St. Joseph Hospital

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 158 (N.L.R.B. 1977)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Joseph Hospital and Southwestern Council of
Industrial Workers, AFL-CIO . Case 28-CA-3866
February 10, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 28, 1976, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and a brief in
response to Respondent's exceptions. The Respon-
dent also filed exceptions and a supporting brief and
a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, St. Joseph Hospital, Albuquerque, New Mexi-
co, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Withdraw from the personnel files of Gilbert
Moreno and Leroy Sandoval the written reprimands
of April 19, 1976, and withdraw from the personnel
file of Howard Conrad any written notation concern-
ing the oral reprimand given to him by Personnel
Director Bates on or about April 21, 1976."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I While we agree with the General Counsel that the Administrative Law
Judge erred in sinking the testimony of Angela Barreras, we are of the
opinion that this error was not prejudicial to the General Counsel's case. The
General Counsel claims that her testimony constitutes background evidence
to show Respondent 's animus against the Union and to support its
contention that the no-solicitation rules were disparately enforced. Even
assuming that her testimony reveals union animus , it is insufficient to
establish that the no-solicitation rules were applied and enforced in a
disparate manner
2 We have found that Respondent 's no-solicitation, no-distribution rules
are unlawful . Accordingly , we shall order that Respondent withdraw from
228 NLRB No. 23
the personnel files of Gilbert Moreno and Leroy Sandoval the written
repnmands of April 19, 1976 , and withdraw from the personnel file of
Howard Conrad any written notation concerning the oral reprimand given to
him by Personnel Director Bates on or about April 21, 1976.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented
and had an opportunity to present testimony, the
National Labor Relations Board has found that we
violated the National Labor Relations Act and has
ordered us to post this notice.
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prohibits our em-
ployees from soliciting on behalf of any labor
organization on hospital premises during employ-
ees' nonworking time, or from distributing in
other than immediate patient care areas literature
on behalf of any labor organization in nonwork
areas of our hospital during their nonworking
time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the right to engage in concerted
activities for the purpose of mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
WE WILL withdraw from the personnel files of
Gilbert Moreno and Leroy Sandoval the written
reprimands of April 19, 1976, and withdraw from
the personnel file of Howard Conrad any written
notation concerning the oral reprimand given to
him on or about April 21, 1976.
ST. JOSEPH HOSPITAL
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This case
was heard before me in Albuquerque, New Mexico, on
August 24, 1976. The charge was filed on April 22, 1976, the
complaint issued on June 4, and was amended on August 3.
The amended complaint alleges that the Respondent
violated Section 8(a)(1) of the Act by maintaining an
unlawful policy concerning solicitation and distribution of
materials by its employees, and by disparately enforcing
such policy.
The Respondent admits the promulgation of the solicita-
tion and distribution rule attacked by the amended com-
plaint, contends it was superseded by another rule on April
15, 1976, and denies either rule was unlawful . The Respon-
dent also denies the alleged disparate enforcement of the
rules, and contends further that the rule enunciated by the
ST. JOSEPH HOSPITAL 159
Board in St. John's Hospital and School of Nursing, Inc., 222
NLRB 1150 (1976), to the effect that employer restrictions
on solicitation and distribution in visitor access areas -
public areas of the hospital where ambulatory patients and
visitors have access - are unlawful, was wrongly decided
and should not be further followed. All parties were
afforded full opportunity to appear, to introduce evidence,
and to examine and cross-examine witnesses . Briefs were
filed by the General Counsel and the Respondent, and have
been carefully considered.
Upon the entire record in the case,' and from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs, I make the following:
ST. JOSEPH HOSPITAL
NO SOLICITATION RULE
SOLICITATIONS BY EMPLO YEES
Because of the disruption to health care services of the
hospital , no materials shall be distributed to and no
solicitation shall be made of any hospital patient or
employee in any public area within the hospital premis-
es. Any solicitation must be confined to non-work and
non-public areas and during non-working time.
SOLICITATIONS BY NON-EMPLOYEES
FINDINGS OF FACT
I. JURISDICTION
St. Joseph Hospital , herein called the Respondent, a
New Mexico nonprofit corporation , is engaged in the
operation of a hospital in Albuquerque, New Mexico.
