St. Mary's Hospital

National Labor Relations Board - Board Decisions

Mar 30, 1995

316 N.L.R.B. 947 (N.L.R.B. 1995)

947
316 NLRB No. 142
ST. MARY’S HOSPITAL
1 Cf. Waste Stream Management, 315 NLRB 1099, 1124 (1994)
‘‘In determining whether a respondent has created an impression of
surveillance the Board applies the following test: whether employees
would reasonably assume from the statement in question that their
activities have been placed under surveillance.’’ (Citations omitted.)
2 Cf. Crown Cork & Seal Co., 254 NLRB 1340, 1346 fn. 6 (1981).
3 Our colleague cites Lechmere v. NLRB, 502 U.S. 527, 532
(1992), in support of her position and claims that Lechmere stands
for the proposition that ‘‘Section 7 protects employees from em-
ployer interference with the attempts of nonemployee organizers to
inform employees of the advantages of self-organization.’’ However,
in Lechmere itself, the Supreme Court found that the clear employer
interference there with the attempts of nonemployee organizers to in-
Continued
St. Mary’s Hospital and New England Health Care
Employees Union, District 1199, AFL–CIO.
Case 34–CA–6217
March 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On March 23, 1994, Administrative Law Judge Joel
P. Bibliowitz issued the attached decision. The Re-
spondent filed exceptions and a brief in support of ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and brief and has decided to adopt the
judge’s rulings, findings, and conclusions, only to the
extent consistent with this Decision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by ‘‘[e]ngaging in the appear-
ance of surveillance of its employees’ union activi-
ties.’’ The Respondent excepts. We find merit in the
exceptions.
On June 7, 1992, the Union leafleted at three loca-
tions of the Employer’s facility: the employee parking
garage, the main entrance to the hospital, and a visi-
tors’ parking garage. Only the Respondent’s conduct at
the visitors’ garage was found to have violated the
Act.
From about 2:30 p.m. until 4 p.m., nonemployee
union agents Wendy Mataya and Danny Hosang hand-
ed leaflets to drivers entering and exiting the visitors’
garage. They began this leafleting at an island between
two traffic lanes. However, they were told by Re-
spondent’s security guard, Anthony Silva, to leave the
Respondent’s property. They then leafleted from a
public sidewalk adjacent to the island. During some of
this period, including the time the agents leafleted on
the public sidewalk, Silva stood nearby and observed
the activity. As drivers would accept the leaflets, Silva
would write something on a note pad.
The judge found that while an employer may law-
fully observe the activities of a union on its premises,
it may not do anything further that may restrict em-
ployees in the exercise of their Section 7 rights. The
judge further found that Silva took notes when drivers
accepted leaflets, even at times when the agents were
not trespassing on the Respondent’s property. The
judge concluded that the Respondent thereby engaged
in the appearance of surveillance of its employees’
union activities, in violation of the Act.
The flaw that we find in the judge’s conclusion con-
cerns the lack of any evidence that the Respondent’s
activities were directed at any of its employees or were
observed by any of its employees. There is no evi-
dence that employees use the visitors’ garage. There is
also no evidence that any employees witnessed or had
any knowledge of the security guard’s actions. The
only identifiable participants in the activity are the
guard and the two union agents.
The instant case is to be distinguished from one in-
volving actual surveillance of employees. Such surveil-
lance, by its very nature, can violate Section 8(a)(1),
even if the employees are not aware of it. NLRB v.
