Southern Maryland Hospital Center

National Labor Relations Board - Board Decisions

May 22, 1989

293 N.L.R.B. 1209 (N.L.R.B. 1989)

SOUTHERN MARYLAND HOSPITAL 1209
Southern Maryland Hospital Center and Office and
Professional Employees International Union,
Local 2 , AFL-CIO. Cases 5-CA-16186 and 5-
CA-16315
May 22, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBER
JOHANSEN AND CRACRAFT
On June 20, 1985, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed limited cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southern
Maryland Hospital Center, Clinton, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
2 We agree with the judge's determination that off -duty employees
were unlawfully barred from distributing union organizing literature at
the main entrance to the Respondent 's hospital Moreover , we find the
judge's analysis to be in accord with the Board 's standards for evaluating
the validity of employer no-access rules affecting off-duty employees set
forth in Tn-County Medical Center, 222 NLRB 1089 (1976), see also Ohio
Masonic Home, 290 NLRB 1011 ( 1988). .
Charles L. Posner, Esq., of the General Counsel.
Warren M. Davison, Esq. and Leslie R. Stellman, Esq., of
Baltimore, Maryland, for the Respondent.
Ms. Kathleen E. Moore, of Washington, D.C., for the
Charging Party.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
In its exceptions, the Respondent alleged bias and prejudice on the part
of the judge in deciding this case We have carefully considered the
record as a whole and his decision in light of the Respondent's exceptions
and find no basis for finding bias on the part of the judge
We further deny the Respondent's motion to dismiss or to remand for
a hearing de novo, in which the Respodent argues that Judge Roth im-
properly relied on Administrative Law Judge Arlene Pacht's decision in
Southern Maryland Hospital Center, 276 NLRB 1349 (1985), in making
findings of fact and conclusions of law at a time when exceptions to
Judge Pacht's decision were pending before the Board The findings in
Judge Pacht's decision that were relied on by Judge Roth as background
evidence specifically concerned prior restrictions to union access to the
hospital's cafeteria and antiunion animus on the part of Hospital Chief
Executive Officer Dr Francis Chiaramonte Although the Board re-
versed and dismissed one of Judge Pacht's recommended findings in its
decision of September 30, 1985, and the U.S Court of Appeals for the
Fourth Circuit denied enforcement to certain portions of the Board's
Order in Southern Maryland Hospital Center Y. NLRB, 801 F.2d 666 (4th
Cir 1986), both decisions left undisturbed Judge Pacht's findings regard-
ing restricted access to the cafeteria and Dr Chiaramonte's hostility to
the Union The latter finding was grounded on Dr Chiaramonte's per-
sonal participation in unfair labor practices also found in that proceeding
undisturbed on review by the Board and the circuit court, including the
solicitation and remedying of employee grievances on multiple occasions
and on a threat of bodily injury directed at an employee supporting the
Union described therein as "reckless conduct" for a representative of the
medical profession of Dr Chiaramonte's rank 276 NLRB at 1353 In any
event, each of the unfair labor practice findings by Judge Roth that we
adopt is supported by independent evidence on the record of this case
In making his findings, the judge declined to draw adverse inferences
from the Respondent's failure to produce certain witnesses regarding alle-
gations of surveillance in the cafeteria In doing so, he asserted that he
was relying on "current Board policy " Although we find no need to
draw the adverse inferences in order to sustain the findings of violations,
we do not rely on the judge's characterization of Board policy respecting
adverse inferences See International Automated Machines, 285 NLRB
1122 (1987), enfd mem 861 F 2d 720 (6th Cir 1988)
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These
consolidated cases were heard at Washington, D.C., on
7, 8 and 11 February 1985. The charge and amended
charge in Case 5-CA-16186 were filed respectively on
16 February and 19 March 1984, and the charge and
amended charge in Case 5-CA-16315 were filed respec-
tively on 12 and 20 April 1984, by Office and Profession-
al Employees International Union, Local 2, AFL-CIO
(the Union).' The consolidated complaint, which issued
on 11 October and was amended on 22 January 1985 and
at the hearing, alleges that Southern Maryland Hospital
Center (the Company or Respondent) violated Section
8(a)(1) of the National Labor Relations Act.' The grava-
men of the complaint is that the Company allegedly (1)
engaged in surveillance of employees' union activities,
(2) promulgated and maintained revisions in its discipli-
nary policy that were overly broad and tended to re-
strain or coerce employees in the exercise of their Sec-
tion 7 rights, (3) maintained and enforced its no-solicita-
tion and no-distribution rule in an unlawful manner by
instructing employees that they could not distribute
union literature during nonworktime in nonpatient care
areas, and (4) discriminatorily maintaining and enforcing
the rule by denying nonemployee union organizers
access to the cafeteria at its facility. All parties were af-
forded full opportunity to participate, to present relevant
evidence, to argue orally, and to file briefs. The General
Counsel and the Company each filed a brief.
i All dates are for 1984 unless otherwise indicated.
2 The complaint was amended, inter alia to delete certain allegations of
8(a)(1) and (3) conduct, which were the subject of an informal settlement
agreement
293 NLRB No. 136
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record in the case,3 and from my obser-
vation of the demeanor of the witnesses and of the Com-
pany's premises,4 and having considered the briefs and
arguments of the parties, I make the following
FINDINGS OF FACT
The Company, a Maryland corporation with an office
and place of business in Clinton, Maryland, is engaged as
a health-care institution in the operation of a full-service
general hospital providing inpatient and outpatient medi-
cal and professional care services for the general public.
In the conduct of its operations the Company annually
derives gross revenues in excess of $250,000, and annual-
ly purchases and receives at its Hospital goods and mate-
rials valued in excess of $50,000 directly from points out-
side Maryland. I find, as the Company admits, that it is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and a health-care
institution within the meaning of Section 2(14) of the
Act.
I. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. BACKGROUND: THE COMPANY'S OPERATIONS, AND
THE PRIOR ORGANIZATIONAL AND ELECTION
CAMPAIGN AND UNFAIR LABOR PRACTICE
PROCEEDING
The Company's hospital employs some 1300 personnel,
including about 1200 nonsupervisory employees. Dr.
Francis Chiaramonte is chief executive officer and the
principal owner. Sebastian Suriani, his immediate subor-
dinate, is executive vice president and was previously ad-
ministrator of the Hospital. Since August 1981 Margaret
Greenway has been administrator for public relations,
community and government affairs. From 1 October
1983 to 22 June 1984, when she left the Company's
employ, Audrey DiFlorio was director of personnel.
John Butschky is and was at all times material director
of security. Since late February 1984, Marjorie O'Don-
nell has been director of central supply and linen service.
She was previously director of nurses in the operating
room. It is undisputed that these personnel, who are in-
volved at least to some extent in the present allegations,
were at all times material and still are (except for Di-
Florio) supervisors and agents of the Company within
the meaning of the Act.
In the spring of 1981 the Union commenced an organi-
zational campaign among the Company's employees.
Other labor organizations also engaged in organizing ef-
forts, but the Union was foremost and most active in
these efforts. Union Staff Representative Kathleen Kocan
Moore was in charge of the Union's campaign. These
various organizational efforts culminated in Board-con-
ducted elections in five separate units (registered nurses
3 On 22 May 1985 I issued an order correcting the official transcript of
proceedings in several respects
4 With the consent of the parties and in the presence of representatives
of each of the parties, I examined portions of the Hospital premises and
adjacent areas on February 9, 1985
and other professionals, service and maintenance, techni-
cal, office clericals, and engineering and maintenance),
on 11 June 1982. None of the unions won, no exceptions
were filed, and the results were certified. However, as an
outgrowth of the campaign, the Union filed unfair labor
practice charges against the Company (Cases 5-CA-
14016 and 5-CA-14017), alleging violations of Section
8(a)(1) and (3) of the Act. The Regional Director issued
a complaint and the matter was heard before Administra-
tive Law Judge Arline Pacht over a 6-day period from
15 to 22 November 1982. On 22 April 1983 Judge Pacht
issued her Decision and recommended Order in the case
[276 NLRB 1349.] She found and concluded in sum that
the Company violated Section 8(a)(1) of the Act by con-
fiscating union literature from its employees; instituting
an Employee of the Month program; soliciting griev-
ances from employees and granting benefits to them in
order to discourage their support for the Union, interfer-
ing with Board processes by telling an employee she
could not be released from work to comply with a sub-
poena; informing employees they did not receive a 1981
bonus because they sought union representation; restrict-
ing the access of employees to union organizers during
nonworking hours; threatening employees with discharge
because of their union adherence, threatening an employ-
ee with bodily harm while he was distributing union lit-
erature, and threatening to sue employees as a means of
intimidating them in the exercise of Section 7 rights.
Judge Pacht further found and concluded that the Com-
pany violated Section 8(a)(3) and (1) of the Act by issu-
ing a verbal counseling report and reprimand to employ-
ee Patricia Vass for discriminatory reasons; and by with-
holding from its full-time and regular part-time employ-
ees a bonus at year's end 1981 Judge Pacht recommend-
ed among other relief, a broad prohibitive order. The
Company filed exceptions, and the matter is presently
pending before the Board.
