
overly broad and unlawful, as it was not restricted to pa-
tient care areas.5 Thus, Respondent, by maintenance of
I George J. London Memorial Hospital, 238 NLRB 704, 708 (1978).
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the dress code as it existed prior to its revision of Sep-
tember 15, violated Section 8(a)(1) of the Act.
Further, it is uncontested that Respondent, through
the medical nursing manager, enforced the rule on April
16 by informing employee Cynthia Hildreth that the
union pin she was displaying on her uniform was con-
trary to hospital policy and, accordingly, must be re-
moved. This incident occurred in a patient care area, and
Piccard was making a periodic inspection for dress code
compliance. While there is no evidence that the dress
code was in that instance discriminatorily enforced, the
Board has held that when an employer maintains an
overly broad no-solicitation rule (a union button is a
form of solicitation), the rule is invalid for all purposes.
Accordingly, if enforcement of the rule results in disci-
pline, the discipline is unlawful even though the activity
may have otherwise been lawfully restricted from a par-
ticular area.6
Thus, if discipline had resulted from Respondent's en-
forcement of its unlawful rule on April 16, it would have
been unlawful, in violation of Section 8(a)(l) of the Act,
notwithstanding Respondent's assertion that the dress
code was not discriminatorily enforced. Hildreth was
neither reprimanded nor warned, however, and there is
no remedy appropriate under the circumstances save the
entry of an appropriate order to assure Respondent's
future compliance with the Act in the maintenance and
enforcement of a dress code. There is, however, no con-
tention raised that maintenance of Respondent's revised
dress code is overly broad, or otherwise violative of Sec-
tion 8(a)(l) of the Act, and there was no evidence pre-
sented that could serve as a basis for a finding that the
rule was ever discriminatorily enforced. It is, therefore,
concluded that the mandate of a remedy in this instance
would not serve a useful purpose since Respondent's rule
as presently contained in its amended employee hand-
book does not appear unlawful on its face.
C. The Interrogation
1. The facts
The second complaint alleges an instance of unlawful
interrogation of an employee by Unit Coordinator Linda
Vann, who was at all times material an admitted supervi-
sor. 7
On September I at or about 12:05 p.m., which was
during employee Cynthia Hildreth's lunch break on the
last day of her employment,8 Hildreth placed union lit-
erature in the locker room on "Third-Main."
According to Hildreth, when she was walking away
from the locker room toward the elevators, Unit Coordi-
nator Vann addressed her with a "hey, you" and in-
quired as to whether she had been in the locker room.
Hildreth replied in the affirmative, and Vann asked if she
had left the material she was carrying (leaflets) in the
6 A. T & S F Memorial Hospital, Inc., 234 NLRB 436 (1978).
7 At the time of hearing, Linda Vann was no longer associated with
Respondent.
a Cynthia Hildreth was employed at the hospital as an L.PN (licensed
practical nurse) from October 1973 to September I, when she resigned to
marry and move to Chicago.
locker room.9 Hildreth affirmatively replied and then
said: "It is legal for me to do this because the locker
room is a non-patient care area." Vann then asked for
her name and where she worked, to which Hildreth re-
sponded with her name and the fact she worked on
"Seventh-Main." Hildreth also told Vann that she was
on her lunch break and then walked away holding some
union leaflets of the kind she had deposited in the locker
room on "Third-Main" and distributed on other floors
that day. "Seventh-Main" where Hildreth worked, is
four floors from "Third-Main," where the conversation
in question occurred and where Vann worked. Hildreth
acknowledged that Vann probably did not know her,
that when Vann first addressed her as indicated her back
was to Vann, and that she was smiling throughout the
encounter since it had occurred in a pleasant atmosphere.
Hildreth also testified that she had received a verbal
warning from her supervisor, Virginia Wallace, who was
unit coordinator, for violating the no-solicitation rule.
This warning was not alleged to be a violation of the
Act in this action.
While Vann's version of the episode in issue varies in
some particulars, it does not differ significantly from that
of Hildreth. She was sitting at the nurses station on
"Third-Main" at or about 12:05 p.m. on September I
when she heard the locker room door open. When she
looked up, she saw a nurse whom she did not recognize
walk by her station. VMnn was policing the activity on
"Third-Main" since it is an OB floor with many visitors
and there had been thefts of billfolds from both patients
and employees on the floor. She believed the locker
room empty and was policing it to see that no one en-
tered that she did not recognize. As she did not recog-
nize Hildreth, she tried to stop her with an "excuse me."
Hildreth, however, kept walking and Vann finally got up
and followed her, stopped her halfway down the hall
with another "excuse me." Vann asked Hildreth if she
had just come out of the locker room. Hildreth turned
around to face Vann "grinning" and answered that she
had. Vann noticed the papers Hildreth had in her hand.
The way Hildreth had them turned, Vann could and did
recognize them as union literature. Vann then asked
what she was doing there and whether she had left some
of the literature in the locker room. Hildreth laughed
and replied that she had and that she could do anything
she wanted to in a nonpatient area as long as she was on
her own time. Vann then asked for her name and wheth-
er she was on her lunchtime or breaktime, and Hildreth
answered with her name and that she was on her lunch
break. Vann asked her where she worked, to which she
responded "Seventh-Main" and Vann thanked her and
walked away. Vann did not recognize Hildreth as
anyone she knew even after Hildreth identified herself,
and did not reprimand her for leaving union literature in
the locker room. During the course of her testimony,
Vann expressed an opinion that, although the locker
room was a nonworking area, it would have been con-
trary to hospital policy to leave union literature there for
the reason that those persons who enter that area would
o According to Hildreth, this area is used by nurses to rest, read, use
the restroom located there, and store their purses.
46
SAINT VINCENT'S HOSPITAL
not necessarily be on their breaks and thus would not be
allowed to leave it there.
Virginia Wallace, who was Hildreth's supervisor at the
time in question, testified that, while she had been aware
of the incident, she never verbally reprimanded Hildreth
for soliciting or distributing union literature.
2. Analysis and concluding findings
There is no real dispute that, as contended by the Gen-
eral Counsel, Unit Coordinator Vann asked employee
Cynthia Hildreth, after the latter left the locker room on
"Third-Main," whether she had left some union literature
in the locker room, and that Vann did so after recogniz-
ing the leaflets as union literature.
The questioning cannot be taken out of context, how-
ever. There had been a theft problem on "Third-Main"
involving billfolds. That floor has many visitors. The
locker room is used by nurses too, among other things,
store their purses. Vann was policing the locker room to
see no one entered whom she did not recognize. She
thought the locker room to be empty. She did not recog-
nize Hildreth as the latter emerged from the locker
room, and tried to, and finally did, get her stopped half-
way down the hall. Vann asked her if she had just come
out of the locker room. After Hildreth turned around to
face Vann, the latter saw the papers Hildreth had in her
hand, identified them as union literature, and asked Hil-
dreth what she was doing in the locker room. Then she
asked about the leaflets. Hildreth was smiling throughout
the encounter since it occurred in a pleasant atmosphere.
Hildreth answered truthfully that she had left the leaflets
in the locker room. She claimed to know her rights to
do so, and so stated them.