During the past 12 months , in the course and conduct of its
business operations , Respondent received gross revenues in
excess of $250,000, and purchased and received goods
valued in excess of $50,000 from locations directly outside
the State of New Mexico . Respondent admits, and I find,
that the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Southwestern
Council of Industrial Workers, AFL-CIO, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Rules Regarding Distribution
and Solicitation by Employees
The Respondent operates a 325-bed, short-term, acute
care general hospital in Albuquerque, New Mexico, em-
ploying approximately 1,240 employees. Sometime during
the latter part of 1975, the Respondent's employees
commenced organizing activities on behalf of the Union .2
On January 31, 1975, some months prior to the advent of
the Union, the Respondent posted the following notice on
the employee bulletin board:
I The General Counsel has asked that I reconsider my ruling striking the
testimony of Angela Barreras . During the investigation of the charge leading
to the issuance of the complaint herein , Barreras gave a written statement to
a Board agent, which she declined to sign. Because she refused , the General
Counsel declined to allege in the complaint or amended complaint certain
egregious conduct which Barreras attributed to Avedon Montano, a
supervisor formerly employed by Respondent . The General Counsel's
explanation for having failed to allege such conduct in the complaint or
amended complaint was that Barreras did not want to get involved in this
proceeding and "rather than risk the possibility of having to go to District
Court in order to enforce a subpoena , the decision was made to omit" the
alleged conduct from the complaint . Nevertheless , Barreras was placed under
subpena to testify to the same alleged misconduct as "background " evidence
to show animus and to support the allegation of disparate treatment between
pro- and antiunion sympathizers . While the complaint was amended in
several respects on August 3 - only 3 weeks before the hearing - the
Respondent had no knowledge the General Counsel would contend
Non-employees may not solicit on hospital premises for
any reason whatsoever.
An employee handbook entitled "Let's Get Acquainted"
contains a section entitled "Solicitations," and pasted
across the paragraph under that title is a label with the
words "SEE BULLETIN BOARD" typed across it. On about
April 15, 1976, the following memorandum was handed to
all employees with their paychecks:
To: All Employees
FROM: Sister Celestia, Administrator
SUBJECT: HOSPITAL POLICY "NO SOLICITING"
It seems to be necessary from time to time to call all our
personnel 's attention to the hospital policy of no
soliciting.
SOLICITATIONS BY EMPLOYEES
Because of the disruption to health care services of the
hospital, no materials shall be distributed to and no
solicitations shall be made of any hospital patient or
employee in patient care areas or other working areas
nor on any employee's working time, either the working
time of the solicitor or the employee being solicited.
Any solicitation must be confined to non-work areas
such as lounges and cafeteria and during non-working
time.
Montano had engaged in any conduct which might conceivably be violative
of the Act, until Barreras actually testified. At the beginning of the hearing,
the General Counsel sought and obtained from Respondent - without any
explanation - a stipulation that Montano had been an agent and supervisor
until May 1976 . The fact is that Montano has not been in Respondent's
employ since May 1976 . In these circumstances, I granted the Respondent's
motion to strike in its entirety Barreras ' testimony on direct examination,
and the issue was not further litigated . I have reconsidered the entire matter,
including the General Counsel 's explanation on the record and the argument
in his brief, and reaffirm my prior ruling.
2 Rehabilitation technician Gilbert Moreno testified he had engaged in
organizing activities for the last 8 or 9 months ; mechanical maintenance
employee Leroy Sandoval testified he engaged in union organizing activities
from November 1975 until about May 1, 1976 ; Director of Personnel Charles
Bates testified he first became aware of the organizing activities in August
1975.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SOLICITATIONS BYNON-EMPLOYEES
Non-employees may not solicit on hospital premises for
any reason whatsoever.
This includes all forms of solicitation including selling
chances, tickets, vitamins, Avon products, bread, jewel-
ry, cosmetics, baseball and football pools, etc.
There have been many warnings about this policy in the
past. We therefore feel that the next time an employee
violates this policy we shall have to immediately
discharge him or her.
The record fails to disclose that this memorandum was
posted on the employee bulletin board. Despite the is-
suance of this memorandum , the record shows that the
January 31, 1975, bulletin has remained posted on the
employee bulletin board until at least the time of the
hearing in this matter.3
Clearly, the prohibition of solicitation and distribution
"in any public area within the hospital premises" as set
forth in the rule posted January 31, 1975, is an unlawful
restriction upon the Section 7 rights of employees. See St.