The General Counsel has requested that I consider
Judge Pacht's decision as background evidence in the
present case. The Company does not object to such con-
sideration of findings concerning undisputed matters, but
does object to consideration of findings to which the
Company has filed exceptions. I could resolve this con-
flict by withholding my decision in the present case until
the Board issues its decision in Judge Pacht's case. In
such event the Board's decision would be binding for
purposes of the present case, as to all matters decided
therein. See Laborers Local 282 (Millstone Construction),
236 NLRB 621, 623 (1978) However, this course of in-
action would be inconsistent with my obligation under
this Act and the Administrative Procedure Act to pro-
ceed with reasonable dispatch in processing the matter
before me. Moreover, an open-ended delay might impede
my ability to resolve questions of credibility, particularly
insofar as they entail consideration of the demeanor of
the witnesses. In this situation, the appropriate procedure
would be to accord at least a presumption of validity to
Judge Pacht's credibility resolutions and findings of op-
erative fact. See Universal Camera Corp. v. NLRB, 340
NLRB U.S 474, 494 (1951). I have done so. I have con-
sidered Judge Pacht's decision, and I find that her find-
SOUTHERN MARYLAND HOSPITAL 1211
ings may properly be considered as evidence of the
Company's animus toward the Union, its organizers, and
its principal employee adherents. As will be discussed, I
have further determined that Judge Pacht's findings in
connection with restricting the access of employees to
union organizers during nonworking hours (under the
heading "Restricted Access to the Cafeteria"), are par-
ticularly relevant to the present allegation that the Com-
pany discriminatorily denied nonemployee organizers
access to the cafeteria.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Unlawful Surveillance and Exclusion of
Union Organizers from the Hospital Cafeteria
The allegations under this hearing are legally distinct
from one another, but involve overlapping evidence.
Both involve the hospital cafeteria (the surveillance al-
legedly took place in the cafeteria, shortly before exclu-
sion of the organizers). Additionally, from the outset of
this proceeding the General Counsel made clear that its
position on denial of access was not based on any con-
tention that the Union lacked other means of communi-
cating with the hospital employees. Rather the General
Counsel contends that the Company maintained and en-
forced its no-solicitation and no-distribution rule "selec-
tively and disparately" by denying the organizers access
to the cafeteria.-' Therefore I shall consider these two al-
legations together.
Since at least 14 December 1981, the Company has
maintained a written no-solicitation and no-distribution
"policy" which provides as follows:
In order to avoid disruption of patient care, em-
ployees will not solicit for any purpose during
working time, nor may they distribute literature for
any purpose during working time or in patient
areas.
Non-work time is defined as scheduled lunch pe-
riods, authorized break times and other times when
the employee is properly not engaged in the per-
formance of their duties.
Persons not employed by the Hospital may not solic-
it or distribute literature on Hospital property for any
purpose at any time. [Emphasis added.]
Notwithstanding the above italicized portion of the rule,
it is undisputed that until March 20, 1984, the Company
did not generally prohibit union organizers from entering
or remaining in the hospital cafeteria for the purpose of
communicating with employees in connection with an
ongoing organizational or election campaign, although it
was aware of such activity. Organizer Moore testified in
sum that in the fall of 1981, when the Union went public
with its organizational campaign, she began going to the
cafeteria about once a week. Thereafter she went 2 or 3
times a week, alternating with International Representa-
6 As will be discussed, the Company, but not General Counsel, con-
tends that the availability of other means of access should be considered
in connection with the allegation that the Company unlawfully prohibited
employees from distributing union literature in "nonpatient care areas,"
specifically, at the main entrance to the hospital building
tive Alger, who had been assigned to assist in the cam-
paign. During the last 6 weeks of the campaign, she was
present on a daily basis, and during the last 2 weeks she
would be accompanied by one or more other union rep-
resentatives. Moore would remain in the cafeteria during
lunch hours, which were from 11:30 a.m. to 2 p.m. She
would always order a food or beverage item. However,
her principal purpose in going to the cafeteria was to
communicate with employees concerning the campaign.
Toward the end of the campaign she wore a badge that
identified her as a union official. As indicated, the Com-
pany never excluded the organizers from the cafeteria.
However, Judge Pacht found that on one occasion Dr.
Chiaramonte restricted access by employees to organiz-
ers in the cafeteria. As her findings are significant in sev-
eral respects to the present case, I shall quote in full her
pertinent findings. Judge Pacht found as follows [276
NLRB at 1359-1360]:
The allegation in paragraph 5(q) of the complaint
concerns Dr. Chiaramonte's separate confrontations
with employees Douglas Souris and Thomas Mahaf-
fey in the cafeteria.
Souris testified that on February 25, while he was
having lunch in the cafeteria with three union
agents, Dr. Chiaramonte approached with Security
Supervisor Barry Powers, and asked him if the
Union officials were rightfully there. Powers an-
swered that as long as the organizers had a Hospital
employee with them they could remain. The doctor
then told the union officials that there was not
enough room in the cafeteria for the employees and
that if they were just going to sit there, he would
appreciate their leaving. He then suggested that
Souris finish his lunch and leave too. Souris ex-
plained that at that time, the tables immediately sur-
rounding him were empty although other employ-
ees were in the cafeteria. After Dr. Chiaramonte
made his request, Souris finished his lunch and de-
parted, leaving the union officials in the cafeteria.
Mahaffey, presently employed as a physical ther-
apist at the Hospital, also related that after distribut-
ing the Solid Rock, he entered the cafeteria and
joined the three union organizers at a table. After
chatting for a bit, he entered the food line where-
upon Dr. Chiaramonte grabbed his arm and told
him there was ". . . no room in the cafeteria for
your damn union meetings" and instructed him to
tell the Union that "this is not their meeting place "
These statements were made loudly within earshot
of at least six other persons. Immediately after this
encounter, Mahaffey (went) to his department and
committed to writing precisely what the doctor had
said.
Dr. Chfaramonte does not deny these incidents
but put them into a less hostile context. He ex-
plained that his purpose was to prevent crowding of
the cafeteria and, therefore, he advised both Souris
and Mahaffey that they and the union representa-
tives should not take up space that was badly
needed. He further maintained that he has on other
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occasions asked nonunion visitors and guests to
leave the cafeteria in order to lessen overcrowding.
While the Union's right to confer with employees
in areas of the Hospital which are strictly dedicated
to patient care are properly circumscribed, the Su-
preme Court has made it clear that no such restraint
exists on union solicitation in other areas such as a
cafeteria, which is essentially operated for employ-
ees, exists as their primary gathering place, and is
almost wholly unrelated to patient care. See Beth
Israel Hospital v. NLRB, 437 U.S. 483 (1978). Of
course, special circumstances may arise which justi-
fy the curtailment of the Union's protected activities
even in nonpatient care areas. Here, however, the
Hospital failed to meet its burden of showing any
special circumstances. There was no evidence that
the employees' conferences with the union agents
caused any disruption to patient care or even in-
fringed upon other employees' use of the cafeteria.
Dr. Chiaramonte suggested that he was not denying
the Union access to the cafeteria, so much as impos-
ing some brief limitations upon it because of conges-
tion in the dining area. His testimony was contradict-
ed by the much more specific recollection of Souris,
that there were empty tables surrounding the one
which he and the union officials occupied. Further,
Dr. Chiaramonte's assertion that he urged other
visitors to quit the cafeteria was offered gratuitously
and was not corroborated. The ample evidence in this
record of the doctor's animus toward the Union leaves
no doubt that he pressed for the Union's quick depar-
ture not from a genuine desire to cure congestion in
the cafeteria, but out of a more fundamental desire to
get rid of their loathed presence. Since the Respond-
ent failed to provide any satisfactory explanation for
its unwillingness to countenance the continued pres-
ence of the Union in the cafeteria, I find that even
these brief intrusions on the employees' and the
Union's access to the cafeteria violated Section
8(a)(1) [Emphasis added.]
The foregoing findings are significant to the present alle-
gation concerning exclusion of organizers because they
indicate that (1) company policy, as understood by the
security supervisor who was responsible for enforcing
such policies, permitted guests of or persons accompa-
nied by an employee to enter and remain in the cafeteria,
(2) the cafeteria was not invariably crowded during
lunchtime and at least sometimes there were empty
tables, and (3) Dr. Chiaramonte was hostile to contact
between employees and organizers in the cafeteria, and
used the false and pretextual excuse of overcrowding to
inhibit such contacts.
About a month after the June 1982 election, the Union
commenced a second organizational campaign. Kathleen
Moore was again in charge of the campaign. The Union
initially conducted an "underground" campaign, but
went public in November 1983, announcing in its cam-
paign newsletter, known as Solid Rock (referred to in
Judge Pacht's decision) that "we're back." The Union
did no initially limit its organizing efforts to any particu-
lar group or group of employees. However the Union
eventually filed petitions for elections in two separate
units namely, a unit of registered nurses and other pro-
fessionals, and a unit of technical employees, and the Re-
gional Director ordered elections in such units. The Op-
erating Engineers petitioned for an election in a unit of
engineering and maintenance employees, but withdrew
its petition shortly before the scheduled elections on De-
cember 7, 1984, and no election was held in that unit. No
other labor organizations were involved in this cam-
paign. The Company contested the appropriateness of a
technical unit, contending that only a unit of all nonpro-
fessional employees would be appropriate. The Union
lost the election in the professional unit, no objections
were filed, and the results of that election were certified.
The ballots cast in the technical unit were impounded,
pending Board review of the Regional Director's unit
determination. On 29 March 1985, after the hearing in
the present matter, the Board issued its Decision in the
representation proceeding (Case 5-RC-12207, reported
at 274 NLRB 1470), affirming the Regional Director's
determination that a technical unit was appropriate.
