Vasser Brothers Hospital

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1142 (N.L.R.B. 1979)

I)II(ISIONS ()1: NAIO()NAI. I.ABOR REIA lIONS H()O\RI)
Vassar Brothers Hlospital and District 1199, Hospital
and Health Care Employees, RWDSLJ, AFI.-CIO.
('ase 3 CA 7019
August 7, 1979
DE('ISION AND ORI)DER
By CIAIRMAN FANNINO AND) MI:MBI!RS PtNI.O()
ANI) MtRPIIY
On December 23, 1977, Administrative I aw Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed exceptions.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act when it pro-
mulgated and enforced an oral no-solicitation, no-dis-
tribution rule on April 6, 1977, which prohibited
three employees from engaging in union solicitation
and distribution in the corridor adjacent to the em-
ployee cafeteria. For the reasons discussed below, we
find merit in Respondent's exceptions to certain in-
correct factual findings made by the Administrative
Law Judge, but we agree with the Administrative
Law Judge's conclusion that Respondent violated
Section 8(a)(1) of the Act.
Respondent, Vassar Brothers Hospital, is engaged
in the operation of a hospital in Poughkeepsie, New
York. The Union and Respondent have been parties
to a series of collective-bargaining contracts involving
the hospital's technical employees, but there are no
other employees of the hospital represented by any
union. On April 6, 1977, at 11:30 a.m., three em-
ployee technicians distributed union literature, during
their lunch hour, for the purpose of soliciting other
employees for membership in the Union. The area in
which they solicited employees and distributed mem-
bership cards was a corridor adjacent to the employee
cafeteria, an area which was stipulated by the parties
to be neither a patient care nor a patient access area.
The three employees engaged in the solicitation and
distribution of union materials for approximately 15
minutes, at which time Frank Kelly, director of per-
sonnel for Respondent, appeared at the corridor in
question and advised the three employees that they
could not continue their activities at Iliat location.
In making certain preliminary factual findings con-
cerning the flow of employees through the corridor in
question, the Administrative Law Judge incorrectly
found that, according to Joint Exhibit I (a portion of
which is attached hereto as Appendix A [Appendix A
has been omitted from publication.), "the subject
corridor" had three entrances, one entering the cafe-
teria at point B, one leading into the hospital corridor
at D, and one leading into the doctor's and staff park-
ing lot at A. The Administrative Law Judge also
found that employees enter the corridor at A, proceed
through the corridor, and make a right turn through
the doors leading into the cafeteria at B. When exit-
ing the cafeteria at B, according to the Administrative
Law Judge, employees proceed through the corridor
and exit through the doors indicated at C.
The correct description (see Appendix A) of the
corridor in question as well as the path of travel used
by employees going to and from the cafeteria is as
follows. There are actually two connected corridors
which together form the shape of an inverted "T,"
with the vertical corridor being slightly longer than
the horizontal corridor. The combined corridor has
four entrances, one coming from the doctor's and
staff parking lot at A, one coming from the cafeteria
at B, one coming from another hospital corridor at C'
and one coming from the operating rooms on the sec-
ond floor at D. In order to reach the cafeteria, em-
ployees proceed from the hospital corridor leading to
the doors at C, through the doors at C, across the
short horizontal corridor towards the doors at B, and
thereby enter the cafeteria. Thus, contrary to the Ad-
ministrative Law Judge's findings, the vast majority
of employees reach the cafeteria as set out above.
We find, however, that the corrected version of the
facts does not affect the Administrative Law Judge's
credibility resolutions' nor his conclusion that Re-
spondent violated Section 8(a)( ) of the Act. The rec-
ord reveals that the three employees who were dis-
tributing literature and soliciting employees to join
the Union on April 6 stood shoulder to shoulder at
the intersection of the two corridors, their bodies
blocking approximately one-half of the entrance to
the longer corridor which leads to the exit marked A
(see Appendix A for exact location). The three em-
ployees distributed the union literature to employees
who had entered the shorter corridor at C and were
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibillt) unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dnr Wall Products. Intc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
243 NLRB No. 67
I 1 42
VASSAR BROTHERS HOSPITAL
proceeding to the cafeteria entrance at B. The inter-
change between the soliciting employees and the em-
ployees being solicited consumed about I second per
interchange, and there was no conversation other
than a brief "hello." At no time did the three solicit-
ing employees block the employees who were enter-
ing or leaving the cafeteria, nor did they create a
backup within the shorter corridor. When Kelly in-
formed the three employees that they could not solicit
at that location, he refused to supply them with a
reason.
Thus, not until the hearing in this case did Respon-
dent's reason for prohibiting the three employees' so-
licitation and distribution activities become clear. Ac-
cording to Respondent, it prohibited the solicitation
in that particular area of the hospital because the
three employees who were soliciting created a safety
hazard by obstructing the corridors and causing a de-
lay in the employees' lunch line. In order to prove
that a safety hazard had been created by the employ-
ees' solicitation in that area of the hospital. Respon-
dent introduced evidence that: (I) many accidents re-
sulted from the door located at D swinging open and
striking employees passing through the shorter corri-
dor on their way to and from the cafeteria; (2) a fire
alarm box is located in the longer corridor; (3) the
doors at A, B, C, and D are marked with signs stating
"Fire Door-Keep Closed"; and (4) the exit at A is
one of the two fire exists used by all occupants in that
wing of the hospital.2
However, the record reveals that: (I) the food line
from the cafeteria often extends beyond the doors at
B, thereby creating a line of employees extending
through the shorter corridor to the door at C: (2) no
employee was prevented from passing the soliciting
employees on April 6; (3) the food line did not back
up into the shorter corridor because of the soliciting
employees: and (4) Respondent admitted that the so-
' The testimony regarding fire exits was supplied by Abraham Teicher.