Grower-Shipper Veg. Assn., 122 F.2d 368, 376 (9th
Cir. 1941), enfg. on this point 15 NLRB 322 (1939);
Bethlehem Steel Corp. v. NLRB, 120 F.2d 641, 647
(D.C. Cir. 1941), enfg. 14 NLRB 539 (1939); NLRB
v. Baldwin Locomotive Works, 128 F.2d 39, 50 (3d
Cir. 1942), enfg. on this point, 20 NLRB 1110, 1121
(1940). See also Branch International Services, 310
NLRB 1092, 1106 (1993). However, the instant case
involves only a complaint allegation that Respondent
‘‘created the impression among its employees that their
union activities were under surveillance by Respond-
ent.’’ By its very terms, this complaint allegation, to
be proven, requires evidence that the employees were
aware that the Respondent had their union activities
under surveillance.1 Otherwise, there could be no ‘‘im-
pression among [the] employees . . . .’’ As stated, the
General Counsel presented no such evidence. The
missing evidence is critical to a finding that the Re-
spondent gave the impression to its employees that it
was surveilling their protected activity. We therefore
dismiss the complaint.2
Our dissenting colleague would find that ‘‘the Re-
spondent violated Section 8(a)(1) of the Act by creat-
ing the impression among its employees that their
union activities were under surveillance,’’ because the
Respondent gave nonemployee ‘‘union organizers the
impression that their activities [were] under surveil-
lance, [which] could deter the [nonemployee] union or-
ganizers from communicating with the Respondent’s
employees, for fear that they will get the employees in
trouble with the Respondent,’’ which, in turn,
‘‘interfer[ed] with the employees’ [Sec. 7] right to re-
ceive information from the Union . . . .’’ (First empha-
sis added; second emphasis in original.)3 This theory
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
form employees themselves—not strangers, as here—of the advan-
tages of self-organization was not protected by Sec. 7. 502 U.S. at
537–542.
1 My colleagues base their conclusion that employee awareness of
the surveillance is a necessary component in part upon the precise
wording of the complaint, which alleges that the Respondent ‘‘cre-
ated the impression among its employees’’ that their union activities
were under surveillance. Where, as here, the Respondent’s activity
with respect to nonemployee union organizers was fully litigated and
it has been shown to have the potential to interfere with the employ-
ees’ Sec. 7 rights, I cannot agree with my colleagues that the spe-
cific wording of the complaint warrants a different result.
is based on unwarranted speculation and finds no sup-
port in the record. Thus, there is absolutely no evi-
dence in this record to support the theory that the Re-
spondent’s actions with respect to the nonemployee
union organizers had the tendency to cause such non-
employee union organizers ‘‘to fear that they w[ould]
get the employees into trouble with the Respondent.’’
Nor is there any record evidence from which a reason-
able inference to that effect could be drawn. Further,
neither the General Counsel nor the administrative law
judge proffered such a theory for finding a violation of
‘‘appearance of surveillance of employee union activi-
ties.’’
Our dissenting colleague attempts to gloss over this
weakness by asserting that ‘‘the Respondent’s activity
with respect to nonemployee union organizers was
fully litigated.’’ The ‘‘fully litigated’’ activity here
consisted solely of the testimony of one nonemployee
union organizer who testified that he saw a Respond-
ent guard write something on a pad while or after that
guard had seen another nonemployer union organizer
hand union leaflets to apparent nonemployee visitors
as they entered Respondent’s visitors’ garage.
The Board has long held that the test for determin-
ing whether conduct constitutes a Section 8(a)(1) vio-
lation ‘‘is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the
Act.’’ American Freightway Co., 124 NLRB 146, 147
(1959), citing NLRB v. Illinois Tool Works, 153 F.2d
811, 814 (7th Cir. 1946). Our dissenting colleague
only claims that the employer’s conduct here ‘‘could
deter union organizers from communicating with Re-
spondents employees,’’ that ‘‘the result of the Re-
spondent’s activity is the possibility that employees’
Section 7 rights will be chilled,’’ and that ‘‘the Re-
spondent’s activity . . . has been shown to have the
potential to interfere with employees’ Section 7
rights.’’ (Emphasis added.) Even accepting arguendo
the conclusions drawn by our dissenting colleague that
there is a potential for interference with union activity,
that possibility is too speculative here to warrant a
finding that the Respondent engaged in activity, which,
it may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act.
ORDER
The complaint is dismissed.
MEMBER BROWNING, dissenting:
Contrary to my colleagues I find that the Respond-
ent violated Section 8(a)(1) of the Act by creating the
impression among its employees that their union ac-
tivities were under surveillance. The judge found that
the Respondent created the impression of surveillance
when its security guard took notes while nonemployee
union agents leafletted on the public sidewalk adjacent
to the visitor’s garage. My colleagues reverse the judge
and dismiss the complaint because there is no evidence
that any employees were aware that the Respondent
had their union activities under surveillance. I disagree.
