Tri-County Medical Center, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1976

222 N.L.R.B. 1089 (N.L.R.B. 1976)

TRI-COUNTY MEDICAL CENTER 1089
Tri-County Medical Center, Inc. and District 1199C,
National Union of Hospital and Health Care Em-
ployees, Division of RWDSU, AFL-CIO. Case
4-CA-7231
February 25, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 26, 1975, Administrative Law Judge Ar-
nold Ordman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in reply to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in -light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent's rule re-
specting solicitation and distribution was not unlaw-
fully promulgated or enforced and that the discharge
of employee Eric Priebe for violating the rule did not
violate Section 8(a)(3) and (1) of the Act.' We further
agree with the Administrative Law Judge that Re-
spondent did not unlawfully restrain employee Don-
na Kane in the exercise of her rights under Section 7
of the Act.
However, contrary to the Administrative Law
Judge, we find that Respondent violated Section
8(a)(1) of the Act by preventing off-duty employee
Thomas Cerato from distributing union literature
outside the hospital. The Administrative Law Judge
found that Respondent's prohibition against access
to hospital property by off-duty employees was not
'Although we fmd, in agreement with the Administrative Law Judge,
that the written no-solicitation rule was overly broad , we also agree with his
finding that this defect in the rule was cured by the Employer's explanation,
made to all employees, that the rule did not restrict solicitation during their
nonworking time (i.e., before and after their shifts and during lunch and
coffeebreaks). The fact that this correction or explanation of the rule was
not made in writing is, in the circumstances , not critical . Furthermore, as
there is no evidence that the rule was adopted for discriminatory reasons or
that it was disparately applied only against solicitation on behalf of the
Union, we do not understand our dissenting colleague's view that the Em-
ployer had an additional burden of establishing, by affirmative evidence,
that the rule was necessary to maintain order , discipline, and production
Establishing such necessity would not , in any event , cure an invalid rule, i.e,
a rule which was discriminatorily promulgated or disparately enforced.
limited to those using the premises for union activi-
ties and that, therefore, citing GTE Lenkurt, Incorpo-
rated, 204 NLRB 921 (1973), Respondent did not vi-
olate Section 8(a)(1) by preventing Cerato from
distributing union literature in front of the hospital
and in the rear parking lot on a day when he was not
scheduled to work.
We do not agree with the Administrative Law
Judge that the doctrine enunciated by the Board ma-
jority in GTE Lenkurt is applicable in the instant
case. In GTE Lenkurt, the respondent promulgated
and published in its employee handbook a rule which
provided that "An employee is not to enter the plant
or remain on the premises unless he is on duty or
scheduled for work." A majority of the Board con-
cluded that where an employer' s no-access rule de-
nies all off-duty employees access to the premises for
any purpose and is not discriminatorily applied only
against employees engaged in union activities the
rule is presumptively valid absent a showing by the
union that no adequate alternative means of commu-
nication is available to it.
The holding of GTE Lenkurt must be narrowly
construed to prevent undue interference with the
rights of employees under Section 7 of the Act freely
to communicate their interest in union activity to
those who work on different shifts 2 In Bulova Watch
Company, Inc., 208 NLRB 798 (1974), we held, dis-
tinguishing Lenkurt, that the employer violated Sec-
tion 8(a)(1) of the Act by restricting employees ac-
cess to outside areas of the plant shortly before their
working shifts. In that case, as here, it did not appear
from the record that the employer had published or
disseminated to its employees any no-access rule
concerning off-duty employees. We conclude, in or-
der to effectuate the policies of the Act, that such a
rule is valid only if it (1) limits access solely with
respect to the interior of the plant and other working
areas; (2) is clearly disseminated to all employees;
and (3) applies to off-duty employees seeking access
to the plant for any purpose and not just to those
employees engaging in union activity. Finally, except
where justified by business reasons, a rule which de-
nies off-duty employees entry to parking lots, gates,
and other outside nonworking areas will be found
invalid.