plant engineer for Respondent. The Administrative Las Judge did not credit
Teicher's testimony regarding the importance of the fire exit at A. because of
his belief that Telcher had, on direct examination. led him to believe that the
corridor leading to the eit at A was the only passageway which all patients
and employees in that wing of the hospital would have used in an emer-
gency. The record reveals, however, that Teicher stated on direct examina-
tion that another fire exit existed in that wing of the hospital. "on the oppo-
site end of the circle" from the exit at A. It was not until the cross-
examination that Teicher identified the exact location of the other fire exit in
that wing of the building, as well as another fire exit located in another wing
of the hospital. However. we agree with the Administrative Law Judge's
observation that Teicher exaggerated the safety importance of the exit at A
In this regard, we note Teicher's testimony on direct examination that the
exit at A is "one of our main fire exits out of the hospital," and that "in the
event of an emergency all of the people in that part of the building would use
this exit to leave the building." including "the people in the cafeteria, the
people in central supply, and the people on all five floors above this " In
direct contrast to this testimony. Teicher merely mentioned in passing the
existence ofr the other fire exit In that wing of the building (marked with an F
on Appendix A), clearly attempting to mininiie Its importance as compared
to the exit at A
liciting employees did not constitute a safet hazard
while they were soliciting. and that only the "eventu-
ality" of a safety hazard existed.
The "safetv hazard" defense bh Respondent is
weakened even further by the evidence that. when
Kelly informed the three employees that the, could
not solicit in the corridor adjacent to the cafeteria. he
refused to supply them with a reason for such prohi-
bition. When asked why he refused to supply a rea-
son, Kelly testified that
I didn't feel that I was obliged to tell them the
reason why. I felt that it was pretty new because
of the N.L..R.B. ruling in non-partient areas and
non-work time and I did not feel that I was
obliged to tell the adversaries, if ou want to call
them that, where they could do it.
In addition, when the three emplosees asserted
their legal right to distribute the union literature after
Kelly had ordered them to stop. Kelly characterized
their actions and slogans as "communistic."
Viewing the record as a whole. we conclude that
the employee solicitation and distribution activities ill
the corridor adjacent to the employee cafeteria did
not cause, nor create the imminent possibility otf a
safety hazard in such corridor. Since the emploees
engaged in the solicitation and distribution activities
on their own nonworking time in a nonpatient care
and nonpatient access area, Respondent's prohibition
of such solicitation and distribution activities violated
Section 8(a)(1) of the Act. We therefore shall modify
the recommended Order of the Administrati\e Law
Judge to conform to the violation found herein.'
' The General Counsel contends that the Order herein should include the
broad language of St. John's Hotpitil and School olf Nursing. Inc, 222 N I.RB
1150 (1977). enfd in part 557 F 2d 1368 i10th Cir. 19771 Hi(wes\er suhbse-
quent to the issuance of the Administrative Law Judge's Decision in the
instant case. the Supreme (Court issued its decisions in Beth Israel tIllpitll
V.L R.B, 437 :S. 483 (1978. and V ..R.B v Baptist Htospil l. I. 442
U.S 773 (1979) For the reasons expressed in those decisins, and is . urther
discussed below. we find no merit in the General Counsel's requ1 es Ihhat the
broad St John's language he included in the Order in the Instant ase
The complaint alleged. in substance, that Respondent violated Iher -\c by
prohibiting its employees from soliciting and distributing n hehll the
Union on its premises, other than in Immediate patient care areas. during the
employees' nonworking time The incident which precipitated this allegat.on
was Respondent's prohibition of employee solicitation!distributon iln the
corridor adjacent to the emploee cafeteria. It is uncontested that this corr-
dor is a nonpatient care nonpatlent access area. Although a copy of Respon-
dent's written n,-solicitatlon no-distribution rule, uhich. inter ali, prohbits
employee slicitation on working time and distribution in patient care areas.
was submitted into evidence, the alidity of that rule was not ullK lit:igted
Rather. the sole no-solicitation: no-distribution rule which was tull litig.ated
and which was established h the (General Counsel to be unlwtul here ,,,
Respondent's oral prohiblti)n on such activities n the corridor .adjacilnt to
the employee cafeteria. an admlttedly nonpatient care nonpatlient .,ccss
area In addition. Respondent's sole defense to the estabhlishment Its rule
was that the sliciting employees created the possibilhity o .i salecl hazrd
the corridor. and not that the solicitation In the corridor adjacnt to tlie
employees cafeteria vwould hase an adsersc effect on patient c.re I IIlcw
circumstances. we find it unnecesar\ t, hbroaden the cwope o1 ihe ()rdci
1143
I4DE (ISIONS ()1: NATIONAL ABOR REI.ATIONS BOARI)
APPENDIX B
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Vas-
sar Brothers Hospital, Poughkeepsie. New York. its
officers, agents. successors, and assigns shall:
1. Cease and desist from:
(a) Promulgating and enforcing any rule or regula-
tion prohibiting its employees from soliciting on be-
half of any labor organization in the corridor adja-
cent to the employee cafeteria.
(b) Promulgating and enforcing any rule or regula-
tion prohibiting its employees from distributing litera-
ture on behalf of any labor organization in the corri-
dor adjacent to the employee cafeteria, or in nonwork
areas of the hospital, during employees' nonworking
time.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Rescind its rule prohibiting employees from so-
liciting on behalf of any labor organization in the cor-
ridor adjacent to the employee cafeteria.
(b) Rescind its rule prohibiting its employees from
distributing literature on behalf of any labor organi-
zation in the corridor adjacent to the employee cafe-
teria, or in nonwork areas of the hospital, during em-
ployees' nonworking time.
(c) Post at its place of business in Poughkeepsie,
New York, copies of the attached notice marked
"Appendix B".4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 3. after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of the Order,
what steps the Respondent has taken to comply here-
with.