No one can seriously question the propriety of Vann's
policing of traffic on "Third-Main" in view of the fre-
quency of strangers and the prior thefts on the floor in-
volved. Here, there could have been no connection be-
tween the questioning of Hildreth and her prior union
activities since she worked on "Seventh-Main," four
floors away, and Vann did not recognize her as anyone
she knew even after Hildreth identified herself. Similarly,
there was no connection between the questioning of Hil-
dreth and the fact that it occurred on Hildreth's lunch
break on her last day of employment with the hospital.
She was not terminated but resigned to marry and move
to Chicago. The questioning here was an isolated inci-
dent, not part of any systematic and intensive interroga-
tion. Hildreth gave truthful answers without fear of
reprisal. As seen, this was her last day of work, and she
claimed to know her rights to distribute union literature
and stated them to Vann. Vann neither reprimanded nor
scolded Hildreth. While the latter claimed to have been
orally warned by her supervisor, Virginia Wallace, this
warning was not alleged to be a violation of the Act in
this action, and Wallace denied ever verbally reprimand-
ing Hildreth for soliciting or distributing union literature.
The facts do not rise to the level of coercion.
Under all of the circumstances presented here, I find
and conclude that the evidence does not sustain the con-
tention of counsel for the General Counsel and of the
Union that Respondent by and through Unit Coordinator
Linda Vann on or about September 1, in and about the
vicinity of its hospital, unlawfully interrogated its em-
ployees. Accordingly, I find and conclude that the evi-
dence in this nature does not sustain a violation of Sec-
tion 8(a)(1) of the Act. 'o
On brief, the General Counsel charges that Respond-
ent also violated Section 8(a)(1) of the Act by maintain-
ing an invalid no-distribution rule. This violation was not
alleged in the complaint, but counsel for the General
Counsel points out that this is not a bar to such a finding,
since the Board law is clear that a finding may be made
thereon as the matter was fully litigated at the hearing,
and Respondent had ample opportunity to offer evi-
dence.
The basis of the new charge is Unit Coordinator
Vann's responses to the following questions that appear
in the transcript of testimony:
Q. Is the locker room a working area?
Q. Is it a working area?
Q. Yes.
A. No, sir.
Q. So, no one would be prohibited from distribut-
ing literature in the locker room?
A. It is not considered a working area.
Q. In other words, an employee would be free to
distribute literature on his own time in that area? It
wouldn't be a violation of hospital policy to do that,
would it?
Q. Do you understand my question?
A. Would it be against hospital policy to leave
literature in the locker room?
Q. Right.
A. It would be because the ones that go through
there are not necessarily on their breaks. So, they
would not be allowed to leave it in there. They
could read it like downstairs in the cafeteria, in the
canteen, or in the lobby, but, no, they would not be
allowed to read it in the locker room because not
all the people are on breaks in there.
Q. So, it was contrary to hospital policy to leave
literature in a non-working area?
A. No, that's not against policy.
From at least a portion of this exchange, counsel for
the General Counsel apparently concludes that Vann
stated that it is contrary to hospital policy to distribute
literature in the locker room, yet acknowledging that the
locker room is a nonworking area.
While some of Vann's answers in the exchange may
have been confusing, I do not share counsel's interpreta-
tion of them. In essence, she was asked for her interpre-
tation of hospital policy as it relates to the locker room.
She may not have fully understood the question, "Would
it be against hospital policy to leave literature in the
locker room?" and was not as clear as she might have
been in her answer. In any event, the basis of her opinion
was stated, and a reading of the entire exchange between
counsel and witness does not sustain counsel's contention
on brief that by that exchange Vann admitted to the
10 Cf. N.LR.B. v. Camao Incorporated, 340 F.2d 803, 807 (5th Cir.
1965), cert. denied 382 U.S. 926.
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance of an overly broad no-distribution rule. Ac-
cordingly, I find and conclude that the evidence in this
instance does not constitute a violation of Section 8(a)(1)
of the Act.
D. The Solicited Surveillance
1. The facts
Paragraph 7 of the complaint issued December 31 al-
leges that Respondent, by its supervisor and agent, Nurs-
ing Supervisor Lorraine Hartley, "solicited its employees
to surveil their fellow employees' activities on behalf of
the Union."
The General Counsel offered the testimony of former
Security Supervisor John Gilbert as proof of that allega-
tion.11 His testimony was also offered to show that Re-
spondent did entertain hostility towards its employees'
union activities.
Gilbert first testified concerning an incident that alleg-
edly occurred in October 1979 when Security Director
William B. King, then Gilbert's superior, assertedly in-
formed him that there was going to be a union seminar
in the Sheraton Motor Inn, Downtown, that he (King)
wanted to know what would transpire, who would
attend from St. Vincent's, and who would attend from
other hospitals. King, according to Gilbert, wanted him
to remember faces and names of those in attendance and
bring that information back. King told him to get in and
out without being seen, if possible, since it was against
the law for him to be there in the first place. Gilbert tes-
tified that he told King he would do it and that he at-
tended the seminar held in October 1979 and reported
back to King. According to Gilbert, King told him "it
was very important that I keep this between me and him
because what had happened was against the law and that
he didn't want me to discuss it with anybody else in the
department or in the hospital, that it should be just mine
and his little secret." Gilbert testified that he went to the
union meeting and reported back to King that there were
people from St. Vincent's in attendance, as well as from
other hospitals, but was unable to provide names because
he did not know anybody's name.
Further to show Respondent entertained hostility
toward the Union, the General Counsel offered Gilbert's
testimony relating to another incident involving King
that allegedly occurred prior to the spy episode, in Sep-
tember 1979, and during which King had assertedly di-
rected the security personnel to identify individuals pass-
ing out union literature outside of the hospital, to stay
out of sight of those from the Union passing out the
pamphlets but to submit to him the names of those indi-
viduals in writing as soon as possible. Gilbert testified he
did as instructed on more than one occasion.
In support of the allegation contained in paragraph 7
of the third complaint the General Counsel offered the
t" The General Counsel concedes the record reflects that Gilbert was
at all times relevant a supervisor within the meaning of the Act. Accord-
ingly, since the matter was fully litigated at the hearing, Gilbert's testi-
mony is treated as having been offered, inter alia, in support of the Gen-
eral Counsel's contention on brief that Respondent violated Sec. 8(aXl)
of the Act by instructing its supervisor, Gilbert, to surveil its employees'
union activities. See Crown Zellerbach Corporation, 225 NLRB 911 (1976).
testimony of Gilbert relating to an incident allegedly oc-
curring in September, not in August as set forth in the
complaint. Gilbert testified that he was summoned to the
second floor of the main wing by Nursing Supervisor
Lorraine Hartley who asked him if he knew that the
Union was outside handing out handbills and whether he
knew any of the employees involved. Gilbert responded
that he was aware that the Union was distributing hand-
bills outside but that he did not know any of the employ-
ees. Hartley reportedly then identified three of the indi-
viduals by name, viz, Cynthia Hildreth, Don Douglas,
and LaCosta Miles, and in Gilbert's sight and hearing
then talked with Medical Nursing Manager Linda Pic-
card, requesting the particular location where Miles
worked. Hartley then instructed Gilbert to keep his eye
on them and to report the matter to King. Gilbert did so
by leaving a note in King's desk that morning, as he had
been instructed to do, so that the names could be turned
over to the hospital's attorneys and would go undetected
in event Respondent's files were to be subpoenaed to
court. This procedure was assertedly instituted by King
in September 1979, prior to the retention of counsel of
record.