In the instant case there is no evidence in the rec-
ord that Respondent ever communicated to the em-
ployees the existence of any rule conforming to the
2 Chairman Murphy would not fmd, as did the majority in Lenkurt, that
off-duty employees are analogous to nonemployees insofar as an employer's
right to restrict their access to exterior areas of its premises such as parking
lots and roadways are concerned
Member Penello interprets Lenkurt, as distinguished in Bulova, infra, as
establishing the validity of a no-solicitation and no-distribution rule which
limits access of off-duty employees to the plant itself, and adjacent working
areas.
222 NLRB No. 174
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above criteria. Accordingly, we find that Respondent
unlawfully prevented Cerato from distributing litera-
ture in its parking lot and we shall therefore order
that Respondent cease and desist from engaging in
such conduct.'
AMENDED CONCLUSIONS OF LAW
1. Tri-County Medical Center, Inc.,'is an employ-
er engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. District 1199C, National Union of Hospital and
Health Care Employees, Division of RWDSU, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By preventing Thomas Cerato from distributing
union literature in its parking lot while off duty, Re-
spondent has violated Section 8(a)(1) of the Act.
4. Respondent has not engaged in any other un-
fair labor practices alleged in the complaint in the
instant case.
5. The unfair labor practice found above has an
effect upon commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Tri-County Medical Center, Inc., Springfield, Penn-
sylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Preventing off-duty employees from distribut-
ing union literature in the employees' parking lot in
the absence of a valid rule prohibiting off-duty em-
ployees from entering Respondent's premises for any
purpose.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the- exercise of
their rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its Springfield, Pennsylvania, place of
business, copies of the attached notice marked "Ap-
pendix." 4 Copies of said notice, on forms provided
by the Regional Director for Region 4, after being
3 Inasmuch as the complaint did not allege that Respondent violated Sec
8(a)(l) of the Act by summoning the police and charging Cerato with tres-
pass , we do not make any findings in this regard.
4In the event that 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 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 "
duly signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that, with respect to all
other unfair labor practices not found herein, the
complaint be dismissed.
MEMBER FANNING, dissenting in part:
I dissent from the decision of my colleagues in the
following two respects.' First, I would find that Re-
spondent violated the Act with respect to employee
Kane. Inasmuch as Respondent's apology to employ-
ee Kane made no mention- of the reprimand Kane
received from the Respondent' s agent , Poleman, for
soliciting at the rear of the hospital prior to begin-
ning her work shift, I would find that Poleman's pre-
venting Kane from soliciting violated Section 8(a)(1)
of the Act.
Secondly, I would find that the no solicitation-no
distribution rule promulgated by Respondent violat-
ed Section 8(a)(1) of the Act. There is no doubt that
this rule-prohibiting solicitation or distribution
"during working hours and in working areas"-is
presumptively invalid. However, the Administrative
Law Judge, with my colleagues' approval, found that
the Employer adequately clarified this rule, making
the rule valid. I disagree. _
I am not satisfied that the Respondent adequately
explained to employees that solicitation and distribu-
tion were permitted during times when employees
were not actively at work. The Administrative, Law
Judge concluded that the Respondent clarified the
rule through oral explanations made, at employee
meetings which were apparently, though I think
some doubt exists on this point, attended by all em-
ployees. Significantly, however, the invalid rule re-
mained posted on the bulletin board, and no clarifi-
cation was made in writing to employees. Under
these circumstances, I do not think that the Respon-
dent met its burden of proving that all employees
l agree with the majority that the Respondent violated Sec . 8(a)(1) by
preventing Cerato from distributing union literature outside the hospital on
a day when he was not scheduled to work. However, I find it unnecessary to
distinguish GTE Lenkurt inasmuch as I adhere to the view, expressed in my
and-Member Jenkins ' dissent in that case, that off-duty employees have a
right to remain or enter the employer's premises for solicitation or distribu-
tion of union literature subject to the employer 's need to maintain produc-
tion , discipline , or security.
