St Anthony'S Hospital

National Labor Relations Board - Board Decisions

Feb 28, 1989

292 N.L.R.B. 1304 (N.L.R.B. 1989)

1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
St Anthony 's Hospital and St Anthony's Nurses
Association Case 14-CA-19472-1, -2
February 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 25, 1988, Administrative Law Judge
Robert W Leiner issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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, and
conclusions 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, St Antho-
ny's Hospital, St Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
Lucinda M Morris Esq, for the General Counsel
Paul J Schroeder Jr Esq (Bryan Cave McPheeters &
McRoberts), of St Louis Missouri for the Respondent
DECISION
STATEMENT OF THE CASE
ROBERT W LEINER Administrative Law Judge This
matter was heard July 25, 1988 , in St Louis , Missouri
on the General Counsels consolidated amended com
plaint' alleging in substance that Respondent St An
thony s Hospital in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act) discriminatorily
prohibited the posting by an employee of notices on the
employee bulletin board advertising meetings to be held
by the Charging Party and in violation of Section
8(a)(4) of the Act revoked the right of employees to
post items on the bulletin board because the Charging
Party filed the charge in Case 14-CA-19472 and because
an employee gave testimony to the Board in the form of
an affidavit in the same case Respondents timely filed
' The consolidated amended complaint is dated July 12 1988 The
charge in Case 14-CA-19472 was filed and served on April 28 1988 the
charge in Case 14-CA-19472-2 was filed and served on June 21 1988
At the opening of the hearing the Regional Director for Region 14 on
receiving a prior request from the Charging Party St Anthony s Nurses
Association without objection moved to withdraw and sever so much of
the underlying charge in Case 14-CA-19472 as alleged the existence of
an unlawful no solicitation and distribution rule I approved the General
Counsel s withdrawal request and dismissed so much of the consolidated
amended complaint as alleged the existence of an unlawful no solicitation
and distribution rule
answer admits certain allegations of the consolidated
amended complaint denies others and denies commis
sion of any unfair labor practices
At the hearing, all parties were represented by coun
sel, were given full opportunity to call and examine wit
nesses, submit oral and written evidence, and argue on
the record At the close of the hearing, counsel waived
final argument and reserved the right to submit posthear
ing briefs Postheanng briefs were timely submitted by
counsel and given close scrutiny
On the entire record, including the briefs, and from
my observation of the demeanor of the witnesses as they
testified, I make the following
FINDINGS OF FACT
I RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges Respondent admits, and I find
that at all material times Respondent, a Missouri corpora
tion with an office and place of business at 10010 Ken
nerly Road, St Louis, Missouri, operates a health care
institution (a hospital) providing medical and professional
care services During the calendar year ending April 30,
1988 Respondent, in the course and conduct of its busi
ness operations derived gross revenues in excess of
$250 000, and during the same period, in the course and
conduct of its business operations, received at its Missou
ri facility products goods, and material valued in excess
of $50,000 directly from points outside the State of Mis
souri Respondent admits and I find that, at all material
times, it has been and is an employer engaged in com
merce within the meaning of Section 2(2) (6), and (7) of
the Act
II ST ANTHONY S NURSES ASSOCIATION AS A
STATUTORY LABOR ORGANIZATION
The complaint alleges, but Respondent denies that the
Charging Party St Anthony s Nursing Association, at
all material times has been a labor organization within
the meaning of Section 2(5) of the Act St Anthony s
Nurses Association (the Association) was formed in
August 1987 by employees because of their concerns re
garding patient care and the working conditions on the
hospital floor The Association established bylaws that
have been in effect since at least November 1987 The
Association requires dues from its members ($24 per
year) the actual collection of which, however first start
ed in June 1988
The purposes of the Association, according to its
bylaws, include the promotion of the nursing profession
and the establishment and maintenance of adequate
wages, hours, and working conditions for the association
members (G C Exh 4, art 1) The Association holds
monthly meetings of its members on the fourth Tuesday
of every month, which meetings include discussions of
collective bargaining Membership in the Association is
limited to registered nurses licensed practical nurses
nurses aides, and attendants At a meeting at which nurse
Gina Faulstich was elected president in April 1988 ap
proximately 40 unit personnel attended
292 NLRB No 143
ST ANTHONY S HOSPITAL
The above goals of the Association existed at least as
early as November 1987 when the bylaws were in exist
ence (Tr 21-22, G C Exh 4) Indeed on November 16
1987 the Association sent a letter (G C Exh 6) to Rich
