Yale-New Haven Hospital

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 620 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yale-New Haven Hospital and District 1199, National
Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO. Case -CA-14509
May 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On December 21, 1978, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Yale-New Haven Hospital,
New Haven, Connecticut, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I In agreement with the Administrative Law Judge, we conclude that it
would be improper to pass on the validity of the contractual no-distribution
rule in these proceedings. Since only the application of the oral rule to the
specific facts of this case, and not the lawfulness of the contractual rule itself.
was put in issue, Respondent was not given an opportunity adequately to
defend its case on this ground. We, however, do not rely on tile Administra-
tive Law Judge's reference to the necessity of joining the Union as a party-
respondent as a prerequisite to passing on the legality of the contractual no-
distribution rule herein.
' Member Murphy believes that the employee's right to distribute the leaf-
let at the appropriate time and place is also protected by the first amendment
to the Constitution. See William C. Linn v. United Plant Guard Workers of
America, Local 114, et. al., 383 U.S. 53 (1966).
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: Upon an
original charge filed May 19, 1978, by District 1199, Na-
tional Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO (herein the Union), a complaint and
notice of hearing issued June 21, 1978, against Yale-New
Haven Hospital (herein Respondent). The only unfair labor
practice alleged in the complaint is that Respondent vio-
lated Section 8(a)(l) of the National Labor Relations Act,
as amended (herein the Act), when, on or about May 4,
1978, an agent of Respondent prevented an employee from
distributing union literature. By its duly filed answer, Re-
spondent admitted that it prevented an employee from dis-
tributing union literature on or about the said date, but
contends that it was privileged to do so by virtue of an
article in its collective-bargaining agreement with the
Union (more fully discussed hereinafter) and, moreover, as-
serts that it is ready to arbitrate the issue of the application
of its collective-bargaining agreement to the conduct of the
employee. Accordingly, Respondent argues that the matter
should be deferred to arbitration under the principle of the
Board's decision in Collyer Insulated Wire, A Gulf and
Western Systems Co., 192 NLRB 837 (1971). Respondent
further asserts that by virtue of the aforesaid collective-bar-
gaining agreement, the employee agreed to waive any right
to engage in union activities on behalf of the union. Finally,
Respondent contends that distribution of literature at the
place where such occurred, "interferes with patient care
and the operations of the hospital."
The matter came on for hearing before me in New Ha-
ven, Connecticut, on September 8, 1978. At the close of the
hearing, oral argument was waived; however, helpful, post-
hearing briefs have been filed by the counsel for the Gen-
eral Counsel and by the counsel for Respondent, which
have been duly considered.
Upon the entire record, including my observation of the
witnesses, and a consideration of the arguments of counsel,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent operates a nonprofit general hospital in the
City of New Haven, Connecticut. In the course and con-
duct of its business, it causes large quantities of medical
supplies and related products to be purchased and trans-
ported in interstate commerce from and through various
States of the United States into the State of Connecticut, in
an annual amount valued in excess of $50,000. Its annual
gross revenues are in excess of $1,000,000.
I find, as Respondent admits, that it is an employer en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
The facts giving rise to the dispute in this case are not
complicated, and may be briefly summarized as follows:
Respondent's New Haven facility is divided into three
buildings, only one of which is involved herein. That build-
ing is denominated the Memorial Unit, and is termed by all
242 NLRB No. 100
620
YALE-NEW HAVEN HOSPITAL
parties as a hospital area. The building housing the memo-
rial unit has II floors, 10 of which are occupied. In the
basement are located the general offices of Respondent and
food service: on the first floor are some laboratories, some
lobbies where patients are admitted, a cafeteria, a coffee
shop, a doctor's lounge, some classrooms, and a service
area.' The Memorial Unit houses approximately 400 beds
and employs approximately 2,000 employees.
Since 1973, Respondent has recognized and bargained
with the Union in a unit of food service employees. The last
collective-bargaining agreement was entered into on March
17, 1978, for a period up to and including December 31,
1979.