TRI-COUNTY MEDICAL CENTER
were fully apprised of a clarification and explanation
of the no solicitation-no distribution rule .6
Furthermore, where a rule is presumptively inval-
id, other burdens attach to the promulgator of the
rule. The Board has long applied the presumption
that a rule which proscribes employee solicitation or
distribution activities only during the employees'
working time has been promulgated for the legiti-
mate purpose of maintaining order, discipline, and
production.' However, where, as here, the rule is pre-
sumptively invalid, the Respondent bears the burden
of coming forth with objective evidence to demon-
strate that the rule is necessary to maintain order,
discipline, and production. Here, the Respondent did
not do so. There, is no showing of unusual conduct by
employees or union organizers that disrupted or
threatened to disrupt the Respondent's operation.
Also, there was no showing that there was a marked
decline in the services or performance of employees
prior to the posting of the rule. Even in the context of
a case involving a hospital, I would not assume that a
presumptively invalid rule was necessary to maintain
discipline and order. Accordingly, inasmuch as the
Respondent's no solicitation-no distribution rule was
presumptively invalid, I conclude, absent a showing
that it was necessary to maintain discipline and or-
der, that the rule was violative of Section 8(a)(1) of
the Act.8
6 It is also significant that the Respondent did not clarify where employees
aught solicit or distribute on behalf of the-Union . The Respondent's state-
ments to employees concerned only when employees might solicit or distrib-
ute and failed to explain whether such activities were permitted in "working
areas."
7 See, e.g, Walton Manufacturing Company, 126 NLRB 697 (1960).8 As the Administrative Law Judge concluded that employee Priebe was
discharged for violating the Respondent 's no solicitation-no distribution
rule, I would find that Pnebe 's discharge, for violating an invalid rule, was
violative of Sec. 8(a)(3) of the Act. A discharge based on a worktime solici-
tation, in the absence of a valid rule, suggests that an employer is reacting to
the protected aspect of the employee 's conduct rather than to insure plant
efficiency. See, e.g., The J. L Hudson Company, 198 NLRB 172 (1972)
Therefore, as there was no clear showing that Priebe's discharge flowed
fromany abdication of work duties , I would find that the discharge was a
result of his protected activities and violated Sec. 8(a)(3)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
-An Agency of the United States Government
WE WILL NOT prevent off-duty employees
from distributing literature in the employees'
parking lot in the absence of a valid rule prohib-
iting off-duty employees from - entering our
premises for any purpose.
WE WILL NOT in any like or related manner
1091
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed by Section 7
of the National Labor Relations Act.
TRI-COUNTY MEDICAL CENTER, INC.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Complaint
in this case issued on March 25, 1975, pursuant to an un-
fair labor practice charge filed on January 31, 1975, by the
Union named in the caption. The complaint alleged that
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by promulgating and main-
taining an unlawful rule against union solicitation and dis-
tribution of union literature, and by preventing employees
from distributing union literature in Respondent's employ-
ee parking lot. The complaint further alleged that Respon-
dent violated Section 8(a)(3) and (1) of the Act by dis-
charging an employee, Eric Priebe, because of his union
advocacy on Respondent's premises . Respondent's answer
to the complaint, dated April 2, 1975, admits material alle-
gations of the complaint but denies the commission of the
statutory violations alleged.
Hearing on the controverted issues was conducted be-
fore me in Philadelphia, Pennsylvania, on April 29, 1975.
Briefs were submitted by General Counsel and by Respon-
dent on May 28, 1975. Upon the entire record in this pro-
ceeding, upon my observation of the witnesses and after
due consideration of the briefs filed herem, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Pennsylvania corporation, operates a pro-
prietary hospital in Philadelphia where, during the past cal-
endar year, its volume of business exceeded $500,000, and
where, during that year, it purchased goods valued in ex-
cess of $50,000 from points located outside Pennsylvania.
