Scripps Memorial Hospital Encinitas

National Labor Relations Board - Board Decisions

May 15, 2006

347 N.L.R.B. 52 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 4
52
Scripps Health d/b/a Scripps Memorial Hospital En-
cinitas and California Nurses Association. Cases
21–CA–36585, 21–CA–36762, and 21–CA–36870
May 15, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 10, 2005, Administrative Law Judge
Lana H. Parke issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The General
Counsel filed cross-exceptions with supporting argu-
ment, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions as explained below and to adopt the rec-
ommended Order as modified.
The judge found that in March 2005, the Respondent
violated Section 8(a)(1) of the Act by prohibiting em-
ployees from talking about the Union at the nurses’ sta-
tion. The judge also found that this unfair labor practice
warranted setting aside a January 2005 settlement agree-
ment. Turning to the presettlement conduct, the judge
found that in October 2004, the Respondent violated Sec-
tion 8(a)(1) by promulgating rules discriminatorily pro-
hibiting employees from discussing the Union. Finally,
the judge dismissed the complaint allegation that the Re-
spondent changed its bulletin board policy in violation of
Section 8(a)(5).
Although we affirm the judge’s unfair labor practice
findings, we do not adopt her entire rationale. To the
extent our reasoning differs from that of the judge, it is
set forth below.
I. THE ALLEGED POSTSETTLEMENT UNFAIR
LABOR PRACTICE
On March 29, 2005, emergency room nurse Chris Lind
and his supervisor, Sue Flanagan, were discussing one of
Lind’s patients. As they were finishing their conversa-
tion, Renee Menard, another emergency room nurse,
approached Lind to tell him about an upcoming union
meeting. When Menard began to tell Lind about the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
meeting, Supervisor Flanagan declared, “that does not
belong here,” and motioned Menard away with a dismis-
sive gesture. When Menard attempted to respond,
Flanagan repeated her admonition and again motioned
Menard away. The record establishes that the Respon-
dent allowed other nonwork-related social conversation
to take place during working time at the nurses’ station.
In analyzing whether the Respondent’s conduct vio-
lated Section 8(a)(1) of the Act, the judge combined legal
principles applicable to no-solicitation rules with those
applicable to no-talking rules. We disagree with the
judge’s reasoning in this respect. The credited testimony
does not establish that Menard was engaged in solicita-
tion when Flanagan told her, “that does not belong here.”
Rather, Menard was simply engaging in talk about the
Union. Therefore, we shall analyze Flanagan’s conduct
under the principles applicable to no-talking rules.
It is well settled that “an employer may forbid employ-
ees from talking about a union during periods when the
employees are supposed to be actively working, if that
prohibition also extends to other subjects not associated
or connected with the employees’ work tasks. However,
an employer violates the Act when employees are for-
bidden to discuss unionization, but are free to discuss
other subjects unrelated to work. . . .” Jensen Enter-
prises, 339 NLRB 877, 878 (2003). Further, in consider-
ing whether communications from an employer to its
employees violate the Act, “the Board applies the objec-
tive standard of whether the remark tends to interfere
with the free exercise of employee rights. The Board
does not consider either the motivation behind the re-
mark or its actual effect.” Miller Electric Pump &
Plumbing, 334 NLRB 824 (2001).
Applying those principles here, we find that the Re-
spondent violated Section 8(a)(1) of the Act. The record
clearly establishes that social discussions were allowed at
the nurses’ station during working time. Therefore, we
find that when Flanagan told Menard, “that does not be-
long here,” her statement constituted a discriminatory
prohibition on discussing the Union.
In its exceptions, the Respondent renews its contention
that Flanagan only meant to keep Lind focused on the
patient she and Lind were discussing. As found by the
judge, the credited evidence does not support the Re-
spondent’s argument.2 Rather, the credited evidence
establishes that Flanagan did not ask Menard to talk to
Lind later, nor did Flanagan ask Menard to stop distract-

2 The judge literally stated that the credible testimony “does” support
the Respondent’s argument. Given the judge’s conclusions, we find the
judge inadvertently omitted the word “not.” Accordingly, we correct
the judge’s decision at sec. V,A,3, par. 4 to read that the credible testi-
mony “does not” support the Respondent’s argument.