and Grisham Respondents president and chief executive
officer, in which the Associations function and goals
were set forth
Dear Mr Grisham
Recently due to overwhelming concerns on the
part of nursing (including RN s, LPNs, and Nurses
aides) regarding working conditions at St Anthony s
Medical Center we have formed a nursing orgam
zation known as the St Anthony s Nursing Associa
tion Contrary to rumor we are not forming a
union The purpose of our association is to serve as
a [sic] in House organization which can communi
cate effectively with management
We believe it is to our mutual benefit to establish
essential lines of communication between adminis
tration and nursing that is vital for continued excel
lent health care offered at St Anthony s Our collec
tive concerns have a direct impact upon the quality
of care provided to the patients we serve In order
to accomplish our goal of improved labor relations
the Association will pursue the following objec
tives
1 To establish a forum for concerns that will
eliminate dissemination of information through the
rumor mill
2 To provide a tool for employee in put regarding
working conditions
3 To use this forum to identify areas of concern
and generate solutions to both mangement and nurs
ing
4 To resolve conflicts between administration and
nursing which may adversely affect working condi
tions as well as the community image at St Antho
ny s Medical Center
Since we already represent a significant number of
the nursing staff and are anticipating a steady
growth in membership we need to meet directly
with you and any such staff as you deem appropri
ate, and begin to communicate
Respectfully
Executive Committee
St Anthony s Nursing Association
[Emphasis in the
above text added ]
At least as early as mid November 1987 Respondent
knew by virtue of this letter from the Association that
an employee organization existed , that its unit of mem
bership was defined that it had members and that it re
garded itself as a tool for employee imput regarding
working conditions for dealing with the employer con
cerning the unit employees labor relations and in par
ticular those conflicts with the employer which ad
versely affect working conditions of the unit employees
Respondent also knew that the Association claimed not
only to represent a significant number of the nursing
1305
staff but was anticipating a steady growth in member
ship Lastly, the Association expressed a desire to meet
directly with you Under these circumstances, I find
and conclude that at all material times since November
1987 and continuing to the present, the Association was
and is, as alleged , a labor organization within the mean
ing of Section 2(5) of the Act In this regard the Asso
ciation s structure more than meets the statutory require
ments for the definition of a labor organization
In NLRB v Cabot Carbon C o 360 U S 203 (1959)
the Supreme Court held that an employee committee
that discusses with management various subjects pertain
ing to working conditions, wages, or grievances is a
labor organization within the meaning of Section 2(5) of
the Act even though the committee had no membership
requirements, collected no dues had no funds, and had
never attempted to negotiate a collective bargaining con
tract Following the liberal scope granted in Cabot
Carbon, the Board and courts have liberally construed
the definition of labor organization Compare Betances
Health Unit 283 NLRB 369 (1987), with Sahara Datsun
v NLRB, 811 F 2d 1317 (9th Cir 1987) In the instant
case the Association had an already defined unit had
membership bylaws and the other common parapherna
ha of a labor organization in existence prior to the al
leged unfair labor practices Moreover as early as No
vember 1987 it communicated its existence, its member
ship , its unit, and its desire to negotiate and meet with
Respondent regarding labor relations and to resolve
conflicts which may adversely affect working condi
Lions Under the above cited cases, an employee organs
zation with such goals and purposes-without more-is a
statutory labor organization
Respondent defends against the finding of the Associa
tion as a statutory labor organization within the meaning
of Section 2(5) on two grounds
(a) The Association, in its letter of November 16 1987
to Respondent disclaimed an intent to form a union
and neither the Association nor its officers ever disasso
crated itself from the assertion that we are not forming
a union (G C Exh 6)
It is difficult to understand what the writer of the
letter meant by we are not forming a union when at
the same time the letter recites that the goal of the As
sociation is to improve labor relations with Respond
ent and to resolve those conflicts with Respondent
that may adversely affect working conditions When
the Association further alleged that it had a growing
membership and wanted to meet with Respondent for
the above purposes, there can be no question that the
Association was and is a statutory labor organization Al
though one may speculate that such an organization of
professionals may have had some social or other aversion
to the word union perhaps a layman s desire to avoid
any idea of future affiliation with nonprofessionals or an
international union, the Association nevertheless re
mains a statutory labor organization whatever its use
