Rochester General Hospital

ROCHESTER GENERAL HOSPITAL Rochester General Hospital and 1199 National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Case 3-CA-6639 January 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 15, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a supporting brief as well as an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I Respondent's motion to remand to the Administrative Law Judge for clarification of certain findings made in her Decision is hereby denied. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on July 14, 1976, by 1199 National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3 (Buffalo, New York), issued a complaint and notice of hearing on December 16, 1976. The complaint, as amended at the hearing, alleges in substance that Rochester General Hospital, herein called the Respondent, on or about July 8, 1976, at various parking lots on hospital premises and at the hospital's main entrance, told nonemployee union organizers to leave the hospital premises and threatened them with arrest if they did not leave, when these organizers were attempting to engage in union organiza- tional activity among the Respondent's employees, and notwithstanding that alternate channels for the Union to 234 NLRB No. 44 communicate with these employees were unavailable, ineffective, or unreasonably burdensome; has since July 8, 1976, discriminatorily applied a no-solicitation, no-distri- bution policy to distribution of union literature to the Respondent's employees on hospital premises by nonem- ployee union organizers; and has by the foregoing conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and thereby engaged in unfair labor practices in violation of Section 8(aXl) of the National Labor Relations Act, as amended. The Respondent, in its answer duly filed and at the hearing, admitted certain factual allegations of the complaint, but denied the commission of the alleged unfair labor practices. Pursuant to due notice, a hearing was held before me at Rochester, New York, on March 21 and 22 and April 20 and 21, 1977. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evi- dence. At the opening of the hearing the General Counsel made an opening statement. At the close of the hearing all the parties waived closing argument. Subsequent to the hearing, on or about June 27, 1977, the General Counsel, the Respondent, and the Charging Party filed briefs, which have been duly considered. The Respondent also filed a motion to correct the transcript. This motion, unopposed by the other parties, is hereby granted, and the transcript is hereby corrected. Upon the entire record in this case and from my observation of the witnesses, I make the following: FnDINos OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a not-for-profit corporation duly organized under, and existing by virtue of, the laws of the State of New York. The Respondent at all times material herein has maintained a hospital on Portland Avenue, in Rochester, New York, herein referred to as the hospital. It is engaged at the hospital, the only facility involved in this proceeding, in the business of providing and performing hospital and health-related services. During the past year the Respon- dent, in the course and conduct of providing these services, received gross revenues in excess of $250,000, and received goods valued in excess of $50,000 that were transported to its place of business in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in com- merce and a health care institution within the meaning of Section 2(6), (7), and (14) of the Act. 11. THE LABOR OROANIZATION INVOLVED I find, as the complaint alleges and the Respondent in its answer admits, that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulations of the Parties The complaint alleges violations of Section 8(a)( 1) of the Act since on or about July 8, 1976. It was stipulated by the parties at the hearing that on that date nonemployee union representatives were stationed on hospital property at various employee parking lots and at the main entrance at approximately 6:30-8 a.m., and again at the entrance for a few minutes about 3:20 p.m.; that they were at these times engaged in soliciting and distributing union literature to persons including employees of the hospital; that security personnel of the hospital approached these union represen- tatives and, after ascertaining their identity, ordered them to leave the Respondent's premises; that in doing so the security personnel were acting in furtherance of hospital policy which, on that date and all times since then, has been to prohibit nonemployees from soliciting or distrib- uting literature to employees on the grounds or within the hospital building; that July 8, 1976, was the only day during 1976 and 1977 on which nonemployee union representatives solicited or distributed to the hospital employees on or adjacent to the Respondent's property; and that the Respondent did not on that date, and would not at any time since that date, allow nonemployee union representatives to solicit the hospital employees or to distribute literature on the hospital grounds or in the building owned by the Respondent. The parties also stipulated that the Union has not filed a petition with the Board seeking representation of any of the hospital employees, and that the Respondent did not file charges against the nonemployee union representatives, and no arrests were made, as a result of the July 8 incidents. On July 9, 1976, counsel for the Union sent a letter to the Respondent stating as follows: It has come to our attention that the security personnel of Rochester General Hospital is interfering with the rights of your employees to organize and select repre- sentatives for the purposes of collective bargaining. Your security personnel are so interfering by refusing to permit representatives of 1199 to distribute leaflets at