At the time of hearing, Gilbert was no longer associat-
ed with the hospital, having resigned on October 30. The
circumstances of his resignation, as conceded by Gilbert,
were that King advised him that he had a choice of
being fired or of resigning, i.e., King was going to
demote him, and he resigned rather than take the demo-
tion. Gilbert claimed to harbor no resentment toward
either King or the hospital as a result and also claimed to
think King justified in his action. Gilbert voluntarily
gave a statement to a Board agent approximately 2
weeks after his resignation and appeared voluntarily to
testify at the hearing herein because he felt that "there
was a lot of injustice being done to a lot of people,"
citing as two examples the incidents involving the union
meeting and Hartley. He also referred to "injustices"
perpetrated upon himself, but gave no particulars. Gil-
bert expressed displeasure, however, over the fact that,
while he was supposed to have authority to reprimand
the three men he had working under him, King never
permitted him to exercise that authority. He testified fur-
ther that one of the men he had tried to discipline ended
up by getting his job when he resigned and noted that
King is an ex-Birmingham policeman, as is the man that
got his job.
In his testimony on behalf of Respondent, King stated
that his decision to demote Gilbert was based upon the
latter's falsification of a timecard and that Gilbert re-
signed rather than take the demotion. King specifically
denied that he had instructed Gilbert to attend a union
seminar and to report the names of employees in attend-
ance. He did testify he had heard from an ex-employee
that Gilbert had attended a union meeting. King also
denied that Gilbert had provided him with any names of
employees picketing or leafleting the hospital. He also
testified that he did not recall giving Gilbert any instruc-
tions to identify the people who were handbilling to see
whether they had been authorized to be in the hospital.
He also testified that the security force was alerted when
48
SAINT VINCENT'S HOSPITAL
union advocates appeared at the hospital entrances.
Those persons were identified, where possible, and that
information, including the handouts, were given to the
attorney representing the hospital at that time. At shift
change time, security would dispatch guards to the en-
trances to keep them open.
2. Analysis and concluding findings
As noted previously, the General Counsel offered the
testimony of former Security Supervisor John Gilbert for
two purposes, viz: (1) to show that Respondent did enter-
tain hostility toward its employees' union activities,12
and (2) as proof of the charge that Respondent through
Nursing Supervisor Lorraine Hartley "solicited its em-
ployees to surveil their fellow employees' activities on
behalf of the Union."
As was previously observed above,' 3 Gilbert's testi-
mony is treated here as having been offered, inter alia, in
support of the General Counsel's contention on brief that
Respondent violated Section 8(a)(l) of the Act by in-
structing its supervisor, Gilbert, to surveil its employees'
union activities since the matter was fully litigated at the
hearing.
According to Gilbert, in September, Nursing Supervi-
sor Lorraine Hartley identified three employees (Cynthia
Hildreth, Don Douglas, and LaCosta Miles) to him as
being among those individuals outside the hospital dis-
tributing union literature. Within his sight and hearing,
she conversed with Medical Nursing Manager Piccard to
determine Miles' work location, and then instructed Gil-
bert to "keep my eye on them and to be sure to report
this to [Security Manager] King."
Respondent offered no testimony to refute Gilbert's
testimony in this regard. Hartley did not appear or tes-
tify as a witness for Respondent. Since she was in a posi-
tion to refute Gilbert's testimony, Respondent's failure to
call Hartley to testify raises an inference that her testi-
mony would have been unfavorable to Respondent. 1 4
Further, although Piccard did testify on Respondent's
behalf, she failed to testify about the conversation be-
tween Hartley and Gilbert. While Respondent did offer
testimony to contradict Gilbert's testimony relative to his
alleged spying at a union seminar at the behest of the se-
curity director, Gilbert's testimony in respect to the fore-
going incident stands as undisputed fact' s and must be
credited.
The undisputed evidence of record, therefore, shows
that Respondent instructed Gilbert, a supervisor, to sur-
veil its employees' union activities and inform it with re-
spect thereto. The Board has held that an employer's
instructions to a supervisor to surveil its employees'
I' The controverted portion of Gilbert's testimony, which was offered
to show union animus on the part of Respondent by reason of the assert-
ed direction by Security Director King of both the spy episode and the
other 1979 surveillance incident, is not credited in view of Gilbert's mani-
fest hostility toward King and the undisputed reason for Gilbert's dis-
charge. While he denied harboring a grudge, Gilbert's testimony radiated
resentment toward King for his alleged mistreatment by the latter.
La See fn. Il, supra.
14 Goodyear Tire & Rubber Company Highway Transportation Depart-
ment, 190 NLRB 84. 86, fn. 3 (1971).
is Locke Insulators. Inc., 218 NLRB 653 (1975).
union activities violate the Act."' As seen, paragraph 7
of the complaint alleges that Respondent solicited its em-
ployees, rather than its supervisors, to surveil. Nonethe-
less, Respondent's activities were no less unlawful and, as
the allegations were fully litigated, they support a finding
that Respondent violated Section 8(a)(1) of the Act. "
Accordingly, I find and conclude that the evidence
sustains the contention of counsel for the General Coun-
sel and the Union that Respondent unlawfully instructed
its supervisor, John Gilbert, to surveil its employees'
union activities, in violation of Section 8(a)(1) of the Act.
E. The Reprimands of LaCosta Miles and Linda
Menefee, the Termination of Miles, and the No-
Solicitation Rule
1. The facts
a. The reprimand and termination of LaCosta Miles
The January 9, 1981, amendment to the December 31
complaint issued herein charges Respondent with unlaw-
fully issuing an "Employee Counseling and Corrective
Action Notice"'8 to its employees, Linda Menefee'9 and
LaCosta Miles, and with unlawfully discharging and
thereafter refusing to reinstate its employee, LaCosta
Miles. These allegations involve Respondent's enforce-
ment of its no-solicitation policy.
(1) The no-solicitation policy
The hospital policy relating to solicitation, which the
General Counsel does not here contend is per se unlaw-
ful, is divided into several parts. As pertinent here, the
policy prohibits: (1) "solicitations of any kind" which
may interfere with "patient care or disturb patients" in
"immediate patient care areas" including, among others,
"corridors and sitting rooms adjoining or accessible to
patient rooms and treatment rooms"; and (2) "solicita-
tions of any kind" by "associates who are supposed to be
working" or solicitations which "interfere with the work
of other associates who are supposed to be working";
and (3) violations of the no-solicitation policy 20 will
't Belcher Towing Company, 238 NLRB 446 (1978); Harvey's Wagon
Wheel, Inc., d/b/a Harvey's Resort Hotel & Harveys Inn, 236 NLRB 1670,
1681 (1978).
1 Crown Zellerbach Corporation. supra. and cases cited therein.
I" A euphemism for reprimand.
I' The reprimand of Linda Menefee will be treated infra.
