Enloe Medical Center

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346 NLRB No. 82 854 Enloe Medical Center and Health Care Workers Un- ion, Service Employees International Union, Lo- cal 250. Cases 20–CA–31806–1, 20–RC–17937, 20–RC–17938, and 20–RC–17939 April 14, 2006 ORDER GRANTING MOTION IN PART, DENYING MOTION IN PART BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On August 27, 2005, the National Labor Relations Board issued its Decision, Order, and Certification of Representative in this case,1 finding that the Respondent violated Section 8(a)(1) of the Act by requiring employ- ees to remove or cover badges that stated, “Ask me about our union” or “Ask me about SEIU” pursuant to its over- broad rule and by promulgating a rule that prohibited the placement of union literature in the employee breakroom. The Board also dismissed a complaint allegation that the Respondent violated Section 8(a)(1) by interrogating employees, and it overruled the Respondent’s election objections and issued a certification of representative. On September 28, 2005, the Respondent filed a motion for reconsideration, and, on October 19, 2005, the Gen- eral Counsel filed an opposition to the Respondent’s mo- tion. In its motion, the Respondent requests that the Board reconsider its findings that the Respondent violated Sec- tion 8(a)(1) by (1) requiring employees to remove or cover badges that stated “Ask me about our union” or “Ask me about SEIU” pursuant to its overbroad rule and (2) promulgating a rule that prohibited the placement of union literature in the employee breakroom. The Re- spondent contends that the violations found differed from those alleged in the complaint and were not fully and fairly litigated. 1. Requiring employees to remove or cover badges Regarding the first violation, paragraph 6 of the com- plaint alleged that the Respondent, through the conduct of five supervisors, “orally promulgated an overly broad no-solicitation rule by prohibiting employees from wear- ing union insignia in all areas of Respondent’s facility.” The record established, and it is undisputed, that the Re- spondent issued a memo to employees stating that the wearing of buttons or lanyard tags reading “Ask me about SEIU” violated the Respondent’s policy. The memo instructed employees to “cease wearing these but- tons in the interior of the hospital, unless they limit their use to non-patient care areas and areas where patients, families and visitors do not frequent, and only wear them 1 345 NLRB 874 (2005). during non-working time.” The Board found that subse- quent actions of certain supervisors, in requiring employ- ees to cover the language “Ask me about our union!” on their lanyard tags or remove the tags pursuant to the rule set forth in this memo, violated Section 8(a)(1).2 “Under well-established precedent, the Board may find a violation not alleged in the complaint, even where the General Counsel has not filed a motion to amend, if the issue is closely related to the subject matter of the com- plaint and has been fully and fairly litigated.”3 Here the violation found was closely related to the complaint alle- gation and was litigated fully and fairly. We recognize that the complaint alleged that the Re- spondent “orally promulgated an overly broad no solici- tation rule.” The Board did not pass on whether the em- ployee conduct was “solicitation.” Rather, the Board found that the written memo was unlawfully overbroad, and that the oral instructions to employees, pursuant to that memo, were thus unlawful. However, the lawful- ness of the Respondent’s memo was placed in issue at the hearing. After employee Kyle Harp testified that Su- pervisor Hosek had told her to remove her lanyard card that said, “Ask me about my union,” Harp was asked on cross-examination if she had received the Respondent’s above-quoted memo concerning the wearing of buttons or lanyard tags. The judge then asked the General Coun- sel’s attorney if she was saying that the memo violated Section 8(a)(1). The judge repeated, “So then, in other words, you’re also saying that this written policy is a violation?” The General Counsel’s attorney replied, “Yes.” No objection was raised to this statement. Further, the Respondent itself linked its solicitation memo to its supervisors’ actions ordering employees to remove their lanyard tags. In its brief to the judge, the Respondent stated: “In order to fully analyze the individ- ual allegations in the complaint regarding ‘promulgation’ of policy by individual supervisors, it is necessary to understand the basic policy pursuant to which those su- 2 In its motion, the Respondent also faults the Board for failing to discuss the specific circumstances of each instance in which a supervi- sor directed employees to remove their lanyard tags or cover the “Ask me about our union!” statement on the tags. However, in this respect the Board merely adopted the judge’s unchallenged factual findings regarding the supervisors’ statements. Indeed, the judge found it “un- necessary to recount the circumstances under which some committee members were confronted by their supervisors about this language on their cards, as each individual was simply made aware of the Respon- dent’s position and was required to cover up the ‘Ask me about’ portion of the card or, in the alternative, to remove the card and simply wear the lanyard.” Id. at 880 fn. 3. The Respondent did not except regarding this finding. 