and around access roads to Rochester General. As the Union is guaranteed the right of reasonable access to employees for the purposes of [organizing], we request that you either: 1. Inform us of areas where our organizers may effectively distribute leaflets to your employees on or around your property, or 2. Submit to the Union ... a list of the names and addresses of your employees in the following catego- ries: professional employees including registered nurses and medical technologists but excluding physicians serving as interns or residents at the Hospital, all technical employees including licensed practical nurses, medical technicians, laboratory technicians, X-ray technicians and similar categories; all service and maintenance employees including nurses aides, ward aides, unit clerks, stock room employees and related categories, and all employees characterized as being business office clerical. Excluded from this request are all supervisors and guards as defined by the National Labor Relations Board Act. Your prompt compliance with this request will aid in assuring your employees full enjoyment of their rights under federal law. The Union filed the charge herein on July 14, 1976. Counsel for the Respondent, on July 19, 1976, replied to the Union's letter as follows: I had every intention of answering your letter. However in the interim, the Hospital received an unfair labor practice charge. While the charge does not allege the facts on which it is based, it leads me to believe that your letter of July 9 was a fishing expedition. If that belief is incorrect, please let me know. The parties stipulated that there was no reply by the Union to this letter. B. The Hospital Premises There are six hospitals in Rochester, of which the Respondent is the second largest as to employees and beds. The parties stipulated that the hospital has about 2,250 employees, of whom about 1,500 work full time and the others part time. There are about 480 inpatients and about 400 outpatients daily. Most categories of employees work three shifts. There are some variations but generally the first shift is from 7:30 a.m. to 4:30 p.m., the second from 3:30 p.m. to 12 midnight, and the third from 11:45 p.m. to 7:45 a.m. Over 80 percent of the employees are on the first shift, about 12 percent on the second, and about 6 percent on the third. The hospital visiting hours are from noon to 8 p.m., 7 days a week. Some employees are required to wear uniforms at work. The uniforms, of different colors, are furnished and laundered by the hospital. Some employees wear the uniforms to and from the hospital but others wear their own clothes and change in the locker rooms. The hospital also issues decals about the size of a half-dollar to employees who park at the hospital. The decals, affixed to the left side of the rear window on the driver's side of the car, indicate by their color the parking area used by the employee. The hospital, located on Portland Avenue, a major artery between the city and its northern suburbs which was widened in 1976, is on about 31 acres in the northeast section of the city about 2-1/2 miles from the downtown area. The main building has 7 floors and about 30 departments as well as employee lounges and locker rooms in the basement, a main conference room, a cafeteria on the ground floor which is used by employees and visitors and may be used also by outpatients and doctors, and a coffeeshop on the ground floor used by employees, visitors, and sometimes patients. There are also a mental health building, an animal laboratory connected to the hospital by a tunnel, and a nursing school in a wing of the hospital that has three floors and contains research facilities also. 254 ROCHESTER GENERAL HOSPITAL The parties stipulated that about 93 percent of all the hospital employees and approximately 97 percent of the employees in the service and maintenance unit live in Rochester or one of several contiguous towns, and that Rochester has a population of about 250,000 and Monroe County about 400,000. There is access to the hospital by car, bus, on foot, motorcycle, and bicycle, but most of the employees come to work by car. There are six parking facilities at the hospital and a seventh to be available sometime in 1977, accommodating hundreds of cars. Some parking facilities are restricted to employee use only, and some are also used by visitors and outpatients. There is also a bicycle rack. The hospital's main entrance, which has a lawn in front, is used by staff members, employees, outpatients, and visitors. There are other entrances as well. Employees may use any of the entrances. There is a bus stop on Portland Avenue at a gravel footpath about 800 feet from the main entrance that is used by employees and others going to and from the hospital. A nearby loop is difficult for regular large buses to turn in but is used by smaller Dial-A-Bus vehicles and by cars to drop and pick up people. The Respondent owns all the parking facilities on its premises, and the North, West, and South Roads at the perimeters. The lot line extends to the sidewalk on Portland Avenue, to South Road on the south where the lot line is marked by a chain, to Carter Street, where there is an overpass, on the west, and to a cyclone fence on the northern boundary. There are no sidewalks at the northern boundary or on a one-way road into the hospital used by employees and others. There are traffic lights at the nearby Portland Avenue intersection, and a traffic turn lane in front of the hospital. Traffic lights to the north and south halt traffic and slow it down at the Portland Avenue main entrance to the hospital. There are three points on Portland Avenue where vehicles enter the hospital and a walkway for pedestrians. There are also roads and pedestrian walks on the hospital grounds which are owned by the Respon- dent. There is a traffic light with a pedestrian button at an enclosed