I believe that the General Counsel has established a
violation of Section 8(a)(1) of the Act even though
there is no evidence that any employees actually saw
the activity of the security guard.
In Lechmere v. NLRB, 502 U.S. 527, 532 (1992), the
Supreme Court stated that while the NLRA does not
confer Section 7 rights on nonemployee organizers, the
employees’ Section 7 right to self-organization ‘‘de-
pends in some measure on [their] ability . . . to learn
the advantages of self-organization from others.’’
Thus, Section 7 protects employees from employer in-
terference with the attempts of nonemployee organizers
to inform employees of the advantages of self-organi-
zation.
In my view, a violation has been established in the
instant case because by giving the union organizers the
impression that their activities are under surveillance,
the Respondent could deter the union organizers from
communicating with the Respondent’s employees, for
fear that they will get the employees into trouble with
the Respondent. Thus, by interfering with the employ-
ees’ right to receive information from the Union, the
Respondent is interfering with the employees’ Section
7 right to self-organization.
In addition to the right to self-organization, Section
7 also protects employees from interference with their
right to engage in ‘‘other concerted activities for the
purpose of . . . mutual aid and protection.’’ By giving
the union organizers the impression that it is
surveilling their communication with visitors, the Re-
spondent is interfering with communications which
could ultimately assist in the mutual aid and protection
of the employees, and is therefore interfering with em-
ployees’ Section 7 rights.
In my view, creating among the union organizers the
impression that their organizing activities are under
surveillance is tantamount to creating the impression of
surveillance among employees. In either case, the re-
sult of the Respondent’s activity is the possibility that
employees’ Section 7 rights will be chilled.1 Accord-
949ST. MARY’S HOSPITAL
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
ingly, I agree with the judge and find that the Re-
spondent has violated Section 8(a)(1) of the Act.
Craig Cohen, Esq., for the General Counsel.
Robert B. Mitchell, Esq. and Stephanie E. Lane, Esq. (Dur-
ant, Sabanosh, Nichols & Houston), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Hartford, Connecticut, on November 10,
1993.1 The complaint herein, which issued on August 31,
and was based on an unfair labor practice charge filed on
June 29 by New England Health Care Employees Union,
District 1199, AFL–CIO (the Union), alleges that St. Mary’s
Hospital (Respondent) violated Section 8(a)(1) of the Act on
about June 7, by threatening representatives of the Union
with arrest if they did not stop distributing handbills to Re-
spondent’s employees, and created the impression among its
employees that their union activities were under surveillance
by Respondent.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Connecticut corporation with an office and
place of business in Waterbury, Connecticut (the facility), is
engaged in the operation of a hospital providing inpatient
and outpatient medical care. During the 12-month period
ending July 31, Respondent derived gross revenue in excess
of $250,000 and, during the same period, purchased and re-
ceived at its facility goods valued in excess of $5000 directly
from points outside the State of Connecticut. Respondent ad-
mits, and I find, that it has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and has
been a health care institution within the meaning of Section
2(14) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
This case involves a number of incidents that occurred at
three different locations at the facility on June 7. On that day
the Union employed summer interns to distribute its lit-
erature to Respondent’s employees and others at the facility.
The three locations at the facility where the events took place
were the main entrance to the hospital, the visitors’ parking
garage, and the employees’ parking garage, all within a 3-
or 4-minute walk from each other. The players in these
events were the Union’s interns, Wendy Mataya, Douglas
Feeney, and Nadine Berrini (who testified for General Coun-
sel), Danny Hosang, John Kim, and Michael Boyarsky, and
Respondent’s security employees, Charles Harris, Gilbert
Clement, Robert Rinaldi, Anthony Silva, and John Mailloux.
Mataya and Hosang began leafleting at the main entrance
at about 6:15 a.m. and remained there until about 8 a.m.
After handing out leaflets for about 45 minutes, a security
guard approached them and asked them ‘‘to stay off of Hos-
pital property’’; they complied with this request and leafleted
only on the public sidewalk. They had no further incidents
that morning at the main entrance.