John's Hospital, supra. The Respondent contends, however,
that the St. John's case was "wrongly decided and should
not be further followed." While in actual practice the
Respondent does not strictly enforce that restriction, it
interprets and applies both the January 31, 1975, and April
15, 1976, rules such that solicitations and distributions are
prohibited in areas of the hospital where ambulatory
patients and their visitors have access, such as hallways,
dayrooms, and lounges on the 3d, 4th, 5th, 8th, 9th, and
10th floors? Respondent contends these areas are "patient
care areas" within the meaning of the St. John's case.
Further, Respondent prohibits solicitation and distribution
in all "working areas" of the hospital at all times. "Working
areas," according to the Respondent, include all of the
service and ground floors except for the main hallways in
each, all of the 1st floor with the exception of the hallways
and the lobby, all of the 2d floor with the exception of the
cafeteria and hallway, and all of the 3d, 4th, 5th, 8th, 9th,
and 10th floors including hallways, lobbies, employee
lounges, and locker rooms on those floors. Respondent
argues that solicitation and distribution are prohibited in
specific work areas at all times because employees are
supposed to be working while they are in those locations,
and they should spend their break and lunch periods in
nonwork areas. The following rules found in the employee
handbook, contend the Respondent, prohibit employees
from spending breaktime in working areas:
Rest Periods
Everyone benefits from a short break away from work
and you may take a fifteen minute break for each 4
hours worked. So that everyone isn't away at the same
time, your supervisor will indicate the times best for you
to take these breaks and your meals. If you aren't quick
at figures, you might like to know that these rest periods
equal more than 16 days a year for which you are paid.
3 Bates testified that the April 15, 1976, rule was in effect since that date,
and that the earlier rule remained posted on the bulletin board due to
"probably carelessness "
Meals and Coffee
We have a cafeteria and vending machines for your
convenience. You are welcome to bring food from home
for your one-half hour meal time ; in the interest of
sanitation , we request that any food be eaten in the
cafeteria. Meal ticket books may be purchased to allow
you a discount on all food bought in the cafeteria.
The Board has addressed itself to the contentions made
by the Respondent herein and in particular to its conten-
tion the Board should apply to hospitals the rules applica-
ble to retail establishments, and has set forth its position
with respect to solicitation and distribution rules in health
care operations in several cases . A rule forbidding solicita-
tion during nonworking time is presumptively unlawful,
even though limited to working areas. A rule prohibiting
distribution of literature in nonwork areas to which patients
and visitors have access is also presumptively unlawful. A
rule prohibiting solicitation on nonworking time in strictly
patient care areas such as patients' rooms, operating rooms,
and places where patients receive treatment, as in X-ray
and therapy areas "would seem justified." However,
restrictions in visitor-access areas other than those involved
in patient care, such as cafeterias, lounges, and the like, are
unlawful. St. John's, supra; Baylor University Medical
Center, 225 NLRB 771 (1976); Lutheran Hospital of
Milwaukee, Inc., 224 NLRB 176 (1976); Beth Israel Hospi-
tal, 223 NLRB 1193 (1976); St. Peter's Medical Center, 223
NLRB 1022 (1976); Baptist Hospital, Inc., 223 NLRB 344
(1976). Applying these principles to the instant case, I find
that the Respondent has discriminatorily maintained an
overly broad no-solicitation, no-distribution rule that
prohibits all solicitation in all working areas during
nonworking time, and that prohibits solicitation and
distribution on nonworking time in nonwork areas such as
employee lounges and locker rooms and areas to which
visitors have access, including hallways, lobbies, and
lounges on all floors above the second floor, thereby
restraining and coercing employees in violation of Section
8(a)(1) of the Act.