On May 4, 1978, at approximately 12:30 p.m., Raymond
Milici, an assistant chef of Respondent (and also a union
delegate or steward), commenced distributing a leaflet
which announced a public meeting for all nonsupervisors
which was to be a discussion of collective bargaining for
registered nurses.' Milici commenced distributing the leaf-
lets on his lunch period in a foyer on the first floor of the
hospital just outside of the cafeteria. On the other side of
the foyer are entrances to a coffee shop and to a gift shop.'
After distributing the leaflets for approximately 15 minutes,
one of Respondent's security guards approached Milici and
advised that he would have to cease such distribution at
that place, and that if he wanted to continue the distribu-
tion, he would have to do so outside the building. Milici
protested that he had a right to distribute under a recent
ruling of the "Labor Board" as long as he was not in a work
area or a patient area. However, the guard advised him that
he was unaware of any such ruling and suggested that
Milici accompany him to a telephone so that a supervisor of
Respondent might be contacted. This was accomplished,
and the supervisor took the same position as the guard, i.e.,
that the only place Milici could distribute the leaflets was
outside of the building. Whereupon Milici went outside and
distributed the leaflets for approximately another 10 min-
utes, and then returned to work.
The foregoing incident, wherein Respondent prohibited
Milici from distributing leaflets in the foyer above-de-
scribed, gave rise to the charge herein which was filed on
May 19, 1978.
Analysis
As all parties recognize, this case must be decided in the
light of recent, applicable precedent dealing with the right
of union solicitation and distribution in hospitals over
which the Board has recently acquired jurisdiction. In St.
Th:, list is not meant to be all inclusive, but to give the reader an impres-
sion of what is contained on the first floor of the facility where the dispute in
the instant case arose. There are no patients' rooms, lounges, or operating
rooms on the first floor; such rooms are located on the upper floors of the
facility.
2The meeting was sponsored by the Union and was to take place that
evening at a hotel in downtown New Haven. Milici had volunteered to dis-
tribute the literature upon the request of union representative William
Morico.
3Both the coffee shop and gift shop are operated by a nonprofit auxiliary
for the purpose of raising money to buy special equipment for the hospital.
John's Hospital and School of Nursing, Inc.,' the Board, after
noting the general rules governing solicitation and distribu-
tion applicable to industrial plants,5 went on to consider
such rules in a context of a hospital environment, as fol-
lows:
We recognize that the primary function of a hospital
is patient care and that a tranquil atmosphere is essen-
tial to the carrying out of that function. In order to
provide this atmosphere, hospitals may be justified in
imposing somewhat more stringent prohibitions on so-
licitation 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 patients' rooms, operating rooms, and
places where patients receive treatment, such as x-ray
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.
The Board concluded that banning solicitation during
nonworking time in patient care areas was justified. How-
ever, it disallowed the restriction "in visitor access areas
other than those involved in patient care, [since] the possi-
bility of any disruption in patient care resulting from solici-
tation or distribution of literature is remote. As to the re-
strictions in patient access areas such as cafeterias, lounges,
and the like, we do not perceive how patients would be
affected adversely by such activities. On balance, the inter-
ests of patients well enough to frequent such areas do not
outweigh those of the employees to discuss or solicit union
representation."
In Beth Israel Hospital v. N.L.R.B.,6 the Supreme Court
generally affirmed the Board's striking of the aforesaid bal-
ance between employee organizational rights and employer
property rights in the hospital area.
In a more recent case,' the Court of Appeals for the
Tenth Circuit had occasion to construe the Supreme
Court's decision in Beth Israel. That case dealt, in part, with
the legality of solicitation in a hospital cafeteria. The Court
of Appeals noted that:
The Supreme Court spoke with approval of the
Board's conclusion that the strict rules against solicita-
tion applied only to patients' rooms, operating rooms
and places where patients received treatment, such as
x-ray and therapy rooms.... The court said that in
determining whether solicitation is permissible for
areas accessible to patients, the National Labor Rela-
tions Board must balance the relative strengths of the
competing interests which are, on the one side, the like-
4 222 NLRB 1150 (1976).