Feeney and Kim distributed leaflets at the visitors’ garage
that morning beginning at about 6 a.m. and remaining until
about 8 a.m. This garage has one entrance lane and one exit
lane with an island in between. The island is approximately
6 feet wide by 15–20 feet long and leads to an attendant’s
booth at the entrance to the garage. On the streetside of the
entrance to the garage is a sidewalk about 3 feet deep, run-
ning the entire width of the garage. On a pillar where the
garage meets the sidewalk and where the island begins is a
sign stating: ‘‘NO TRESPASSING OR LOITERING ON
THIS PROPERTY. VIOLATORS WILL BE PROS-
ECUTED.’’ Feeney testified that he and Kim ‘‘might’’ have
been distributing literature on the island leading into the ga-
rage for a couple of minutes. A security guard warned them
to stay off Respondent’s property and they then went onto
the sidewalk adjoining the garage. While distributing lit-
erature there, he observed a security guard in the back of the
garage during the remaining time that they were at the visi-
tors’ garage that morning. They had no further incidents that
morning. Silva testified that he worked the first shift that
day. He was making his rounds and when he got to the visi-
tors’ garage he saw two people distributing literature adja-
cent to the booth (at the end of the island) where people ob-
tain tickets on the way in, and pay on the way out. He told
them that they could not distribute literature on hospital
property, and they moved to the sidewalk. He left the area
and returned to the visitors’ garage about 9:45 a.m. At that
time he saw them on the island, about 1 to 2 feet in from
the sidewalk. He again told them to move to the sidewalk,
which they did. He next returned to the area at about 3:10
and remained until 3:30, the end of his shift. During this pe-
riod he stood in an area to the right of the island and the
booth, about 20 feet distance from Feeney and Kim. Due to
some confusion in Silva’s testimony, I asked him for the
times of his two conversations with them at the visitors’ ga-
rage; he testified that the first confrontation took place about
2:45, and the second one, at about 3:10.
The afternoon leafleting at the visitors’ garage referred to
by Silva involved Mataya and Hosang. Mataya testified that
she and Hosang got there at about 2:30 that afternoon and
stood on the island (closer to the sidewalk than to the booth)
where Hosang handed leaflets the drivers entering the lot and
she handed leaflets to drivers leaving the lot. About 15 min-
utes later, Silva approached them and said that they had to
get off the hospital’s property and stop disrupting the flow
of traffic or they would be arrested. She and Hosang then
moved to the sidewalk adjacent to the beginning of the island
where they resumed leafleting. While there, she observed
that Silva was standing in the area to the right of the lane
where the cars enter the lot. He remained there for about 10
to 15 minutes, and made notes on a pad he had when cars
entered the lot. At about 3:45 Silva left and was replaced by
another guard who stood near the exit lane at the garage. She
and Hosang left at about 4 p.m. Silva testified that he keeps
a note pad with him while on duty and transfers all of the
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notes from this pad to his delay report, at which time he
throws away his notes. His daily report for the day makes
two references to the visitors’ garage: it states that at 2:30
p.m. he made a round through it, and at 3:10 p.m. he pa-
trolled the entrance and went off duty at 3:30 p.m.
After soliciting at the visitors’ garage in the morning,
Feeney and Kim leafleted at the main entrance to the facility
in the afternoon, beginning at about 2 p.m. The main en-
trance to the facility has two means of ingress or egress. The
principal entrance is about 8 feet wide with seven steps lead-
ing to the facility. To the right of this entrance is a ramp for
the disabled about 4 foot wide which exits on the street
about 20 feet from the main entrance. Feeney testified that
for almost the entire time that he and Kim were in this area,
three of the Respondent’s security guards stood from 2 to 4
feet from them; Clement was one of these guards. On one
occasion, between 3 and 3:30 p.m., he saw somebody leaving
the facility by the ramp, and he walked to the point where
the ramp meets the sidewalk and gave her a leaflet. Within
a minute, Clement grabbed him by the shoulder and said that
he would be arrested if he did not get off Respondent’s prop-
erty. Feeney testified that when he gave the woman the leaf-
let he was on the public sidewalk; the individual he gave the
leaflet to was at the bottom of the ramp, but still on Re-
spondent’s property, about a foot from the sidewalk. They
had previously been warned to stay on the sidewalk ‘‘and I
had been keeping that in mind. . . . I looked down to check
my feet to see where they were.’’ There were no further inci-
dents that day. As to whether either he or Kim walked up
the steps to the entrance or up the ramp that afternoon, he
testified: ‘‘I don’t have any knowledge of doing that. I don’t
remember doing that, no.’’