B. The Alleged Disparate Treatment
Rehabilitation technician Gilbert Moreno, who had been
passing out union literature since the latter part of 1975,
testified that sometime in March or April 1976, he called
Director of Personnel Bates to clarify the written solicita-
tion-distribution policy and to find out where he could pass
out literature . Moreno contends he was told that "we could
pass it out in the cafeteria" but not in the lobbies "because
those are public ." Bates testified that he did not recall
Moreno asking anything except "is it permitted for me to
hand out literature in the cafeteria ," to which he gave an
affirmative answer . Inasmuch as the answer Moreno
attributes to Bates regarding prohibition against distribu-
tion in lobbies is consistent with the Respondent 's January
31, 1975 , rule in effect at that time , I credit Moreno's
testimony over that of Bates in this respect.
S Floors 6 and 7 are not yet completed.
ST. JOSEPH HOSPITAL 161
Moreno testified that on April 8, 1976, "1 was standing in
the doorway of the cafeteria handing out literature" when
William Brill, Respondent's director of fire, safety, and
security, approached him and "he said that I wasn't to pass
out union literature in the hallway, to move into the
cafeteria, so I stepped in." 5
Brill's version of the incident was that, while he was
having lunch in the cafeteria sometime in May 1976, he
observed Moreno standing in the doorway to the cafeteria
with some papers in his hand. He testified he approached
Moreno in a friendly manner and, as the area was
congested, invited him to come inside the cafeteria. Brill
denied he took any action to prevent Moreno from passing
out literature, nor that he told him it was against Respon-
dent's policy. He testified he returned to the cafeteria to
finish his meal and a short time later observed that Moreno
had left. He denied he either knew or asked Moreno what
he had in his hand, or that he took any action to prevent his
passing out literature.
While the record does not disclose there were other
people in the vicinity of the cafeteria entrance so that
Moreno's presence in the doorway might have caused a
traffic-blocking problem at that point, I am convinced from
the evidence, Moreno's in particular, that he was not
standing in the hallway outside the cafeteria when the
foregoing incident occurred. He denies specifically that he
stood outside the cafeteria, but was instead "right under the
door." Inasmuch as Moreno was not in fact standing in the
hallway outside the cafeteria, I doubt the probability that
Brill would have told him he was not allowed to do so. In
any event, I conclude and find that the General Counsel
has failed to prove by a preponderance of the evidence that
the Respondent prevented Moreno from distributing litera-
ture in the hallway adjacent to the entrance to the cafeteria
as alleged in paragraph 13 of the complaint .6
Director of Personnel Bates testified that on April 19,
1976, as a result of reports he had received from supervisors
that employees Moreno and Leroy Sandoval had been
soliciting for the Union during their working time and the
working time of the employees to whom they had spoken,
he composed the following letter, a copy of which was given
to both Moreno and Sandoval: 7
SUBJECT: NO SOLICITATION POLICY
B The complaint alleges Brill prevented Moreno from distributing litera-
ture on behalf of the Union "in a hallway at a point immediately adjacent to
the public entrance to the Respondent 's cafeteria .. . ' Moreno's testimo-
ny makes it abundantly clear that he was standing in the doorway "under the
door" to the cafeteria and not in the hallway outside the cafeteria as alleged.
6 While not mentioned in his brief, at the hearing the General Counsel
sought to establish disparate application of the Respondent 's solicitation and
distribution rule by showing the Hospital Auxiliary had been permitted to
sell dinner tickets in the hallway outside the cafeteria , the proceeds of which
were used to purchase hospital equipment and supplies ; and that the
Auxiliary had "setup booths with pamphlets on different things and set them
up in the hallway of the cafeteria , such as diabetes, high blood pressure,
things like this." As noted heretofore , the evidence not only fails to show that
either solicitation or distribution was prohibited in the hallway outside the
cafeteria , but the testimony shows that the Auxiliary sales which took place
in the hallway outside the cafeteria occurred prior to the publication of the
January 31, 1975, solicitation-distribution rule involved herein, and that
It has been brought to my attention that you have been
observed soliciting other employees in connection with
union activity on working time.
So that there will be no question about this I wish to
repeat the hospital policy that you are not permitted to
solicit on your working time or on any other employee's
working time and at no time in patient care areas or
other working areas.
If you persist in not observing this no solicitation policy,
you will be discharged.
Please observe our no solicitation policy.
