St. Luke's Hospital

National Labor Relations Board - Board Decisions

Dec 7, 1990

300 N.L.R.B. 836 (N.L.R.B. 1990)

836
300 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 All dates are in 1988 unless otherwise indicated.
3 In his decision the judge erroneously stated that ‘‘the voice on the radio
stated that Caragher and Watson were on their way out.’’
4 In his decision the judge erroneously stated that Truetken testified that
Watson was placing union literature on automobiles within 30 to 45 feet of
the parking area reserved for oncology and outpatient parking.
5 In his decision the judge erroneously stated that Caragher testified that he
was placing union literature on cars parked in employee spaces ‘‘and in un-
marked spaces which were so called unreserved.’’
St. Luke’s Hospital and Textile Processors, Service
Trades, Health Care, Professional and Tech-
nical Employees International Union, Local No.
108, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO.1 Case 14–CA–
19362
December 7, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On October 10, 1989, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition to
the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this Decision and
Order.
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by maintaining and enforc-
ing a policy of prohibiting off-duty employees from
distributing union literature on the Respondent’s park-
ing lot. The General Counsel excepts, contending that
the Respondent’s maintenance of a policy that pro-
hibits off-duty employees from distributing union lit-
erature on the Respondent’s parking lot, its informing
an off-duty employee that such distribution was pro-
hibited, and its removal of the union literature from the
windshields of the automobiles in the parking lot was
unlawful. For the reasons set forth below, we agree
with the General Counsel.
The facts in this case, more fully set forth in the
judge’s decision, are essentially undisputed. On Feb-
ruary 9, 1988,2 after he had finished working, em-
ployee Keith Caragher met Union Representative John
Watson in the employee parking lot where they handed
out union literature to employees who were leaving
work and placed the literature on the windshields of
automobiles on the employees’ parking lot. After about
30 minutes, Security Officer Gene Latham approached
them and asked what they were doing. They told him
they were distributing union literature and gave him a
copy of the literature. Officer Latham, speaking into a
hand-held radio, reported to the security office ‘‘that
the guy from the Union is out here again.’’ A voice
over the radio directed Latham to tell the union rep-
resentative that he was on private property and had to
leave. Latham responded, over the radio, ‘‘but he’s got
an employee with him.’’ The voice over the radio di-
rected Latham to identify the employee and get his
name. Caragher showed Latham his hospital identifica-
tion badge and Latham wrote down his name. The
voice over the radio said, ‘‘we are on our way out.’’3
When Director of Security and Transportation Rob-
ert Truetken arrived, he told Watson he would have to
leave the property. Truetken questioned Caragher about
his employment status with the hospital and asked
Caragher what he was doing. Caragher replied, ‘‘I
work in the operating room. . . . I’m on my way
home . . . and . . . on my own time.’’ Caragher then
asked Truetken if there was a problem with that.
Truetken responded, ‘‘Yes there is. You are not sup-
posed to be doing that and you just better get the hell
out of here.’’ At that point both Caragher and Watson
got in their cars and left the hospital premises.
Truetken testified that he was approximately 30 to 45
feet from the area of the employee parking lot reserved
for oncology outpatient parking when he had this con-
versation with Caragher and Watson.4
Caragher testified that he knew that he was placing
the union literature on automobiles that belonged to
other employees because they were parked in employ-
ees spaces, i.e., unmarked and unreserved spaces in the
employee parking area,5 and that all employees are re-
quired to display a parking sticker in the window of
their automobiles.
Truetken testified that he established the policy of
prohibiting the placing of literature on automobiles in
the employees’ parking lot because of the litter prob-
lem created when leaflets blow ‘‘all over the hospital’’
grounds, and as a result of complaints by persons
whose automobiles were damaged by the placing of lit-
erature under windshield wipers. Truetken further testi-
fied that windshield wipers had been sprung and that
some wiper blades had actually fallen off vehicles.