Clement testified that he first saw Feeney distributing leaf-
lets at the entrance to the facility about 3 p.m. that day.
When he and Harris arrived at the main entrance no other
security officer was there. During that afternoon he saw
Feeney on the steps at the main entrance on about three oc-
casions, and saw him on the disabled ramp on about three
occasions. On the occasion that Feeney was on the steps, he
told Feeney to remove himself from the private property and
stay onto the sidewalk. On one occasion he observed Feeney,
about halfway up the ramp, talking to an employee walking
down the ramp. He said to Feeney: ‘‘I’ll ask you again,
would you please stay on the public sidewalk?’’ He testified
that he never touched him and never told him to stop distrib-
uting literature. Clement left the area at about 3:30 p.m. Har-
ris testified that he observed Feeney walking up the steps of
the entrance up to about the third step; Clement approached
him and told him to remain on the sidewalk, that he could
not be on Respondent’s property. Soon thereafter, he ob-
served Feeney walk up one step at the entrance and Clement
again spoke to him. He also observed Feeney walk 3 or 4
feet into the disabled ramp to talk to an employee. On this
occasion, Clement told him: ‘‘I’m not going to tell you
again, if you go on hospital property again you’ll be ar-
rested.’’ He and Clement left the area together when Rinaldi
arrived, and while there he never saw Clement touch Feeney.
While he and Clement were present in the area, no other se-
curity guard was there until Rinaldi came to relieve them.
The final situation involves leafleting at the employees’
garage at the facility, about an identical distance from the
main entrance as the visitors’ garage, but in a different direc-
tion. This garage has three lanes, one entrance and two exit
lanes leading to or from the garage. These lanes begin at the
street and public sidewalk (which is about 3 to 4 feet deep),
go straight for 20 to 30 feet, and curve sharply left into the
parking lot with one booth and three gates. There are two
small islands at the entrance/exits, one in front of the booth,
and one between the exit lanes. A pillar on the left hand is-
land contains a sign stating: ‘‘NO TRESPASSING OR LOI-
TERING ON THIS PROPERTY. VIOLATORS WILL BE
PROSECUTED.’’ Berrini and Boyarsky leafleted at this ga-
rage in the morning and afternoon. While leafleting in the
morning, none of Respondent’s security guards were there
and there were no incidents. Berrini testified that in the
morning she and Boyarsky distributed leaflets to cars enter-
ing and leaving the garage while standing on the public side-
walk in about the middle of the three lanes leading into the
garage. When they returned in the afternoon, they again
leafleted from this location. At about 2:30 p.m., Clement ap-
proached them and told them to get off the sidewalk because
it was private property. Berrini told him that the sidewalk
was public property and they had a right to stay there. Clem-
ent told them that they could distribute their leaflets on the
road, and Berrini said that the road was not safe, and they
had a right to remain on the sidewalk. Clement repeated that
he did not care, and he wanted them to leaflet on the road.
Berrini then went to call the Union for advice, and was told
that they should stay on the sidewalk. She returned to the ga-
rage and told Clement that she and Boyarsky were going to
remain on the sidewalk, and Clement told her that if she
didn’t move off the sidewalk he would arrest her. Berrini left
again to call the Union and was told that only a police offi-
cer could arrest them, and that if she had any further prob-
lems with Clement that she should call the police. When she
returned to the garage, Boyarsky was still standing on the
sidewalk, and he told her that while she was gone the police
came and told him that they could stand on the sidewalk.