In the meantime, in early 1984, the Union again sought
to use the cafeteria as a location to further its organiza-
tional campaign. This time the Union, anticipating the
possibility that the Company might invoke its no-solicita-
tion and no-distribution rule to exclude organizers from
the cafeteria, decided to test the waters by determining
the extent, if any to which the Company excluded non-
employees from the cafeteria. The cafeteria was located
on the ground floor of the hospital, one flight below the
main entrance Normally a nonemployee coming from
the outside and seeking to go directly to the cafeteria
would enter through the main (front) doors of the hospi-
tal and proceed ahead through the main corridor about
60 feet to a point where a hospital volunteer was sta-
tioned at a reception desk A security guard was usually
in the vicinity, and sometimes, but not always stationed
near the reception desk. The visitor would then turn left,
proceed down a hallway to an elevator, take the elevator
to the ground level, and proceed down another hallway
to the cafeteria. On February 1, International representa-
tive Kathy Burton went to the hospital. Burton assumed
her position with the Union in December 1983, and she
was not involved in the first campaign. However, she
was a native of the area and knew some of the hospital
personnel. Burton entered about noon, and did not wear
any union identification She proceeded past the recep-
tion desk where a volunteer was seated, but the volun-
teer said nothing. The volunteer did not offer Burton a
visitor's pass, although such passes were at least available
to be worn on the visitor's person, and Vice President
Suriani and then Personnel Director DiFlorio testified
that all persons entering the hospital were required to
obtain such passes. Burton proceeded directly to the caf-
eteria, where she purchased a cup of coffee and sat down
at an empty table. She remained for about 45 minutes.
Nurse Supervisor Heide Chaney and two employees
came over to her table. Chaney introduced Burton to the
head of volunteer services, who asked Burton if she
would like to apply as a volunteer. Burton testified that
there was heavy activity, but empty tables in the cafete-
SOUTHERN MARYLAND HOSPITAL 1213
ria, and that she saw 10 to 12 persons having lunch to-
gether, who by their clothing and dirty appearance were
obviously construction workers. There was construction
work going on at the hospital throughout the second
campaign, and the construction workers were employed
by outside contractors. Burton picked up a volunteer ap-
plication on her way out of the hospital, and on Febru-
ary 6 she returned the application. She again went to the
cafeteria, and again she was not asked the purpose of her
visit or offered a pass. On March 14, the Union made an-
other test. At the request of organizer Moore, two union
members who were not hospital employees (Cheryl
Gannon and Mary Feely), went to the hospital about 6
p.m. The cafeteria is normally open for dinner from 4 to
7 p.m. Gannon asked the volunteer at the reception desk
for directions to the cafeteria, saying that they wanted to
"visit someone" in the cafeteria. A security guard stood
next to the volunteer. Patients seldom use the cafeteria,
and when they do, they are usually, accompanied by
their own family members or other visitors. Therefore, it
would be evident to the volunteer and the guard that
Gannon and Feely probably intended to visit someone
other than a patient. Nevertheless the volunteer simply
gave directions, and did not offer them passes, the guard
said nothing, and the two visitors proceeded to the cafe-
teria, where by prearrangement they met with staff nurse
Carolyn Almassy. They remained for 15 to 20 minutes.
At the time the cafeteria was about one-third full. (It is
undisputed that the cafeteria was less crowded at dinner-
time than at lunchtime because there are fewer employ-
ees on duty during the evening). Dr. Chiaramonte, Ad-
ministrator Greenway, and two other administrative per-
sonnel were present at one of the tables. If hospital
policy was as testified by Suriani and DiFlorio, then ev-
eryone in the cafeteria would be wearing some form of
identification. Specifically, employees would be wearing
identification badges, patients would be wearing a robe
with a wrist band, and visitors would have a pass pasted
on their clothing. The cafeteria dining area measures 56
by 38 feet, has a seating capacity of 116, and contains 41
tables, which are usually pushed together in pairs If as
indicated by Gannon, there were only about 40 persons
in the cafeteria at that time, then Gannon and Feely
would have been conspicuous by their absence of visible
identification. Nevertheless they were not questioned or
challenged.
The next day, 15 March, Organizer Moore, accompa-
nied by Organizer Burton and Union president Jim
Sheridan, came to the hospital. The complaint alleges
that on this day, by Butschky and Greenway, and on the
following day by Butschky and O'Donnell, the Company
engaged in unlawful surveillance of employees' union
and concerted activities in the cafeteria. With regard to
15 March, Moore and Burton testified in sum as follows:
The three union representatives entered the hospital
about 12:05 p.m. and went by the reception desk. A se-
curity guard and volunteer were stationed there, and
other persons were waiting at the desk. The union repre-
sentatives went past them without stopping, but the vol-
unteer and the guard said nothing. They went on to the
cafeteria, purchased food and beverage items, and found
an empty table in the middle of the cafeteria, i.e. two
tables pushed together, and capable of accommodating
six to eight persons. There was much movement in the
cafeteria, but the dining area was about one-half full, and
remained that way. Operating room and other employees
who were at lunch began coming over to their table.
Then Preston Potter, Dr. Chiaramonte's personal physi-
cian assistant , came over to the table. Before sitting
down, he nodded to Security Director Butschky, who
had arrived on the scene and was standing near the door-
way to the cafeteria with his walkie-talkie. Moore said
hello to Potter and asked if he remembered her from the
first campaign. Potter denied knowing her and avoided
talking to her (Moore testified without contradiction that
nurse Carol Kline introduced them during the first unfair
labor practice proceeding.) Next Administrator Green-
way, accompanied by a volunteer firefighter, came to the
table and sat down. Burton commented that she thought
the man with Greenway was a policeman, whereupon
Greenway said: "Well, we thought things were going to
get hot here so we brought a fireman along." Next
Butschky and DiFlorio came over and sat at an adjacent
table. They did not have lunch, but Butschky watched
the organizers. No more employees came to the table.
The union representatives remained for about 30 minutes,
and the management personnel remained until they left.
The next day (16 March) Moore and Burton returned
to the hospital at about noontime. They testified in sum
as follows: They went to the reception desk and Moore
asked if they should sign in, as they were going to the
cafeteria. The volunteer said they should. They signed,
and the volunteer gave them passes, which they pasted
on their clothing. They went to the cafeteria, obtained
their orders, and went to a side table. Again, the cafete-
ria was busy, but about one-half of the tables were
empty. Again employees came over to their table, in-
cluding employees from dietary and central supply. They
were also joined by Union Staff Representative John
Hazel. Two more employees came to the table and were
about to sit down when Butschky came over, whereupon
the employees went to another table Butschky said:
"Hello Kathy." Moore said that he was making the em-
ployees leave. Butschky answered that he was not trying
to do that, but just wanted to make sure they followed
procedure and signed in. Moore said they had, and point-
ed to their passes. Burton asked Butschky whether there
had been a problem about passes the previous day,
whereupon Butschky shrugged his shoulders and smiled
quizzically. (If Butschky were concerned about this, he
could have observed their passes without coming to the
table.) Butschky remained at the table for a few minutes,
and then went to a nearby table where he remained until
the organizers left the cafeteria (between 1 and 1:30
p.m.) In the meantime, Director O'Donnell, accompanied
by her predecessor, Larry Stansbury, came to the orga-
nizers' table. Burton went to another table to talk to
other employees. As she was getting around O'Donnell,
the latter commented: "Oh, you are a very busy lady
today."
Butschky was not presented as a witness in this pro-
ceeding. However Former Personnel Director DiFlorio
testified in sum as follows: One day in mid-March she
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was at lunch in the cafeteria. She saw Moore, Burton,
and a male organizer seated at a table about 2 or 3 tables
away from her. Employees went over to the table, as did
Supervisors Greenway and Noreen Briley. Security di-
rector Butschky was having lunch at a table about three
or four tables away from DiFlorio. She asked Butschky
to check the organizers' passes because she did not see
any. Butschky went over to the organizers' table and re-
turned after a few minutes, telling DiFlorio that they had
visitor's passes. Nothing more was said about the matter,
and Butschky left the cafeteria. Administrator Greenway
testified that she knew there were organizers in the cafe-
teria during the first campaign, but she did not know
who they were, and to her knowledge she never met
Moore until the night of the second election, when
Moore introduced herself at a restaurant. Greenway tes-
tified that in March 1984, she went to lunch several
times with a member of the volunteer fire department be-
cause both the hospital and the department were con-
cerned about pending legislation before the county gov-
ernment on the matter of charges for ambulance service.
She .further testified that she did not know whether she
and the firefighter ever sat at the same table with union
organizers, but that if she had serious business to discuss,
she would not have knowingly done so. Director
O'Donnell testified that she did not recall seeing union
organizers in the cafeteria. She testified that in March
she usually had lunch with Larry Stansbury because she
had just taken over his position and was learning the op-
eration. She further testified that she did not recall re-
marking to Moore or any other organizer that she was a
busy lady, but that she might have said something if
someone kept getting up and disturbing her or if employ-
ees were coming and going to and from her table.
O'Donnell also testified that, as of the end of February,
she did not anticipate that her departments (central
supply and linen service) would be involved in the union
organizational campaign.
Organizer Moore, in her testimony, sharply contradict-
ed Greenway's testimony that she did not know Moore.