The judge found that the Respondent had ‘‘estab-
lished and maintained a uniform, consistent policy pro-
hibiting the distribution of any type of literature under
employee and patient windshield wipers on the em-
ployee parking lot,’’ and that this policy had been in
effect for at least 6 years, Truetken’s tenure as director
of security. The judge further found that the Respond-
ent had adequate business justifications for establishing
and enforcing its policy, which had been applied in a
nondiscriminatory manner, and when balanced against
837ST. LUKE’S HOSPITAL
6 The judge’s reliance on Rochester General Hospital, 234 NLRB 253
(1978), and his consideration of whether the Union had reasonable alternative
means of communicating with employees is misplaced. Rochester, unlike the
instant case, involves access of nonemployee union organizers to the respond-
ent’s property, and the balancing test used by the Board in that case is not
applicable to employee distributions on company property during nonworking
time.
Further, we do not find that the record supports the judge’s finding that
Caragher and Watson did not limit their distribution only to automobiles be-
longing to employees on the parking lot. To the contrary, Caragher’s undis-
puted testimony was that he knew that he was placing the literature on em-
ployee automobiles because they were parked in employee spaces and because
of the employees’ parking stickers displayed in the automobile windows. In
the absence of any evidence that nonemployee automobiles were involved, the
judge’s finding can be explained only because of his erroneous recounting of
Caragher’s testimony, noted above.
the failure of the Union to demonstrate that there were
no alternative means available to the Union to commu-
nicate to the employees, the Respondent did not violate
the Act.
Contrary to the judge, we find that the Respondent’s
maintenance and enforcement of a policy that prohibits
off-duty employees from distributing union literature
on the Respondent’s property violates Section 8(a)(1)
of the Act. The distribution by off-duty employees of
union literature in company parking lots is clearly pro-
tected by Section 7 of the Act. E. R. Carpenter Co.,
284 NLRB 273 fn. 1 (1987). Thus, the Board has stat-
ed, ‘‘except where justified by business reasons, a rule
which denies off-duty employees entry to parking lots,
gates, and other outside nonworking areas will be
found invalid.’’ Tri-County Medical Center, 222
NLRB 1089 (1976).
Here, Truetken, in response to Caragher’s statement
that he was distributing union literature on his own
time, told Caragher that he was ‘‘not supposed to be
doing that’’ and that he had better ‘‘get the hell out
of’’ there.
Although Truetken testified that the Respondent’s
unwritten policy was to prohibit the placement of any
type of literature on automobile windshields in the em-
ployee parking lot, Truetken failed to articulate this
policy to Caragher. Rather than explain to Caragher
that Truetken’s ‘‘problem’’ with what Caragher was
doing was limited to his method of distribution,
Truetken’s statements to Caragher constituted an abso-
lute prohibition against any form of distribution on the
employees’ parking lot. In light of the Respondent’s
failure to advance any legitimate business reasons for
this absolute prohibition, such an overbroad policy vio-
lates Section 8(a)(1) of the Act. Tri-County Medical
Center, supra; Orange Memorial Hospital, 285 NLRB
1099 (1987).
Further, even if Truetken’s statements to Caragher
were deemed to accurately reflect the Respondent’s
policy, we find that the Respondent has failed to estab-
lish adequate business justification for its policy. The
only evidence submitted by the Respondent regarding
its business justification for its policy was the testi-
mony of Truetken, who stated that the Respondent pro-
hibited the distribution of literature on automobiles
‘‘because of the litter . . . blowing all over the hos-
pital’’ grounds and because of ‘‘complaints by our
people having their cars damaged’’ by the placing of
literature under windshield wipers that led to wind-
shield wipers being sprung and blades falling off.