SCRIPPS MEMORIAL HOSPITAL ENCINITAS 53
ing Lind from his work. Either of those approaches rea-
sonably would have been understood as merely curbing
social discussions during a busy period. Instead,
Flanagan said, “that does not belong here,” a remark that
would reasonably be interpreted to mean that discussion
of the Union was not allowed at any time at the nurses’
station, even though other nonwork conversation was
permitted there.3
Accordingly, for all of the above reasons, we find the
Respondent’s prohibition on union talk at the nurses’
station violated Section 8(a)(1) of the Act.
II. WHETHER THE SETTLEMENT AGREEMENT
WAS PROPERLY SET ASIDE
The Board has long held that “a settlement agreement
may be set aside and unfair labor practices found based
on presettlement conduct if there has been a failure to
comply with the provisions of the settlement agreement
or if postsettlement unfair labor practices are commit-
ted.” Twin City Concrete, 317 NLRB 1313 (1995), quot-
ing YMCA of Pikes Peak Region, 291 NLRB 998, 1010
(1998), enfd. 914 F.2d 1442 (10th Cir. 1990).
Here, pursuant to the terms of the January 2005 set-
tlement agreement, Respondent agreed that it would not
“establish and enforce a rule prohibiting [its] employees
from talking about the Union during worktime, while
allowing other nonwork-related discussions by [its] em-
ployees,” and that it would not in “any way like this, get
in the way of [the employees’] right to engage in pro-
tected activity.” However, as discussed above, on March
29, 2005, the Respondent discriminatorily prohibited
employees from discussing the Union. Thus, we con-
clude that the Respondent’s postsettlement unfair labor
practice breached the basic terms of the settlement
agreement and that the breach warrants setting aside the
settlement agreement for noncompliance.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Scripps
Health d/b/a Scripps Memorial Hospital Encinitas, Enci-
nitas, California, its officers, agents, successors, and as-

3 Chairman Battista notes that the conversation occurred during
worktime and was during a discussion about a patient. In these circum-
stances, an employer may be able to distinguish among different kinds
of conversations, e.g., those that might be controversial and/or long and
those which are not. If a given union conversation falls within these
categories, the employer may be able to put a stop to it. However, the
instant conversation involved only one employee telling another about
an upcoming union meeting. It was not prolonged and it did not entail
a conversation about the merits/demerits of the Union.
4 No party has excepted to the judge’s finding that the Respondent’s
presettlement conduct violated Sec. 8(a)(1) of the Act.
signs, shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(a).
“(a) Prohibiting employees from talking about the Un-
ion while allowing other nonwork-related discussions by
employees.”
2. Delete paragraph 1(b) and reletter the subsequent
paragraph.
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit employees from talking about
the Union while allowing other nonwork-related discus-
sions by employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the October 15, 2004 memorandum
insofar as it unlawfully seeks to prohibit employees from
engaging in communications protected by Section 7 of
the Act and WE WILL notify employees in writing that it
has been rescinded.
SCRIPPS HEALTH D/B/A SCRIPPS MEMORIAL
HOSPITAL ENCINITAS
Steve L. Hernandez, Esq., for the General Counsel.
Michael Goldstein, Esq. (Musick, Peeler, and Garrett, LLP), of
Universal City, California, for the Respondent.
M. Jane Lawhon, Esq., of Oakland, California, for the Charging
Party.
DECISION
I. STATEMENT OF THE CASE
Lana H. Parke, Administrative Law Judge. This matter was
tried in San Diego, California, on September 26, 2005, upon an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
order revoking settlement agreement in Case 21–CA–36585,
second order consolidating cases, amended consolidated com-
plaint and amended notice of hearing (the complaint) issued
August 16, 2005,1 by the Regional Director for Region 21 of
the National Labor Relations Board (the Board) based upon
charges filed by California Nurses Association (the Union).
The complaint alleges Scripps Health d/b/a Scripps Memorial
Hospital Encinitas (Respondent or the Hospital) violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act (the
Act). Respondent essentially denied all allegations of unlawful
conduct.
II. ISSUES
1. Whether Respondent unilaterally eliminated the Union’s
right of access to union bulletin board space.
2. Whether Respondent, by memorandum dated October 15,
2004, promulgated rules discriminatorily prohibiting employees
from discussing the Union during working time, during non-
working time, and in nonpatient care (nonworking) areas of
Respondent’s facilities.