'In general, no-solicitation rules are presumed valid if applicable only to
solicitation during working time, but are presumed unlawful if they extend to
solicitation dunng nonworking time irrespective of whether the solicitation
occurs in a work or nonwork area. Rules prohibiting distribution of literature
are presumed valid unless they extend to activities during nonworking time
and in nonworking areas. [citing, Stoddard-Quirk Manufacturing Co. 138
NLRB 615 (1962)1. In order to justify the existence of a rule which is on its
face presumptively unlawful, an employer must present sufficient justifica-
tion to warrant the further curtailment of employee rights.
6437 U.S. 483 (1978).
1 N.L R.B. v. National Jewish Hospital and Research Center, 593 F.2d 911.
914, 915 (lOth Cir. 1978).
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lihood of disruption of patient care, as opposed to the
extent of the interference with union organizational ac-
tivities. The court termed the cafeteria in Beth Israel as
being a natural gathering area for employees, one in
which the risk of harm to patients is relatively low as
compared to potential alternative locations within the
facilities. The court regarded the evaluations of the La-
bor Board in that case as valid since it had considered
all the competing interests.
* *
It was noted by the Supreme Court that the Board
had recognized that a hospital may be warranted in
prohibiting solicitation even on nonworking time, in
strict patient care areas, having in mind that solicita-
tion could affect the patients. It was said that areas
where this could happen would include the patients'
rooms, operating rooms and patient treatment areas
like x-ray and therapy. At the same time the court,
however, rejected the notion that the possibility of dis-
ruption to patients required a prohibition on solicita-
tion in any area accessible to a patient.... To so hold
excludes all sections of the hospital from solicitation. A
patient could have access to the entire hospital. The
court agreed with the Board that the possibility of dis-
ruption to patient care from solicitation in cafeterias
was remote.
I am of the view, as was the court in National Jewish
Hospital, that the record herein provides no factual basis for
a conclusion that the patients at [Respondent's] hospital
suffered upset or experienced disruption of tranquility as a
result of the [distribution of union literature]:
In this connection we must be mindful that the Su-
preme Court in Beth Israel made it plain that the bur-
den was on the employer to bring forward positive evi-
dence showing that solicitation activities had a
disrupting effect upon patients' health.
I find, based upon a careful consideration of the record
evidence, that Respondent here made no showing that the
distribution of the pamphlet in the foyer outside of the cafe-
teria had a disruptive effect upon patients' health. In this
connection, I note that the foyer constituted for the hospital
employees a place for exchange of information respecting
all kinds of activities of interest to the employees. Thus,
there were present two bulletin boards on the walls in the
area which contained announcements of events inside and
outside of the hospital as well as job postings. Also attached
to a wall in the area was a holder which normally contained
issues of a "newspaper" published by the hospital's public
relations department which listed items for sale by employ-
ees or items wanted by employees. The record also contains
uncontradicted evidence that at least once a year there were
tables set up in the area where literature was distributed by
dietitians in the food service department during National
Nutrition Week. Thus, as Milici testified, he determined to
distribute the literature at the location specified because
this was where workers, on their way to and from the cafe-
teria, coffee shop, and gift shop would come to obtain infor-
mation respecting their economic and social activities.8
However, Respondent vigorously argues that various ac-
tivities of employees and medical staff which do-or
might-occur in the area under consideration constitute it a
"work area in which the hospital is permitted to ban distri-
bution of literature at any time."9 Thus it points to evidence
that at the end of the first floor corridor, approximately 55
feet from where the distribution occurred, there are located
two classrooms which are used by the hospital for a variety
of activities including departmental meetings, medical
board meetings, training programs, and instruction for pro-
spective new mothers. It is suggested that "any distribution
of literature permitted in the corridor would necessarily in-
terfere and disrupt the work of the hospital in the afore-
mentioned manner, inasmuch as access to the classrooms
can only be had by going through the area in which Milici
was distributing literature."' 0 It is further pointed out that
there is a doctors' lounge located approximately the same
distance away and that they would use the corridor to reach
the patient and service elevators located in a corridor adja-
cent to the area of distribution."