Clement was still in the area, but now with another security
guard with a dog. After Clement left, the other guard re-
mained in the area until they left at about 4 p.m., always
about 10 to 13 feet from them. Berrini testified that at no
time during the day did she walk off the sidewalk onto the
driveway leading into the garage, and she never saw
Boyarsky in that area.
Clement testified that he got to the employees’ garage at
about 2:40 p.m. that day after receiving a call from Rinaldi
that he needed backup because the union people were giving
him a hard time. When he arrived, he saw Boyarsky arguing
with Rinaldi in the driveway, about 5 feet in from the side-
walk. Berrini complained to him that they had a right to dis-
tribute leaflets on the sidewalk, but that Rinaldi wouldn’t let
them do so. Clement agreed with her, but said that he wanted
to get Rinaldi’s side of the story. After speaking to Rinaldi,
he told Berrini and Boyarsky to imagine a line from where
Respondent’s property (and the grass) ends, and that is where
the sidewalk begins and where they should remain. He asked
them not to stand in the driveway area where the three lanes
enter and exit the garage because it wasn’t safe for them to
be there. Boyarsky became ‘‘very sarcastic,’’ putting one
foot in the street and in other places and asking if that was
all right. Clement told them: ‘‘All I’m asking you is to stay
on the sidewalk, stay off our property and we’re not going
to have a problem.’’ He testified that he never told Berrini
951ST. MARY’S HOSPITAL
or Boyarsky that they had to stand in the street. Rinaldi testi-
fied that he arrived at the employee garage at about 2:30
p.m.; Berrini was distributing leaflets on the sidewalk, but
Boyarsky was leafleting in the driveway, about 8 feet in
from the sidewalk. He asked Boyarsky a few times to move
off Respondent’s property, and Boyarsky asked why he was
being so ‘‘hard assed’’ and being an ‘‘ass hole.’’ Rinaldi
called for assistance, and Clement got there about 10 minutes
after he arrived. By that time, both Berrini and Boyarsky
were on the public property. He never told Berrini or
Boyarsky to leaflet from the street.
Mailloux testified that he was in Clement’s office at 2:30
p.m., when his shift ended, and heard Rinaldi’s call for as-
sistance. He went to the employees’ garage with Clement,
because his car was parked there and he was leaving for the
day. When they got to the garage, Rinaldi was speaking to
Boyarsky, who ‘‘was in his face, giving him trouble . . .
was very loud . . . wouldn’t shut his mouth.’’ Boyarsky then
kept asking Clement where the property line was, drawing
imaginary lines. Berrini, who was on the sidewalk when he
arrived, came to speak to Clement within the driveway to ask
for his name. After about 5 minutes, Mailloux asked Clement
if he needed him any more, and Clement said that he did not,
so he left. Harris testified that he got to the employee garage
at about 2:45 and left at about 3 p.m. with Clement. While
he was there he did not see Berrini, but did see a male dis-
tributing leaflets from the sidewalk. Harris asked him for a
leaflet, which he gave him, and told him that as long as he
stayed on the sidewalk there wouldn’t be any problems.
IV. ANALYSIS
It is alleged that by taking notes in his note pad in the
visitors’ garage on the afternoon of June 7 Respondent, by
Silva, was creating the impression that Respondent was en-
gaging in surveillance of its employees’ union activities, in
violation of Section 8(a)(1) of the Act. Mataya testified that
while she and Hosang were distributing leaflets to cars enter-
ing and exiting the visitors’ garage Silva was standing by the
lane where the cars entered the garage writing notes on his
note pad as cars entered the garage. Silva testified that for
the last 20 minutes of his shift he stood where the cars en-
tered the garage. He never specifically testified whether he
took notes as cars entered the garage or what notes he took.
He testified only that he keeps a note pad for his rounds and,
at the end of the day, transfers all of those notes to his daily
report. His daily report for June 7 makes no mention of the
cars that entered and left the visitors’ garage on that day. An
employer has an absolute right to prevent a union, or any-
body else, from unlawfully trespassing on his property and
can station security guards, or anybody else, at these loca-
tions to prevent such a trespass. The law is equally clear that
unions that choose to openly engage in their organizational
activities at an employer’s premises will not be heard to
complain that the employer was observing these activities.