Moreno was given his copy of the letter on April 19, by the
night supervisor. Sandoval received his from Bates on April
21. Sandoval's version of the conversation between him and
Bates at that time was:
I walked into Mr. Bates' office and he told me that I
have heard you have been observed soliciting union
during your working time and then he handed me the
letter. And I said, "Well, I don't want to argue the
point." I told him it is a he and I said, "Other people
have approached me about the family. I don't talk
about the union during my working time. I don't like
them talking to me about their family policy." And he
said, "Well, who has been talking to you about their
family?" And I said, "Well, Howard Conrad." And he
said, "O.K., what I will do, I will send him a letter, too."
And I said, "O.K., and I walked out. That was it and I
went back to work.8
Sandoval testified that about the middle of March 1976,
while working in the engineering department located on the
sixth floor, employee Howard Conrad, who was on a
cofl'eebreak, had approached him. His testimony regarding
the conversation that followed was:
Well, I don't know what started the whole thing, but
anyway he started telling me about the union, that he
had been in the union before or something. I really can't
remember that good, that it is not worth it, it is no good,
you shouldn't be joining the union. And then he came
out with this president deal, that I wanted to become
president of the union or something. I told him,
"Howard, do me a favor. Please don't talk to me about
since that time they have been conducted within the cafeteria Moreover, the
Board has declined to find that similar beneficent acts establish disparate
application . See, for example, Serv-Air, Inc, 175 NLRB 801 (1969).
7 While Moreno denied having solicited on behalf of the Union in any
place other than the cafeteria, and Sandoval denied soliciting on working
time, the latter admitted on cross-examination that he had talked to another
employee about the Union on working time in response to questions asked
by that employee Furthermore, the complaint alleges in par It, and the
answer admits, that the letters of April 19 had been written "because Bates
had been advised that said Moreno and Sandoval had solicited other
employees on behalf of the Union on their working time " In light of the
pleadings , the General Counsel's argument that the failure of the Respon-
dent to present evidence that Moreno was ever observed engaging in union
activities other than the April 8 incident at the entrance to the cafeteria, must
lead to the assumption that the April 8 incident "caused the .. letter of
reprimand to be issued to Moreno" is rejected as lacking in merit.
8 The "family" is a group of employees against the Union.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any family policy or anything." I said, "Because I don't
talk to you about union during my working time." And
he kept on. He kept insisting. So I started getting angry
and that is when my boss walked in.
Q. And who is your boss?
A. Jim McBride.
Q. Was that the end of the conversation?
A. No, I told Jim, I said, "Jim, could you please do
me a favor? I don't talk to you guys about union when
I'm working, could you do me a favor and tell Howard
not to talk to me about any family policy or anything?"
And then he told me, "Leroy, there's nothing I can do.
You're for the union and he's for the family and there's
nothing I can do." And so that was it .9
Conrad, who was called as a witness by the General
Counsel, denied on cross-examination that he had told
Sandoval the Union was "no good," that he had ever
belonged to a union , or that he understood Sandoval was
trying to become president of the Union.
Bates , who first learned of the conversation between
Sandoval and Conrad on April 21, when he gave Sandoval
a copy of the April 19 letter, testified as follows:
Q. What did he [Sandoval] say and what did you
say on the subject matter of the Howard Conrad
incident?
A. I had asked him to stop by the office to pick up
the letter about the no-solicitation rule and he said,
"Other people are talking for and against the union
also." And I said, "My knowledge is that you have been
doing so, and we just wanted to warn you." He said,
"Well, Howard Conrad was talking to me while we were
working together about how good a place the hospital is
to work and how good the benefits are. And I told him
that he was entitled to his opinion as I was entitled to
mine and I did not want to hear him talking about such
things to me while we were working." So I said, "He has
no more right to talk against the union than you have to
talk for it while you are working." I said, "I will take it
up with him.
Q. Did Mr. Sandoval, in his relating to you of the
incident he had with Mr. Conrad, make any claim that
Mr. Conrad had been talking about the family?
A. No.
Q. Have you told us as fully as you can recall what
Mr. Sandoval did say to you on that occasion?
A. Yes.
Q. What did you do next?
A. I called Mr. Langner, who is the director of the
plant services, and I told him what had happened and I
said, "Will you get Mr. Conrad in and tell him that he
must not be doing this because what applies to one
employee applies to all employees."