4 In the event that this Order is enforced by a Judgment of a LUnited States
Court of Appeals, the words in the notice reading "Posted bh 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."
No(TIE To EMPLOYEES
P()STED) BY ORDER OF 1111
NAII()NAI. LAB(OR Rl.AIONS BOARI)
An Agency of the United States Government
WE WLL. NOI promulgate or enforce any rule
or regulation prohibiting our employees from so-
liciting on behalf of any labor organization in the
corridor adjacent to the employees cafeteria.
WE WILl. NOT promulgate or enforce any rule
or regulation prohibiting our employees from
distributing literature on behalf of any labor or-
ganization in the corridor adjacent to the em-
ployee cafeteria, or in nonwork areas of the hos-
pital, during employees' nonworking time.
WE WIll NOt in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of' the Act.
WE wI.l. rescind our rule prohibiting our em-
ployees from soliciting on behalf of any labor
organization in the corridor adjacent to the em-
ployee cafeteria.
WE WILL rescind our rule prohibiting our em-
ployees from distributing literature on behalf of
any labor organization in the corridor adjacent
to the employee cafeteria, or in nonwork areas of'
the hospital, during employees' nonworking
time.
VASSAR BROTHERS HOSPItAI.
DECISION
STAIEMENT (F THE CASE
ELBIHER D. GADSD)l.N Administrative Law Judge: A
charge having been filed on April 11, 1977. by District
1199, Hospital and Health Care Employees. RWDSU.
AFL-CIO, herein called the Union, against Vassar Broth-
ers Hospital, herein called Respondent. a complaint was
issued by the General Counsel on May 9. 1977, which in
substance alleges that Respondent has prohibited its em-
ployees from soliciting and distributing on behalf of the
Union on its premises, other than in immediate patient care
areas during employees' nonworking time. in violation of
Section 8(a)( I of the Act.
The Respondent filed an answer on May 12. 1977. admit-
ting the allegation of its prohibition, but affirmatively alleg-
ing that the solicitation and distribution were of such a
nature that safety required their prohibition.
The hearing in the above matter was held before me in
Poughkeepsie. New York. on August 4. 1977. Briefs have
been received from counsel for the General Counsel and
counsel for Respondent, which have been carefully consid-
ered.
ORDER
1144
Upon the entire record in this case and from mx observa-
tion of the witnesses. I hereby make the following:
FINDINOS () - FAC
I. JtRISI) ( III()N
Respondent is. and has been at all times material herein.
a corporation duly organized under,and existing by virtue
of, the laws of the State of New York. At all times material
herein. Respondent has maintained its principal office and
place of business at Read Place. Poughkeepsie. New York.
where it is continuously engaged in the business and opera-
tion of a hospital.
During the past year, a representative period, Respon-
dent derived from its operations gross revenues in excess of
$50,000. and in the course and conduct of its business op-
erations, purchased, transferred, and delivered to its Pough-
keepsie, New York, facility, goods and materials valued in
excess of $50,000, of which such goods and materials valued
in excess of $50,000 were transported to said facility di-
rectly from States of the United States other than the State
of New York.
The complaint alleges. Respondent admits. and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. TIlE IABOR OR(;AN17AilO( N INVOI VIA)
The complaint alleges, the answer admits, and I find that
District 1199, Hospital and Health Care Employees.
RWDSU. AFI.CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. TE A.I EG(D) UNFAIR LABOR PRA(C11( T S
A. Background Facts
Respondent, Vassar Brothers Hospital. operates a 341-
bed hospital with an average occupancy of 85 percent. As
of 1977. Respondent employs approximately 1.000 employ-
ees, and it utilizes the services of 400 volunteers. Approxi-
mately 1,000 people visit the hospital daily.
The Union and Respondent have been parties to a series
of collective-bargaining agreements involving the hospital's
technical employees. None of the other hospital employees
are represented by a union. A composite of the undisputed
evidence establishes that at 11:30 a.m., on April 6, 1977.
e.g. technician Mary Terry and lab technician Mary
McCord entered the corridor immediately adjacent to the
employees' cafeteria (lined in green between B and Cl. C2
of Jt. Exh. I -map of corridor area) for the purpose of dis-
tributing union literature (G.C. Exh. 3), and soliciting the
membership of employees as they passed through the corri-
dor entering or leaving the cafeteria. About 5 minutes after
Terry and McCord were in the corridor carrying out their
activity, they were joined by Dwight Reed, operating room
technician, who also participated in the distribution and
solicitation compaign. The parties stipulated that the area
of the hospital where the distribution and solicitation took
VASSAR BROTHERS HOSPII I
place is neither a patient care area, nor a patient access
area. After the trio (Terry. McCord. and Reed) had been
engaged in union solicitation and distribution for about 15
minutes, Frank Kelly. director of personnel for Respon-
dent. appeared and advised them that they could not con-
tinue their campaign activities at that location.'
B. Respondent Prohihits Employees from Distributing
nion Literature in the ('orridor Adjacent to the EmplOrcees
C(afileria
While there is no conflict in the testimony that Respon-
dent's personnel director. Frank Kelly. ordered Marv
Terry. Mary McC'ord, and Dwight Reed to cease the distri-
bution of union literature. there is dispute as to the actual
reason, and the reason Director Kelly gave the cmploxees
for his order prohibiting them from carrying out their solici-
tation and distribution campaign at the subject location:
and as to the alidity of' Respondent's contention that the
employees' union activity created a safels hazard in the
corridor entrance to the employees' cafeteria. The testi-
mony in dispute centers around where the three employees
(Terry, McCord. and Reed) were standing. and the extent
to which their presence created congestion there and/; or im-
peded the progress of the employees' lunch line enterin the
caltteria.