bus stop that was erected by the city transit company and is used by employees and others. Traffic islands extending into the right-of-way from the sidewalk are in part public and in part the property of the Respondent. Nicholas Ustick, the hospital's director of employee relations, testified that the Respondent has no jurisdiction over Portland Avenue, over the gravel foot- path, or over the enclosed bus stop which abuts the sidewalk. Ustick is in charge of security. The hospital formerly contracted for guard service but, since June 1976, has employed about 27 security personnel. Security people are stationed at the information desk in the hospital lobby and patrol the roads in the hospital area. There are located in the vicinity of the hospital a St. Ann's Home, a Norton Home, a Wilson Health Center, a Northside Professional Center, a small shopping center, gasoline stations, and residential areas. Portland Avenue and other nearby roads are heavily traveled particularly during the morning and evening rush hours. I The General Counsel presented testimony of these pre-Sec. I 0(b) events as background only. C. Union Attempts To Organize 1. In 1974 The General Counsel called three witnesses to testify about the Union's attempts to organize the hospital employees, Lawrence Fox, James Blain, and Jennifer Ferguson. Fox, the Rochester area director of the Union, testified that the first campaign activity took place during a 2-week period in about September or October 1974.1 At a later point, however, Fox testified that he went into the hospital to try to organize on two occasions in July 1974; that one time he did not get past the lobby, and the other time he was in the cafeteria; that on both occasions a security guard, after inquiries about why he was there, escorted him out; and that other union organizers who entered the hospital reported to him that they received the same treatment. Fox testified, as to the September-October activity, that the Union obtained from members employed at Strong Memorial Hospital names of persons employed elsewhere, but that none of those named were employed by the Respondent. Fox then directed Moore, an organizer, to apply himself at that time primarily to organization of the Respondent's employees, and to report to Fox daily.2 Fox testified that he told Moore to try to reach employees at the bus stops starting with the enclosed bus stop, but Moore reported that very few passengers were there from 6 to 8 a.m., a total of about 30 "passengers at the enclosed bus stop, and passengers getting off at the main entrance, when the bus pulled in to the bus loop"; that he told Moore to stand at the main entrance, where the passengers got off the bus, but Moore reported being asked to leave there; that he said Moore could not "stand at the bus stop, because it was on the hospital property," so he should ride the bus in the afternoon, observing who got on at the hospital, and talk with them during the ride; and that in that way the Union obtained a few names and addresses and met with some employees of the Respondent. Fox testified that the Union learned from them that very few hospital employees ride the bus to work, and that most of those who did were black whereas the hospital employees were "predominantly white"; that those who took the bus told Moore, and told Fox during home visits Fox made, "that they didn't see white workers, that they tended to eat in the locker rooms by themselves, while the white workers tended to eat in the cafeteria. And they didn't - couldn't make contact with the white workers." Fox testified further that a meeting was held of those who indicated an interest in the Union; that word of the meeting was spread only by word of mouth; that fewer than 20 attended, all of whom were black; that they were "very anxious to organize" but said they were "afraid to talk to the white workers"; and that the union representatives stated to the group that they would try to reach the white workers and "would keep in constant touch" with this group. Fox then assigned union delegates from Strong Memori- al Hospital, on their days off, and other union organizers, 2 Moore was not called to testify. 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a drive coordinated by Fox and Moore to have at least one person go into the hospital every day to make contact primarily with the white workers. Asked then over what period of time this took place, Fox answered, "Well, our intention was to do it as much as was necessary to try and reach in and get those contacts; that is the contact of, primarily, of white workers, but, we were critically short circuited because, in fact, every time we tried to go in to Rochester General Hospital we were escorted out of the building promptly." On cross-examination, Fox stated that this activity went on "I'd say between a week and two weeks." Fox also testified that in the course of this activity the organizers made contact with only about 30 individuals but obtained fewer than 30 names. Fox testified that the last effort made in 1974 was to leaflet one day in October; that he did so with several others but no employees of the Respondent participated; that the leafleting began at various locations at 6 a.m. because, while the main shift change occurred at 7:30, some came to work earlier; that the leafleters tried to concentrate on entrances to the hospital and to the parking lots as they were not sure if the access roads, some of which were a considerable distance from the hospital, were Respondent's property; and that a security guard told him to leave or be arrested, said the access roads were hospital property, and escorted the leafleters off the premises. Fox testified that they then tried to leaflet cars coming from Portland Avenue to the access road which leads to most of the parking lots on North Road; that they were on the curb next to the passenger side of the