3. Whether Respondent unlawfully informed an employee
that she was prohibited from talking about the Union at work.
4. Whether Respondent unlawfully informed an employee
that she was prohibited from talking about the Union at the
nursing station.
III. JURISDICTION
At all relevant times, Respondent, a California nonprofit
corporation, with facilities located at 320 and 354 Santa Fe
Drive, Encinitas, California (Respondent’s facilities), has been
engaged in the operation of a hospital. During a representative
12-month period ending May 31, Respondent derived gross
revenues in excess of $250,000 and purchased and received at
its Encinitas facilities goods valued in excess of $5000, directly
from points outside the State of California. Respondent admits,
and I find, it has at all relevant times been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.2
IV. FINDINGS OF FACTS
A. The 8(a)(1) Allegations
The second floor of Respondent’s hospital is the patient re-
habilitation floor. It comprises patient rooms, an employee
lounge, rest rooms, a dining room, a semiwalled off area with a
table where nurses perform charting duties and rehabilitation
therapists may do paper work, and a physical therapy gymna-
sium where employees may eat lunch while patients are in the
dining room or exercise after therapy hours end at 6 p.m. Pa-
tients are not allowed into the employee lounge, and ambula-
tory or wheelchair-capable patients go into the dining room
only at specified meal times unless taken there by staff to calm
a patient’s agitation. The dining room contains a television,

1 All dates herein are 2005, unless otherwise specified.
2 Where not otherwise explained, findings of fact herein are based on
party admissions, stipulations, and uncontroverted testimony.
and hospital employees may eat or take breaks there and watch
television. The employee lounge has four bulletin boards.
In late 2003, the Union successfully conducted a representa-
tion campaign among Respondent’s full-time, regular part-time,
and per diem registered nurses at Respondent’s facilities, and,
on January 9, 2004, the Board certified the Union as the collec-
tive-bargaining representative among those employees in Case
21–RC–20694. Following a decertification petition filed in
2005, the Board conducted an unsuccessful decertification elec-
tion among these same employees on July 27 and 28, 2005.
Thereafter, on August 9, 2005, the Board again certified the
Union as the collective-bargaining representative among the
said employees.
1. The October 15, 2004 memorandum
Respondent posted a memorandum dated October 15, 2004,
from Diane Romito, Respondent’s director of rehabilitation
services, to the rehabilitation staff, on a lounge bulletin board.
The memorandum stated:
It has come to my attention that staff is meeting to dis-
cuss issues related to union negotiations on company time
and in patient care areas. Derogatory statements have
been overheard by patients.
While open discussions are always welcome on the re-
hab unit, and controversy often precedes change, I am re-
minding you all that these discussions are not allowed on
patient care units (including the employee lounge, the din-
ing room, the charting areas, the gym) nor are they al-
lowed during work hours when patient care should be the
focus.
This is the current Scripps policy and we will continue
to follow these directives. Further infractions will be sub-
ject to disciplinary action.
There is certainly opportunity for discussion during
staff mealbreaks or other “off the clock” times. The main
hospital lobby and the main cafeteria are appropriate meet-
ing areas. However, in any instance, I would ask you to be
aware of your impact on patients and families who may
overhear your conversations.
2. The March 7, 2004 conversation between Barbara Ray
and Diane Jackson
In early March, Diane Jackson (Jackson), who terminated
employment with Respondent in June, worked as a floor nurse
in the medical surgical area of the hospital. Barbara Ray (Ray)
was her supervisor. Sometime in early March, Jackson ob-
tained a flyer from Respondent to its employees stating Re-
spondent’s hope that the Union would respect Respondent’s
property lines and the needs of patients during an upcoming
union-sponsored candlelight vigil. According to Jackson, as
she read the flyer while standing in the doorway of the charge
nurse office, Ray called her into the office and told her to keep
her comments and opinions about the Union to herself, saying
she needed to focus on patient care. Jackson indignantly told
Ray that her patients were well cared for and left.
Ray’s version of the conversation differed significantly from
that of Jackson. According to Ray, she saw Jackson walk into
the lead nurse’s office and pick up and read a copy of a memo,
SCRIPPS MEMORIAL HOSPITAL ENCINITAS 55
which Ray had been instructed to pass out to employees. When
Ray asked Jackson what she was reading, Jackson said, “Some-
thing from you guys,” adding, “Oh that Carl Etter [hospital
CEO], he is so full of bullshit.”