A composite of the credited testimony of' all of the it-
nesses establishes as a fact, that the subject corridor imme-
diately adjacent to the cafeteria is a 7' by 14' passageway.
with doors (indicated by green lines on Jt. Ixh. I), which
adjoins an 8' bs 16' passageway leading to and from stair-
way A (indicated by red lines on Jt. Exh. I). Employees
Terrx. McCord. and Reed testified that thex were standing
at the intersection of the two corridors (indicated by green
and red lines) as represented h the three blue dots on Joint
Exhibit I. but that more specifically, they said they were
not standing in a straight line shoulder to shoulder, but
Mary McCord was standing a little to the rear of them
against the B wall of the corridor. When they were asked
approximately how many inches or feet did their bodies
consume of the corridor space, they said 3 to 4 feet. or 40 to
50 percent of the corridor marked in red on Joint Exhibit I.
Ulndisputed estitrmon establishes that the subject corridor
has three entrances. one which enters the cafeteria at B. one
which leads into the hospital corridor at D. and another
which leads into the parking lot for doctors and staff at A.
In accordance with the floor plan described in Joint Exhibit
I, employees enter the corridor at A and proceed to the
green area and turn right through the doors leading to B.
Employees leaving the cafeteria from exit B. proceed
through the green area and exit at the doors indicated ('I
and C2. It was further established that the caleteria is uti-
lized only by staff employees, or infrequentl by isitors.
and that patients are not allowed to use the cafeteria.
Personnel Director Kelly testified that TerrN. McCord.
and Reed were spread a little more than halfwas across the
corridor (marked in red on the floor plan).
Mary Terry testified that just before Personnel D)irector
Kell arrived about 20 to 30 employees had passed Marx
The facls set forth aho,e aire nol in dlpule l and are not In conflict n the
record
I 145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCord and herself en route to the cafeteria, to some of
whom they had distributed union literature: and Dwight
Reed, who joined Terry and McCord about 5 minutes later,
testified that about 15 to 20 employees en route to the cafe-
teria had passed them before Director Kelly arrived. Reed
also testified that on days when the cafeteria is crowded the
subject corridor (indicated in red) is usually crowded with
about 15 to 20 employees within that particular corridor.
Employees Terry., McCord, and Reed further testified that
they were not blocking the corridor, and that employees
going into or leaving the cafeteria could pass them easily.
Director Frank Kelly did not dispute their testimony that
employees could pass them easily.2
Based on the foregoing credited testimony, I conclude
and find that Terry, McCord, and Reed were standing in a
line, with McCord standing slightly to the rear of Terry and
Reed in the A (red) corridor, as they distributed literature.
when Director Kelly entered the corridor, that the way they
were assembled their bodies consumed about 40 to 45 per-
cent of the width of the A corridor on the B wall, and that
their assemblage did not obstruct reasonable passage of em-
ployees entering and leaving the corridor.
C. Respondent s Affirmtative Defi'nse fir Its Prohibition
Against the Employees' Solicitation and Distribution
A clivities
Employee Dwight Reed testified about the conversation
he had with Mr. Kelly (Director Kelly) in the subject corri-
dor as follows:
He informed us or said that we could not do that here.
At which point I believe Mary McCord spoke up and
said, "We have a right to do this under the law." Mr.
Kelly says, "You can not do that here. He again reiter-
ated the point that we could not do that here." At that
point Mary offered to show him a flyer which indicated
that this in fact was being practiced and that there had
been rulings on it. Mr. Kelly indicated that he didn't
care what it said; that it was not going to be done
there. While this conversation was going on I was still
passing out or attempting to pass out literature. Mr.
Kelly was attempting to push my hand aside.
Reed identified General Counsel's Exhibit 2, which he
said was the document Mary McCord offered to show Kel-
ly as proof of the employees' right to solicit and distribute
on behalf of the Union. He said Mary McCord asked Kelly
if he (Kelly) was taking away her right as a union em-
ployee, and Kelly made the statement to the effect: "Stop
your communist or stop passing out your communist litera-
lure."
Mary McCord testified that when she showed Director
Kelly the document (G.C. Exh. 2) he said he knew what the
I21 credit the testimonial versions of Terry, McCord, and Reed over Direc-
tor Kelly's version, infra, about the position in which they were assembled
when Director Kelly entered the corridor, because I was persuaded by the
demeanor of the employees that they were testifying truthfully Meanwhile, I
was persuaded by the demeanor of Director Kelly. as he testified on this
subject as well as other subjects in this proceeding, that he was exaggerating,
and to that extent, was not telling the truth as all of the evidence of record
ultimately shows.
document said, and that he felt it was slanted, it was from
the Union, and he did not think they had a right to do that.
lie told them to "Stop spreading your communism
around." She continued to testify as follows:
I think it was about then that Dwight said. "What
do you propose that we do?" And Frank said. "Get in
touch with your lawyer." Dwight said then, "Maybe
we should put in a grievance." We stood there for a
moment or so and we all departed together.
Personnel Director Frank Kelh testified that as he en-
tered the corridor leading to the lunchroom, he observed
employees Mary Terry. Mary McCord, and Dwight Reed
standing in the positions heretofore indicated by the blue
dots on the floor plan. He said they told him what they
were doing and he told them, "You cannot do it here." He
acknowledged that Mary McCord offered to show him a
piece of literature (G.C.. Exh. 2) and that he told her he did
not need it, because he had read it already. He said when he
explained to them that they could not stop employees there
en route to the cafeteria, Reed did say that thes were not
having the employees sign the cards there, but that they
were just handing them out. He said he did complain about
them delaying the food line, and Mary Mc(ord asked him.
"Are you denying us our rights?", and their conversation
continued as follows:
She says, "Are you denying us our rights?" I said.