Hoschton Garment Co., 279 NLRB 565 (1986). However,
while an employer may lawfully observe the activities of a
union on its premises, it may not do anything further that
may restrict an employee in the exercise of his Section 7
rights.
During the afternoon, Mataya and Hosang were distribut-
ing leaflets on the public sidewalk, after being told by Silva
to get off the island, which was on Respondent’s property.
It was while they were on the public property that it is al-
leged Silva took notes of the cars that accepted leaflets from
them. Mataya testified that as Hosang gave leaflets to cars
entering the garage, she observed Silva writing something on
a note pad. Silva testified that everything in his note pad
goes into his daily report, and his daily report for that day
only states the time that he was at the garage. I credit the
testimony of Mataya for two reasons: I found her to be a di-
rect and credible witness and, although I found Silva to be
a credible witness as well, the lack of a direct denial that he
took notes on his note pad of the cars entering the garage
after Hosang gave them a leaflets, convinces me that
Mataya’s testimony is the more credible. As he was taking
notes of those accepting leaflets from Hosang, at a time
when Hosang and Mataya were not trespassing on Respond-
ent’s property, Respondent had no legal right or purpose in
doing that and therefore violated Section 8(a)(1) of the Act.
Baddour, Inc., 281 NLRB 546 at 548 (1986); Gilliam Candy
Co., 282 NLRB 624 (1987); Guille Steel Products Co., 303
NLRB 537 at 539 (1990).
The remaining allegations are that by ‘‘assaulting’’ Feeney
at the main entrance to the facility and threatening him with
arrest, and by denying Berrini the right to leaflet on public
property, the sidewalk, Respondent, by Clement, violated
Section 8(a)(1) of the Act. These allegations involve straight
credibility questions. Feeney testified that he was never on
Respondent’s property while leafleting at the main entrance,
and while he was on the public sidewalk giving a leaflet to
an employee, Clement grabbed him by the shoulder and
threatened to have him arrested unless he got off Respond-
ent’s property. Clement and Harris testified that they ob-
served Feeney on the steps leading to the main entrance and
on the disability ramp on a number of occasions that after-
noon. On each of these occasions, Clement warned Feeney
to remain on public property, the sidewalk, with the threat
that if he did not remain on the sidewalk, he would have him
arrested: ‘‘I spoke to you before, let this be your last warn-
ing.’’ They each testified that Clement never touched
Feeney. This is another difficult credibility determination, but
one that I find in favor of Clement and Harris. Although
Feeney appeared to be a credible witness, I found the testi-
mony of Clement and Harris to be straightforward and credi-
ble and credit their testimony over that of Feeney. I therefore
find that Feeney was trespassing on Respondent’s property
during this incident and that Clement had the right to order
him off the property under the threat of arrest.
Berrini testified that in the afternoon, while she and
Boyarsky were standing on the sidewalk in the middle of the
three lanes leading to the employees’ garage distributing
leaflets to the cars entering the garage, Clement ordered them
to get off the sidewalk, which was private property, and to
leaflet on the road. Clement testified that when he arrived at
the employees’ garage that afternoon, Boyarsky was arguing
with Rinaldi inside the driveway leading to the garage.
Clement told them that they could leaflet on the sidewalk
where Respondent’s property ended, but that they should not
stand in the three lanes where the cars enter and exit the ga-
rage because it was not safe to stand there. Again, although
I found Berrini to be a generally credible witness, I find
Clement’s testimony more believable and credit his testi-
mony over that of Berrini. As he neither said nor did any-
thing unlawful, and only recommended that they not leaflet
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where the cars were entering and exiting the garage for safe-
ty reasons, I recommend that this remaining allegation be
dismissed.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and has been a health care institution within the meaning of
Section 2(14) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By appearing to engage in the surveillance of its em-
ployees’ union activity, the Respondent violated Section
8(a)(1) of the Act.
4. Respondent did not violate the Act as further alleged in
the complaint.
THE REMEDY
Having found that Respondent has violated the Act, I shall
recommend that it be ordered to cease and desist from creat-
ing an impression that it was engaging in surveillance of its
employees union activities and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]