O0 The no-solicitation policy in its entirety is set forth below:
POLICY
In order to protect persons within the hospital from unnecessary an-
noyance or inconvenience by any form of solicitation or distribution
of literature, the following rules will be enforced:
No distribution of any kind, including circulars or other printed ma-
terials, shall be permitted in any work area at any time.
No solicitations of any kind, including solicitations for memberships
or subscriptions, which may interfere with patient care or disturb pa-
tients will be permitted in immediate patient care areas which in-
clude the patients' rooms, operating rooms, and places where pa-
tients receive treatment (such as X-ray and therapy areas), corridors
and sitting rooms adjoining or accessible to patient rooms and treat-
ment rooms, and elevators or stairways used substantially to trans-
port patients.
Continued
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"subject associates to disciplinary action in accordance
with the hospital personnel policy."
(2) The reprimand
According to Miles, her immediate supervisor, Unit
Coordinator Betty Eaford, called her into her office on
October 1. Eaford told Miles that she had been soliciting
employees in the intensive care unit (hereinafter ICU)
conference room, which was against the hospital no-so-
licitation policy because the ICU conference room was
considered to be a patient care area. When Miles re-
sponded that she did not know that the conference room
was a patient care area, Eaford stated that the hospital
considered it to be a patient care area since it was used
by nurses for change-of-shift reports concerning patients'
progress and as a place to console patients' families.
Eaford also presented Miles with the following written
reprimand for soliciting, which is dated September 26:
Solicitation of St. Vincent's associates within de-
partmental work areas during work hours on Sep-
tember 5 and September 12. This type of activity is
in violation of Administrative Policy No. 8650449.
Any more solicitations in violation of Hospital
Policy will subject you to termination.
Miles read the notice of reprimand, and Eaford re-
quested her to sign it. Miles refused, stating that she
would have to check her book. Miles testified that she
declined to sign because she could not remember what
she had done on the specific dates indicated. In any
event, Miles never came to Eaford with contrary infor-
mation. At the time she received the reprimand, Miles
was given a copy of the no-solicitation policy and was
asked if she were aware of it. She answered affirmative-
ly.
According to Eaford, the bases of the reprimand were
the two instances of solicitation by Miles involving em-
ployees Roselle Bonner and Lois Hill in two patient care
areas, viz the ICU conference room and the conference
room on "Third-East," respectively. Eaford was told
about the Bonner solicitation by Bonner herself and
about the Hill solicitation by Eaford's immediate superior
who had been informed of it by Hill's supervisor. Bonner
informed Eaford that Miles had approached her in the
ICU conference room during or "right after" the
change-of-shift report, and handed her union literature.
Bonner was upset over the incident and told Eaford that
she did not want Miles bothering her. In the other inci-
dent, Miles had reportedly given union literature to Hill
in the conference room on "Third-East." Based upon
those reports Eaford decided to reprimand Miles. She
did not independently investigate either incident. Thus,
the reprimand of Miles by Eaford was based upon the
two reported violations by Miles of the no-solicitation
No solicitation of any kind, including solicitations for memberships
or subscriptions, will be permitted at any time by associates who are
supposed to be working, or in such a way as to interfere with the
work of other associates who are supposed to be working. Anyone
who does so and thereby neglects his or her work or interferes with
the work of others will be subject to disciplinary action.
policy by soliciting in both the ICU and "Third-East"
conference rooms.
While Miles acknowledged talking "one time" to Lois
Hill in the conference room on "Third-East" and talking
to Bonner on several occasions in the kitchen of "Third-
Main" and in the "conference room," 21 she could not re-
member the dates and could not recall talking to Bonner
"at any other place" about the Union. In her testimony
Miles also acknowledged two conversations in the ICU
conference room about the Union with other employees,
viz Deborah Vance, Vicky McCombs, and Debbie Jones,
sometime in September during the course of which she
showed Vance and gave McCombs union literature to
read. Miles claimed she was "on a break" during each
conversation and that Vance and Jones were also "on
break." She did not know that McCombs was on a
break, however. During that conversation Eaford walked
into the conference room, and McCombs returned the
literature to Miles. Miles testified she knew that she was
on her designated 15-minute break during each of those
conversations by virtue of the fact she "had made a nota-
tion to herself that when anybody wanted to talk about
the Union . . . I always tell them . . . wait until I get on
my break." The conversation with Vance and Jones took
place between 10 and 11 p.m., toward the end of Miles'
customary shift of 3 to 11 p.m. Miles was unaware of the
hospital policy forbidding a break toward the end of a
shift, but she was aware that "within the last few
months" the hospital had instructed employees to leave
their work areas to take breaks.
(3) The discharge
According to Miles' version of the episode leading to
her termination, she was about to take a break between
10 and 11 p.m. on October 15, at which time she tele-
phoned the coronary care unit (hereinafter CCU) and
spoke to unit clerk Alice Lockhart. Miles asked Lock-
hart whether employee Inez Jackson was working.
Lockhart replied that she was, but was in the restroom
at that time. Immediately thereafter, Miles left her work
area and went to the CCU to give Jackson "a personal
invitation" to a union meeting at her home. When she ar-
rived at the CCU, Jackson was still in the restroom.
Miles waited for Jackson to come out, standing in the
hallway adjacent to the nurses desk across from the
restroom, in the CCU. When Jackson exited the res-
troom, Miles handed her a sealed envelope containing
the invitation, asking her how she was and telling her
there was something for her in the envelope. Jackson
said nothing, and Miles then left the CCU.2 2 Miles did
21 Miles was recalled by the General Counsel and denied soliciting
Bonner in the ICU conference room.
2 On rebuttal, unit clerk Lockhart testified that she was leaving the
CCU to go on break when Miles walked in. While she did not witness
any conversation between Miles and Jackson, she testified she had ad-
vised Miles when she called the CCU that Jackson was in the restroom.
Lockhart had not seen Jackson come out before Miles walked in, and she
herself walked out of, the CCU. Lockhart also recalled the time of Miles'
call as being between 10 and 10:30 p.m. and that a patient named Under-
wood had died in CCU between 7 and 8 p.m. that day but she could not
recall the date, because she had been "off the job so long."
50
SAINT VINCENT'S HOSPITAL
not know whether or not Jackson was on break on that
occasion and acknowledged that the restroom can be
used anytime at the hospital. Miles, who was not work-
ing in the CCU that night, recalled that the large double
doors leading into both the ICU and the CCU are
marked "Immediate Family Only" or "Visitors Restrict-
ed to Immediate Family, One at a Time, Please" or
"something of that nature."
Respondent presented the testimony of Lydia Thomp-
son with respect to the same episode. Thompson is, and
was at all times pertinent, a registered nurse employed
by the hospital in CCU. On the day in question, Thomp-
son was seated "at the monitor" desk. Miles came into
the CCU and asked for "Inez" (Jackson). Her recollec-
tion was that Jackson was called, but she was busy at the
time and was not "out in the area." Miles had a yellow-
looking envelope in her hand, which she did not put
down but held. Jackson came out of patient Under-
wood's room, came to the nurses desk and told Miles
that she was busy and could not talk to her. Miles there-
upon told Jackson, "Well, I'm leaving this here for you."