"Now listen. Mary, don't be using these communistic
slogans on me." But I did not call them communist or
refer to the union literature as communistic, only her
expression that I referred to as a communistic slogan
to the effect that she said I was denying her her rights.
Q. What happened then?
A. Then while I was talking, Dwight Reed was try-
ing to pass things to people coming behind me. who
were entering the cafeteria. I did put my hand out to
stop him. I did this because I felt in my position in the
hospital while I am talking to them I didn't think it
was proper for them to insist on doing things to spite
my trying to talk to them not to do it. But then Dwight
mentioned. "What do you suggest we do?" I said, "I
suggest you call your union attorney." That's about the
extent of it. Then we left. I'd say our conversation
lasted maybe a minute and a haltf no more than two
minutes.
Director Kelley said that as he stood in the corridor he
saw Dwight Reed hand some of the literature to passing
employees and overheard them tell Reed they did not want
it. Other people may have taken it, Kelly admitted. Terry.
McCord. and Reed testified, and Director Kelly admitted.
that the interchange involving the distribution of the union
literature by each of them to each nondistributing employee
consumed about I second per interchange in terms of time.
Moreover, Mary Terry testified that the interchange did not
involve any conversation other than "hello", that they did
not say anything to the employees and the employees did
not say anymore than "hello" to them, and that they simply
handed the employees the literature they were distributing
as they passed by in the lunch line.
Director Kelly further testified that he prohibited the em-
ployees from soliciting in that particular area of the hospital
1146
VASSAR BRO()HI:RS H()SPIT'\
because they created a safety hazard by obstructing the cor-
ridors and causing delay of the employees' lunch line, the
progress of which the administration had worked hard to
facilitate. He said that in the past Respondent had received
many reports of accidents which resulted from a door being
suddenly opened and striking a person. that a fire alarm
box is also located within the subject corridor, and that
there are electrically lighted exit signs posted over the doors
located at A, Cl, and C2. The Administrative aw Judge
obvserves that there was no evidence introduced to show
that signs were posted in the corridors (red or green) pro-
hibiting employee or nonemployee congregation therein.
Director Kelly admitted that no one employee or anyone
else complained to him that they were unable to pass the
three employees who were distributing literature in the cor-
ridor, that he did not ask the distributing employees were
they going to remain there for the entire 30-minute lunch
period, and that he did not suggest that one of them could
remain, because even one. in his opinion, would create a
safety hazard because he or she would have delayed the
progress of the food line. He acknowledged that the three
employees could have stood along the corridor B wall in verti-
cal order, without causing an obstruction of emnployvees enter-
ing or leaving the cafeteria.
Director Kelly further testified as follows:
Q. Do you recall whether or not during that conver-
sation, towards the end of the conversation. Dwight
Reed asked you words to the effect of, "Well, what can
we do? What should we do?"
A. Dwight Reed asked-he said, "What do you sug-
gest we do?"
Q. At that point, you didn't suggest that they solicit
in any other part of the hospital, did you?"
A. Well, no. I said that there were other ways to
distribute literature because you do see employees dur-
ing the course of the day in the hallways and here and
there and so forth.
Q. You didn't say those words to them, did you?
A. Yes, sir.
Q. You didn't refer to distributing in any other part
of the hospital, did you?
A. Yes, sir. I did say those words to them at that
time.
Q. Could you explain again what you said to them?
A. Dwight Reed asked me, "What do you suggest
we do?" And that's when I said, "I suggest you call
your union attorney." Right prior to that I told the
three employees, "There are other ways to hand out
union literature to other employees. If you see them
during the course of your work day you see them in the
hallways, in the stairways, in the parking lots and when
they are traveling around the hospital." I did make that
statement to them at that time and subsequent to that
is when I said, "I suggest you call your union attor-
ney."
Relying on the above testimony, Director Kelly said he
did refer to hallways and parking lots as other places where
the employees might carry on their union activities.
He further testified as follows:
Q. id ou give ans reason why they couldn't so-
licit or distribute literature in that area?
A. Not at that time. I didn't feel that I was ohliged
to tell them the reasons why. I felt that it was pretty
new because of the N...R.B. ruling in non-patient
areas and non-work time and I did not feel that I was
obliged to tell the adversaricv, i' Sou want to call them
that. where they could do it.
In explaining wh he felt the emplo ees ere creating con-
gestion in the corridor nd delaying the progress of the
lunch line. Director Kelly said if somleone were to hand him
a piece of literature he would stop to look at it. losever. he
admittc h did not{ oh.servc an' e'n/)/'e Ie thrt, t thlt ino.-
;'tt, tO11ppinig as a result ,/ the entipt/lloeces' ('dtitantl,. hut he
said he is not required to wait until the problem arises, hls
job requires him to act before the occurrence of an, conges-
tion in the corridor.
Dwight Reed testified that Director Kelly told them that
they were soliciting and that the, should have cleared it
through purchasing. He said employees have had union so-
licitations out on the sidewalks around the hospital but not
on hospital grounds within the last 6 months. mplohees
have also had nonunion solicitation at locations on the
grounds of the hospital which Respondent did not prohibit.
Dwight Reed. as well as Director Frank Kelly. said Re-
spondent has permitted other forms of solicitation, such as
for the United Way, on its premises. even in the patient
care areas of the hospital.
Mary McCord corroborated Dwight Reed's testimon',
that Director Kelly did not suggest or mention that the'
could distribute and solicit on behalf of the Union else-
where.
Jaimes B. Clark, attorney foir Respondent, testified that
during an investigational meeting with Director Kelly. and
Mackle of the National Labor Relations Board, he over-
heard Director Kelly tell Mackle that when Mary McCord
told him (Kelly) it was their right to distribute union litera-
ture, Director Kelly said he told them, "You can't do it
here; that Reed then said, 'What do you suggest?": and I
[referring to Frank Kelly said, you can't do it here, call the
union attorney and tell him I said you cannot do it here."