of the word union In any event, Respondent can
hardly argue that it was confused by the writers ambi
gusty or even that the Association should be estopped
from urging its labor organization status because it had
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
misled Respondent in this November 16 letter The No
vember 16 letter contains several factual assertions sup
porting a legal basis for a finding of statutory labor or
ganization" but if Respondent was in any doubt about
what this emplo ,;ee Association was what it was formed
for, and what its goals comprised it could resolve any
such questions merely by asking Knapp Sherrill Co, 263
NLRB 396, 398 ( 1982) Moreover , if Respondent is
claiming an estoppel by virtue of the Associations asser
tion that it was not forming a union , there is no sug
gestion or proof that Respondent was misled or relied to
its detriment on such an assertion Without a finding of
detrimental reliance , there can be no estoppel Knapp
Sherrill Co supra , citing Marriott Corp, 259 NLRB 153,
154 fn 9 (1981)
(b) Respondent also defends against the finding of stat
utory labor organization status by arguing (R Br at 4)
that the bylaws of the Association , although limiting
membership (to registered nurses, licensed practical
nurses, nurses aides and attendants ), contain no provi
lion that would expressly prevent statutory supervisors
from becoming members In consequence of this omis
Sion , Respondent argues the bylaws create a potential
for membership by supervisors and thus present a clear
conflict" with the Associations ability to deal with an
employer on an arms length basis (R Br at 4-5) Re
spondent cites no authority for the proposition that omis
sions in bylaws prohibiting the membership of supervi
sors ipso facto excludes a group of employees from eligi
bility as a statutory labor organization within the mean
ing of Section 2(5) of the Act
Although it is true that contractual unit descriptions in
formal legal instruments and unit descriptions in Board
documents commonly exclude supervisors among
others the most that can be said of this argument is that
Respondent is asserting that there is a potential for the
Association to have members who may not be included
in any bargaining unit i e a speculative potential defect
On the happening of the eventuality Respondent may
urge this argument It cannot do so at this time because
there is no showing of course , that any of the Associa
tion s members are statutory supervisors or even that the
Association desires to recruit supervisors Such Respond
ent speculation derived from a mere omission in a
bylaw cannot vitiate a conclusion that the Association is
a labor organization within the meaning of Section 2(5)
of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Bearing date of May 1984 Respondent issued an em
ployee handbook (G C Exh 3) over the signature of its
president and chief executive officer Richard Grisham
This handbook is currently in effect and no provision has
been withdrawn even in the face of this litigation
Among its provisions are matters relating to wage and
performance reviews employee benefit programs rules
of employee conduct and safety practices In particular
at page 30 it contains a provision entitled Avaiiable to
Employees
Among the items available to employees are the
hospital newsletters opportunities to attend special in
house programs on job related topics, special classes for
continuing education, and professional growth for nurses
In particular the first paragraph is devoted to Bulletin
Boards
Bulletin boards are maintained as a service to em
ployees You will find posted information about
new policies, procedures, activities and general an
nouncements Items you would like to have posted
(e g for sale, rides needed ) must be approved
by the Personnel Department
Respondent maintains more than one bulletin board
indeed there have been bulletin boards in the hospital at
least since 1977 (Tr 47)
On February 16 1988, Gina Faulstich a registered
nurse on the staff and the Associations acting president,
asked Personnel Manager Dale Kreienkamp for permis
sion to post on the first floor bulletin board outside the
employee locker room a notice (G C Exh 8) announc
ing a meeting of the Association This bulletin board
glass enclosed and locked, is divided into two portions
facing the bulletin board the left 80 percent was devoted
to general hospital announcements , the right hand 20
percent cairied a heading called Trading Post Be
cause the bulletin board is locked and because posted
material must first be presented to the personnel office
Faulstich asked Kreienkamp if he would put the notice
on the bulletin board (Tr 49-50) Personnel Manager
Kreienkamp refused (Tr 50) When Faulstich reminded
Kreienkamp that the bulletin board could be used for
things such as rides and things for sale telling him
that it was an employee bulletin board, Kreienkamp an
swered that the hospital does not wish for that bulletin
board to be used for that purpose (Tr 50) He did not
explain what he meant by that purpose The associa
tion notice was never posted
On April 21 1988 Faulstich placed a covering letter
(G C Exh 9) requesting posting of an enclosed further
association notice of meeting (G C Exh 10) in an enve
lope and gave the envelope to a secretary in the person