Moore testified in sum that she saw Greenway in the
hospital many times during the first campaign, that
during that campaign they were involved in a conversa-
tion in the cafeteria concerning Dr. Chiaramonte's broth-
er, in which Moore mentioned her status as an organizer,
that they greeted each other at the first unfair labor
practice proceeding, that on the night of the second elec-
tion, Greenway, on behalf of a group of management
personnel, offered to buy a round of drinks for a group
of union representatives and adherents, including Moore,
and that Moore did not then introduce herself because
they already knew each other. This brings me to the sub-
ject matter of the Company's motion to strike portions of
the General Counsel's brief. In its brief, the General
Counsel argued in sum that company counsel admitted at
the present hearing that Moore was well known at the
hospital, and that this admission tended to impeach
Greenway's testimony. The Company contended in its
motion that the alleged admission was "made in a jocular
manner" and was in no way intended as a stipulation of
fact. The statement in question was made in connection
with the Company's objection to a line of inquiry by the
General Counsel, who was questioning Moore concern-
ing union activity in the cafeteria during the first cam-
paign. At this point the Company objected, the General
Counsel responded, the Company replied, and I ruled as
follows (Tr. 185-186):
Q. Let me ask you this,-
MR. DAVIDSON: Your honor, please, I hope you
don't think I don't have any objection to some of
the prior testimony which I consider to be quite ir-
relevant.
What occurred during the first campaign is unre-
lated to what occurred during the second campaign
because the rules changed.
MR. POSNER: Your honor, that is not the conten-
tion, I am resenting this particular evidence for
other reasons. As to the front entrance, I think it
will go to the issue which Respondent has raised
which is whether or not this intervened with patient
care and as to the cafeteria I think it shows that Ms.
Moore was well known to employees and to manage-
ment personnel as a union representative.
MR. DAVIDSON: Well, we're willing to stipulate
that most of the people in the hospital got to know and
love Kathy Moore. We know that they-
JUDGE ROTH: I will permit testimony along these
lines. I would agree in any event it would appear to
be relevant to the first question. [Emphasis added ]
It is settled law that the admissions of an attorney in the
management of litigation are admissible against the
client. Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969); Pacif-
ic Intermountain Express Co., 110 NLRB 96, 104 (1954),
enfd. 228 F.2d 170, 175 (8th Cir. 1955), cert. denied 351
U.S. 952 (1956). An attorney may express himself in a
colorful or colloquial manner and still mean what he
says. I find it unlikely that Davison, a competent and ex-
perienced attorney, would propose to "stipulate" facts
without meaning to do, while arguing in support of his
objection to a line of questioning. If Davison was only
joking, then he could have or did seriously mislead the
General Counsel and the administrative law judge. (As
indicated by the record, I accepted counsel's representa-
tion as an indication that there was no issue concerning
company knowledge of Moore's identity, and ruled that
the testimony was "in any event" potentially relevant to
the issue of employee handbilling at the front entrance.)
It is also significant that company counsel did not cross-
examine Moore concerning the matter of whether she
was known to management personnel. I find that compa-
ny counsel's proferred stipulation may properly be con-
sidered as an admission by the Company which tends to
impeach the testimony of Greenway and O'Donnell to
the effect that they did not know organizer Moore.6 In
6 The cases principally relied on by the Company in its motion are not
in point In Duncan Foundry & Machine Works, 222 NLRB 768 (1976),
the Board found that a stipulation was not inconsistent with certain un-
controverted testimony In Penn Traffic Co. v. NLRB, 546 F 2d 677 (6th
Cir 1976), the court determined that the stipulation in question was inter-
nally inconsistent and supplemented by evidence adduced at the hearing
Continued
SOUTHERN MARYLAND HOSPITAL
k
these circumstances, it is evident that the testimony of
the company witnesses was contrived over the weekend
following the General Counsel's direct case, after those
witnesses had an opportunity to hear or learn of the tes-
timony of Moore. (The present hearing, unlike the first
proceeding, was not conducted under a rule of exclusion
of witnesses.) There is additional evidence that tends to
corroborate the testimony of Moore. Vice president Sur-
iani testified that Moore became familiar to him as a
result of her activity in the first campaign. Greenway, by
her own admission, was at least emotionally involved in
the first campaign . She resented a statement in Solid
Rock to the effect that she was hired as a "union buster,"
and she went to the trouble of writing a letter about the
matter. In these circumstances, coupled with the fact
that both Moore and Greenway were regularly present
in the cafeteria at lunchtime during the first campaign, it
is unlikely that Greenway would have failed to make
some effort to identify her principal accuser. As for
O'Donnell, I do not credit her asserted belief that em-
ployees in her departments would not be involved in the
second campaign. On 16 March, when she came to the
organizers' table, Moore and Burton were accompanied
by employees from dietary and central supply who came
to that table. (As discussed, the Union did not initially
limit its campaign to any particular group or groups of
employees.) Additionally, as discussed, until February
1984 O'Donnell served as a supervisor of nursing, which
was a principal area of union activity during both cam-
paigns . Therefore if the Company were intent on engag-
ing in surveillance of union activity, O'Donnell would
have been an appropriate person to perform this func-
tion.
Greenway's testimony contains admissions that are sig-
nificant both to the allegation of surveillance and to the
question of the Company's policy concerning access to
the cafeteria. Vice President Suriani testified in sum that
since shortly after the first election, company policy re-
stricted use of the cafeteria to "employees, patients, pa-
tients' visitors and medical staff only," and that a sign to
that effect was posted at the entrance to the cafeteria
since in or about August 1982. If so, then Greenway's
practice of inviting the firefighter to lunch would consti-
tute a repeated violation of that policy by a high man-
agement official, because the purported policy made no
exception for guests of hospital personnel, whether they
were present on hospital or related business Additionally
as indicated, Greenway testified that if she had serious
business to discuss with the firefighter (which she did)
she would not knowingly share the same table with
union organizers . In light of the credited evidence that
Greenway knew that Moore was a union organizer, it is
evident that Greenway had some other purpose in going
to Moore's table The same would also be true of
O'Donnell, who had serious business to discuss with
Larry Stansbury. As for Butschky, DiFlorio's testimony,
when matched against that of Moore and Burton, sug-
In the present case, there is conflicting testimony concerning the extent
to which Moore was known among managerial and supervisory person-
nel at the hospital Therefore, counsel 's representation may properly be
considered as evidence on this issue See Precision Carpet, 223 NLRB 329,
338 (1976)
1215
gests a composite of the incidents on 15 and 16 March as
described by the organizers. DiFlorio described only one
incident, and she did not claim to overhear the conversa-
tion between Butschky and the organizers. In the ab-
sence of any testimony by Butschky, DiFlorio's testimo-
ny constitutes only a partial refutation of the organizer's
testimony, and fails to explain or contradict other aspects
of their testimony.' In light of these factors, and the de-
monstrably false testimony by Greenway and O'Donnell
relative to the events described by Moore and Burton, I
credit the organizers, and I find from Butschky's words
and actions that he was present in the cafeteria on 15 and
16 March for the purpose of surveillance of union activi-
ty.
I agree with General Counsel's contention (Br. 24)
that Moore's entrance and presence in the cafeteria on 15
March "set off alarm bells at the hospital," and "also
tipped off the hospital about Burton's identity." The
Company thereby learned that the Union again intended
to use the cafeteria as a locus to communicate with em-
ployees concerning the campaign. This time, instead of
personally intervening, Dr. Chiaramonte delegated the
Company's response to his subordinates. And this time
the Company was prepared with a carefully calculated
and coordinated response, beginning with intimidating
surveillance, coupled with contrived situations that could
be used to suggest that the organizers were causing over-
crowding in the cafeteria, and culminating with their ex-
clusion from the cafeteria.
On 20 March at noontime Organizer Burton returned
alone to the hospital for a prearranged appointment in
the cafeteria with employee Carol Kline. She went to the
reception desk where a volunteer and security guard
were stationed. The guard asked who she was visiting.
She answered Carol Kline. The guard asked if Kline was
a patient. Burton answered that she was an employee,
whereupon the guard said, "then I can't let you go to
the cafeteria." Burton asked why, and the guard an-
swered that there was a hospital rule that only patients,
patients' visitors and employees could visit the cafeteria.
Burton disagreed, saying that she had been there before,
and asked to speak to the guard's supervisor. The guard
was initially unwilling but eventually paged Butschky,
who arrived and stated the same asserted policy to
Burton. She asked Butschky to reconsider, whereupon
Butschky left to make a call, returned, and again denied
access to the cafeteria. Burton asked to see Butschky's
supervisor, and he summoned Peg Miller, an administra-
tive official, who said that Burton was denied access to
the cafeteria because the hospital had a no-solicitation
policy. Burton insisted that this was a change from prior
practice, and that she would return until she got a re-
sponse from the hospital administration. Burton left after
meeting in the lobby with Kline and another employee.
The next day Burton returned to the Hospital at noon-
time for a prearranged appointment with employee La-
tinzar Everett. This time Burton wore a union badge.
' In accordance with current Board policy, I have not drawn any ad-
verse inference from the Company 's failure to present Butschky or any
other person as a witness My findings are based on the inadequacy of
DiFlono's testimony
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
They met in the lobby and attempted to go to lunch to-
gether. The same guard denied her access to the cafete-
ria, giving the same reason that he did the previous day.
Burton asserted that his reason was different from that
given by Peg Miller, and she left the hospital.