Clark testified that he also heard Director Kelly say. "There
are other ways to do this and they do it in other areas of the
hospital but you cannot do it here." Clark said Kelly did
not give a sworn statement to the Board on his (Clark's)
legal instructions not to do so. Terry, McCord and Reed
denied that Director Kelly suggested they might carry on
their campaign activities in other areas of the hospital.'
Abraham Teicher, plant engineer for Respondent, testi-
fied that he has responsibility for Respondent's compliance
with safety rules and regulations for the State of New York
and the Occupational Safety and Health Administration.
I do not credit James Clark's testimony that he o*erheard Kell telling
Mackle that he (Kelly) has suggested other areas, because Kells's statement.
assuming he did make it. is self-serving. Clark was not present on April 6
when Kelly talked to the three employees, and there is no evidence in the
record other than Kelly's own testimony. that he made such a statement t,
the employees Moreover, I was persuaded by the manner in which Kell1
testified, as well a by a preponderance of all of the credited evidence of
record, which indicates the contrary. that Kell's testimony and his over-
heard statement in this regard were not truthful
147
I)t('ISIO()NS OF NAl'IONAI. LABOR R.ATI()NS B()ARD
that the subject corridor has a paste-on sign on each door
marked "Fire Door-Keep ('losed", that there is a pull box
fire alarm there and an alarm near the ('2 area which indi-
cates the condition of the alarm system, and that Respon-
dent has tried to eleviate congestion in the subject area.
Teicher said that in the event of a fire, all patients in that
wing of the hospital would have to make their exit through
the subject corridor. lowever, on cross-examination, he ad-
mitted that the same patients may exit, in an emergency,
not only through the corridor indicated A, but also through
exits indicated E and F. located off other corridors. lie said
he has had no prior conversation with [)irector Kelly re-
garding the employees' distribution activity on April 6h.
Analysis and Conclusions
The evidence is undisputed that in prohibiting Terry,
McCord, and Reed, on April 6, from continuing their solici-
tation and distribution on behalf of the Union, Director
Kelly told them: "You cannot do it here." He repeated the
order, and the only conflicts in the testimonial versions of
the employees versus Director Kelly's are: (I) Whether [)i-
rector Kelly informed the employees why he was prohibit-
ing their campaign activities; (2) did he suggest that they
might continue their campaign activity (solicitation and dis-
tribution) elsewhere; (3) did he in any way refer to their
campaign activities as "commmunistic": (4) did he tell
them that their campaign activity was delaying the progress
of the employees' lunch line, with the attendant question,
was their activity in fact delaying the progress of such lunch
line; (5) did he tell them their presence and campaign ac-
tivity in the subject corridor created a safety hazard; and
(6) whether or not Director Kelly told the employees their
presence and campaign activity in the subject corridor cre-
ated a safety hazard, and did their presence and activity in
fact create a safety hazard.
These questions are addressed as follows.:
An examination of the testimony of employees Mary
Terry, Mary McCord, and Dwight Reed shows it is consis-
tent in that they all said Director Kelly simply said, "You
cannot do it here." They unanimously denied that he gave
them any explanation for the prohibition, and on direct
examination, it is observed that even Director Kelly stated
that all that he said to the employees at that time was "You
cannot do it here", and that after Dwight Reed asked him
"What do you suggest we do?". Director Kelly said he re-
plied, "I suggest you call your union attorney." It was only
after specific interrogation on cross-examination as to
whether he suggested where the employees might continue
their union campaign that Director Kelly said he told the
employees, "If you see them during the course of your
workday, you see them in the hallways, in the stairways, in
the parking lots and when they are traveling around the
4 I credit Teicher's testimony in reference to safety devices in the corridor
and the rules and regulations appertaining to the hospital complex. How-
ever, I do not credit his testimony to the effect that all patients on the
hospital wing adjoining the subject corridor had to exit through the doors
indicated by A, because I was persuaded he was exaggerating the safety
significance, since he first neglected to identify the two exits at E and F, and
admitted their existence on cross-examination.
hospital." Terry, Mc('ord, and Reed specifically denied that
Director Kelly made any reference to other places they
might continue their union distribution, and I credit their
testimony in this regard, because I was persuaded by their
demeanor that they were testifing truthfully. Moreover. I
was persuaded by the demeanor of Director Kelly, as well
as the other evidence of record, that his contended vague
suggestions as to where the employees might carry on their
distribution activity was an afterthought, mentioned for the
first time during this proceeding.
The above conclusion s further supported by the addi-
tional testimony of Director Kelly when he testified that he
did not feel he was obliged to give the employees any rea-
son why their activity was prohibited. because he felt he
was covered by a new National abor Relations Board rul-
ing that solicitation may not be carried on in nonpatient
areas and during nonwork time; and he said he did not feel
that he should share this knowledge with his adversaries
(the union activits). So it is obvious even from Director
Kelley's own testimony that he did not give the employees a
reason for the prohibition of their solicitation and distribu-
tion on behalf of the Union, because he did not feel they
deserved an explanation.
Although Director Kelly disputes the testimony of Terry.
Mc('ord. and Reed that he did not suggest that they could
continue their campaign activity at another location, it is
particularly observed, as before mentioned herein, that on
direct examination Director Kelly failed to state that he
had made such a suggestion. It is further observed that
while Director Kelly later contends that he had suggested
hallways, stairways and parking lots as other areas where
the employees might continue their distribution, he ad-
vanced this testimony only after he was asked did he sug-
gest any alternatives to the employees. I believe, as Director
Kelly stated himself, that if he did not want to assist the
employees, to whom he referred as adversaries, in advising
them on what he believed the law to be, I can hardly con-
ceive that he would have assisted such "adversaires" by
suggesting that they continue their campaign activities at
other specific locations on the grounds of the hospital.