Truetken further testified that while he talked to
Caragher on February 9, he observed the union lit-
erature blowing up against the tires of cars. The Re-
spondent introduced no company records or reports
documenting any past problems with litter or auto-
mobile damage resulting from the placement of lit-
erature on automobile windshields, nor was any other
employee of the Respondent (e.g., an employee whose
car had been damaged or a maintenance employee re-
sponsible for collecting litter on the parking lot) called
to testify regarding any past problems. Under these cir-
cumstances, we find that the Respondent, through
Truetken’s vague, generalized testimony, has not met
its burden of establishing legitimate business consider-
ations necessary to justify its interference with
Caragher’s Section 7 right to distribute union literature
in the employees’ parking lot on nonworking time.6
Accordingly, we find that by maintaining and en-
forcing a policy that, in the absence of legitimate busi-
ness reasons, prohibits off-duty employees from dis-
tributing union literature on the employees’ parking
lot, including informing off-duty employee Keith
Caragher that distribution of union literature in the
parking lot was prohibited and removing that literature
from the windshields of employees’ automobiles, the
Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By maintaining and enforcing a policy that, in the
absence of legitimate business reasons, prohibits off-
duty employees from distributing union literature on
the employees’ parking lot, including informing off-
duty employee Keith Caragher that distribution of
union literature in the parking lot was prohibited and
removing that literature from the windshields of em-
ployees’ automobiles, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
2. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent has violated Sec-
tion 8(a)(1) of the Act by maintaining and enforcing
a policy that, in the absence of legitimate business rea-
sons, prohibits off-duty employees from distributing
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 1 All dates are in 1988 unless otherwise indicated.
union literature on the employees’ parking lot, we shall
order that the Respondent rescind the policy.
ORDER
The National Labor Relations Board orders that the
Respondent, St. Luke’s Hospital, St. Louis, Missouri,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a policy that, in the
absence of legitimate business reasons, prohibits off-
duty employees from distributing union literature on
the employees’ parking lot, including informing off-
duty employee Keith Caragher that distribution of
union literature in the parking lot was prohibited and
removing that literature from the windshields of em-
ployees’ automobiles.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the policy orally announced to employee
Keith Caragher on February 9, 1988, which prohibited
him from distributing on his nonworking time union
literature on the windshields of employees’ auto-
mobiles parked in the employees’ parking lot.
(b) Post at its facility in St. Louis, Missouri, copies
of the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT maintain and enforce a policy that, in
the absence of legitimate business reasons, prohibits
off-duty employees from distributing union literature in
the employees’ parking lot, including informing off-
duty employee Keith Caragher that distribution of
union literature in the parking lot was prohibited and
by removing that literature from the windshields of
employees’ automobiles.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the policy orally announced to em-
ployee Keith Caragher on February 9, 1988, which
prohibited him from distributing on his nonworking
time union literature on the windshields of employees’
automobiles parked in the employees’ parking lot.
ST. LUKE’S HOSPITAL
Rick Hampton, Esq., for the General Counsel.
Paul J. Schroeder, Esq., for the Respondent.
Richard Shinners, Esq., for the Charging Party (Union).
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at St. Louis, Missouri, on April 26, 1988. The
charge was filed by the Union on February 10, 1988,1 and
the complaint and notice of hearing issued on March 22.
The complaint alleges that Respondent hospital committed
an unfair labor practice within the meaning of Section 8(a)(1)
of the Act by prohibiting an employee of the hospital from
distributing union literature and further by removing that lit-
erature from the windshields of employees’ cars.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material, a non-
profit corporation duly organized under, and existing by vir-
tue of, the laws of the State of Missouri.
At all times material, Respondent, a corporation with an
office and place of business in St. Louis, Missouri, has been
engaged in the operation of a hospital.
839ST. LUKE’S HOSPITAL
During the 12-month period ending February 29, 1988,
Respondent, in the course and conduct of its business oper-
ations, derived gross revenues in excess of $250,000 and pur-
chased and received at its St. Louis, Missouri facility goods
and materials valued in excess of $10,000 directly from
points outside the State of Missouri.