cars, many of which had no passengers; that a traffic officer came to the intersection at about 7 a.m. and directed drivers who tried to slow down to drive on and they did; and that, after trying from about 6:30 to 8 a.m., the organizers were unable to pass out one leaflet. Fox testified that they distributed about 60 or 70 leaflets, most before they were escorted off the property, and some to those walking in from Portland Avenue; that in the approximately 2- to 3-month period of these efforts, they made fewer than 50 contacts and obtained about 20 addresses; and that he was unable to form a committee as the organizing efforts "only reached into one department, the housekeeping or environmental service department." Ferguson, who was unemployed at the time of the hearing, had previously been employed at Strong Memorial Hospital and while there was a member of the Union from December 1974 to December 1975. She testified that she made one attempt to leaflet the Respondent's employees in the fall of 1974; and that she went to the women's locker room with the leaflets and was talking about the Union to some employees for about 5-10 minutes when a security guard walked in, demanded that she leave under threat of arrest, and escorted her out. Ustick testified that he has observed that black and white employees mingled freely in the employee lounge and cafeteria. He also testified that the leafleting attempt in the hospital locker rooms and parking areas occurred on October 9, 1974; that the organizing activities of nonem- ployees were brought to the attention of security personnel 3 Blain was admittedly very vague as to dates and other particulars and changed some of his answers on further interrogation. by complaints of employees; and that security personnel put a stop to nonhospital-related activities that interfere with hospital work, in accord with the hospital policy, whether engaged in by union organizers or by solicitors for a church. 2. In 1976 Blain, who was not employed at the time of the hearing, worked for the Respondent as an orderly about 6 months and then quit. He testified that he traveled for a time and then went to work as an organizer for the Union in June 1975, but was laid off on February 16, 1977; and that he did not recall but he may have sat in on negotiations of the Union with another employer in April 1976.3 Blain testified that Fox, whom he had known since 1973, was a good friend of his; that they were in communication while he was employed by the Respondent; but that he was not asked to, and did not, engage in any union activity during that period. Blain participated in both morning and afternoon leafleting on July 8, 1976. He testified that all the leafleters wore paper hats identifying the Union; that 1,000 leaflets were prepared, of which, be estimated, 600 were handed out in the morning and 200 in the afternoon. Ferguson testified that she participated in leafleting at the hospital in the morning and afternoon on one day in July 1976; that she and other organizers were on the sidewalk by the main door at about 6 a.m. when a security guard asked them to leave and said they had no right to be on Respondent's property; that the organizers said they had that right and suggested the guard check with Fox who was behind the building; that he left to do so and they distributed for about 15 minutes; that at about 7 a.m. Fox came to where they were distributing and said they should stop and get off the property; and that she and Piccus, another organizer, then "went down to the sidewalk that runs along, next to the enclosed bus stop on Portland Avenue.... We continued to pass out Union leaflets, but no people came by, or got off the buses to hand a leaflet to. So, we stood there a few minutes, and then left the premises"; and that there was no attempt at that point to leaflet automobiles. Ferguson testified that she and Mark Rita, another organizer, were leafleting at the entrance to the Respondent's parking ramp at about 2:30 that after- noon; that after about 10 minutes a security guard approached and said if they did not leave the property they would be arrested; that they left the property and stood on Portland Avenue "on the gravel footpath that is next to the traffic light near the entrance to the parking ramp," one standing on the footpath, the other on the sidewalk; that "we attempted to leaflet the cars coming in and out for a very short period of time, because it proved to be impractical standing there.... we observed that it was very difficult for cars coming in and out to stop for us, and we also felt it was very dangerous for us to stand in that particular spot .... because of the speed of the cars going by, in and out." Ferguson testified that they stayed there "Maybe 15 minutes" and then left because they were unable to leaflet the passing cars. 256 ROCHESTER GENERAL HOSPITAL Fox testified that two attempts to leaflet were made on July 8, 1976, and that he was present at the one in the morning. He also testified that the organizers tried first to reach the contacts made in 1974, but most had left the Respondent, "so, we discovered that, in fact, we were starting from scratch again"; that, after this leafleting on July 8, the Union received about 5-10 telephone calls from hospital employees, made 2 or 3 home visits, held, he thought, 3 meetings at the union office, and had fewer than 5 employees attending 2 of the meetings but 20 to 30 at the third; and that no committee had as yet been formed among these employees. Fox testified that, as a matter of general policy, the Union does not use advertising by airplane streamers, sound trucks, or bullhorns, because the noise would disturb hospital patients; that it uses bumper stickers in regard to elections but not in organizing campaigns as they cannot be made sufficiently informative; and that the Union does not attempt to obtain names from car license plate