nel office (Tr 53) Faulstich received no response to this
communication and the Associations April 21 notice was
never posted On April 27 she visited Kreienkamp in his
office and asked why there had never been a written re
sponse to her letter requesting the posting of the Asso
ciation meeting notice Kreienkamp told her that they
had previously discussed tl•e matter and he said he did
not feel he needed to give a further response
Dale Kreienkamp testified that in the 4 years that he
has been personnel manager he has been responsible for
what appears on the bulletin board that the only re
quests that he had received for posting on the Trading
Post side of the bulletin board were requests concerning
items for sale, and that he never recalled receiving a re
quest for a ride' to be placed on the bulletin board (Tr
78) He testified that he did not permit Faulstich to post
the association notice in February 1988 because the item
was not a for sale item which is what Respondent
posts Similarly he refused the posting of her notice of
April 21 (Tr 79)
ST ANTHONY S HOSPITAL 1307
Nevertheless, Kreienkamp admitted that the handbook
permits the posting of rides needed (Tr 79) Kreien
kamp testified that regardless of the examples given in
the handbook including rides needed, the practice has
been to post only items for sale (Tr 80) He did admit,
however, that he had never turned down any employee
request for posting other than the association flyer (Tr
81)
Respondents director of human resources Kathleen
Fischer, testified that she is Kreienkamp s superior, that
in the 11 years she has been associated with the hospital,
including the 4 years that Kreienkamp has been the per
sonnel manager, she could not recall a request for any
thing to be placed on the bulletin board other than a re
quest for the sale of an item (Tr 92) Thus, as Kreien
kamp had testified, she had never seen a ride needed
item posted on the bulletin board (Tr 92)
Faulstich testified that she had seen rides needed as
well as houses or cars for sale posted on the employee
side of that particular bulletin board (Tr 48) Again
Kathleen Fischer testified that the reason that she never
saw a ride needed item on the bulletin board was that
she never had a request for such a posting, nor did Dale
Kreienkamp (Tr 92)
On the question whether she would have allowed a
`ride needed" item to be posted on the bulletin board,
Kathleen Fischer s testimony was unconvincing and
equivocal On the one hand she admitted that rides
needed is specifically cited in the handbook as the type
of posting that employees may request (Tr 93) On the
other hand if a request for a rides needed posting had
been made, and notwithstanding that is specifically re
ferred to in the handbook she did not state that she
would have permitted its posting Rather in a clearly
circular and evasive argument, she stated that her re
course would have only been to consult the handbook
(Tr 94) But the handbook specifically invites rides
needed' posting (Tr 94) Attempting to resolve this di
lemma Kathleen Fischer ultimately testified that she
would probably have said no to a request for the post
ing of a rides needed item, and told the requesting
party that posting is restricted to for sale items (Tr
94) but she said if the employee insisted that handbook
permits such posting she would have had to acknowl
edge indeed that it does and complied (Tr 94) 2 Final
ly when asked whether she used the handbook as the
criterion for notices to be permitted on the employee
bulletin board (Tr 94-95) she said that she did not do so
with any degree of frequency She then, to the con
trary testified that the Respondent did follow the hand
book (Tr 95)
Discussion and Conclusion
The Board Rules concerning the posting of employee
notices on employer bulletin boards are stated in Honey
well Inc 262 NLRB 1402 (1982) In that case, the Board
said
2 Kreienkamp testified (Tr 79) that he refused to post the union meet
mg notices because Respondent would only post a for sale item
The legal principles applicable to cases involving
access to company maintained bulletin boards are
simply stated and well established In general,
there is no statutory right of employees or a union
to use an employers bulletin board However
where an employer permits its employees to utilize
its bulletin boards for the posting of notices relating
to personal items such as sales of personal
property or, in general, any nonwork related
matters, it may not validly discriminate against no
tices of union meetings which employees also
posted ' Moreover, in cases such as these an em
ployer s motivation, no matter how well meant, is
irrelevant
Applying the Honeywell principles to the instant facts,
it is undisputed that Respondent permits its employees to
post notices of sales of personal property In fact, it avers
that it had not permitted the posting of other items spe
cifically permitted in its handbook, i e , rides needed
postings because, ultimately no one has ever asked for,
much less insisted on such a posting Honeywell states
that employer permitted posting of employee personal
property sale notices is the type of nonwork related
matter whose posting, alone, creates an obligation on the
employer forbidding discrimination against the posting of
union meeting notices It is therefore unnecessary to