Respondent admits, and I find, that it is. engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. Respondent further admits, and I find, that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
The assertion of jurisdiction in this case is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Beginning in the fall of 1974 an organizational campaign
began among Respondent's employees. A petition for rep-
resentation of these employees was filed with the Board on
October 17, 1974, and was amended on November 7, 1974.
Pursuant to this petition an election was scheduled for Jan-
uary 10, 1975, but the election was never conducted be-
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the petition was withdrawn. Respondent was, of
course, aware of the organizational effort among its em-
ployees and took steps to counter that effort. It was against
this background that the events here relevant occurred.
As the allegations of the complaint herein reveal, the
thrust of the complaint is that Respondent by the imposi-
tion of a no-solicitation, no-distribution rule, by the dis-
charge of an employee, Eric Priebe, for violation of that
rule, and by related conduct unlawfully interfered with
the organizational efforts of its employees. At the hearing
considerable evidence was adduced, some of which is in
conflict. However, critical evidence and testimony which is
essential to the resolution of the issues is undisputed. A
summary of those issues, the evidence and testimony relat-
ed thereto, and the conclusions which flow therefrom, are
set forth hereunder.
B. The No-Solicitation No-Distribution Rule
On November 7, 1974, during the pendency of the repre-
sentation petition, Respondent issued and posted on its
premises a notice addressed to all its employees . The notice
read:
Subject : SOLICITATION
Due to problems in the Hospital in recent months and
to changes in the law, we are restating our Hospital
rule concerning solicitation to read as follows:
THERE WILL BE NO SOLICITATION OR DISTRIBUTION DURING
WORKING HOURS OR IN WORKING AREAS.
This is effective immediately and employees violating
rules will be subject to disciplinary action just as for
violation of other Hospital rules.
General Counsel takes the position that "an ambiguous
no-solicitation, no-distribution rule, such as the one above,
lending itself to an interpretation of prohibiting union so-
licitation on company property, even on an employee's
nonworking time and in nonworking areas, and prohibiting
distribution during an employee's nonworking time is pre-
sumptively invalid." (Citing Robotron Corporation, 216
NLRB No. 79 (1975); The Ohio Masonic Home, 205 NLRB
357 (1973); Summit Nursing and Convalescent Home, Inc.,
196 NLRB 769 (1972), reversed 472 F.2d 1380.) On the
other hand, General Counsel concedes (ibid.) that "an am-
biguous rule may, nevertheless, be a valid rule, if clarified."
(Citing Essex International, Inc., 211 NLRB 749 (1974).)
Thus, the Board has allowed employers "to show by extrin-
sic evidence that, in the context of a particular case, the
`working hours' rule was communicated or applied in such
a way as to convey an intent clearly to permit solicitation
during breaktime or other periods when employees are not
actively at work." Ibid.
I am satisfied, and find, that such a showing was made in
the instant case. It is undisputed that contemporaneously
with the publishing of the new rule Respondent's top offi-
cials including its administrator and its labor relations spe-
cialist conducted a series of meetings with the supervisory
staff and then with the employees in which it was repeated-
ly explained that employees were free under the new rule to
solicit before and after their work shifts, during their work-
breaks, and during their meal periods. The evidence is in
conflict as to whether employee attendance at these meet-
ings was mandatory, but it is apparent from the testimony
of General Counsel's witnesses and Respondent's witnesses
that virtually all of Respondent's employees were present
and that the scope of the rule, as previously described, was
carefully explained. Moreover, the record is clear that dur-
ing the period here under consideration and while the new-
ly published rule was in effect, both union solicitation and
distribution of union literature were occurring on plant
premises, and, except for the few incidents hereinafter de-
scribed, no disciplinary action was taken in reprisal for
such conduct. I conclude, therefore, that the test of Essex
International, Inc., supra, has been met and that Respon-
dent sufficiently "clarified" any ambiguity which might
otherwise have made its rule "presumptively" invalid. See
also House of Mosaics, Inc., 215 NLRB No. 123 (1974).