Ray told Jackson that she knew employees had hurt feelings
and frustrations, but they needed to put them aside and focus on
patient care. Jackson ripped up the memo and threw it in the
trash, saying, “I take good care of my patients.”
Ray agreed, saying, “Yes, you do, Diane; you are an excel-
lent nurse.”
Jackson said, “Then do not tell me I cannot talk about the
Union.”
Ray denied that she had given any such directive, saying, “If
that is what you think, then I apologize.”
Shortly thereafter, Jackson received a telephone call from her
daughter. Jackson told her daughter she could not speak to her
because she needed to focus on her patients. Overhearing the
conversation, Ray told Jackson she needed to talk to her. Jack-
son refused, saying she needed to focus on her patients. Ray
touched Jackson’s arm.3 Jackson told Ray not to touch her.
According to Jackson, she went with Ray to her office and told
Ray she could get into trouble for telling her not to talk about
the Union. Ray denied having done so and apologized for any
misunderstanding.
Again, Ray’s version differs from Jackson’s. According to
Ray, when Jackson objected to Ray touching her, Ray held up
her hands in a gesture of surrender and said no more.
I credit Ray’s account. I found her to be a slight, mild-
voiced witness, who remained calm and soft-spoken even under
rigorous cross-examination by counsel for the Charging Party.
Jackson, on the other hand, displayed a hostile manner that
comported with Ray’s account of their interchange. Moreover,
Jackson’s account of her initial conversation with Ray lacks
inherent cohesion. According to Jackson, Ray told her not to
talk about the Union at a time when Jackson was silently read-
ing a management memo. Jackson neither recounted any pre-
ceding statement or action that would set Ray’s alleged admo-
nitions in context nor evinced surprise at their abruptness.
Ray’s account, on the other hand, is intrinsically plausible.
3. The March 29, 2005 conversation between Sue Flanagan
and Renee Menard
Renee Menard (Menard), emergency department nurse, and
Chris Lind (Lind), testified of an interchange between Menard
and their supervisor, Sue Flanagan (Flanagan), in late March.
Menard approached Lind as he spoke with Flanagan in the
emergency room nursing station about a patient.4 Menard
handed Lind a sign-up paper for volunteers to work on the Un-
ion’s picket line, asked him to get signatures from his shift and
then put the paper in another nurse’s locker, and said something

3 Jackson testified that Ray “grab[bed]” her arm to “pull [her] toward
the office.” I credit Ray’s account.
4 Although Lind testified in direct examination that he and Flanagan
had just concluded their conversation when Menard spoke to him,
under cross-examination, he agreed that he was discussing his patient
with Flanagan when Menard approached.
about an upcoming union meeting.5 According to Menard,
Flanagan told Menard she was not allowed to speak about the
Union at the nursing station, whereupon Menard affirmed her
right to do so and left the nursing station. According to Lind,
when Menard spoke to him, Flanagan said, “That does not be-
long here,” and motioned Menard away with a dismissive ges-
ture. When Menard tried to respond, Flanagan repeated her
admonition and motioned Menard away again. Lind observed
Flanagan’s manner to be unprecedentedly angry and hostile.
Flanagan’s version of the conversation differs from Menard
and Lind’s. According to Flanagan, on the night of her ex-
change with Menard, the emergency room was very busy with
all nine beds filled and many people waiting to be seen. When
Menard approached them, Flanagan and Lind were seated at the
nurse’s station where Lind was reporting on a patient whom
Flanagan was anxious to move to the intensive care unit, both
for the patient’s well-being and to free up an emergency room
bed. Flanagan testified that she and Lind had barely finished
their discussion6 when Menard spoke to Lind, and he re-
sponded. Flanagan said, “This is not the time or place. Chris
needs to get this patient to ICU.” According to Flanagan, she
paid no attention to what Menard and Lind were talking about,
although she was aware it had something to do with a meeting
at a restaurant.7 She did not care what they were talking about;
she only cared that they were talking. When Menard pointed
out that employees were permitted to talk about union business
at the desk, Flanagan said she responded, “I never said other-
wise, but Chris needs to focus on his patient.”
General and personal conversation is permitted at the nurse’s
station as long as it doesn’t interfere with patient care.