reach or decide the question of whether rides needed
notices were actually posted, according to the testimony
of Faulstich or whether no such notices were ever
posted (because none had ever been requested or because
of a policy to post only for sale notices) according to
the testimony of both Kreienkamp and Fischer It is suf
ficient under the Honeywell rule that Respondent par
ticularly permitted and still permits, the posting of sales
of personal property notices pursuant to its handbook to
bring it within the Honeywell rule Because it did so,
under the workings of the Honeywell rule it may not dis
criminate against the posting of union meeting notices 3 I
therefore conclude that under the above circumstances
Respondents refusal to post both the February and April
1988 notices of union meetings together with its mainte
nance and enforcement of a policy prohibiting the post
ing of such notices in the future constitute separate un
lawful denials of employee Section 7 rights and viola
tions of Section 8(a)(1) of the Act
As above noted in Honeywell Inc the employers mo
tivation no matter how well meant is irrelevant In the
instant case however it was reasonably clear to me from
the patently duplicitous testimony of Kathleen Fischer
concerning Respondents own handbook rule together
with Kreienkamp s observation that the bulletin board
could not be used ` for that purpose,' that Respondent s
refusal to post the union notices was not based on some
lawful rationale under its published rule rather, it is a
3 Honeywell Inc 262 NLRB 1402 (1982) has recently been followed
in Central Vermont Hospital 288 NLRB 514 (1988) In Central Vermont
Hospital the Board emphasized that as here the published handbook rule
was never withdrawn or limited nor was the alleged posting policy of
only for sale items ever publicized In the instant case the posting of
items other than for sale notices is not only invited but there is no re
unction in the handbook rule on the posting of other items
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
post hoc pretext erected because of the subject matter of
the proffered notices union meetings I make this addi
tional finding because of remedial elements that will
appear hereafter
The Alleged Violation of Section 8(a)(4) of the Act
On April 28, 1988 the original charge in the instant
matter was filed and served on Respondent The charge
alleges violation of Section 8(a)(1) of the Act because of
an alleged discriminatory refusal to permit the posting of
union notices On May 26 1988, the Regional Office no
tified counsel for Respondent that it was prepared to
issue a complaint in the matter , absent settlement based
inter alia on Respondents unlawful prohibition of em
ployee access to the bulletin board (G C Exh 2) Some
time on or before June 9, 1988 Respondents president
Richard Grisham, and director of human relations, Kath
leen Fischer decided to remove altogether the posting of
personal sale items from the bulletin board (Tr 96)
Kreienkamp testified that in early June, he removed the
title Trading Post from the right side of the bulletin
board (Tr 78)
When Faulstich learned that the Trading Post items
on the right side of the bulletin board had been removed
she went to the personnel office and spoke to the person
nel office secretary concerning the removal The secre
tary (Susan Bundshuh) told her that the employee no
tices had not been moved to another bulletin board
rather in response to Faulstich s question why they were
no longer being posted the secretary said that Respond
ent was not doing that any more
Respondent states that on June 9, 1988, it revoked the
limited right of posting under the prior policy and prac
tice (of posting only for sale notices) because as Kath
leen Fischer testified Respondent had been charged with
a discriminatory practice by the Board (Tr 87) She testa
feed that Respondent believes that the Board allegation
would obligate Respondent to post notices of any and
all other kinds (Tr 87) and rather than suffer the alle
gation of discrimination by having an employee section
on the bulletin board Respondent decided to remove
that section altogether from the hospital bulletin board
(Tr 87) Put another way Kathleen Fischer testified that
to avoid the charge of discrimination because of refusal
to post the association meeting notices Respondent de
ceded to remove the entire employee section under the
Trading Post heading (Tr 88)
Discussion and Conclusion
Fischer testified that she directed Kreienkamp to
remove the trading post section and remove all the em
ployee notices because we had been charged with the
discriminatory practice by the NLRB (Tr 87) To
remedy that allegation the decision was made to remove
the employee section of the bulletin board so that there
wouldn t be any question that we were discriminating
against any employee or any group of employees (Tr
89) Thus as Kathleen Fischer admitted and as the Gen
eral Counsel notes Respondent eliminated the right of
the employees to post anything on the bulletin boards to
obviate the allegation of discriminatory enforcement
There can be no question therefore that Respondent s
removal of this published employee right follow and
was a reaction to the allegation by the General Counsel
of discriminatory action which in turn was based on the