In this frame of reference General Counsel seeks to but-
tress its claim of illegality on the additional grounds that
the rule was promulgated at the precise time organizational
activity became apparent and that despite the apparent
sweep of the rule as enjoining all solicitation and distribu-
tion, it was really focused on union solicitation and union
distribution and hence was disparately enforced. To be
sure, the rule here under attack was promulgated at a time
when union activity was current. On the other hand, this
was hardly surprising inasmuch as Respondent reexamined
its rules in the light of the current activity and discovered,
as the face of its notice manifests, that restatement of the
instant rule was necessary. The prior rule had conditioned
all solicitation on prior permission being obtained from
management, an obviously unlawful requirement absent
special circumstances not shown to be present here. The
fact that a petition for representation had been filed amply
explains both the occasion for reexamination of the old
rule and the need for formulation of a new rule. Here, as in
a virtually parallel situation in Whitcraft Houseboat Divi-
sion, North American Rockwell Corporation, 195 NLRB
1046, 1046-47 (1973), the "circumstances adequately ex-
plain on a nondiscriminatory basis the timing of the rule's
promulgation."
Similarly, General Counsel fails to establish by a pre-
ponderance of the evidence its claim of disparate enforce-
ment of the rule, a claim, incidentally, not formally em-
bodied in the allegations of the complaint. Evidence was
adduced that both prior to and after publication of the new
rule, solicitation and distribution took place on
Respondent's premises, having to do with the sale and dis-
tribution of Avon and other products, books, drugs, solici-
tation of gifts for employees, and the like. As to several
such instances, it is not altogether clear from the testimony
that the activities in question took place during the actual
worktime of the individuals involved or, if so, that manage-
ment was aware of the matter. Moreover, Respondent ad-
duced credible evidence, not rebutted on the record, that in
several instances where such transgressions were noted,
warnings were given and, so far as appears, the particular
situations were rectified. On the basis of all the evidence, I
find that disparate enforcement of the rule against solicita-
tion and distribution has not been established.
I conclude, as a matter of law, that Respondent's pro-
TRI-COUNTY MEDICAL CENTER 1093
mulgation and maintenance of its November 7, 1974, rule
forbidding solicitation or distribution did not constitute a
violation of Section 8(a)(1) of the Act.
C. The Prohibition Against Distribution of Union Literature
in the Employee Parking Lot
General Counsel alleges that on or about January 8,
1975, Respondent through its agent, Theodore Poleman,
prevented employees of Respondent from distributing
union literature in the employees' parking lot at the hospi-
tal, thereby violating Section 8(a)(1) of the Act. General
Counsel relies on two incidents in support of this allega-
tion, the first incident involving employee Donna Kane,
and the second involving employee Thomas Cerato. The
evidence as to each of the incidents is essentially undisput-
ed.
Donna Kane worked for Respondent as an orderly on
the 7 a.m. to 3:15 p.m. work shift. On January 8, 1975,
Kane, prior to the beginning of her work shift, was distrib-
uting union literature on the rear loading dock of the hos-
pital. Poleman, a uniformed security officer of Respondent
and admittedly its agent, told Kane she could not distrib-
ute literature at that location. Thereupon, Kane walked
through the hospital to the front driveway of the hospital
where she continued to distribute union literature. Among
those who saw her engaging in this activity on the driveway
was Mary Morose, a nursing supervisor. Minutes before
the beginning of her actual work shift, Kane went to clock
in and found that her timecard was missing. About 20 min-
utes later Morose informed Kane that her timecard had
been pulled and that Kane would be "written up" for soli-
citing on company time. Kane protested that she had not
been soliciting on company time.