Respondent also points out evidence that the first floor
corridor serves as an area through which supplies, equip-
ment, materials, and food are delivered to the coffee shop
and gift shop, and garbage from those areas is removed
with the assistance of handtrucks through the area. Finally,
Respondent argues that the distribution of literature in the
foyer would interfere with and disrupt the operations of the
hospital in that such activities would hinder and delay the
eating time of employees which would result in delay of
their return to their patients. On the other hand, there is
little or no evidence that patients frequent the area under
consideration, or that such a distribution as is involved
herein would carry the potential of interference or disrup-
tion with patient care."
In sum, as the court noted in National Jewish Hospital,
supra at 915, "the Supreme Court in Beth Israel made it
plain that the burden was on the employer to bring forward
positive evidence showing that solicitation activities had a
disrupting effect upon patients' health." After a consider-
ation of all of the evidence in the record, I find that Respon-
dent did not meet that burden in this case, and therefore
8 The Supreme Court, in Beth Israel at 502 503, pointed to the fact that
the hospital in that case "recognized that at least some solicitation and distn-
bution would not upset patients and undermine its function of providing
quality medical care ... [The hospital] had permitted use of the cafeteria for
other types of solicitation, including fund drives, which, if not to be equated
with union solicitation in terms of potential for generating controversy, at
least indicates that the hospital regarded the cafeteria as sufficiently commo-
dious to admit solicitation and distribution without disruption."
Resp. br, at p. 10.
'° Resp. br., p. II1.
" This contention is based upon a conclusion of the hospital administrator
since no doctor testified at the hearing.
12 It is conceded by the hospital that, generally speaking, inpatients eat in
their rooms and do not frequent the cafeteria area (the hospital administra-
tor guessed that perhaps I to 5 percent of the patients used the cafeteria). It
might be reasonably inferred that if patients are well enough to utilize the
gift shop and coffee shop areas, their health would not be jeopardized by the
distribution of literature in the corridor outside these areas. As the Board
said in St Johns Hospital at 1151, "On balance, the interests of patients well
enough to frequent such areas (cafeterias, lounges, and the like), do not
outweigh those of the employees to discuss or solicit union representation."
622
YALE-NEW HAVEN HOSPITAL
conclude that "the possibility of disruption to patient care
in that area must be deemed remote."
The remaining arguments of Respondent may be quickly
disposed of. It contends that the Union waived its rights as
well as the rights of its members to engage in union activi-
ties of the type involved in the instant case by virtue of
article V, section 2 of the current collective-bargaining
agreement, as follows:
No employee shall engage in union activities, including
the distribution of literature, on hospital time or in
working areas of the hospital at any time except when
specifically permitted to do so in connection with the
grievance procedure.
Assuming without deciding that the asserted waiver was
statutorily effective," it would not appear to be applicable
to the instant circumstances in view of the finding that
Milici was not distributing union literature either on hospi-
tal time (he was on his lunch hour) or in a working area of
the hospital." Accordingly, this defense of Respondent
must be rejected.
In view of all of the foregoing I conclude, and therefore
find, that by prohibiting Milici from distributing union lit-
erature at the time and place above stated, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)( ) of the Act.'6
'1 In its brief, Respondent relied on a decision of the United States Court
of Appeals for the District of Columbia in Baylor University Medical Center
v. N.L.R.B., 578 F.2d 351 (1978), in which the court denied enforcement of
an order of the NLRB which had found a no-solicitation and no-distribution
rule of the Baylor Hospital to be an unfair labor practice in violation of
Section 8(a)1) of the Act. On October 30. 1978, in a per curiam decision of
the United States Supreme Court. certiorari was denied with respect to the
application of the aforesaid no-solicitation no-distribution rule to the corn-
dors of the hospital.