filing of the charge of unfair labor practices Indeed
Kathleen Fischer testified that Respondent was alleged
to have discriminated in that first charge and that the
decision to eliminate the trading post section was made
to avoid the allegation of such discrimination (Tr 89)
Taking Kathleen Fischer s testimony at face value it is
apparent that the General counsel proved a prima facie
case of a violation of Section 8(a)(4) of the Act because
Respondents reaction to or as the General Counsel as
serts its retaliation against the employee right of posting
was based on the filing of the original charge Thus in
the words of section 8(a)(4) of the Act Respondent was
thereby discriminating against an employee because he
has filed charges under the Act Because Kath
leen Fischer s testimony was so particular regarding the
fact that the trading post section was eliminated because
of the allegation of discrimination in that first charge
(Tr 89) there can be no doubt that it was the charge
that underlay Respondents response rather than the
Board s issuance of a complaint But because the charge
supported the complaint it is not crucial that Respond
ent s retaliation was to the charge rather than the com
plaint In either event I conclude that the General Coun
sel has proved a prima facie violation of Section 8(a)(4)
of the Act
Respondent defends (R Br at 7) by asserting that the
decision to revoke the limited right of employees to
post on the bulletin board was caused by Kathleen
Fischer s conclusion that Respondent s policy might be
considered discriminatory by the Board (Tr 87) Thus
while it is arguably not entirely clear whether Kathleen
Fischer was referring to the Board complaint or the
Charging Party s original charge it is clear that Re
spondent s June retaliation , eliminating the right of em
ployees to post came about only because the Charging
Party went to the Board and the Board on May 26 noti
feed Respondent that it was prepared to issue a com
plaint I would conclude that both the charge and the
complaint resulted in the Respondents decision and that
Respondents decision to rectify the situation by not per
mitting any employee to post any matters but particular
ly union matters on the bulletin board by removing the
employee section of the bulletin board entirely was retal
iatory and violates Section 8(a)(4) of the Act
Respondent defends by asserting that rather than face
the problem of permitting the posting of notices of any
and every other kind, it had the right to eliminate the
employee bulletin board section in its entirety and as
serts that the law on the subject is governed by the deci
Sion in Roadway Express, 279 NLRB 302 (1986) In that
case the Board accepted as its rule in cases relating to
the removal of employee notices from bulletin boards,
the Wright Line test 4
* Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (Ist Cir
1981) cert denied 455 U S 989 (1982)
ST ANTHONY S HOSPITAL
Pursuant to the Wright Line test, the General Counsel
must make out a prima facie case by disclosing prepon
derant evidence sufficient to support the inference that
protected conduct was a motivating factor in the em
ployer s decision to take the allegedly unlawful action If
the General Counsel proves such a prima facie case the
burden of going forward with the evidence then shifts to
the employer to prove that it would have taken the same
action even in the presence of the prima facie unlawful
conduct Roadway Express, above at 303
Here, as above noted Respondent refused to post the
Association s meeting notices because they were notices
of a union meeting and I have drawn the inference that
Respondent removed the entire employee section from
the bulletin board as a reaction to, and in retaliation
against, the employee filing the charge that resulted in
the Board s complaint Kathleen Fischer s testimony is
that the original charge caused her to decide to
remove the trading post section, to prevent employees
from posting any items whatsoever I have concluded
that this makes out a prima facie case of discrimination
within the meaning of Section 8(a)(4) of the Act Re
spondent defends by arguing that the testimony of Fisch
er and Kreienkamp demonstrates that the motivating
factor for the rescission of its bulletin board policy was
that Respondent might have to permit employee notices
of every type if it permitted any posting whatsoever (R
Br at 9) No clearer statement of retaliatory motive
could be made Respondent rather than permit the post
mg of union meeting notices decided that it would pro
hibit the posting of any notice to avoid the charge of
being engaged in a discriminatory act against the union
itself There is no evidence of any occurrence to support
Respondents alleged fear of posting any kind of
notice That is speculation That is the stuff of pretext
Because of the handbook inviting various types of post
ings I conclude that Respondent had no genuine unpub
lished limitation on its handbook rule Furthermore
there is a logical lapse merely because it is obliged to
post notices of union meetings does not force Respond
ent to post employee notices of every type Its obliga
tion to not violate the Act does not create a general li
cerise running in favor of postings by its employees Only
to the extent of not discriminating under the Act does