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Respondent is engaged in the operation of a hospital where
it maintains 439 beds and employs approximately 1800 em-
ployees. Respondent possesses several parking areas includ-
ing a visitors parking lot, an area for oncology patients, phy-
sician’s parking lots, a 1600 space employee parking lot, and
an additional 500 slots in a gargage for a total of approxi-
mately 2000 parking spots.
After finishing work on February 9, at approximately 3:30
p.m., Keith Caragher, an employee of Respondent, met
Union Representative John Watson in the employee parking
lot. This lot can be identified by a sign. Near this lot and
the hospital’s entrance are spaces reserved for oncology pa-
tients. These spaces are also identified by signs.
Caragher and Watson distributed union literature to em-
ployees by handing it to employees who were leaving work
and also placing the literature on the windshields of auto-
mobiles on the parking lot.
At approximately 4 p.m. Gene Latham, Respondent’s secu-
rity guard, drove up in the security truck and asked Caragher
and Watson what was going on. They told Latham they were
handing out union information and also placing it on the
windshields of vehicles. Latham was given a copy of the lit-
erature.
Latham then used his walkie-talkie to advise the individual
at the other end that the Union was there again. A voice over
the radio directed Latham to tell the union representative that
he was on private property and that he had to leave. Latham
responded over the walkie-talkie that the union representative
had an employee with him. Latham was directed to identify
that employee and Caragher showed Latham his ID badge.
The voice on the radio stated that Caragher and Watson were
on their way out.
Kreitler, the security officer, took a copy of the union lit-
erature and read it. Shortly thereafter, Robert C. Truetken, di-
rector of security and transportation, came out and told Wat-
son he would have to leave the property. Watson asked
Truetken about some letters Watson had sent the hospital.
Truetken stated he didn’t care about the letters and that Wat-
son would have to leave. Truetken then directed someone
over his walkie-talkie to notify the office that he was con-
tacting the county police.
Truetken asked Caragher if he worked at the hospital and
Cargaher responded that he did, in the operating room.
Truetken asked him what he was doing out there and
Caragher responded that he was handing out union informa-
tion, that he was on his way home, and on his own time.
He further asked Truetken if there was a problem with that
and Truetken responded that there was, that he was not sup-
posed to be doing that, and he had better get ‘‘the hell’’ out
of there.
Watson asked Kreitler and Latham to identify themselves
to him and they obliged. At that point Watson and Caragher
got into their cars and drove out of the employee parking lot
onto an adjoining road. They walked up a hill to a point
where they could observe the employee parking lot. They
saw that Latham was taking the handbills from under the
windshields.
Several employees saw the security guards removing the
union literature from automobiles at the same time. One of
the guards, in response to a question from an employee, re-
sponded that he could remove the union literature because it
was private property.
It is undisputed that employee Caragher was not dis-
ciplined by Respondent for his union activities in passing out
literature and placing same under the windshields of auto-
mobiles.
The testimony of Robert Truetken, the director of security
and transportation, is unrefuted that during the 6 years he has
been in that job he has never knowingly permitted any estab-
lishment or organization to place literature on vehicles in the
employee parking lot. Moreover, Truetken testified that he
has directed his security people to prevent the distribution of
literature from various establishments such as pizza parlors,
car washes, oil-change businesses, or any other organization
in a consistent manner. Truetken has also directed his secu-
rity officers to remove literature that has been placed on
automobiles in the employee parking lot. He testified that
this policy was established due to the concern of litter blow-
ing on the hospital grounds and as a result of complaints by
individuals where cars have been damaged by the placing of
literature under windshield wipers. Truetken testified that
windshield wipers have been sprung and that blades have ac-
tually fallen off of the vehicles. Truetken further testified that
on February 9, when he talked to Watson, he actually ob-
served the literature of the color of the documents that had
been placed under the windshields blown up against the tires
of cars. The literature, in evidence as General Counsel’s Ex-
hibit 2, is comprised of four pages, the first page being pink
and the last page being yellow.