Employee Mary McCord testified that when she showed
Director Kelly the document, General Counsel's Exhibit 2.
which explained employees' rights to organize, Director
Kelly said he felt the contents of the document were
slanted, it was from the Union, and he did not think they
had such a right; and he further stated, " Stop spreading
your communism around." Employee Dwight Reed corrobo-
rated the testimony of Mary McCord in this regard. He
testifed that when Mary McCord offered to show Director
Kelly the document (G.C. Exh. 2) regarding employees'
campaign rights, Director Kelly said something to the ef-
fect, "Stop passing out your communist literature." Director
Kelly denied that he made such a reference in that respect,
but testified that in response to Mary McCord's accusation
that he was denying her rights, he said he referred to her
expression as a communistic slogan.
I do not credit Director Kelly's version of the conversa-
tion over the versions of employees McCord and Reed be-
cause I was persuaded by their testimony and the other
rather interdependent evidence of record that the vague
and strange explanation given by Director Kelly does not
1148
VASSAR BROIHERS HOSPITAL
coincide with the evidence of record or with logic. Further.
as I observed Director Kelly testifying on the stand, I was
persuaded that he was not telling the truth by his tendency
to exaggerate circumstances in favor of Respondent. and by
his after-the-thought and newly articulated explanations for
the prohibition of the employees' campaign activities on
April 6.
For the foregoing reasons, I conclude and find that Di-
rector Kelly did not give the employees an explanation for
his prohibition of their campaign activities, and that he did
in fact refer to their campaign promotion as "communis-
tic." Since I cannot perceive, and the evidence does not in
any way show, how an employee's exercise and insistence
upon his Section 7 rights can be equated with communism.
or characterized as "communistic." I conclude that such
reference by Director Kelly was an uncomplimentary refer-
ence indicative of an antiunion motivation for his prohibi-
tion of the distribution campaign on April 6. At least in this
society, such a reference (communism) is not considered
complimentary and is generally not looked upon favorably
by opponents of the concept.
It appears from the record that Terry. McCord and Reed
heard Director Kelly explain why he prohibited their camn-
paign activities, on April 6, for the first time during this
proceeding. It was during this proceeding that Director
Kelly testified that his reason for prohibiting the employees
(Terry, McCord, and Reed) from soliciting and distributing
on behalf of the Union. on April 6. was in furtherance of his
responsibility to eliminate delays in the progress of the em-
ployees' lunch line entering the cafeteria; and the elimina-
tion of congestion in the cafeteria's access corridors which
could cause a safety hazard.
In this regard, the employees' testimony is undisputed
that between 15 and 20 employees had passed them on their
way into the cafeteria, that the interchange of literature
from the distributing employees to the passing employees
and vice versa did not occasion any conversation beyond
"hello", that the distributing employees simply handed the
passing employees the literature they were distributing as
they passed in the lunch line, that even Director Kelly
agreed with the employees that the interchange of the lit-
erature from the distributing employees to the passing em-
ployees consumed only about I second in terms of time,
that Director Kelly admitted that no employee complained
to him that they were unable to pass the employees engaged
in the distribution, that Director Kelly also admitted that
he did not observe any employee who was unable to pass
the distributing employees in order to enter the cafeteria,
and that even if the three employees were obstructing em-
ployees' corridor access to the cafeteria, Director Kelly ac-
knowledged that the employees (Terry, McCord. and Reed)
could have stood along the corridor B wall in vertical order
without causing any obstruction of employees entering or
leaving the cafeteria.
I particularly observed that while Respondent (Director
Kelly) introduced considerable evidence to show Respon-
dent's concern for fire safety and emergency exits from the
subject corridor, no evidence was introduced to show that
signs were posted in the corridor prohibiting congestion of
employees or nonemployees. or that employees were in-
structed not to congregate in the corridor, or were apprised
of any emphasis placed upon safety exits or expedition oft
the progress of the employees' lunch line entering the cafe-
teria. Respondent pointed out that electrical exit signs were
installed above each of the three doors in the corridor; that
each door bore a paste-on sign marked "Fire l)oor-Keep
Closed": and that a five alarm box and a fire alarm control
switch were installed on the wall in the subject corridor, but
the evidence does not show. and I do not deem that such
normal safety precautions especially in a hospital, consti-
tuted added notice to employees that the subject corridor
was announced to be, or in act was, an area posing a
greater safety hazard than any other corridor in the hospi-
tal.
Director Kelly testified of numerous fire alarm boxes in-
stalled on the walls of other corridors throughout the hospi-
tal. lie did not identify doors in other corridors over hich
electrical exit signs were installed. or other doors which
were labeled fire doors, as certainly common experience
dictates there must have been such precautions. inallx. it
is noted that plant engineer Teicher tried to lead the court
to believe the subject corridor was the only passagewa\
through which all patients in the adjoining wing of the hos-
pital would have as a means of egress from the hospital in
an emergency. However, engineer Teicher was iorced to
retract or clarify that misrepresentation on cross-examina-
tion, when he testified in response to questions that all pa-
tients in that wing of the hospital could also acate the
hospital in an emergency through exits located at F and -
on the floor plan (Jt. Exh. I ). Perhaps of greatest probative
significance is the testimony of Terry. McCord. and Reed.