Respondent lose total dominion over its bulletin boards
The evidence shows as far as I am concerned that
Respondent would go to an unlawful length to prevent
the posting of union inspired matters such as the notice
of union meetings I therefore conclude that Respondent
has failed in its obligation under the Wright Line test to
prove that the Hospitals decision to revoke its permis
sion to post notices was taken apart from statutorily pro
tected conduct and would have been taken regardless of
it On the contrary, on the present evidence it was taken
particularly and only because of the protected conduct I
therefore conclude that Respondent, as alleged, violated
Section 8(a)(4) of the Act by its retaliatory removal of
the employee right to post notices including union meet
ing notices, on the Respondents bulletin boards
THE REMEDY
1309
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of
the Act Respondent has not eliminated its bulletin
boards Thus there is no question of forcing restoration
of bulletin boards I shall follow the Board remedial
order in Honeywell Inc 262 NLRB 1402 (1982) and
Central Vermont Hospital 288 NLRB 514 (1988) which
latter case also involves the deprivation of employee
posting rights on the employers bulletin board particu
larly the deprivation of employee posting rights from
one particular side of the board As in Central Vermont
Hospital, supra because it appears that Respondent made
only one side of the bulletin board available to employ
ees for the posting of personal notices the remedy, con
clusions of law and recommended Order sections shall
apply only to that portion of the bulletin board in the
hospital formerly utilized by employees but, in particular
the bulletin board on the first floor near the employee
locker room
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 St Anthony s Nurses Association (the Association)
is a labor organization within the meaning of Section
2(5) of the Act
3 By discriminatorily refusing to allow employees to
post notices relating to the Association and protected
concerted activities on bullletin boards that prior to
June 9 1988 were available for posting of notices by
employees for any nonwork related matters Respondent
has engaged in and is engaging in an unfair labor prac
tice within the meaning of Section 8(a)(1) of the Act
4 By discriminatorily eliminating the use of its bulletin
boards for the posting of any employee notices whatso
ever including notices of union meetings, in retaliation
against the filing of an unfair labor practice charge by its
employee, Gina Faulstich Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(4) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed5
ORDER
The Respondent, St Anthony s Hospital St Louis
Missouri, its officers, agents successors and assigns, shall
1 Cease and desist from
(a) Discriminatorily refusing to allow employees to
post notices relating to St Anthony's Nurses Association
(the Association) or to other protected concerted activi
ties on bulletin boards that, prior to June 8 1988 were
5 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
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
available for use by employees in the posting of notices
for any nonwork related matter
(b) Discriminatorily eliminating the right of employees
to post any notices including notices of association or
protected concerted activities on Respondents bulletin
boards in retaliation for the filing of an unfair labor prac
tice charge by its employee
(c) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Forthwith restore to its employees the right to post
notices, on any part of any bulletin board heretofore
dedicated to the posting of notices by employees in any
nonwork related matter and notify its employee Gina
Faulstich and the St Anthony s Hospital Nurses Associa
tion, in writing, of such action contemporaneously there
with
(b) Post at its hospital facilities in St Louis, Missouri
copies of the attached notice marked Appendix 6
Copies of the notice, on forms provided by the Regional
Director for Region 14 after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced, or
covered by any other material
6If 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
(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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT discriminatorily refuse to allow employ
ees to post notices relating to St Anthony's Nurses As
sociation (the Association), or to other protected con
certed activities on bulletin boards that, prior to June 8
1988, were available for use by employees in the posting
of notices for any nonwork related matter
WE WILL NOT discriminatorily eliminate the right of
employees to post any notices, including notices of asso
ciation or protected concerted activities on Respondent s
bulletin boards in retaliation for the filing of an unfair
labor practice charge by its employees
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL forthwith restore to our employees the right
to post notices on any part of any bulletin board hereto
fore dedicated to the posting of notices by employees in
any nonwork related matter and notify our employee
Gina Faulstich, and the St Anthony s Hospital Nurses
Association in writing, of such action contemporaneous
ly therewith
ST ANTHONY S HOSPITAL