Conrad testified that Langner called him into the office
and said that Sandoval had told Bates that Conrad had
been talking about the family and had stated that if Conrad
"could talk about the family, then he [Sandoval] could talk
about the Union." Conrad's testimony regarding his
response to Langner , and a subsequent conversation with
Bates, is as follows:
I explained to Mr. Langner that I was referring to Mr.
Sandoval, the benefits that we had at the hospital that
they did not have outside of the hospital, such as
birthdays off and coffee breaks. If you work outside the
hospital, which I have done, when you straighten up,
they ask you what's wrong and they want you to
continue with work and the benefits that we had at the
hospital were so much greater than you had outside.
s s s s s
About two days after I talked to Eric, I met Mr. Bates
on the second landing between the first and second
floor, and I said, "Charlie, it is a hell of a note when a
man can't tell a person that he likes his job." And
Charlie said, "That's right, but it is against the law." He
said, "If I tell one that he can be discharged for talking
against the hospital or against the union , I can dis-
charge, by the same token, I would have to discharge
someone for talking against the union."
* s s
I explained to Mr. Langner this is what I had discussed
with Leroy Sandoval and he said, "Well, let me call Mr.
Bates and see if this is illegal ." Then he called Mr. Bates
and he got him on the phone, I could hear Mr. Bates
very clearly on the phone. I sat across the desk and he
asked him if this was illegal and Mr. Bates said, after
thinking a while, he said, "No, we hadn't better.
Speaking for the hospital could possibly be construed as
speaking against the union, so we don't do it." And this
perturbed me greatly when Eric said, no, we can't do it.
r s s s s
I asked Eric why a man can't tell his fellow employees
that he likes his job. Why is that illegal? And Eric said,
he has a way of putting it across to you, he just said,
"Howard, don't do it." And that was the end of our
conversation. I left his office.
The record also shows that on April 19, the date of the
Moreno-Sandoval letters regarding the Respondent's no-
solicitation policy, Bates sent copies of the following letter
to Shirley LeBlanc in the housekeeping department and Sue
Boggs in the engineering department, both known to be
active on behalf of the "family":
SUBJECT: NO SOLICITATION POLICY.
Although I have not been informed that you have been
soliciting employees on working time, either on yours or
other employees, and I believe that you have not, I wish
to call your attention to the hospital policy on no
solicittion [sic] which applies to all employees.
9 It was stipulated that McBride is a supervisor and agent within the
meaning of the Act
ST. JOSEPH HOSPITAL 163
So that there will be no question about this I wish to
repeat the hospital policy that you are not permitted to
solicit on your working time or on any other employee's
working time and at no time in patient care areas or
other working areas.
Please observe our no solicitation policy since the
penalty for breaking this policy is discharge. I would
suggest that you also caution other members of your
hospital family committee.
While apparently ignoring the fact that LeBlanc and
Boggs received letters advising them that the penalty for
breaking the Respondent's no-solicitation policy was dis-
charge - the same as that contained in the Moreno-
Sandoval letters - the General Counsel contends the
Respondent's failure to similarly reprimand Conrad in
writing is evidence of disparate enforcement of its no-
solicitation rule vis-a-vis pro- and antiunion activists. The
General Counsel alludes to Sandoval's testimony to the
effect that he said to his supervisor, McBride, "Jim, could
you please do me a favor? I don't talk to you guys about
union when I'm working, could you do me a favor and tell
Howard not to talk to me about any family policy or
anything?" and to McBride's reply, "Leroy, there's nothing
I can do. You're for the Union and he's for the family and
there's nothing I can do." It is clear that McBride did not
overhear the conversation between Conrad and Sandoval,
nor do Conrad and Sandoval - both witnesses for the
General Counsel - agree on what was said between them.
Further, as soon as Bates , who initiated the April 19 letters,
learned from Sandoval on April 21 that Conrad had been
talking about the "family," he took immediate steps to put a
stop to it, and it is clear from Conrad's testimony that Bates
informed him personally that "if I tell one that he can be
discharged for talking against the hospital . . . I would
have to discharge someone for talking against the Union."
Thus, it is seen that Moreno, Sandoval, LeBlanc, Boggs,
and Conrad had all been advised of discharge as the
penalty for violating the Respondent's no-solicitation rule.