B. The 8(a)(5) Allegations
During a relevant period, Melissa Clark (Clark), registered
nurse in Respondent’s medical/surgical telemetry department
located on the second floor (2 south), served on the Union’s
bargaining team during negotiations between Respondent and
the Union. On March 29, 2004, the parties reached tentative
agreement regarding a bulletin board to be maintained at the
Hospital for union use, as follows:
The Hospital shall make space available on a bulletin board
located immediately outside the cafeteria8 for posting of offi-
cial union business, but not the Union’s campaign materials or
the campaign materials of any other union. No material shall
be posted until approved for posting and initialed by the Hu-
man Resources Director or designee. Posted material shall
bear the date and identity of the Union. Posted material shall
not be controversial, misleading, contain any deliberate mis-
statements, or violate any federal, state or county laws. . . .

5 Menard and Lind’s testimony differs somewhat as to what Menard
said. I have set forth an amalgam of their testimony.
6 Flanagan immediately qualified her testimony by stating that she
was not sure she and Lind had finished speaking. In light of both her
and Lind’s testimonies, it is reasonable to conclude that the two were
finishing their conversation when Menard approached.
7 Flanagan was perhaps a little disingenuous here, and I find she was
aware Menard was talking about union-related matters.
8 The cafeteria is located on the ground floor of the Hospital.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
After the tentative agreement was reached, Clark asked her
supervisor, Clela Patterson (Patterson), if the Union could util-
ize a bulletin board in the nurse’s staff lounge to post informa-
tion regarding contract negotiations. Patterson agreed, desig-
nating one of the four bulletin boards in the lounge for that
purpose (the CNA bulletin board).9 According to Patterson, she
understood the bulletin board was to be used for posting both
anti and prounion material.
Clark placed the words “CNA News” at the top of the board.
Thereafter, Clark posted union news items on the board. Pat-
terson and other unknown individuals also posted antiunion
information and rhetoric, including, at some later time, decerti-
fication election information and decertification campaign fly-
ers. Sometimes Clark removed the antiunion postings.
Following a 1-day strike conducted in April, employees
complained to Anna Jackson (Jackson), Respondent’s manager
of 2 south, that antiunion material was being removed from the
CNA bulletin board. Thereafter, at an April 28 staff meeting,
Jackson told employees that it had been brought to her attention
that people were removing items from the CNA bulletin board.
She expressed concern that employees were not respecting
others’ opinions, stating that the CNA bulletin board was for
the posting of opinions and information regarding the Union
generally and was to be shared.
At about the same time, the following notice (the CNA bulle-
tin board division notice) appeared on the CNA bulletin board:
Half of this bulletin board has been assigned to
you for communication. Please respect all em-
ployees’ opinions and rights to these opinions.
Thank you
A. Jackson
4/2005
Thereafter, union oppositional information and flyers were
posted below the notice, while union supportive materials were
posted above.10 Although Clark no longer had sufficient space
on the bulletin board to post materials without overlapping
them, she was not prevented from posting any material she
wished. Prior to the April 28 staff meeting and the posting of
the CNA bulletin board division notice, Respondent had not
discussed division of the bulletin board with the Union. Fol-
lowing the unsuccessful decertification election of July 27 and
28, the CNA bulletin board division notice was removed from
the CNA.
V. DISCUSSION
A. The 8(a)(1) Allegations
1. Legal principles
Section 8(a)(1) of the Act provides that “It shall be an unfair
labor practice for an employer . . . to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in
Section 7 [of the Act].” In considering communications from

9 Although Patterson could not clearly recall the circumstances, she
testified that she discussed the matter with someone “higher up,” who
okayed the use of a bulletin board for the posting of union information.
10 Following the April 28, 2004 staff meeting, Clark no longer re-
moved antiunion material from the CNA bulletin board.
an employer to employees, the Board applies the “objective
standard of whether the remark tends to interfere with the free
exercise of employee rights. The Board does not consider ei-
ther the motivation behind the remark or its actual effect.
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
However, “an employer violates Section 8(a)(1) of the Act if its
conduct may reasonably be said to have a tendency to interfere
with the free exercise of employee rights.” Frontier Hotel &
Casino, 323 NLRB 815, 816 (1997).
In considering no-solicitation rules, the Board applies the
analysis set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004):
[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonably tends to chill employees in the ex-
ercise of their Section 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998). In determining whether a challenged
rule is unlawful, the Board must, however, give the rule a rea-
sonable reading. It must refrain from reading particular
phrases in isolation, and it must not presume improper inter-
ference with employee rights. Id. at 825, 827.