Vice President Sunani, the Company's principal wit-
ness, testified that during the first campaign the union or-
ganizers "set up their offices" in the cafeteria, and that
they were present "in great numbers" on a "continual
daily basis," but that on the advice of counsel the Com-
pany took no action dunng the campaign. However,
after the first election the Company established a policy
that permitted only employees, patients, patients' visitors,
and medical staff to use the cafeteria, and posted a sign
to that effect at the entrance.8 Suriani inferred, but never
directly testified that Burton was excluded pursuant to
this policy. According to Sunani, this policy was institut-
ed because the cafeteria did not have much space, the
hospital had a large number of employees, and the orga-
nizers "abused" this access to the cafeteria. The Compa-
ny, through Sunani, presented statistics concerning the
average number of persons who went through the serv-
ing line during the lunch period, which purported to in-
dicate that the cafeteria was full or nearly full dunng
most of that period. With regard to the testimony of wit-
nesses that indicated that the cafeteria was extensively
used by persons not within the posted categories, Suriani
could offer no explanation other than: "We just haven't
attained a full total control the way we should have. We
blew it." Suriani testified that he told Butschky, but not
the volunteers, about this policy However, he admitted
that on learning in March that organizers came to the
cafeteria, he carefully instructed both security and the
personnel office to "keep an eye out for these particular
individuals."
In fact, the alleged change in policy was simply a pre-
text, and the Company never excluded anyone but
known union organizers from the cafeteria. I have previ-
ously discussed testimony that indicated that the Hospital
repeatedly and knowingly permitted employees' visitors
and nonhospital employees to use the cafeteria. There
was additional testimony along this line. Thus, former
employee Margaret Watson and present employee Jill
Stahl testified about numerous instances in 1983 and 1984
in which family and friends of employees, including their
own, would visit the cafeteria at lunchtime or dinner-
time.9 Moreover, Suriani's testimony concerning alleged
a Sunani testified that prior to the first election there was a posted sign
which restricted the cafeteria to employees , visitors , medical staff, and "if
my memory serves me correctly," to "community members " However,
Organizer Moore and Carolyn Almassy, who was employed as a staff
nurse at the hospital from January 1980 to 24 December 1984, testified
that there was no sign during the first campaign If there were such a
sign, then it is probable that there would have been testimony and find-
ings concerning the sign in the first unfair labor practice proceeding in
connection with alleged restricted access to the cafeteria However,
Judge Pacht 's decision makes no reference to a sign I credit Moore and
Almassy
e One such instance is particularly significant Stahl testified that in the
summer of 1984, after the organizers were excluded from the cafeteria, a
security guard was reluctant to let her friend past the reception desk be-
cause he was dressed in shorts, which violated the dress code However
when Stahl identified him as a friend who was joining her in the cafete-
ria, the guard let him through
excessive use of the cafeteria during the first campaign,
and alleged overcrowding in the cafeteria was demon-
strably exaggerated. r ° As with Dr. Chiaramonte in the
first hearing, Suriani's generalized assertions concerning
crowded conditions in the cafeteria were contradicted by
the specific recollection of other witnesses that there
were empty tables even at the peak of the lunch period.
Even Audrey DiFlono testified that in mid-March be-
tween 12:30 and 1 p.m. "There were not a lot of empty
chairs," i.e., that there were at least some empty chairs
even at this time. Suriani testified that he was sometimes
inclined not to wait in the service line. However, al-
though there might be a line at the food service counter
during the noon hour, neither Sunani nor any other wit-
ness indicated that once through the service line, they or
other persons had to wait to find a table. Moreover, the
presence of one or two organizers, even for an extended
period of time, would hardly equate for accommodation
purposes with the presence of as many as 10 to 12 con-
struction workers (nearly 10 percent of seating capacity)
having their lunch in the cafeteria. i i
In sum, the evidence demonstrates that at all times the
cafeteria was generally open to the public, and specifical-
ly open to guests and visitors of hospital personnel, that
since 20 March the Company has singled out union orga-
nizers for exclusion from the cafeteria, and that there
were no nondiscriminatory circumstances that warranted
such exclusion.12 The organizers always purchased a
food or beverage item before seating themselves in the
cafeteria. They behaved in a proper and appropriate
manner, and their presence was consistent with the pre-
vailing and approved practice of the Hospital to permit
hospital personnel to meet and talk with their guests,
family, friends, visitors or business acquaintances in the
cafeteria. They did not engage in table hopping (on the
occasion described by the organizers, when Burton went
to another table, she found it necessary to do so because
supervisors, by their intentional presence at and near the
organizers' table, were discouraging employees from
coming there). Therefore, the Company violated Section
8(a)(1) of the Act by selectively and disparately denying
nonemployee union organizers access to its cafeteria
10 In an effort to exaggerate the number of organizers who used the
cafeteria, Sunani twice testified that Kathy Burton was one of the orga-
nizers, although she was not involved in the first campaign In response
to a leading question by company counsel on redirect examination, Sur-
iani testified that he sometimes confused Burton with another woman
However, in his earlier testimony Sunani identified both Burton and the
other woman as involved in the first campaign Therefore it is evident
that Sunani was not confused, but was intent on exaggerating the number
of organizers without regard to the truth
I I Sunani suggested that the persons in question might be hospital
maintenance personnel who wore construction type uniforms However
Carolyn Almassy identified such workers as nonhospital employees Out-
side construction employees would be conspicuous by their lack of em-
ployee identification tags and as described by Burton, by their dirty ap-
pearance
12 Company security guard Frank Sanders testified that on one occa-
sion shortly before the present hearing he excluded commercial solicitors
who were placing literature on cars in the hospital parking lot Apart
from the fact that the incident did not involve the cafeteria, the Compa-
ny's policy with regard to commercial solicitation is not a factor in deter-
mining whether the Company discriminatonly excluded union organizers
from the cafeteria Ameron Automotive Centers, 265 NLRB 511, fns 10, 17
(1982)
SOUTHERN MARYLAND HOSPITAL 1217
Ameron Automotive Centers, supra; Montgomery Ward &
Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115, 1122
(7th Cir. 1982); Montgomery Ward & Co. v. NLRB, 263
NLRB 23_ (1982), enfd. as modified 728 F.2d 389, 391
(6th Cir. 1984).'3
I further find that the Company, by Butschky and
Greenway on 15 March and by Butschky and O'Donnell
on 16 March, violated Section 8(a)(1) by engaging in co-
ercive surveillance of its employees' union activities in
the cafeteria, at times when they were properly on their
lunchbreak. Montgomery Ward & Co., supra, 256 NLRB
at 801; 692 F.2d at 1128. Indeed, the Company's conduct
in the present case was substantially similar to the "un-
reasonably close observation" which the court deter-
mined to be unlawful in Montgomery Ward. The Compa-
ny's carefully orchestrated actions were demonstrably
designed to inhibit employee contact with the organizers,
and to create artificial situations that could be used as an
excuse to totally exclude the organizers. (In fact the
Company's actions did inhibit employees from talking to
the organizers, although this is not a necessary element
of a violation.) The credited evidence indicates that
Butschky had no legitimate reason for even going to the
cafeteria, but was there solely for the purpose of closely
observing and thereby intimidating employees who
wished to join the organizers at their table. Butschky, in
a conspicuous manner , remained and watched the orga-
nizers throughout their stay, and came and remained at
their table on the false pretext of checking their passes.
On the basis of Greenway's own testimony, it is evident
that she and O'Donnell would not have come to the or-
ganizers' table unless they had an ulterior motive. Even
in the absence of such testimony, the presence of such
supervisory personnel at the organizer's table on 2 suc-
cessive days could hardly be dismissed as coincidental.
As a general rule, management officials may observe
public union activity, particularly when such activity
occurs on company premises, without violating Section
8(a)(1) of the Act, unless such officials do something out
,a The above-cited cases differ factually from the present case in that
they involve food and beverage service facilities (a restaurant, cafeteria,
and snackbar , respectively), which were located on the premises of a
retail store, whereas the present case involves a facility that is located on
the premises of a hospital However, this factual difference presents no
legally cognizable distinction All the facilities were generally open to the
public By reason of their location, the facilities in the cited cases would
probably be patronized primarily by employees, customers or other per-
sons who found themselves in the area of the store In the present case,
the cafeteria would be patronized primarily by employees, visitors, or
other persons who had some reason to be on the hospital premises Inter-
community Hospital, 255 NLRB 468 (1981), principally relied on by the
Company (Br 26), is not in point That case involved a breakroom that
was not open to the public, but which was available only for the use of
employees (the hospital did not have a cafeteria or coffee shop) The
Board found that the Hospital did not discnmmatorily exclude nonem-
ployee organizers Therefore the organizers would be entitled to use the
breakroom only if they lacked other reasonable means of effectively com-
municating with the employees, i e , if they met the Babcock & Wilcox
standard (NLRB v Babcock & Wilcox Co, 351 U S 105, 112-113 (1956) )
Indeed most of the Company 's argument in its brief on the allegation of
exclusion of organizers is addressed to the Babcock & Wilcox test, al-
though that is not the basis of the allegation Rather the General Coun-
sel's position is based on the legally and factually sound premise that the
Company acted unlawfully by discriminatonly excluding union organiz-
ers from its cafeteria, although the cafeteria was generally open to em-
ployees' visitors and guests
of the ordinary. Metal Industries, 251 NLRB 1523 (1980).
In the present case, the Company's supervisors plainly
did "something out of the ordinary. "They observed the
organizers and employees in a sustained , close , and con-
spicuous manner, intentionally sat at their table in order
to discourage employees from talking to them, and har-
assed the organizers by questioning their passes. More-
over, the organizers and employees were not engaged in
"public union activity," such as distribution of literature,
but were engaged in private conversations in a cafeteria
area during the employees' free time. See Montgomery
Ward & Co. v. NLRB, 692 F.2d 1115, 1122 (7th Cir.
1982).
B. Prohibition of Employee Distribution of Union
Literature at the Hospital's Main Entrance
The Hospital operates on three shifts. The day shift is
from 7 a.m. to 3:30 p.m., the evening shift from 3 to
11:30 p.m., and the night shift from 11 p.m. to 7:30 a.m.