with which Director Kelly concurred, that Respondent has
permitted solicitation for other purposes, such as the
United Way, not only in corridors of the hospital. bhut cter
in patient care areas of the hospital
Based upon the foregoing evidence, I conclude and find
that promulgation of Respondent's (Director Kelly's) no-
solicitation rule, issued to the employees on April 6 was
substantially motivated, and disparately enforced against
them, because they were engaged in solicitation and distri-
bution on behalf of the Union. The corridor in question is
undisputably an access area for entrance to, and egress
from, the employees' cafeteria. It is also clear from the evi-
dence that such corridor area is neither a work area nor a
patient care or patient access area. Beth Israel Hospital. 223
NLRB 1193 (1976). Thus, Respondent's no-solicitation
rule, prohibiting solicitation or distribution in the corridor
during nonworking time' in a nonworking area, will be pre-
sumed invalid in the absence of a showing by sufficient
evidence that special circumstances make the rule necessary
in order for the Respondent to render its primary service
(good patient care), or to discipline its employees. Further-
more, the burden is on the employer to establish by affirma-
tive evidence. the special circumstances making an other-
wise invalid restriction necessary for the Respondent to
orderly and efficiently render its primary service (good pa-
tient care). Republic Aviation Corporation v. N.L.R.B.. 324
"Working time" connotes the period of time spent in he performance of
actual job duties and does not include meal or break perods Esse Interna
tional, Inc. 21 I NLRB 749 (1974).
1149
DEC(ISIONS OF NA IONAL. LABOR RELATIONS BOARD)
U.S. 793 (1945). Here, the evidence does not show that the
employees' solicitation and distribution campaign in the
corridor might have conceivably disrupted good care of Re-
spondent's patients, because the patients do not use the
cafeteria and consequently, would not have been in a posi-
tion to witness, or be affected by. such activity.
Also, in St. Johns Hospital and School of Nursing, I.,
222 NLRB 1150 (1976), cited by counsel for the General
Counsel, the Board carefully evaluated the primary func-
tion (patient care) of a hospital in juxtaposition to the pro-
tected organizational rights of employees. In expressing this
evaluation, the Board has said:
We recognize that the primary function of a hospital is
patient care and that a tranquil atmosphere is essential
to the carrying out of that function. In order to provide
this atmosphere, hospitals may be justified in imposing
somewhat more stringent prohibitions on solicitation
than are generally permitted. For example, a hospital
may be warranted in prohibiting solicitation even on
nonworking time in strictly patient care areas, such as
the patient's rooms, operating rooms, and places where
patients receive treatment, such as x-rays and therapy
areas. Solicitation at any time in those areas might be
unsettling to the patients-particularly those who are
seriously ill and thus need quiet and peace of mind.
Consequently, banning solicitation on nonworking
time in such areas as described above would seem jus-
tified in hospitals.
The Board further held that a hospital maintaining a no-
solicitation, no-distribution rule, to the extent it prohibits
all solicitation and distribution in all areas to which pa-
tients and visitors have access, other than immediate pa-
tient care areas, such rule violates Section 8(a)(1) of the
Act.
Respondent herein concedes the limitation on a hospital's
no-solicitation, in no-distribution rule as enunciated by the
Board in Sr. John's Hospital supra, but it now contends that
the rule should be broadened to include a hospital's prohi-
bition on employee solicitation and distribution in nonpa-
tient care and nonpatient access areas during nonworking
time, whenever employee solicitation and distribution in
such areas would create a safety hazard.
Respondent (Director Kelly) admitted that the congrega-
tion of Terry, McCord, and Reed in the corridor, on April
6, did not constitute a safety hazard, but it contends its
prohibition of their activity was based upon its concern and
responsibility for the eventuality of a safety hazard. It was
upon this theory that the Respondent introduced the above-
discussed evidence regarding emergency egress, fire alarm
installations, exits and fire doors, and the possibility of a
delay in the employees' lunch line entering the cafeteria.
Although Respondent's contemplation of such eventualities
might be deemed possible, I am persuaded by the evidence
of record that, based upon the circumstances described in
this case, the realization of a safety hazard resulting from
three employees distributing union literature during their
lunch period is highly remote, if not impossible. As counsel
for the General Counsel points out, it is inconceivable that
any three employees would remain in the corridor, and re-
main engaged in a solication-distrihbuion campaign in the
event of any kind of safety emergency. Moreover, the evi-
dence does not show that their presence in the corridor
created any congestion of employees, or obstructed or im-
peded the progress of the employees' lunch line.
When all of the evidence regarding Respondent's defense
is evaluated from every dimension most favorable to Re-
spondent, the conclusion is inevitable that Respondent's de-
fense was merely a pretext to conceal its antiunion motiva-
tion in prohibiting the union solicitation and distribution by
Terry, McCord. and Reed. Consequently. Respondent's
unilateral and sudden promulgation, issuance, and enlbrc-
ment of the no-solicitation rule prohibiting the continuance
of the employees' union solicitation and distribution cam-
paign in the corridor on April 6, 1977. constituted a viola-
tion of Section 8(a)( 1) of the Act.
IV. 1 IIL( I OF II UNFAIR LAB()R PRAt( IkS l)[)N
( OMMIR(I
The activities of Respondent set forth in section 11.
above. occurring in connection with Respondent's opera-
tions described in section I, above. have a close, intimate.
and substantial relationship to trade. traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CON(C I [SIONS OF L&w
1. Respondent, Vassar Brothers Hospital, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, District 1199, Hospital and Health Care
Employees, RWDSU. AFL ('CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By issuing, promulgating, and enforcing a rule prohib-
iting distribution of union literature and union solicitation
in the hospital corridor, which is the subject of this dispute,
Respondent violated Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in, and is engag-
ing in, certain unfair labor practices, it will be recommend-
ed that it cease and desist therefrom and take certain affir-
mative action deemed necessary to effectuate the policies of
the Act. Having found that Respondent unlawfully issued,
promulgated, and enforced an oral rule prohibiting distri-
bution of union literature and union solicitation in the cor-
ridor adjoining the corridor adjacent to the employees'
cafeteria, as described in Joint Exhibit I, it will be recom-
mended that the Respondent rescind the aforesaid rule.
[Recommended Order omitted from publication.]
150