3 Desert Aggregates, 340 NLRB 289, 292–293 (2003), citing Wil- liams Pipeline Co., 315 NLRB 630 (1994); Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). ENLOE MEDICAL CENTER 855 pervisors acted.” (Emphasis added.) The brief then set forth relevant portions of the Respondent’s above-quoted memo to employees and two other documents.4 The brief argued that the Respondent’s policy, stated in those documents, was lawful because, the Respondent con- tended, it barred lanyard tags with the “Ask me about SEIU” message only in areas where restrictions on solici- tation were presumptively lawful.5 The Respondent’s brief to the Board in support of ex- ceptions similarly argued that its above-quoted memo to employees, as well as its two other documents regarding solicitation, were lawful because its policy prohibiting the wearing of tags bearing solicitations extended only to areas where restrictions on solicitation were presump- tively lawful, and the employees who were told to re- move their lanyard tags had been wearing them in a manner inconsistent with this policy. In finding the vio- lation, the Board based its reasoning precisely on the issue that the Respondent’s brief addressed: whether the Respondent’s policy extended only to areas where re- strictions on solicitation were presumptively lawful. Accordingly, as it was alleged at the hearing that the Respondent’s memo to employees regarding the wearing of lanyard tags reading “Ask me about SEIU” violated Section 8(a)(1) and the Respondent argued in its briefs to the judge and to the Board that the rule set forth in this memo was lawful, we find that the violation was litigated fully and fairly. Additionally, we find that the allegation that this memo violated Section 8(a)(1) was closely re- lated to the complaint allegation that the Respondent, through the conduct of five supervisors, orally promul- gated an overly broad no-solicitation rule by prohibiting employees from wearing union insignia in all areas of the Respondent’s facility. Indeed, as noted above, the Re- spondent itself linked its solicitation memo to its supervi- sors’ ordering employees to remove their lanyard tags. Consequently, we deny the Respondent’s motion for re- consideration regarding this violation. 4 The two other documents were a solicitation policy, adopted in 2002, and a January 2004 memo to management concerning lanyard tags. 5 The brief asserted that there was no allegation that its 2002 solicita- tion policy or the statement of policy in its 2004 memo to employees was unlawful. However, the brief did not address the statement of the General Counsel’s attorney at the hearing that the General Counsel was alleging that the memo violated Sec. 8(a)(1). Further, as indicated above, the brief in fact argued that the policy set forth in the memo was lawful. Member Schaumber agrees that the Board’s finding of this unfair la- bor practice was proper. He observes, however, that it would have been preferable for counsel for the General Counsel, having stated on the record that she was alleging a violation for the Respondent’s memo, to have formally moved to amend the complaint accordingly. 2. Restriction against posting union literature Paragraph 7(a) of the complaint alleged that the “Re- spondent, by Gale Mitchell . . . about February 19, 2004, promulgated in writing an overly broad no-solicitation rule by prohibiting employees from distributing Union literature in the break room of Respondent’s facility.” At hearing, the General Counsel established that the Re- spondent sent an e-mail message to employees on Febru- ary 19, 2004, stating: “As we discussed in our staff meet- ings, it is not appropriate for union literature to be . . . placed in our break room.” The Board’s decision found that the Respondent’s e-mail message barring the placing of union literature in the breakroom violated Section 8(a)(1) because the message was facially discriminatory, i.e., it singled out union literature. In its motion for reconsideration, the Respondent con- tends that this violation was not alleged or actually liti- gated and that, therefore, it had no opportunity to put on evidence regarding this violation. We agree that the violation found differed from that al- leged in the complaint. The complaint alleged an “overly broad no-solicitation rule.” The Board found violative an allegedly discriminatory no-distribution rule. We need not address whether, notwithstanding this differ- ence, the violation found was closely related to the viola- tion alleged because, having reviewed the record, we find that the violation, as found, was not fully and fairly liti- gated.6 Because the rule was alleged to be unlawful as “overly broad” and not alleged to be discriminatory, the Respondent would not have known to defend against a contention that the rule was discriminatory, and nothing that occurred at the hearing put the Respondent on notice of such an allegation. As the D.C. Circuit has observed, “the presence of evidence in the record to support a charge unstated in a complaint or any amendment thereto does not mean the party against whom the charge is made had notice that the issue was being litigated.” Con- air Corp. v. NLRB, 721 F.2d 1355, 1372 (D.C. Cir. 1983), cert. denied sub nom. Ladies Garment Workers Local 222, v. NLRB, 467 U.S. 1241 (1984).7 Accord- 6 In Chairman Battista’s view, the difference between the complaint and the violation found is a factor supporting the conclusion that the violation was not fully and fairly litigated. 