There are some 11 entrances to the hospital building but
only two or three (the exact number being in dispute) are
normally used by employees when going to or from
work. The main entrance is located at the front of the
hospital building. The front entrance has two double
glass doors, separated by a vestibule from an inner set of
double doors which in turn leads to the front lobby. The
emergency room walk-in entrance is located about 37
feet to the right of the main entrance (as one faces the
hospital), and the ambulance door is about 59 feet to the
right of the emergency room entrance. Between the main
and emergency entrances, but closer to the latter, is a
ramp for wheel chairs. Ambulances normally use the am-
bulance door. They will rarely pull up at the main en-
trance. On the right side of the Hospital there is a door
(the side entrance) adjacent to the security office, a re-
ceiving area adjacent to the engineer's office, and an-
other entrance at the opposite end of the receiving plat-
form, which leads to a food storage area. There is a door
at the rear of the Hospital (rear entrance) also known as
the doctors' entrance. The hospital building also has two
fire exits. There is a door in the corridor that connects
the Hospital with an adjacent professional building, but
this door is normally locked and requires a key for its
use. There is also a fire exit in the corridor. The main
entrance, which is always open, and the side door, are
normally used by employees for ingress and egress.
However, since in or about December 1984 the side door
has been locked at night and on weekends Vice Presi-
dent Suriani testified that this was done for security rea-
sons. The rear door is locked at all times and only doc-
tors and some nurses have a key to that door. Carolyn
Almassy testified that when the construction work
began, the rear entrance was restricted only to doctors.
Suriani testified that until about January 1985 each nurse
was given a key to the rear entrance, but that since that
time nurses are given a key only if they so request. The
driveway that leads to the rear entrance is marked with a
sign "Doctors Only." In addition, the construction work
has impeded both access to and parking in the rear area,
and the remoteness of this area discourages nurses from
using this entrance during hours of darkness. The re-
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maining entrances described above are normally not used
by employees. Carolyn Almassy estimated that about 40
percent of the nurses and other professional employees
used the main entrance, and the remainder used either
the back or side entrance. Suriani estimated that about
one-third of the employees used the front entrance. In
view of the recent changes described by Suriani, it is evi-
dent that this percentage would probably increase.
Among the three entrances used by employees, only the
main entrance is also used by patients.
During the first campaign, union organizers and em-
ployee members of the organizing committee distributed
union literature at the driveway entrance to the hospital
premises (which will be described further), and at the
main entrance , and employees distributed literature at the
entrance to the cafeteria. Suriani testified that he also
saw employees distribute literature at the side and rear
entrances. On 23 February 1984, when the second cam-
paign was underway, Organizers Moore and Burton
came to the hospital premises at about 6:15 a.m. They
met committee Member Larry Harman , and gave him
copies of Solid Rock for distribution. Committee Member
Margaret Watson joined Harman , and the two employees
(both emergency room technicians) proceeded to the
main entrance and began to distribute the literature to ar-
riving day shift employees. They did so on their own
free time, as neither was yet scheduled to report to
work. Watson stood to one side of the double doors and
Harman stood between the doors. They would say good
morning and offer a copy of Solid Rock to each employ-
ee. After about 5 to 10 minutes security guard Frank
Sanders approached the employees. Watson and Harman
testified in sum that Sanders told them they could not
distribute literature there. When they asked why, Sand-
ers answered that Dr. Chiaramonte was upset by the
handbilling during the first campaign. The employees left
and went to work. Organizer Moore testified that she did
not thereafter ask employees to distribute at the main en-
trance because the employees would be subject to dis-
charge under the Company's disciplinary policy, which
prohibited "Unauthorized presence on Hospital proper-
ty." (This provision is the subject of another allegation
of the complaint.) Sanders testified that he told the em-
ployees that it was illegal to solicit in the Hospital. When
the employees said they had distributed in the cafeteria,
Sanders answered that that was "a different situation,"
and that it was against hospital rules to distribute at the
front entrance. As indicated, the only arguably pertinent
rule would be the Company's no-solicitation and no-dis-
tribution policy, which provided that employees could
not distribute literature "in patient areas."14
14 Sanders was an agent of the Company within the meaning of Sec
2(13) of the Act See Coors Container Co, 238 NLRB 1312, 1320 (1978)
Nevertheless, the Company suggests (Br 29) that Sanders' action should
be viewed as an isolated incident I find this argument without merit
Both Sanders and Vice President Sunam confirmed in their testimony
that Sanders acted pursuant to company policy The Company asserts
that "there is no evidence that any other employees engaged in such so-
licitation at this particular location during the rest of the Union 's lengthy
campaign " If so, this would simply confirm Moore's testimony that the
Union was deterred from distribution at the main entrance In fact, Caro-
lyn Almassy distributed literature at the main entrance during the last
week of the campaign, although a security guard inferentially warned her
Vice president Suriani, in his testimony, confirmed that
the security office was instructed to prohibit distribution
of literature at the main entrance. However Suriani failed
to define the scope of the Company's restriction, and
specifically failed to define what in the Company's view
constituted "patient areas" under its no-distribution
policy. Instead, Suriani attempted to justify prohibition
of employee distribution at the main entrance by present-
ing statistics regarding the number of inpatients, outpa-
tients and prospective patients who entered the hospital
through the main entrance over the course of a year.
Suriani did not testify about what if any impact such
handbilling might have on these persons. Sunani is a hos-
pital administrator, and he did not identify himself as a
physician or other medical expert. The Company pre-
sented no expert medical testimony in this proceeding.
The only other company witness who testified concern-
ing patient use at the front entrance tended to indicate
that the handbilling would have no adverse impact on
patients or health care. When asked about what problems
might be caused by handbilling at the main entrance, se-
curity guard Sanders could suggest only that there might
be a problem if a wheelchair was leaving the building
and the handbillers were unaware of its presence. How-
ever, Sanders admitted that he never saw persons in
wheelchairs going in or out of the main entrance at that
time of day, i.e., around 6:30 a.m., and that, at the time
he stopped the distribution, traffic at the front entrance
consisted mainly of incoming nurses. Sanders did not
claim that Watson and Harman were impeding traffic.
He admitted that he did not even observe whether pa-
tients were using the entrance at the time, but simply fo-
cused on the distribution. In fact, the main entrance is
sufficiently wide that there would be no reason for pa-
tient traffic to be disrupted by two employees distribut-
ing handbills.
In Beth Israel Hospital v. NLRB, 437 U S. 483 (1978),
the Supreme Court upheld a Board decision that held
that Beth Israel violated the Act by issuing and enforc-
ing a rule which prohibited employees from distributing
union literature in the hospital cafeteria and coffeeshop,
which were used primarily by employees but also used
by patients and visitors. In so doing, the Court upheld
the Board's general approach of requiring health-care fa-
cilities to permit employee solicitation of union support
and distribution of union literature during nonworking
time and in nonpatient care and other nonworking areas,
unless the facility shows that prohibition of such activity
is necessary to avoid disruption of health-care operations
or disturbance of patients The Court further held that in
determining the validity of restrictions outside of patient
care or other working areas, "the availability of one part
of a health-care facility for organizational activity might
be regarded as a factor required to be considered." The
Court reasoned that "while outside of the health care
context, the availability of alternative means of commu-
nication is not, with respect to employee organizational
activity, a necessary inquiry . . . it may be that the im-
that she was acting improperly The fact that Almassy engaged in such
activity and thereby risked severe disciplinary action does not warrant
treatment of the present allegation as an isolated incident
SOUTHERN MARYLAND HOSPITAL
portance of the employer's interest here demands use of
a more finely calibrated scale." (437 U.S. at 505).15 One
year later, in NLRB v. Baptist Hospital, 442 U.S. 773
(1979), the Supreme Court was presented with the ques-
tion of the validity of a Board Decision and Order which
prohibited Baptist Hospital from enforcing any rule
against solicitation by employees "on behalf of any labor
organization during their nonworking time in any area of
its hospital other than immediate patient care areas." Ap-
plying the Beth Israel standard, the Court held that the
Board's prohibition was overly broad insofar as it applied
to corridors and sitting rooms on patients' floors because
the hospital, through expert testimony, demonstrated the
need, from the standpoint of "successful patient care," to
maintain a "tranquil hospital atmosphere" in these areas,
and that any activity in those areas that suggested dis-
traction from patient care would be discouraging to pa-
tients and their families. However, the Court approved
the Board's Order insofar as it applied to the hospital
cafeteria, gift shop, and first floor lobbies. The Court's
conclusion with respect to first floor lobbies is particular-
ly significant to the present case, because it is obvious
that those lobbies, like the main entrance in the present
case, were used as a means of ingress and egress by pa-
tients and their families. However the Court did not even
discuss this obvious fact. Rather the Court indicated its
concern with those areas where "patients normally
remain," i.e., floors above the first floor of the Hospital.
The Board's subsequent decision in Harper-Grace Hospi-
tals, 264 NLRB 663 (1982), enfd. 737 F.2d 576 (6th Cir.