She then left the envelope, which was sealed, on the side
of the monitor where it stayed because at that particular
time a "silent code"23 was being worked on patient Un-
derwood. Thompson specifically denied that Jackson
came out of the restroom but, instead, had come out of
Underwood's room to run an EKG because "we were
really swamped at that time." This incident, according to
Thompson, occurred at or about 10:30 p.m. or "a little
after that." 2 4 She also testified that Underwood did not
die until later 2 s but was "real serious" that night.
Thompson acknowledged that she was busy that day and
that there were many things going on at the time in
question because of the "silent code" being worked on
Underwood. Later on, after things quieted down, the
yellow envelope left by Miles for Jackson was opened,
and its contents comprised a yellow invitation to a union
meeting. Thompson had seen Miles come into the CCU
several times previously to talk to the unit clerk or to
someone else with whom she had been talking. On cross-
examination, Thompson responded affirmatively to ques-
tions concerning whether she liked the hospital and
whether she had been treated well there and negatively
to whether she "would want to see a union in there to
disrupt any relationship you have with the people there."
Medical Nursing Manager Piccard also testified con-
cerning her involvement in the episode leading to Miles'
discharge. She conveyed the information she had re-
ceived from talking with some of the personnel who
were on the CCU at that time to "the person in charge
of Miles." Piccard talked with both Jackson and Thomp-
son. While Jackson did not advise her that Miles had in-
terfered with the former's work on that occasion, she did
tell Piccard that she had been told earlier someone was
waiting to see her, that it was several minutes before she
23 "Silent Code" was defined by the witness as "a death threatening
situation to the patient."
24 According to Medical Nursing Manager Linda Piccard. the hospi-
tal's medical records reflect that an EKG was performed on Underwood
at 10:40 p.m. "on the night Ms. Miles is supposed to have made a contact
with Ms Jackson."
25 According to Medical Nursing Manager Piccard, Underwood died
36 hours after the incident in question
came out of the room, that she was too busy to talk with
anyone, and that she just waved off Miles and went on
to do the EKG on Underwood. Piccard relayed the sub-
stance of her conversation with Jackson and Thompson
to the manager of the surgical division, Joyce Williams.
On October 27, Miles was summoned to Unit Coordi-
nator Betty Eaford's office and asked to wait in the ICU
conference room for the arrival of Unit Manager Joyce
Williams. When Williams arrived, they went to Eaford's
office. There she was informed that she had continued to
solicit in patient care areas despite the prior warning that
this was against hospital policy. Miles denied that she
had spoken to anyone about the Union. Williams then di-
rected her attention to the fact that giving another em-
ployee an invitation to a union meeting was a form of so-
licitation and that she was, therefore, being terminated
for soliciting in patient care areas. While Eaford told her
the name of the other employee involved was confiden-
tial, Miles testified that she knew it was Jackson, since
she had given Jackson the invitation.
Eaford had received the report of Miles' October 15
solicitation from her manager, Joyce Williams, who had
in turn received the information from Linda Piccard.
Eaford was herself unaware that it involved an invitation
to a union meeting. She thought the discharge warrant-
ed, however, because Miles had again solicited in a pa-
tient care area, this time the CCU which is an intensive
care area, after being warned she would be terminated if
she solicited again.
b. The intensive care areas and Respondent's
enforcement of its no-solicitation policy
According to the witnesses called by the parties, the
physical layouts and utilization of both of the intensive
care areas, the ICU and CCU, are essentially the same,
with a variation relating to the separation of the nurses
desk from the conference room: The former has a wall
and the latter a window. Thus, a description of the ICU
will suffice for both.
(1) The intensive care areas
The ICU is a self-contained unit that houses the criti-
cally ill, which is separated from the rest of the hospital
by two sets of double wooden doors on either side of the
unit. These doors, which remain closed, are labeled "In-
tensive Care Unit" and are also marked "Visitors Re-
stricted to Immediate Family-One at a Time, Please."
The ICU and CCU are the only units in the hospital set
apart by closed wooden doors.
Outside the double doors there is the ICU waiting
room and a lobby with an elevator. There is also a wait-
ing area in front of the elevators. Upon entering the
double doors on the left, the conference room is on the
right. Upon entering the double doors on the right, the
conference room is on the left. The single doors on both
ends of the conference room leading into the room from
the hallways located at either end have glass at the top
and wood at the bottom.
In addition to the conference room and the nurses sta-
tion adjacent thereto, which is separated from the con-
ference room by a solid wall (in the case of the ICU) or
51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a wall with a window (in the case of the CCU), there are
nine patients' rooms inside the ICU. The distance be-
tween one of the doors to the conference room and one
of the nearest patients' rooms is approximately 6 feet.
Since the conference room doors have glass at the top,
patients can be observed a few feet away by someone sit-
ting at the table in the conference room. In addition to
the conference room, nurses station, and nine patients'
rooms, there are a restroom and two supply areas locat-
ed inside the ICU. While there is no designated break
area in the ICU, there is such an area in "Four-Main,"
which is adjacent to the ICU.
A table is located in the center of the conference
room, which also contains a telephone, a coffeemaker, a
refrigerator, a cupboard, a bulletin board, a mailbox, a
lounge chair, cabinets, and a cupboard.
Coffee from the coffee machine is principally used to
serve the ICU patients. It may also be served to family
members of a patient during a consultation with a
doctor, and night-shift employees are allowed to drink
that coffee. The refrigerator contains juice and milk for
patients, and employees may keep their lunches there.
Stationery and literature on nursing are kept in the cabi-
nets. The mailbox is used to deliver mail concerning hos-
pital business to employees. Employees have also re-
ceived personal mail in the mailbox. The conference
room telephone is used for business calls, but employees
also use it to make and receive personal calls. The
lounge chair is principally used by night-shift nurses for
breaks.
The conference room is not utilized in the treatment of
patients. It has, however, many other uses. It is used for
change-of-shift reports, that is, the off-going shift of
nurses reports the medical condition of the patients to
the on-coming shift. These reports are made while both
shifts are on duty, before those going off duty punch out,
and after those coming on duty punch in at the time-
clock located outside the unit. Clinical conferences are
also conducted in the conference room, as are intrade-
partmental meetings and "relaxation" therapy2 6 classes.
In addition, the doctors at the hospital use the confer-
ence room to consult with the families of patients when
the patient's condition has changed. This is usually bad
news, e.g., death is inevitable, loss of kidney function,
loss of respiratory energy, etc. These conferences usually
involve patients who have "gone sour," and the confer-
ence room is the only place in the hospital that provides
privacy for the family to hear such news. Usually these
sessions involve death or a change just prior to death.
Four deaths occurred during the 2-week period prior to
the hearing. The average death count for a 2-week
period is three. Doctors also use the conference room to
discuss cases among themselves. Respiratory therapists
set their cart on the conference room tables and organize
their work. Nurses may also use the conference room to
chart, i.e., bring a patient's record of treatment or medi-
cations given and doctor notifications up to date, which
becomes part of the permanent record. And night-shift
nurses may use the recliner in the conference room to
26 Classes to teach nurses to relax after a stressful day.
take their "rest breaks," during which they are permitted
to recline for 1 hour.
The conference room is the designated smoking area
since the rest of the unit comprises patients' rooms and
the nurses station. Smoking is not possible at the nurses
desk because of the presence of oxygen and respirators.