The Board begins its analysis with “the issue of whether the
rule explicitly restricts activities protected by Section 7. If it
does [the Board] will find the rule unlawful.” If the rule does
not explicitly restrict activity protected by Section 7, the viola-
tion is dependent upon a showing of one of the following: (1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights. Lutheran Heritage Village-
Livonia, supra at 647; Guardsmark LLC, 344 NLRB 809
(2005); Palms Hotel & Casino, 344 NLRB 1363 (2005).
Union discussion or solicitation engaged in at work on an
employee’s own time is protected activity, which an employer
may not prohibit. Republic Aviation Corp. v. NLRB, 324 U.S.
793 (1945). While a rule prohibiting solicitation or distribution
during “working time” is presumptively valid, since it implies
solicitation is permitted during nonworking time, a rule which
prohibits solicitation during “working hours” is presumptively
invalid, because the term “working hours” connotes periods of
time, such as breaks and lunch, which are the employees’ own
time.11 Prohibition of solicitation during “company time” is
also presumptively invalid because it “could reasonably be
construed as encompassing both working and nonworking time
spent on the company premises,”12 as is also a restriction on
solicitation while employees are “on the clock.”13
With regard to health care facilities, the Board’s policy is
that an employer’s “ban on employee solicitation be limited to
immediate patient care areas.” Eastern Maine Medical Center,
253 NLRB 224, 226 (1980). “Restrictions on solicitation, dur-
ing nonworking time, or distribution of literature, during non-
working time and in nonworking areas, however, are presump-
tively unlawful even with respect to areas that may be accessi-
ble to patients [citation omitted].” Brockton Hospital, 333

11 Our Way, Inc., 268 NLRB 394, 395 (1983).
12 Litton Systems, 300 NLRB 324 (1990).
13 Burger King, 331 NLRB 1011 (2000).
SCRIPPS MEMORIAL HOSPITAL ENCINITAS 57
NLRB 1367, 1368 (2001). These presumptions have been up-
held by the Supreme Court as consistent with the Act. Beth
Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).
1. The October 15, 2004 memorandum
Applying the above principles to the October 15, 2004
memorandum, it is clear that the rules Respondent announced
therein are facially overbroad and violate Section 8(a)(1) of the
Act. The stated rules broadly prohibit employee discussions
regarding union negotiations while “on patient care units”
without limiting the restriction to immediate patient care areas.
Indeed, Respondent specifies that union discussions are not
allowed in the employee lounge (from which patients are ex-
cluded), the dining room and the gym (which employees utilize
for breaks when not open for patient use), and the charting
areas (where no patient care is given). Respondent relegates
such discussions to the “main hospital lobby and the main cafe-
teria.” Hence, the rule goes well beyond a lawful curtailing of
employee union dialogue in shielded “immediate patient care”
areas. The fact that the areas banned by Respondent may be
accessible to patients does not alter the presumptive unlawful-
ness of the restrictions. Brockton Hospital, supra at 1368.
Moreover, the October 15, 2004 memorandum prohibits un-
ion discussion “during work hours when patient care should be
the focus” and, inferentially, during other than “off the clock”
times,14 both of which restrictions are also presumptively inva-
lid. Accordingly, by its October 15, 2004 memorandum, Re-
spondent unlawfully promulgated limitations on protected em-
ployee communications in violation of Section 8(a)(1) of the
Act.
Respondent argues that an informal settlement agreement
approved by the Regional Director on January 20 resolved all
issues relating to the October 15, 2004 memorandum and that
revocation of that agreement is improper as Respondent did not
breach any of the terms of the settlement agreement. A settle-
ment agreement may be set aside if there has been a failure to
comply with the provisions of the settlement or if postsettle-
ment unfair labor practices are committed. See Trus Joist
Macmillan, 341 NLRB 369 fn. 11 (2004). As discussed below,
I have found Respondent committed a postsettlement unfair
labor practice by Flanagan’s restriction on Menard’s union-
related communication to Lind. Therefore, the Regional Direc-
tor was entitled to revoke the settlement agreement.