1984), is even more to the point because that case, like
the present case, involved employer prohibition of em-
ployee distribution of union literature at the main en-
trance to its hospital. Harper-Grace argued that it could
lawfully prohibit such distribution because (1) the hand-
billing could have disturbed patients and their relatives in
that the content of the pamphlets was inflammatory and
they were to be disseminated to employees immediately
involved in patient care and would undoubtedly come to
the attention of patients and their relatives, and (2) em-
ployees wishing to distribute union-related literature had
an alternative method of reaching their intended audi-
ence, specifically, by posting their pamphlet on the union
bulletin board. The administrative law judge, without re-
jecting the factual premises advanced by the employer,
concluded as a matter of law that Harper-Grace failed to
15 I do not agree with the Company's argument (Br 31) that the Court
thereby suggested a Babcock & Wilcox test , i e , that absent discrimina-
tion, "an employer may validly post his property against nonemployee
distribution of union literature if reasonable efforts by the Union through
other available channels of communication will enable it to reach the em-
ployees with its message " NLRB v Babcock & Wilcox, supra, 351 U S at
112-113 The Court made clear in Beth Israel that the Babcock & Wilcox
standard does not apply to restrictions on employee activity, which in-
volve management rather than property interests, a distinction "of sub-
stance " Rather, the Supreme Court in Beth Israel held that by reason of
the unique and sensitive nature of a health-care facility, the availability of
other areas is a factor to be considered in determining the validity of re-
strictions on employee activity In contrast, Babcock & Wilcox establishes
the ultimate standard for determining the validity of employer restrictions
on nonemployee access to its premises Moreover, the Babcock & Wilcox
test involves consideration of any and all means of union communication
with employees, whereas in Beth Israel, the Court referred only to the
availability of other areas at the facility
1219
meet its burden of demonstrating that the prohibition
was necessary to avoid disruption of health-care oper-
ations or disturbance of patients, and his rationale was af-
firmed by the board and court of appeals.
I find that Harper-Grace is materially indistinguishable
from the present case and, specifically, that the Company
has failed to demonstrate that its prohibition on handbill-
ing was necessary to avoid disruption of health-care op-
erations or disturbance of patients. As indicated, the
Company sought to justify its prohibition by presenting
statistics concerning the number of inpatients outpatients,
and prospective patients who enter the hospital through
the main entrance over the course of a year. In so doing
the Company simply demonstrated the obvious. Any
main entrance to a hospital is regularly used by such per-
sons and their families. The Company's statistics prove
nothing more than that it operates a large hospital. How-
ever, Beth Israel and Baptist Hospital do not indicate that
there should be one standard for small hospitals and an-
other for large ones. It is also significant that in prohibit-
ing distribution at the main entrance, the Company went
beyond its own no-distribution rule. It is undisputed that
the main entrance is not a patient care area. If by "pa-
tient areas" the Company meant any areas of the hospital
premises where patients might be at any time, even mo-
mentarily (and this is not indicated by the language of
the rule) then the rule would also apply to the cafeteria
and parking lots, although the Company pointedly
argues (Br. 35-36) that it did not interfere with distribu-
tion in these areas. Moreover, Vice President Suriani did
not compile his statistics before imposing the restriction.
Rather he did so in preparation for the present hearing.
These factors, together with the testimony of security
guard Sanders, indicate that the Company imposed the
prohibition in order to impede significant employee
union activity, and then fished around for a rationale to
justify its action. In contrast to Baptist Hospital and
Baylor University Medical Center v. NLRB, 662 F.2d 56
(D.C. Cir. 1981), also relied on by the Company, the
Company failed to present any expert medical testimony
concerning the effect if any, that handbilling at the front
entrance might have on patient care. It is also significant
that the employees carefully confined their handbilling to
a time when employees normally arrived at work and
predominated among persons using the main entrance,
and distributed their literature only to employees. Com-
pare Baylor, in which the court indicated that the times
of distribution, and the relative volume of employee
presence during such times, is a factor to be considered
in evaluating the employer's prohibition.
Nevertheless, in deference to the Supreme Court's ad-
monition in Beth Israel I have considered the availability
of other areas in and around the Hospital for employee
distribution of union literature. I find, on balance, that
this factor favors the General Counsel's position. First,
together with the two other entrances used by employ-
ees, it is the only location where employee distributors
can reasonably expect to distribute their literature to all
or nearly all of their fellow employees, or even all or
nearly all the employees in a particular unit or units.
There are about 366 employees in the professional unit,
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and from 200 to 350 employees in the technical unit, de-
pending on the effect of the Board's resolution of chal-
lenges. Distribution only at the side and rear entrances
would not be effective because a substantial number of
employees, including many nurses, use the main en-
trance. In view of the Employer's actions in discourag-
ing use of the side and rear entrances, it may be antici-
pated that employee use of the front entrance will in-
crease. i 6 The cafeteria alone would not be adequate be-
cause not all employees use the cafeteria and many who
do, especially the professionals, may use the cafeteria at
odd hours that do not coincide with regular lunch and
supper service. (The cafeteria has a variety of food and
beverage service vending machines and a self-service
oven which, together with the seating area, is available
for use at all times, except for a cleanup period from 5:30
to 9 a.m.). In light of Baptist Hospital, it is questionable
whether the Company would permit distribution any-
where near the employees' working areas, particularly
the patient care areas that are attended by the nursing
staff. Second, as a result of other developments, includ-
ing company actions, both lawful and unlawful, areas of
possible distribution were either severely compromised
or closed to distribution. As indicated, during the first
campaign the union distributed literature at the driveway
entrance to the hospital premises. That entrance is locat-
ed on Surratts Road, and is the only entrance to the hos-
pital premises. On 23 February 1984, the same morning
that the employees were prohibited from distributing at
the main entrance, Organizers Moore and Burton distrib-
uted union literature at the driveway entrance. Security
guard Sanders came over and told them that they were
not supposed to be there because they were on hospital
property. Moore disagreed, and suggested that Sanders
call the police. A second company guard told them that
they would probably get in trouble. The organizers com-
pleted their distribution, and Moore and two other orga-
nizers returned about 1 to 2 weeks later. This time, after
they had been distributing for about 30 minutes, Prince
George's County police arrived in four cars. An officer
told the organizers that they could not stand there be-
cause they were disrupting traffic. The organizers sug-
gested other points in the immediate area, but the officer
indicated that it would be unlawful to stand at any of
those areas, and informed them that they would have to
leave. They did. About 2 weeks later the organizers at-
tempted to distribute union literature at the intersection
of Surratts Road and Maryland Route 5 (Branch
Avenue) which is the nearest intersection to the Hospi-
tal. This time the state police arrived on the scene, and
informed the organizers that they were unlawfully im-
peding the flow of traffic. Again the organizers suggest-
ed alternative points at the intersection, and again the of-
ficer indicated his disapproval. He informed them that
they would violate the law by putting even one foot in
the roadway, and he advised them to leave and not
return. In each instance the county and state police re-
I6 Although these actions took place after the events involved in this
case, the violation alleged is continuing in nature , in that the Company
never rescinded its prohibition on distnbution at the front entrance
Therefore developments since February, 1984 may properly be consid-
ered in determining the adequacy of other areas for distribution
spectively based their action on alleged disruption of
traffic, rather than on trespassing. Therefore it is evident
that by reason of police action, both the organizers and
employee union adherents were effectively precluded
from distributing union literature at the driveway en-
trance or at any other location near or adjacent to the
hospital premises. 17 The employee adherents could
wander around the hospital parking lots in search of em-
ployees, or place literature on cars parked in the employ-
ee parking areas. The first course would not enable the
Union to reach all or nearly all the employees on a regu-
lar basis, and could create a safety hazard, particularly
during hours of darkness. The second course would de-
prive the adherents of personal contact, and also might
not be effective because employees do not always park in
the areas designated for them, and nonemployees may
park in those areas. Additionally, the testimony of securi-
ty guard Sanders indicates that he would act to prevent
placement of literature on cars. Finally, the availability
of alternative areas of distribution must be considered in
light of the unfair labor practices found in this case and
in the preceding case. During both the first and second
campaign the Company engaged in conduct that was cal-
culated to interfere with and intimidate employees in the
exercise of their self-organizational rights, and during
both campaigns the hospital cafeteria was a focus for
such unlawful action. In these circumstances, the cafete-
ria cannot be viewed as an area where employees may
engage in union activity in an atmosphere free of em-
ployer coercion. As the Company's unlawful conduct in-
cluded coercive surveillance by its security director, the
circumstances can hardly be viewed as conducive to em-
ployee distribution of union literature at an entrance ad-
jacent to the security office. In sum , on consideration of
alternative areas for employee distribution of union liter-
ature, I adhere to my determination that the employees
were lawfully entitled to distribute union literature at the
main entrance to the hospital, and that the Company vio-
lated Section 8(a)(1) of the Act by prohibiting such dis-
tribution.
C. Alleged Unlawful Revisions in the Company's
Disciplinary Policy
The Company's personnel policy manual contains a list
of violations of hospital rules or other situations, known
as "policy 4," which may warrant disciplinary action In
January 1984 the Company revised policy 4 effective as
of 4 January, and informed its employees of the revi-
sions. The revised policy included among 26 listed situa-
tions, the following violations and the penalties for such
violations:
Rule 4. Unauthorized absence from work area:
first offense, written reprimand; second offense,
one-day suspension, third offense, three-day suspen-
sion with intent to terminate.
17 It is immaterial whether the Company caused the police to take
action against the organizers Consideration of alternative locations for
distribution is not limited to factors within the employer's control Com-
pare Babcock & Wilcox, supra, with respect to the standard for access by
nonemployee organizers
SOUTHERN MARYLAND HOSPITAL 1221
Rule 24. Unauthorized presence on hospital prop-
erty: first offense, three-day suspension with intent
to terminate.
Rule 25. Malicious gossip or derogatory attacks
on fellow employees, patients , physicians or hospital
representative: first offense, three-day suspension
with intent to terminate.