Although employees may store their lunches on the
bottom shelf of the refrigerator in the conference room,
they may not eat them in the conference room. While
ICU Coordinator Eaford, who has worked for the hospi-
tal for 20 years, testified she had never observed an em-
ployee eating lunch in the conference room, she ac-
knowledged that prior to August she had seen an em-
ployee eating "chips and coke" in the conference room
and that she had instructed employees not to eat their
lunches in that room. Employees are also not permitted
to take their breaks in the conference room. The hospital
rule is that breaks should be taken in the cafeteria or the
canteen, away from the unit.
ICU patients are seldom ambulatory. If they are at all,
it is limited to their rooms and from their rooms to the
restroom. According to LaCosta Miles, the latter oc-
curred four or five times within the year she worked in
the ICU.
In the opinion of ICU Coordinator Eaford, who has
been a registered nurse for at least 20 years, political ac-
tivities should not be discussed in the ICU in light of the
fact that patients are too close and "when voices start
rising they'll hear all the commotion."
LaCosta Miles, who had been employed "just about a
year" in the ICU prior to her termination in October,
testified that the ICU conference room is used for the
employees "to take a short break, or a break, or what-
ever, we would go into the conference room and read
the paper or drink coffee." She acknowledged, however,
that, within the last few months she worked there, the
employees had been told to take their supper breaks in
the cafeteria or canteen and to leave their work areas to
take their 15-minute breaks. Miles, who was on the 3 to
11 p.m. shift, also recognized that she and her coworkers
could and did drink coffee in the conference room
during worktime.
(2) Solicitation in the ICU
Miles testified to two incidents of nonunion solicitation
that took place in the ICU conference room. One oc-
curred in early March and the other in September or Oc-
tober. The first involved a lingerie shower invitation for
an employee who was getting married.27 The invitation
was received by Miles in the conference room in the first
week of March. The other involved a cake for a retiring
employee whose name Miles could not recall. Neither
act of solicitation occurred in the presence of ICU Coor-
dinator Eaford, but she did notice the shower invitation
posted on the bulletin board in the conference room.
Since August, postings of that nature are not permitted.
There has been no solicitation for Avon or the flower
fund for at least a year. Also, prior to August, there had
" The invitation was received in evidence as G.C. Exh. 9.
52
SAINT VINCENT'S HOSPITAL
been parties in the conference room but not after
August.
(3) Solicitation in other areas
Employee Charlene Weeks testified that, in June, one
of St. Vincent's School of Nursing students sold her two
raffle tickets (to raise money for the school) during
working hours in the pantry area on "Two-East." One of
the school's instructors, Loper, had told her and other
employees about the raffle in the break area on "Two-
East," known as the "little hole," at which time only
other employees were present. On September 22, Weeks
testified that another employee, Patricia Scales, gave her
a United Appeal card in front of the "Second-East"
nurses desk in the hall used as a passageway for patients
and employees to gain access to "different rooms."
Scales reportedly told her that she had been appointed
by Unit Coordinator Belle Snyder to take up money for
the United Appeal from the employees on "Second-
East." This took place when both Scales and Snyder
were working. In October, Belle Snyder reportedly con-
tributed $1 and told Weeks that "we needed to get some-
thing going for Ms. Walker," an employee who was off
sick at the time. This conversation took place in the hall-
way in "Second-East" as Weeks was exiting the pantry.
The location involved is approximately 8 to 10 feet from
a patient's room. Weeks thereafter solicited contributions
for Walker from 19 to 20 other employees over a period
of time in October and early November. A total of $23
was collected and was given to Walker upon her return
to work. No supervisor was present at the time of any of
the solicitations, but Weeks testified that at least four of
the solicitations had occurred at the nurses desk during
the working time of the individuals involved. According
to Weeks, Snyder told her nothing with respect to when
or where she was to take up a contribution. Snyder was
not called to testify.
In October 1980 Unit Coordinator Sharon Blankenship
handed Mellow Smith and other employees a wedding
invitation in the locker room of the labor room during
their worktime, according to employee Smith. Blanken-
ship told them that the reason she handed it to them was
because she did not have their addresses so she could not
mail it. At that time, Smith and the other employees
were sitting in the lounge, smoking cigarettes and drink-
ing coffee; however, they should have been working, ac-
cording to Smith. The locker room is 10 or 15 feet from
the labor rooms. Another instance occurring in October
involved employee Lowe who gave Mellow Smith a
wedding shower invitation in the locker room. She also
placed invitations in other employees' lockers. At the
time Mellow Smith was getting ready to go to work and
Lowe was just about to clock in. No one else was
present on this occasion. The third instance observed by
Smith took place in the summer in the nursery during
worktime when a student and part-time unit clerk asked
two nurses, an assistant nurse, and Smith, if they wanted
to buy a raffle ticket. No supervisor was present on that
occasion. The fourth instance of solicitation about which
Mellow Smith testified involved raffle tickets to a "whis-
key bash." This occurred in August in the nursery
during worktime. Employee Evans tried to sell two tick-
ets to the "bash" to two other employees. No supervisor
was present. The fifth occasion of solicitation observed
by Smith occurred at the nurses station in the labor
room in August when LPN28 Mahalia Brown sold Avon
products at the nurses desk in the labor room to Smith, a
nurse and others, not identified. This occurred during
Smith's worktime. No supervisor was indicated to have
been present.
According to LPN Queen Ester Steen, she observed
five instances of nonunion solicitation in the period from
summer 1980 through November, involving raffles, the
United Appeal, candy, and doughnuts. Sometime be-
tween May and July on "Seventh-Main" an unidentified
student nurse asked Steen during her worktime to buy a
raffle ticket. The only other person present was a fellow
employee who asked the student how she could solicit
for a raffle since it was not permitted by the hospital.
The student nurse replied that they were given special
permission by the administration. The second instance
occurred in December and involved the distribution of
United Appeal cards by an RN 2 9 at the nursing station
on "Seventh-Main" during working time. Unit Coordina-
tor Virginia Wallace, a unit clerk, and two RNs were
present. The nurses station is located in the middle of the
hall, and on both sides are located patients' rooms. The
third instance occurred in the summer months and in-
volved the sale of candy by an RN whose "son was sell-
ing it for something at school." This solicitation took
place during the working hours of the individuals in-
volved. The fourth instance took place in October or
November when Steen herself solicited several people to
buy doughnuts at the nurses station during working
hours. No supervisor was indicated to have been in-
volved. The fifth solicitation observed by Steen took
place at the elevator on "Seventh-Main" in the summer
months when employee John Richards gave Steen a
ticket to a raffle. No supervisor was indicated to have
been present during this solicitation. LPN Steen's super-
visor is Manager of Nursing Linda Piccard, however,
she reports directly to Unit Coordinator Virginia Wal-
lace.
According to employee Sandra Herrod, in September
or October Unit Coordinator Roberta Smith3 0 prior to a
change-of-shift report invited some employees to her
housewarming party. Herrod also testified to the time in
1978 and 1979 when she was given the responsibility of
distributing the United Appeal pledge cards by her unit
coordinator at the time. She testified further concerning
receiving a United Appeal card in 1980 from a fellow
employee at the nurses desk at "Sixth-Main."