2. The March 7, 2004 conversation between Barbara Ray
and Diane Jackson
Paragraph 9(b) of the complaint alleges that on about March
7, 2004, Supervisor Barbara Ray told an employee that she was
prohibited from talking about the Union at work in violation of
Section 8(a)(1) of the Act. This allegation refers to the above-
detailed conversation on that date between Ray and Jackson.
Having credited Ray’s account of her March 2004 conversation
with Jackson, I find that Ray did nothing more than tell Jack-
son that she should put aside her hurt feelings, presumably

14 Since the memorandum points out that employees have opportu-
nity for discussion during “staff mealbreaks or other ‘off the clock’
times,” it follows that employees may reasonably infer an intention to
restrict their protected discourse while “on the clock.”
stemming from the union controversy in the hospital, and focus
on patient care. Jackson may have inferred from the suggestion
that Ray was directing her to limit conversations about the Un-
ion and attributing diminished quality of patient care to a pre-
occupation with the Union, and Ray may even have intended
some such implication. But, as noted above, Ray’s communi-
cation must be viewed objectively to determine “whether the
remark tends to interfere with the free exercise of employee
rights.” The Board will consider neither the motivation behind
the remark nor its actual effect. Miller Electric Pump &
Plumbing, 334 NLRB 824 (2001).
Viewed objectively, Ray’s remark constitutes merely a mild
reminder that patient care should be of paramount concern to
Jackson without, in any way, restricting her protected right to
talk about the Union. Such a proposition is both reasonable and
lawful. Accordingly, I find Ray did not inform Jackson that she
was prohibited from talking about the Union at work and did
not violate Section 8(a)(1) of the Act.
3. The March 29, 2005 conversation between Sue Flanagan
and Renee Menard
Paragraph 9(c) of the complaint alleges that on about March
29, 2005, Supervisor Sue Flanagan told an employee that she
was prohibited from talking about the Union at the nursing-
station desk in violation of Section 8(a)(1) of the Act. This
allegation refers to the above-detailed conversation on that date
between Flanagan and Menard.
Three individuals, Menard, Lind, and Flanagan, were parties
to the conversation and, not surprisingly, there are three differ-
ent versions of what was said. Menard recalled that Flanagan
told her she was not allowed to speak about the Union at the
nursing station. Lind recalled that Flanagan told Menard “that”
did not belong at the nursing station (“that” being, inferentially,
Menard’s communication to Lind about the Union). Flanagan
recalled telling Menard, essentially, that both the timing and
setting of her message delivery was inappropriate, as Lind
needed to focus on his patient.
In resolving this inconsistent testimony, I give greatest
weight to Lind’s account. As the least personally involved of
the three parties, his recollection may reasonably be expected to
be the most dispassionate and hence the most reliable. Conse-
quently, I accept Lind’s testimony that Flanagan twice told
Menard that her communication about the Union did not belong
at the nursing station. I do not accept Flanagan’s testimony that
she disavowed any intention of restraining union discussion at
the nurse’s station, which statement neither Menard nor Lind
recalled.
I have carefully considered Respondent’s argument that
Flanagan’s comments were intended merely to curb any non-
work interchanges during a particularly hectic and stressful
period in the emergency room. The credible testimony does
support the argument. Flanagan did not ask Menard to speak to
Lind later or not to distract him from his work duties at that
time, or give any similarly limited and neutral direction.
Rather, she clearly communicated her view that union discus-
sion did not belong at the nursing station. Since the nursing
station is not an “immediate patient care” area and since non-
work conversation is otherwise permitted there, Flanagan’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD58
restriction on Menard’s union-related communication to Lind
violated Section 8(a)(1) of the Act.
B. The 8(a)(5) Allegations
Regarding bulletin board postings, the Board has stated:
The legal principles applicable to cases involving access to
company-maintained bulletin boards are simply stated and
well established. In general, “there is no statutory right of
employees or a union to use an employer’s bulletin board.”
However, where an employer permits its employees to utilize
its bulletin boards for the posting of notices relating to per-
sonal items . . . , it may not “validly discriminate against no-
tices of union meetings which employees also posted.” More-
over, in cases such as these, an employer’s motivation, no
matter how well meant, is irrelevant. [Footnotes omitted.]15
Further, bulletin board matters are mandatory subjects of
bargaining. ATC/Vancom of California, L.P., 338 NLRB 1166
(2003); RCN Corp., 333 NLRB 295 (2001); Arizona Portland
Cement Co., 302 NLRB 36, 44 (1991). Hence, an employer
may not unilaterally change its bulletin board posting policy
established on a union’s behalf.