In a further attempt to establish disparate enforcement of
the Respondent's rules, the General Counsel contends "the
family" was allowed to post several notices on the bulletin
board, presumably while the Union was refused such
permission. Sandoval testified he observed two or three
10 At the commencement of the hearing , the General Counsel sought, and
obtained a stipulation that Montano was a supervisor until May 1976 when
he left Respondent 's employ. During the hearing, the General Counsel
sought to elicit the details of a purported conversation between Sandoval and
Montano in January 1976 Upon objection by the Respondent that such
testimony went beyond the allegations in the complaint , the General Counsel
represented that the testimony which he sought to elicit went "to the animus
and the background of disparate treatment which is alleged in paragraph I I
of the complaint ." The General Counsel further gave me to understand that
he was not contending Montano's purported statements were in violation of
the Act or covered by the complaint . Upon those representations , Sandoval
was permitted to testify that Avedon had offered him a job in his department
as a supervisor on the day shift . His testimony regarding the conversation
was:
So I went down there and I went into his office and he [Montano]
told me to sit down and he said , "Leroy, I've heard you've been having
trouble with mechanical ." And I said , "Yes." And he said , "How would
you like a job with me?" I said , "Well, I don't know . Doing what9" And
he said, "Supervisor ." And I said, "In the night or day?" I didn 't want to
letters "from the family" posted on top of each other on the
bulletin board in the back of the sterilization room. There is
no evidence to show that the Respondent authorized or was
even aware that such letters were posted there or that more
than five employees frequented that location. Further,
Bates testified there was a hospital policy which prohibited
use of the bulletin boards for either union or family
literature, and he knew of only one instance when family
literature had been posted on a bulletin board located on
the third floor, and it had been removed as soon as the head
nurse saw it.
In these circumstances, I find that the General Counsel
has failed to prove by a preponderance of the evidence the
disparate enforcement of its no-solicitation rule vis-a-vis
pro- and antiunion activists.10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent as described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has promulgated
and maintained rules unlawfully restricting employee
exercise of rights guaranteed by the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Upon the foregoing fmdings of fact and the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. St. Joseph Hospital is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Southwestern Council of Industrial Workers, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
work nights. And he said, "In the day-time." And I said, "Well, it
sounds good ." He said , "How much do you get now9" And I told him
And he said, "Well, we might be able to get that or even better." And I
said, "Well, that sounds fine to me."
He said , "What about the union?" I said, "What do you mean about
the union?" And he said, "Well, Leroy, we don't need the union here in
the St. Joseph Hospital . We don't want it." And I just looked at him and
I told him, "Well, I don't know. I'm going to have to think about it " He
said , "You're going to have to tell me fast because I 've got to post this
I've got to post it on the bulletin board for ajob opening." And I said,
"Well, I'll let you know by Friday." And that was it. Then I went up to
work.
Sandoval later declined the job. In his brief , the General Counsel contends
that "Montano's remarks were an obliquely phrased but thinly veiled open
solicitation of Sandoval to refrain from his pro-union activities " My
imagination is not as fertile as that of the General Counsel; therefore I must
rely solely on the testimony which I find fails to establish either a thinly
veiled open solicitation to refrain from prounion activities or the "animus
and the background of disparate treatment" which it purports to show.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By promulgating and maintaining rules restricting
the areas in which employees on nonwork time may orally
solicit for labor organizations, and restricting the nonwork
areas in which employees on their nonwork time may
distribute materials on behalf of labor organizations,
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not violated the Act in any other
respect.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, St. Joseph Hospital, Albuquerque, New
Mexico, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating any rule or regulation prohibiting its
employees from soliciting on behalf of any labor organiza-
tion on Respondent's premises other than immediate
patient care areas during nonworking time, or prohibiting
the distribution of union literature in nonworking areas
during employees' nonworking time.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind its rules restricting the areas in which
employees may solicit on behalf of labor organizations
during the employees' nonworking time insofar as it applies
to other than immediate patient care areas, and prohibiting
distribution of union literature during employees' nonwork-
ing time in nonworking areas of its operations.
(b) Post at its operations in Albuquerque, New Mexico,
copies of the attached notice marked "Appendix." 12 Copies
of said notice, on forms provided by the Regional Director
for Region 28, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director For Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."