7 Our colleague faults the Respondent for failing to identify what ad- ditional evidence it would have introduced had it been placed on notice of the allegation on which the violation is based. The Board’s rules, however, do not require a party filing a motion for reconsideration to make such a showing. See Board’s Rules and Regulations, Sec. 102.48(d). Moreover, the issue is not whether such evidence exists, but whether the Respondent was given a fair opportunity to present such evidence. It was not, and we will not prejudge what the Respondent will be able to do with that opportunity. Instead, we will furnish Re- spondent with the denied opportunity. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856 ingly, to remedy any prejudice suffered by the Respon- dent, we shall remand this complaint allegation to the judge to provide the Respondent an opportunity to liti- gate whether the rule contained in its February 19, 2004 e-mail message to employees was discriminatory on its face and, therefore, violated Section 8(a)(1).8 Additionally, Sec. 102.48(d)’s requirement, cited by our colleague, that a party identify evidence requiring reopening of the hearing applies only to motions to reopen the record. The Respondent, however, did not file a motion to reopen the record. Rather, it filed a motion for reconsideration. In that motion, it does not seek a reopening of the hearing. It seeks to have the Board reconsider its decision, this time limiting itself to the complaint as alleged. We have, sua sponte, taken the lesser step of remanding for further hearing on the issue of whether the evidence will support the violation that was previously found. In these circumstances, Sec. 102.48(d) does not apply to the Respondent. Finally, although the Respondent’s motion for reconsideration does not use the terms “extraordinary circumstances” or “material error,” it clearly identifies the claimed errors in the Board’s decision and the circumstances that assertedly compel reconsideration of them. 8 Member Liebman finds the Respondent’s due process arguments without merit and would deny this part of its motion for reconsideration as well. It is long settled that the Board may find and remedy a viola- tion of the Act even without a specific allegation as long as the issue is closely related to the complaint allegation and is fully litigated. Per- gament United Sales, supra; Brad Snodgrass, Inc., 338 NLRB 917 (2003); Golden State Foods Corp., 340 NLRB 382 (2003). Alleging a violation of Sec. 8(a)(1) of the Act, complaint par. 7(a), quoted above, clearly put the Respondent on notice that the lawfulness of the e-mail was at issue and refers specifically to the date on which the e-mail was disseminated. Moreover, the e-mail itself was introduced, without objection, into evidence at the hearing. The Respondent therefore can neither claim surprise that the lawfulness of the e-mail’s content was at issue nor that it was deprived of an opportunity to present evidence about it. The Respondent’s failure to proffer countervailing evidence at that time permitted the Board properly to draw the legal conclusion, based on the plain meaning of the words of the e-mail, that Respondent issued a facially discriminatory unlawful rule. The majority’s reliance on Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1984) is mis- ORDER IT IS ORDERED that the Respondent’s Motion for Re- consideration is denied insofar as it seeks reconsideration of the Board’s finding that the Respondent violated Sec- tion 8(a)(1) of the Act by requiring employees to remove or cover badges that stated, “Ask me about our union” or “Ask me about SEIU” pursuant to its overbroad rule. IT IS FURTHER ORDERED that the Respondent’s Motion for Reconsideration is granted regarding the Board’s finding that the Respondent violated Section 8(a)(1) of the Act by promulgating a facially discriminatory rule prohibiting the placement of union literature in the em- ployee breakroom. Accordingly, the above-entitled pro- ceeding is remanded to Administrative Law Judge Ge- rald A. Wacknov for the purpose of providing the Re- spondent an opportunity to introduce evidence and the parties to submit briefs regarding this issue. IT IS FURTHER ORDERED that the judge shall prepare and serve on the parties a Supplemental Decision con- taining findings of fact, conclusions of law, and a rec- ommended Order in accordance with this order of re- mand. Following service of the Supplemental Decision on the parties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. placed. That case involved a finding of an 8(a)(3) discharge founded upon an allegation of an 8(a)(1) threat of discharge. Here, the violation is of the same class, involving the same section of the Act, and creating the same type of remedial liability as that alleged in the complaint. Moreover, the Respondent’s motion neither claims material error or extraordinary circumstances warranting the Board’s reconsideration of its original decision nor evidence justifying the reopening of the hear- ing, as expressly required by Rules and Regulations §102.48(d)(1). In these circumstances, Member Liebman finds no basis for reconsidera- tion or purpose for remand.