The employee parking lot also functions as a parking facil-
ity for oncology and out-patient departments. The lot con-
tains spaces specifically reserved for patients and staff of the
oncology and out-patient departments. Truetken testified that
these spaces are insufficient to handle patient volume for on-
cology and out-patients during normal business hours. Ac-
cordingly, patients park elsewhere in the employee parking
lot, wherever they can find a spot. Truetken testified that
Watson was placing union literature on automobiles within
30 to 45 feet of the area reserved for oncology and out-pa-
tient parking.
Caragher testified that he was placing literature on cars
parked in employee spaces, and in unmarked spaces which
were so-called unreserved. He also testified that there were
parking stickers that employees have to display in the wind-
shield of their cars. He did not testify that he made any spe-
cial effort to place literature only under the windshields of
cars bearing employee stickers.
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Truetken also testified the he has received complaints from
his employees whose windshields were damaged by the
placement of literature under the windshields.
Conclusion and Analysis
I find that Respondent has established and maintained a
uniform, consistent policy prohibiting the distribution of any
type of literature under employee and patient windshield
wipers on the employee parking lot. This policy has been in
effect for at least 6 years, presumably prior to any union or-
ganizational efforts.
Moreover, it is uncontradicted that Respondent had ade-
quate business justifications for establishing and enforcing
this nondiscriminatory policy, in a nondiscriminatory manner.
Unrefuted testimony divulges that on that very day, February
9, litter, i.e., the union literature, was observed by Truetken
blown against the tires of automobiles. Furthermore, there
were complaints in the past that damage ensued to vehicles
as the result of placing literature under windshields.
The cases cited by counsel for General Counsel are inap-
plicable.
In E. R. Carpenter Co., 284 NLRB 273 (1987), the Re-
spondent’s defense was aimed at a violation of a state crimi-
nal code section. There was no litter problem or any com-
pany prohibition. Moreover, no damage to vehicles resulted.
In Angelica Healthcare Service Group, 284 NLRB 844
(1987), a supervisor’s instruction against solicitation was lim-
ited to union solicitation. There was no evidence that the su-
pervisor was attempting to enforce the Respondent’s no so-
licitation rule contained in the employee manual.
Finally, in Orange Memorial Hospital Corp., 285 NLRB
1089 (1987), there was no evidence that patients frequented
outside nonwork areas, nor was there any evidence of dam-
age to vehicles.
The Union has not demonstrated that no other reasonable
means exist to communicate its organizational purposes to
employees.
I am convinced by a preponderance of the evidence that
Caragher and Watson did not limit their distribution only to
automobiles belonging to employees on the parking lot.
For example, on cross-examination, Watson was asked,
‘‘John, how did you know that the windshields that you were
putting the literature on were windshields of employees
cars?’’ Watson responded, ‘‘My understanding of the em-
ployee lot is that parking is for employees only with the ex-
ception of a number of spots that are clearly marked for the
oncology department and those spots are fairly close to the
entrance of the oncology department.’’
Evidence reflected that the designated spots were insuffi-
cient to handle the traffic, resulting in spillover during peak
periods. Afternoons are peak periods.
I conclude that Respondent has a legitimate concern over
litter and the protection of patient and employee vehicles.
Balanced against the absence of any evidence that the union
had no other means available to communicate to the employ-
ees, I find that the Respondent did not violate Section 8(a)(1)
of the Act. Rochester General Hospital, 234 NLRB 253
(1978).
Accordingly, I shall recommend an order dismissing the
complaint in its entirety.
CONCLUSIONS OF LAW
1. The Respondent employer is engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegation that the Respondent Employer has en-
gaged in conduct violative of Section 8(a)(1) of the Act has
not been supported by substantial evidence.
[Recommended Order dismissing complaint omitted from
publication.]