However, I find that case distinguishable from the instant case since the
issue there involved the application of a rule to corridors generally and not to
a specific locality, as in the case at bar. The court noted the evidence in that
case which related directly to the relationship between the corridors and
patient care, such as testimony "that a great deal of the physical therapy
undertaken at Baylor actually took place in the corridors, and that for many
departments the corridors served as the only available waiting room .... and
that at Baylor the comdors seemed to serve as much as additional all-pur-
pose rooms than merely as hallways" (ld. at pp. 355 356). There is no such
evidence in the instant case. In any event, I am required to apply Board
precedent in such circumstances until it has been changed, or reversed by the
Supreme Court. Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963).
"4Cf. The Magnavox Company of Tennessee, 195 NLRB 265 (1972), affd.
415 U.S. 322 (1974).
t' For purposes of this case, the term "working areas" in the above-quoted
section of the contract is construed to be equated with the term "patient care
areas."
16 Respondent contends that this case should have been deferred to the
parties' contractual gnevance-arbitration procedure pursuant to Collyer In-
sulated Wire, supra. However, I agree with the counsel for the General
Counsel's contention that such deferral should not be made in the instant
case which involves a basic, statutory right. See General American Transpor-
tarion c orporation, 228 NLRB 808 (1977).
On the other hand, I disagree with the position of the counsel for the
General Counsel that the aforesaid contractual provision should be found
unlawful on its face. The counsel for the General Counsel, in his opening
remarks, stated that he was not attacking the provision as per se unlawful:
rather, that the General Counsel was attacking the manner in which the
hospital had interpreted the rule, i.e., that Milici was distributing in a work
area. Accordingly, Respondent did not defend the case on that theory nor
was the Union-a party to the contract joined as a party Respondent to
that issue. See N.L.R.B. v. IBEW, Local 2 AFI. CIO, 556 F.2d 76. (D.C
Cir. 1977).
In view of all the foregoing, I find that the prohibition by
Respondent of Milici's distribution of union literature at
the time and place above set forth, constituted interference,
restraint, and coercion of employee rights protected b Sec-
tion 7 of the Act, in violation of Section 8(a)( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRA('TI(ES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the ree
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
conduct in violation of Section 8(a)(1) of the Act, I shall
recommend that Respondent be ordered to cease and desist
therefrom, and to take certain affirmative action designed
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By prohibiting an employee from distributing union
literature in the manner described in section III, above, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'7
The Respondent, Yale-New Haven Hospital, New Ha-
ven, Connecticut. its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any rule or
regulation prohibiting its employees from soliciting on be-
half of any labor organization during their nonworking
time or distributing union literature in nonworking areas
during employees' nonworking time, in any area on Re-
spondent's premises other than immediate patient care
areas.
:7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Prohibiting employees from distributing union litera-
ture in the foyer outside the cafeteria on the first floor of the
Memorial Unit during their nonworking time.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization, to form or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Rescind its rules respecting the areas in which em-
ployees may solicit on behalf of a labor organization during
the employees' nonworking time, and prohibiting distribu-
tion of union literature during employees' nonworking time
in nonworking areas of its operations insofar as such rules
apply to other than immediate patient care areas.
(b) Post at its hospital facility in New Haven, Connecti-
cut, copies of the attached notice marked "Appendix."'"
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
' In the event that this Order is enforced by ajudgment 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."
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate, maintain, or enforce any
rule or regulation which prohibits our employees from
soliciting on behalf of any labor organization on our
hospital premises or grounds other than immediate pa-
tient care areas during employees' nonworking time, or
from distributing other than in immediate patient care
areas literature on behalf of any labor organization in
nonwork areas of our hospital.
WE WILL NOT prohibit employees from distributing
union literature in the foyer outside the cafeteria on
the first floor of the Memorial Unit during their non-
working time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
YALE-NEW HAVEN HOSPITAL
624