Unit Coordinator Virginia Wallace, LPN Steen's im-
mediate supervisor, testified that United Appeal solicita-
tions are continuing, but that all other solicitations have
been stopped. She was unaware of solicitations of dough-
nuts and candy on her floor. The practice of posting in-
vitations on the bulletin board in the locker room was
stopped in August. In that month at a meeting of her em-
2a Licensed practical nurse.
29 Registered nurse.
'° According to the testimony of both Herrod and Unit Coordinator
Eaford, all unit coordinators possess the authority of a supervisor
53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, she told them that "St. Vincent's had a no-so-
licitation policy and that it would be strictly enforced."
Since that time, she has been unaware of any violations
of it.
The former unit coordinator for "Third-Main," Linda
Vann, testified that in August she and others requested
clarification of Respondent's solicitation policy because
they were uncertain as to what was considered solicita-
tion and what was not. Specifically, they were uncertain
about solicitation for things like the flower fund some of
the floors had for people in the hospital. Following clari-
fication by counsel of record, Vann testified that "[W]e
were instructed to have meetings with all of our person-
nel and inform them exactly what the solicitation policy
was, and that nothing was to be solicited." An exception
was made for the United Appeal solicitation, which was
allowed to continue.
According to the central supply supervisor for St.
Vincent's, Joy Dobinson, prior to August, Central
Supply had a flower fund, which was used to send flow-
ers in the event of someone's hospitalization or death. At
the beginning of August at a meeting of everyone in her
group, Dobinson informed her employees that the flower
fund was a form of solicitation and would be permitted
only during breaks or lunchtime.
Medical Nursing Manager Piccard testified that the
hospital's policy prohibiting certain solicitations was
clarified on August 7 and covers such activity as flower
funds, wedding invitations, and the selling of various
items, such as Avon products, doughnuts, and candy.
She has seen no such activity at all within the last 5 or 6
months, and no solicitation has been reported to her
except in the cases of LaCosta Miles and Linda Menefee.
ICU Coordinator Eaford was aware that counsel of
record began representing the hospital in August, at
which time the prior practice of permitting such activi-
ties as the posting of invitations on the ICU conference
room bulletin board, the selling of Avon products, and
retirement parties in the conference room was discontin-
ued, and such activities have been banned. The flower
fund was reportedly stopped "years ago."
c. The reprimand of Linda Menefee
Linda Menefee has been employed by Respondent in
its Linen Services Department since 1972. The union or-
ganizational campaign started in 1979, and Menefee was
an active union adherent. She distributed union literature
at the entrance of the hospital, attended union meetings,
conversed with other employees about the Union, and
signed a union authorization card. Knowledge of Mene-
fee's solicitation activities is imputable to the hospital.
Central Supply Supervisor Joy Dobinson testified that
five employees had advised her of Menefee's solicitation
of them during working hours to attend union meetings
or participate in other union activities. This information
was passed on to Dobinson's superior, Linen Supervisor
Lewis Stewart.
On September 16, Menefee was called into Supervisor
Stewart's office. Stewart handed Menefee a written rep-
rimand31 and asked her to sign it, which she did. After
X Received in evidence as G.C. Exh. 10
Menefee read it, Stewart asked if she had any questions,
and Menefee replied in the negative. Menefee was disci-
plined for failure to follow hospital policy. The repri-
mand also states, inter alia: "Solicitations of St. Vincent's
associates 32 within Department work areas to discuss
and attend Professional Organization Meetings." The
dates, a brief synopsis of the incidents, and names of the
five associates involved were also set forth. The dates
and names were: Late August-Hazel Wilson; September
9-Tina Harris; September 12-Belinda Parker; Septem-
ber 12-Marie Crawford; and September 10-Kim
Belcher. In her testimony, Menefee described each of the
incidents involved. Wilson had just come to work, and
Menefee was about to clock out when Menefee solicited
Wilson's views on the Union. The conversation with
Harris took place in Menefee's work area while she was
working. Menefee asked Harris if she were interested in
the Union. Harris responded that she knew nothing
about it. Menefee told her if she would come to a meet-
ing she would find out all about it. The Parker conversa-
tion also took place in Menefee's work area during her
worktime. Menefee told Parker of a union meeting and
asked her to attend. The Crawford conversation also
took place in Menefee's work area during her worktime.
Menefee asked Crawford for her opinion about the
Union. Crawford responded that she would have to pray
over it. The conversation with Belcher occurred while
they were walking from their work area to the bath-
room. Menefee asked her, "would she come to a union
meeting?" The five individuals involved reported the in-
cidents to their supervisor, Joy Dobinson, who, as seen,
reported the same to Stewart.
2. Analysis and concluding findings
The General Counsel does not contend that Respond-
ent's no-solicitation rule is per se unlawful. In support of
his contention that the discipline of Miles and Menefee
and the discharge of Miles were unlawful, the General
Counsel essentially launches a twofold attack on Re-
spondent's enforcement of its no-solicitation policy. First,
the General Counsel contends that Respondent has dis-
criminatorily applied its no-solicitation rule by disparate
treatment of individuals under it, thus rendering enforce-
ment of the facially valid rule against the union activities
of Miles and Menefee and the discipline meted out pursu-
ant thereto unlawful. Thus, it is asserted that, inasmuch
as the record evidence reveals that Respondent has long
tolerated solicitation within immediate patient care areas
during worktime, the sudden enforcement of the rule
with respect to Miles and Menefee constituted unlawful
discriminatory enforcement. Secondly, the General
Counsel contends that Respondent's application of the
no-solicitation rule to the ICU conference room consti-
tutes a violation of Section 8(a)(l) and (3), since it is not
an "immediate patient-care area." Since Miles was disci-
plined as a result of an unlawful application of the rule,
the discipline must fail, and the resulting discharge,
which was triggered by the October I reprimand, must
be found unlawful.
32 A term used synonymously with "employee" by the hospital staff.
54
SAINT VINCENT'S HOSPITAL
There is no real dispute that Menefee and Miles were
disciplined for failing to follow hospital policy and that
Miles was terminated for continuing to do so in spite of
the warning that such failure would subject her to termi-
nation. Although the General Counsel at one point
argues that Menefee was not engaged in solicitation but
was merely talking to fellow employees about the Union,
Menefee herself testified that, in at least two of the five
conversations with fellow employees that were the sub-
ject of the reprimand, she had invited the individuals in-
volved to attend a union meeting and that in another she
told her fellow employee she should attend a union
meeting to find out about the Union. The wording of
Menefee's reprimand is thus reasonably accurate. It is un-
disputed from her own testimony that each of the inci-
dents involved occurred during Menefee's worktime.
In the case of Miles, who claimed to have been on a
free-time break during each of the instances for which
she was disciplined, whether she actually was on a break
is not material. In any event, her conduct would never-
theless have constituted violations of the first part of the
no-solicitation rule. She solicited and was disciplined,
inter alia, for soliciting in what the hospital considers to
be patient care areas; i.e., the ICU conference room and
the conference room on "Third-East." As noted previ-
ously, Miles called on rebuttal denied soliciting Bonner
in the ICU conference room. In any event, whether she
did or did not, she was specifically warned that solicita-
tion "in violation of Hospital Policy" would subject her
to termination. There is no dispute that Miles entered
one of the two sensitive areas of the hospital, the CCU,
and engaged in another act of solicitation subsequent to
the warning.