Morose, pursuant to instructions, promptly reported this
incident to Tom Geist, Respondent's labor relations spe-
cialist. Geist had told Respondent's supervisory staff that
any disciplinary action relating to union activities was to
be reported to him forthwith. Upon being apprised of the
incident, Geist immediately told Morose that Kane's ac-
tions were perfectly lawful and that Morose should apolo-
gize to Kane and explain that a mistake had been made. As
Kane acknowledged, Morose did come to her at 10 o'clock
that same morning, about 2-1/2 hours after their initial
conversation, apologized to Kane, and stated that she, Mo-
rose, had misunderstood the policy regarding union solici-
tation. As Kane further testified, Morose also told Kane
she was free to hand out literature out front as long as she
was not on working time or hadn't started work.
On "a narrow and technical view" (Redcor Corporation,
166 NLRB 1013 (1967)) of the situation here presented, a
violation of the Act can be spelled out in that Kane was
threatened with discipline for engaging in permissible con-
duct. However, as shown, the situation was almost immedi-
ately rectified, no disciplinary action was taken and Kane
was expressly informed that she was free to engage in
handing out literature on nonworking time. Indeed, Kane
testified that she had seen other employees handing out
literature on hospital premises and that she knew she could
do so on her own time. Under these circumstances here, as
in Redcor, supra, the conduct under scrutiny "was not in-
tended to exert and did not exert a restraining effect on
[Kane's] legitimate exercise of rights guaranteed by Section
7 of the Act."
The second incident, involving employee Thomas Cera-
to, also occurred on January 8, 1975. Thomas Cerato, an
orderly, was not scheduled to work at all that day. Never-
theless, early that morning Cerato distributed union litera-
ture, at first at the front entranceway to the hospital and
then in the rear parking lot. While engaged in this activity
Cerato was informed by Security Officer Poleman that he
was not allowed to engage in distribution. Cerato protested
that he was within his rights and continued to distribute
the literature. Cerato made the same protest to a county
policeman who drove up shortly thereafter. The policeman
asked Poleman if he wanted to press charges and, upon
receiving an affirmative answer, issued a citation charging
Cerato with trespassing. Cerato subsequently pleaded guil-
ty to the charge and was fined.
A critical fact in this situation is that Cerato was not
scheduled to work on January 8 and therefore was in the
status of an off-duty employee. The Board, in 1973, in GTE
Lenkurt, Incorporated 204 NLRB 921 (1973), had occasion
to pass on the status of off-duty employees in relation to
the application of no-solicitation, no-distribution rules. In
a divided opinion, the majority there held that for purposes
of 'such rules the status of an off-duty employee is "more
nearly analogous to that of a nonemployee, and he is sub-
ject to the principles applicable to nonemployees." See
N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105
(1956). Accordingly, the majority held (204 NLRB at 922)
that where an employer "denies off-duty employees access
to the premises for any purpose and [the rule] is not dispa-
rately applied against union activities , it is presumptively
valid absent a showing that no adequate alternative means
of communication are available." Prior holdings of the
Board, to the extent inconsistent, were overruled.
In this case, as in Lenkurt, there was no showing that
adequate alternative means of communication were un-
available. Similarly, there is no showing that Respondent's
prohibition against access by off-duty employees was limit-
ed to a prohibition against use of the premises for union
activities and for no other purpose. Finally, as in Lenkurt,
there was no showing that this prohibition was discrimina-
torily applied. Indeed, no such ;evidence was even prof-
fered.l
General Counsel does not quarrel with-indeed, it does
not even cite-the Lenkurt holding. Instead, it cites Litho
Press of San Antonio, 211 NLRB 1014 (1974), enfd. 512
F.2d 73 (C.A. 5, 1975), which held that an employer's di-
rective to an off-duty employee distributing union litera-
ture on plant premises to get off the premises was violative
of the Act. General Counsel does not mention the fact that
the holding in Litho Press was expressly predicated on the
fact that the prohibiton in that case was specifically limited
i It is significant that in Lenkurt, unlike the instant case , the Board did
adopt findings that Lenkurt had improperly banned solicitation by employ-
ees on plant premises during nonworking time and had also unlawfully
banned employee distribution of literature in the parking lot during non-
working time. Nonetheless, the majority of the Board dismissed the com-
plaint insofar as it alleged unlawful denial of access to the off-duty employ-
ee.