Rules 4 and 24 had no counterpart prior to the Janu-
ary revision. Prior to January, then rule 6 of policy 4
listed as a cause for disciplinary action: "Malicious gossip
or derogatory attacks on any employee, patient, physi-
cian or hospital representative." However, policy 4 did
not then provide a system of progressive discipline, but
simply stated that the listed offenses "may result in disci-
plinary action, which may include suspension and/or job
termination." the General Counsel contends that without
regard to the motivation for the revision, rules 4, 24 and
25 of the revised Policy 4 are unlawful "on their face"
because they "are overly broad in that they contain
terms that unduly interfere with employees' Section 7
rights" (Br. 20). For the reasons discussed, I find that
rule 4 is valid, but rules 24 and 25 are overly broad and
unlawful.
The General Counsel contends (Br. 22) that rule 4 is
unlawful because it "does not clearly pertain to work
time, but is subject to the interpretation that it applies
during breaks, lunch periods and other nonwork time,"
and "its terms suggest that an employee could be disci-
plined for engaging in solicitation during nonwork time
in a nonwork area if that area was outside the employ-
ee's work area." I do not agree. Lunch and break periods
constitute periods of authorized absence from the work
area, and I fail to see how any employee could reason-
ably infer otherwise. Moreover, rule 4 is not comparable
to a situation involving an overly broad no-solicitation
rule. An employer may for legitimate business reasons re-
quire its employees to remain on its premises during their
lunch and formal break periods, or even to remain at or
near their work stations during some nonwork periods.
Such requirements would be particularly understandable
in the case of a health-care facility, especially one which
had a cafeteria on its premises. However, the employer
cannot lawfully prohibit union solicitation during such
periods. In sum , a requirement that employees account
for their whereabouts during their shift does not equate
with a prohibition against solicitation or distribution.
Rule 4 must also be considered in light of the Company's
admittedly valid (on its face) no-solicitation and no-distri-
bution rule. The Company's clear definition of nonwork
time would pass muster either under Our Way, Inc., 268
NLRB 394 (1983), or the more stringent standard estab-
lished in T.R. W. Bearings, 257 NLRB 447 (1981). Al-
though as found the Company went beyond the limita-
tion to "patient areas," the evidence fails to indicate that
the Company invoked the rule in order to generally re-
strict union activity during nonwork time as defined by
that rule. Therefore there is no reasonable basis for an
employee to infer that rule 4 restricted lawful union or
other concerted activity-
I agree with the General Counsel that rule 24 of the
revised policy 4 is overbroad and, on its face, purports to
unlawfully interfere with and limit legitimate union and
concerted activity.
In Tri-County Medical Center, 222 NLRB 1089 (1976),
the Board held as follows with respect to the validity of
an employer no-access rule concerning off-duty employ-
ees:
We conclude, in order to effectuate the policies of
the Act, that such a rule is valid only if it ( 1) limits
access solely with respect to the interior of the
plant and other working areas; (2) is clearly dissemi-
nated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any pur-
pose and not just to those employees engaging in
union activity. Finally, except where justified by
business reasons, a rule which denies off-duty em-
ployees entry to parking lots, gates , and other out-
side nonworking areas will be found invalid.
The Board has made clear that a no-access rule which
goes beyond the limitations of Tri-County is unlawful on
its face, without regard to whether the rule was motivat-
ed by antiunion considerations or invoked to restrict
union activity, and that the Tn-County standard is appli-
cable to health-care facilities (as in Tri-County itself). See
Hudson Oxygen Therapy Sales Co., 264 NLRB 61 (1982);
Comet Corp., 261 NLRB 1414, 1427 (1982); Continental
Bus System, 229 NLRB 1262 (1977). In the present case,
unlike the situation with rule 4, off-duty employees had
no assurance that their presence on the parking lots, at
entrances or on other exterior portions of the hospital
premises would automatically be regarded as authorized.
Thus, when Carolyn Almassy asked Personnel Director
DiFlorio whether she could return to the Hospital
during her off-duty hours in order to attend an informal
staff meeting concerning work-related matters, DiFlorio
told her that this was all right because she was coming
on hospital business. In view of the Company's unlawful
prohibition on distribution of union literature at the front
entrance, the Company could well have regarded such
distribution as "unauthorized presence on hospital prop-
erty" and subjected the employees involved to the severe
discipline provided in rule 24. Indeed it was the existence
of this rule that discouraged the Union from again asking
employees to engage in such lawful activity. In her testi-
mony, DiFlorio described situations that did or might
warrant invocation of rule 24. However, these situations
could have been handled by a valid rule that did not un-
lawfully restrict the presence of off-duty employees.
Thus, DiFlorio described situations in which central
supply employees permitted friends and family, including
children, to enter the hospital, particularly at night.
However, these situations involved the unauthorized
presence of nonemployees. DiFlorio also described a sit-
uation at a nonhospital facility where she formerly
worked when a similar rule was invoked to discipline a
driver who brought a stolen truck to the employer's
garage in order to dismantle it. However, as the employ-
er had reason to believe that the driver was engaged in
illegal activity, he could have been lawfully disciplined
on that basis
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel contends, and I agree, that rule
25 of the revised policy 4 is overly broad because it
combines a lawful prohibition of "malicious gossip" with
an unlawful prohibition of "derogatory attacks" on hos-
pital representatives. "Malicious" has been defined as
given to or marked by malice, i.e., "intention or desire to
harm another usually seriously, through doing something
unlawful or otherwise unjustified; wllfullness in the com-
mission of a wrong; evil intention." In contrast "deroga-
tory" means "expressive of low estimation or reproach
. . . disparaging, detracting, degrading, depreciatory."
Webster's Third New International Dictionary (1981). Thus
for example, an assertion that an employer overworks or
underpays its employees, which would constitute the
most elementary kind of union propaganda, could fairly
be regarded as "derogatory" toward the employer, but
would not, absent unusual circumstances, be "malicious."
In Linn v. Plant Guards, Local 114, 383 U.S. 53, 61-63
(1966), the Court held that:
. . . although the Board tolerates intemperate, abu-
sive and inaccurate statements made by the union
during attempts to organize employees, it does not
interpret the Act as giving either party license to
injure the other intentionally by circulating defama-
tory or insulting material known to be false. .. .
[T]he most repulsive speech enjoys immunity pro
vided it falls short of a deliberate or reckless un-
truth.
Thus the Board with Court approval has consistently
held that an employer may lawfully maintain a rule that
prohibits "malicious" statements, i.e., statements "deliber-
ately and maliciously made, with knowledge of their fal-
sity or with reckless disregard of the truth," but may not
prohibit "merely false" union propaganda. Radisson
Muehlebach Hotel, 273 NLRB 1464 (1985); Stanley Furni-
ture Co., 271 NLRB 703, 704 (1984); American Cast Iron
Pipe Co., 234 NLRB 1126, 1131 (1978), enfd. 600 F.2d
132, 136-7 (8th Cir. 1979). In the present case, Rule 25
goes beyond even a prohibition against "merely false"
propaganda to prohibit even truthful union propaganda,
which may be regarded as "derogatory" because it
places the Hospital or its representatives, including Dr.
Chiaramonte, in an unfavorable light. Therefore the rule
is unlawful.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and a health-care institution within the meaning of Sec-
tion 2(14) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in surveillance of employees' union ac-
tivities, promulgating and maintaining revisions in its dis-
ciplinary policy which are overly broad and tend to re-
strain and coerce employees in the exercise of their Sec-
tion 7 rights, instructing employees that they cannot dis-
tribute union literature at the main entrance to its Hospi-
tal during nonworktime, and selectively and disparately
denying nonemployee union organizers access to the caf-
eteria at its Hospital, the Company has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has violated Section
8(a)(1) of the Act, I shall recommend that it be required
to cease and desist from such conduct and from like or
related conduct, post the usual notices, and rescind Rules
24 and 25 of the revised Policy 4 of its personnel policy
manual.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, Southern Maryland Hospital Center,
Clinton, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Prohibiting employees from engaging in union-re-
lated solicitation or distribution of literature during their
nonworktime at the main entrance to its Hospital or in
other nonwork areas where such activity does not tend
to affect directly patient care by disturbing patients or
disrupting health services.
(b) Denying nonemployee union organizers access to
the cafeteria at its Hospital while permitting other visi-
tors and guests of hospital personnel to use the cafeteria,
or otherwise selectively and disparately denying such or-
ganizers access to the cafeteria.
(c) Engaging in surveillance of conversations and
meetings between employees and union organizers, or of
other employee union activity.
(d) Maintaining or enforcing any rule, policy, or prac-
tice which prohibits off-duty employees from entering or
remaining on or at parking lots, entrances, and other out-
side nonworking areas of its Hospital for the purpose of
engaging in union solicitation or distribution of union lit-
erature, or which discriminatorily denies them access to
the Hospital while permitting access by off-duty employ-
ees for other nonbusiness reasons.
(e) Maintaining or enforcing any rule, policy, or prac-
tice that prohibits employees from making "derogatory
attacks" on hospital representatives or that otherwise
prohibits employees from making written or oral state-
ments which may constitute permissible union propagan-
da.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SOUTHERN MARYLAND HOSPITAL
(a) Rescind rules 24 and 25 of the revised policy 4 of
its personnel policy manual, and notify its employees of
such rescission.
(b) Post at its Hospital in Clinton, Maryland, copies of
the attached notice marked "Appendix." t 9 Copies of said
notice, on forms provided by the Regional Director for
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1223
Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent 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. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.