Here, on March 29, 2004, Respondent and the Union reached
a tentative agreement during negotiations to make bulletin
board space available for the Union’s use outside the cafeteria
on the Hospital’s ground floor. Respondent was not required to
establish the tentatively agreed to bulletin board at that time,
and it did not. However, Respondent acceded to the request of
Clark, employee member of the Union’s bargaining team, that
bulletin board space be made available for Union use. The
bulletin board so designated was located in the staff lounge on
the Hospital’s second floor. There is no evidence that any spe-
cific agreement was reached to limit the bulletin board to un-
ion-generated postings. However, Clark believed the board
was reserved for union use, exclusive of other postings, while
her supervisor, Patterson, understood both anti and prounion
postings were permitted. While the evidence is not entirely
clear, it appears that both union proponents and opponents
posted material on the board as soon as it was labeled “CNA
News.”
The General Counsel argues that by granting the Union bul-
letin board space, Respondent reserved the board for the exclu-
sive use of the Union, and any unilateral retrenchment from that
grant violated Respondent’s duty to bargain with the Union.
Respondent, on the other hand, argues that the Hospital’s inten-
tion was to allow all employees to post union-related material
regardless of perspective.
There is no evidence Respondent agreed to make the entire
CNA bulletin board the exclusive province of the Union.
Therefore, when Respondent divided the board, it did not re-
nege on its agreement to provide bulletin board space for union
postings, nor did Respondent cancel or limit any of the Union’s
posting privileges.16 Respondent merely directed its employees

15 Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th
Cir. 1983); see also Johnson Technology, Inc., 345 NLRB 762 (2005).
16 I do not consider the resultant abridgment of the space the Union
had formerly enjoyed to constitute a restriction on its posting privi-
leges.
to respect postings of both pro and antiunion factions. While
the Board prohibits an employer from imposing discriminatory
content-based restrictions on bulletin board space utilized by
employees, the Board also recognizes an employer’s interest
and obligation in ensuring fairness in bulletin board space allo-
cation:
[If bulletin board postings create] a battleground between
competing factions of employees that would require the em-
ployer to police the bulletin board to ensure fairness in space
allocation between the factions, then restrictions may be per-
missible [citation omitted].17
Inasmuch as Respondent’s division of the CNA bulletin board
did not prevent the Union from posting any information it
chose, and as Respondent’s action was not discriminatory but
reasonably calculated to promote employee harmony, Respon-
dent did not effect any material change to the CNA bulletin
board and did not violate Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by:
(a) Through its October 15, 2004 memorandum, promulgat-
ing and maintaining overly broad and discriminatory rules pro-
hibiting employees from discussing the Union during working
time, during nonworking time, and in nonworking areas.
(b) Informing Renee Menard that she was prohibited from
talking about the Union at the nursing station, which is not an
immediate patient care area.
2. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. The General Counsel requests that the or-
der herein include a special remedy requiring Respondent to
read the notice to employees. Although Respondent committed
a postsettlement unfair labor practice, the incident was isolated
and directly affected only two employees. The relatively minor
incident does not provide a basis for the extraordinary remedy
the General Counsel requests. See Yellow Ambulance Service,
342 NLRB 804 (2004). Therefore, I deny the request.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Scripps Health d/b/a Scripps Memorial
Hospital Encinitas, Encinitas, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from

17 Vons Grocery Co., 320 NLRB 53, 55 (1995).
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
SCRIPPS MEMORIAL HOSPITAL ENCINITAS 59
(a) Promulgating and maintaining any overly broad and dis-
criminatory rules prohibiting employees from discussing the
Union during working time, during nonworking time, and in
nonworking areas.
(b) Informing any employees that they are prohibited from
talking about the Union at locations other than immediate pa-
tient care areas.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the October 15, 2004 memorandum insofar as it
unlawfully seeks to prohibit employees from engaging in com-
munications protected by Section 7 of the Act and notify em-
ployees in writing that it has been rescinded.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Encinitas, California, copies of the attached notice
marked “Appendix.”19 Copies of the notice, on forms provided

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
by the Regional Director for Region 21 after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility in-
volved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by Respondent at any
time since October 15, 2004.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”