1094 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
to access to the premises for "union talk," and that the rule
was disparately applied only to union activities. Indeed,
Litho Press specifically distinguished Lenkurt and expressly
reaffirms Lenkurt.
Finally, General Counsel seeks comfort from the fact
that there is no showing that Poleman knew or inquired if
Cerato was scheduled to work on January 8 or was in an
off-duty status. The contention implicit in this assertion is
misdirected. The critical question is whether, objectively
considered, the statutory rights of -Cerato, as an off-duty
employee, were violated. Under Lenkurt, which I deem to
be controlling here, Cerato's rights were not violated.
I conclude, as a matter of law, that Respondent did not
violate Section 8(a)(1) of the Act by preventing employees
of Respondent from distributing literature on plant prem-
ises.
D. The Discharge of Eric Priebe
The complaint alleges, and Respondent at the hearing
admitted, that Respondent discharged its employee,- Eric
Priebe, on or about January 7, 1975, and thereafter refused
to reinstate him. The - challenged proposition is whether
that action was violative of Section 8(a)(3) and (1) of the
Act.
Again, the critical facts are virtually undisputed. Eric
Priebe, an orderly, was among the employees active in the
Union. He wore a union button, solicited for the Union,
and distributed union literature. Respondent knew of his
activities in this regard. On January 7, 1975, he was dis-
charged. All the testimony relating to the discharge, both
that given by Priebe and that given by the representatives
of Respondent, is quite consistent and I credit that testimo-
ny. It appears that at or about 2:50 p.m., about 25 minutes
before the end of his working day, Priebe was on his way to
the orderlies' locker room to post the working, schedule for
the employees. On the way to the locker room, Priebe was
stopped by another employee, Barbara Grant, who was not
on duty at the time, and was asked some questions about
the Union. Priebe replied to Grant's queues. While the
conversation was going on, Pamela Weaver, assistant edu-
cational coordinator for Respondent, passed by and over-
heard mention of the Union. Weaver testified that she im-
mediately called Patricia On, assistant director of nursing,
and asked how to handle the situation. Orr instructed
Weaver to ask Priebe if he was soliciting and whether he
was on a work break, and that if Priebe was soliciting and
not on a work break to tell Priebe to stop soliciting and
report to the nursing office. As Priebe himself testified,
Weaver carried out these instructions. According to Priebe,
Weaver asked him-if he was soliciting for the union and he
replied that he was. Weaver then asked him to stop and
Pnebe testified that he refused., Weaver then directed
Priebe to report to the nursing office and Pnebe said he
would do so when he finished his conversation. So far as
appears, Barbara Grant, who was not on duty at the time,
was never questioned or disciplined regarding her conver-
sation with Priebe.
When Priebe concluded his conversation with Grant he
did report to the nursing office. Present at the office were
Helen McGarvey, director of nursing service, Patricia Orr,
Pamela Weaver, and Chief Orderly Whittington. McGar-
vey had, in the interim been given a complete -report of the
incident by Patricia Orr and had in turn consulted with
Tom Geist, Respondent's labor relations specialist, as to
the proper course of conduct to be taken. McGarvey spoke
for Respondent at the nursing office interview. According
to McGarvey, she asked Priebe if he knew why he had
been called to the -office and Priebe replied that he as-
sumed it was,because of his conversation with Barbara
Grant. McGarvey then asked, Priebe if he was in fact soli-
citing for the Union on hospital time and Priebe replied
that he was. Priebe also replied -affirmatively to Mc-
Garvey's query as to whether Pamela Weaver had asked
him to stop soliciting and whether he had refused. Accord-
ing to McGarvey, Priebe explained that he felt the hospital
was soliciting the employees on hospital time , that the
Union was entitled to the same amount of time and that
he, Priebe, would continue soliciting for the Union on
working time. McGarvey then informed Priebe, consistent
with her earlier conversation with Tom Geist, that she had
no other alternative but to discharge him.