There is a dispute over whether Miles also interfered
with the work of another employee, Inez Jackson, who,
the hospital submits, was in the process of running an
EKG on a patient who was on the verge of death. The
resolution of the conflict of testimony as to whether
Jackson was in the restroom or engaged in running an
EKG when Miles entered the CCU and waited to see
her is unnecessary to a disposition of this case. Resolu-
tion of that conflict would only be relevant to a consid-
eration of whether the second part of the no-solicitation
rule was also violated. It is not disputed here that the in-
cident took place in a patient care area, viz in the corri-
dor inside the CCU adjoining or accessible to a patient's
room. And it really cannot be disputed that Miles' con-
duct "may" have interfered with patient care and "may"
have disturbed patients.
The issues remaining for resolution are: (1) whether
Respondent discriminatorily enforced its no-solicitation
rule and (2) whether application of the no-solicitation
rule to the ICU conference room constitutes a violation
of Section 8(a)(l) and (3) since it is not an "immediate
patient-care area."
There is no question that a health care facility may
lawfully restrict employees from soliciting in immediate
patient care areas even on nonworking time. 33 The first
3
Si. John 's Hospital. 222 NLRB 1150 (1976); N.LR.B. v. Baptist Hos-
pital. Inc., 442 U.S. 773 (1979).
issue really involves a determination of whether Re-
spondent's toleration of certain kinds of solicitation in the
past in patient care areas, as previously set forth in detail,
renders its action with respect to Miles and Menefee a
"sudden" or unexpected and discriminatory enforcement
of the rule, and the discipline pursuant thereto unlawful.
Initially it is observed that Miles, like Menefee, was
given a copy of the solicitation policy and a notice that
she was not to violate the hospital's solicitation policy. It
is also observed that, although Lydia Thompson was
aware of the nature of Miles' solicitation in the CCU,
Eaford, who discharged Miles, was not. At the time of
Miles' discharge, the record shows that Eaford was un-
aware that the solicitation involved an invitation to a
union meeting.
It is not contested that Respondent permitted employ-
ee solicitation during working time and that a hospital-
wide solicitation for the United Appeal continues at the
present time. It is also beyond dispute that, prior to
August, Respondent permitted solicitation contrary to its
policy. On August 7, the hospital's solicitation policy
was "clarified," that is, broadened by interpretation to in-
clude prohibitions against such activities as flower funds,
the posting or distribution of shower and wedding invita-
tions, and the selling of various items, such as Avon
products, doughnuts, and candy. At that time the em-
ployees were orally advised of the August 7 clarification
of the rule by their supervisors at various meetings, and
none of the supervisors who appeared and testified
(Vann, Wallace, Dobinson, Eaford, and Piccard) was
aware of any solicitations subsequent to August, except
for the United Appeal. The only evidence presented of
solicitations occurring subsequent to August in the pres-
ence of a supervisor involved a collection for a sick em-
ployee reportedly organized by a unit coordinator in Oc-
tober, the hand delivery of a wedding invitation in Octo-
ber to several employees, in lieu of mail, an oral solicita-
tion to a housewarming party by a unit coordinator, and
solicitation for the United Appeal.
The record contains no evidence of solicitations after
August in either the ICU, CCU, or Central Supply, the
units involved here. Stated differently, there is no proof
of other solicitation occurring within the areas super-
vised by either Eaford or Dobinson during any relevant
period of time. It would thus be unreasonable to infer
discriminatory motivation on their part.
There was proof of two other instances of post-August
solicitation occurring outside the presence of a supervi-
sor. These clearly do not constitute open and notorious
solicitation sufficient to charge Respondent with notice,
and it is reasonable to conclude that the other instances
(except solicitation for the United Appeal) either resulted
from a misapprehension of the breadth of the interpreta-
tion of the rule subsequent to August or that the wit-
nesses were mistaken and that they occurred prior to
August. In any event, the failure to redress these three
instances of so-called solicitation occurring in the pres-
ence of supervisors, and at or about the same time warn-
ing Miles and Menefee against soliciting for the Union,
clearly does not rise to the level of discriminatory en-
forcement of the no-solicitation rule.
55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Miles and Menefee were given unambiguous
warnings that further solicitation would subject them to
discharge. Miles acted in defiance of the warning and
presumably Menefee did not. Furthermore, it is reason-
able to expect supervisors in a large complex such as this
to interpret and enforce rules differently. Obviously,
before an act can be condoned, there must be knowledge
of it and the authority to redress or condone it. Neither
of the supervisors directly involved here, Eaford or Do-
binson, condoned any acts of solicitation after August 7
except for the United Appeal. Under all of the circum-
stances presented, I find no "sudden" or otherwise dis-
criminatory enforcement of the rule as to Miles or Mene-
fee as to render unlawful the discipline meted out pursu-
ant thereto.
The final issue presented is whether application of the
no-solicitation rule to the ICU conference room by Re-
spondent is itself unlawful. The utilization of the ICU
conference room has been detailed previously. The Gen-
eral Counsel argues that the Board has consistently held
and recently reiterated that "employer rules which pro-
hibit employee solicitation in health care facilities in
areas other than immediate patient-care areas are inval-
id."3 4 Since the ICU is not used in the treatment of pa-
tients, it is not an immediate patient care area, according
to the General Counsel.
It is noted that the ban on solicitation in Eastern Maine
occurred in a lobby which was located 200 feet from the
nearest patient's room, separated by a corridor, and that
the physicians took those awaiting news of the results of
surgery into the surgery waiting room, rather than
confer with them in the lobby. Here, the ICU conference
room is located only within approximately 6 feet from
the nearest patient's room. When the physicians need to
confer with or console the families of ICU patients who
are dying or whose conditions have changed for the
worse, the conference room is the only place in the hos-
pital that provides privacy for the families to hear such
news. Certainly, such families "need a restful, unclut-
tered, relaxing and helpful atmosphere, rather than one
remindful of the tensions of the marketplace, in addition
34 Eastern Maine Medical Center, 253 NLRB 224 (1980).
to the tensions of the sick bed." s3 Manifestly, solicitation
has no place in the ICU conference room at such times.
While these conferences do not occur daily, as seen,
death is not an infrequent visitor to the ICU and its visits
are not precisely predictable. In view of such a serious
environment and the close proximity of patients, the hos-
pital should have the right to control the activities taking
place in the ICU conference room.
Under the circumstances, I find and conclude that the
application of the no-solicitation rule to the ICU confer-
ence room does not constitute a violation of Section
8(aXl1) and (3) of the Act.
111. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. St. Vincent's Hospital is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 1199, National Union of Hospital and Health
Care Employees, Retail, Wholesale and Department
Store Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By instructing its supervisor, John Gilbert, to sur-
veil its employees' union activities, Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Sections 8(aX)(1) and 2(6) and (7) of
the Act.
4. All other allegations of the complaints herein that
Respondent has engaged in conduct violative of Section
8(aX1) and (3) of the Act have not been supported by
substantial evidence.
[Recommended Order omitted from publication.]
s Beth Israel Hospital v. N.LR.A, 437 U.S. 483 (1978).
56