Priebe himself substantially corroborated McGarvey's
testimony. He stated, however, that he answered "no" to
McGarvey's inquiry as to whether he was soliciting for the
Union and said, rather, that he was merely talking about
the Union. Pnebe told McGarvey further that in his view
solicitation was confined to distributing literature and ask-
ing for signatures to authorization cards but that if solicita-
tion included talking about the union he had engaged in
solicitation. According to Priebe, McGarvey then informed
him that he was being terminated for soliciting for the
Union.
Priebe's further testimony casts additional light on the
situation. Priebe admitted on cross-examination that at
previous employee, meetings addressed by Berkowitz or
Geist, he and the other employees had been told that they
were free to solicit before and after shifts, during break-
time, and at lunchtime, but that solicitation was forbidden
during actual working time. In this connection Priebe also
admitted that he was not on breaktime when he had his
conversation with Barbara Grant. Finally, Priebe acknowl-
edged that he might have told McGarvey in the course of
the discharge interview that he would continue to talk
about the Union anytime, anyplace, and during working
time, because in his view talking about the Union did not
constitute solicitation.
In view of Priebe's own admissions and the uniform tes-
timony of all the other witnesses having to do with the
discharge, it is clear that Priebe had been informed and
knew of the scope of the no-solicitation -rule, and that he in
fact violated that rule. Moreover, even at the point of dis-
charge, he manifested his intention to continue violating
that rule. Indeed, as Priebe further testified, on,the day
following his discharge, he appeared at an employee meet-
ing on hospital premises, refused to leave when asked to do
so, insisted on giving the employees his side of the dis-
charge story and repeated that he had refused Weaver's
request to stop engaging in solicitation on worktime.
In these circumstances and without more, no fault can
be ascribed to Respondent for terminating Priebe's em-
ployment in the face of his patent transgression of a proper
TRI-COUNTY MEDICAL CENTER - 1095
no-solicitation rule and his insubordinate refusal to termi-
nate -that transgression then or in the future . Even assum-
ing that Priebe in fact, as he testified, misunderstood the
true scope of a proper no-solicitation rule, Respondent
cannot be penalized for enforcing its valid rule in the face
of Priebe's adamant refusal to abide by it. Accordingly,
without reference to any prior transgressions,
Respondent's discharge of Priebe for his conduct on Janu-
ary 7 was fully warranted and the discharge is adequately
explained on a nondiscriminatory basis.2
2 Evidence was adduced of a prior verbal warning given to Priebe on
December 5 , 1974, for violating Respondent's no-sohcitation rule during his
working time , and a written memo relating to that incident was introduced
into evidence. Priebe testified , however , that he could not recall such an
incident. Priebe also testified that on December 30, 1974, he was distnbut-
mg literature on the hospital driveway and was accosted by a uniformed
I conclude , as a matter, of law, that Respondent did not,
by discharging Priebe on January 7, 1975, and by thereaf-
ter refusing to reinstate him, violate Section 8 (a)(3) and (1)
of the Act.
CONCLUSION OF LAW
The evidence does not establish that Respondent en-
gaged in the unfair labor practices alleged in the complaint
in the instant case.
[Recommended Order omitted from publication.]
guard named Steele who told Priebe he had no right to distribute literature
on private property Steele's status in Respondent's hierarchy , if any, was
not established in the record , and no allegation in the complaint is based on
this incident . Moreover, Priebe testified that this incident occurred on De-
cember 30 shortly after he completed his work shift whereas a copy of
Priebe's timecard covering that period and introduced into evidence shows
that Priebe did not clock in to work at all that day.
1