numbers for various reasons, including the fact there are large numbers of cars going in and out of the hospital, organizing in Rochester is frequently done in the darkness of early morning or when plates are covered by snow so they cannot be read, it is difficult to write down numbers on moving vehicles as the Union does not have access to the parking areas, the car may be registered to someone who is not a hospital employee, and some individuals would resent this invasion of privacy by the Union. Fox admitted that the Union might consider this method "useful" in organizing a smaller institution or one in a smaller town. Fox testified further that the Union does not use spot radio advertising as it is too expensive, may not be heard by those whom the Union is trying to reach, and may antagonize the community by referring to a union cam- paign at an unorganized hospital before the Union has talked to the employees; that the Union does not advertise on television as it is even more expensive; that it does not advertise in the local newspapers for similar reasons; and that the Union does not parade on the street with banners or advertise by bus placards as it considered these to be ineffective means to reach the employees. Fox testified that, after the activities on July 8, 1976, the Union had the names of about 20 current employees of the Respondent but only about 10 to 15 with addresses. Fox testified further, on cross-examination, that he had given an accurate and complete description of the Union's activities in trying to organize the Respondent's employees, that there were no further activities after the July 8 leafleting, and that during these activities none of the union agents were employees of the Respondent. D. Activities Permitted on Hospital Premises Ustick testified that the hospital's no-solicitation, no- distribution policy or rule, which is not alleged to be unlawful, was in effect when he came to work at the hospital in December 1973, that it is not posted but is in an employee handbook given to all employees, that the large number of bulletin boards located throughout the hospital are basically for management use and may be used by employees only with approval by the public relations department, and that he assumed permission would not be granted to post union literature. Ustick also testified that the Respondent tries to maintain quiet throughout the hospital area, to avoid any conduct that might impede employees' service to patients, and to assure access to the hospital by emergency vehicles 24 hours a day. He also testified that the Respondent did not interfere with a group soliciting on the Portland Avenue sidewalk for a church or with a group soliciting there in 1974 for the Union. Counsel for the General Counsel, directed in response to the Respondent's bill of particulars to show the dates or approximate dates and the names of nonemployees or nonemployee organizations permitted to distribute litera- ture or solicit on hospital premises, answered as follows: I. On or about October 5, 1976, Respondent did allow the Genesee Valley Nurses Association to solicit on hospital premises. 2. Additionally, on unknown dates between Sep- tember 1974 and April 1975, Respondent did allow distribution or solicitation within the hospital by the following types of organizations and non-employees: (a) Unidentified representatives of drug com- panies whose corporate names are presently unknown. (b) Unidentified representatives of medical products manufacturers whose corporate names are presently unknown. (c) Volunteer hospital auxiliary group, the name of which is presently unknown. (d) American Red Cross The General Counsel presented testimony as to this matter, including testimony, as background, of Blain, who left the Respondent's employ in about March 1975. Blain testified that while he was employed at the hospital he saw in a small hallway displays by medical book publishers and drug companies, and that the book display personnel buttonholed interns to sell books, and the drug detail men handed out drug samples or pens and other advertising souvenirs. Blain also testified that he saw Red Cross blood drive posters announcing that blood could be donated during working hours, and that he donated blood during his worktime. Blain also testified that there were sales of craft products by Twig, a group of volunteers. The General Counsel also presented evidence with regard to a meeting of the Genesee Valley Nurses Associa- tion, referred to herein as GVNA, that was held in the hospital conference room on October 5, 1976. The evidence shows that GVNA comprises District 2 of the state nurses association, which is affiliated with the national associa- tion, but that GVNA has its own membership, officers, board of directors, bylaws, programs, and dues, and functions autonomously. Most of its board members and officers are employed in supervisory positions. The Gener- al Counsel presented evidence that the state association has filed election petitions and was viewed by Regional Offices of the Board, in regard to the processing of those petitions, as a labor organization. There is no evidence, however, that GVNA has ever functioned as a labor organization. Moreover, June McDowell, a registered nurse who is regional coordinator of the state association, testified, as a 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witness for the Respondent, that the state association has a separate program under which it engages in collective bargaining, but that the state association and its districts, including GVNA, are separate incorporated entities, that GVNA has never functioned as an organizing or bargain- ing agent for nurses or in any other labor organization role, and that GVNA is not even notified when collective- bargaining activity is undertaken in its district by the state association. The GVNA membership committee sent a letter, ad- dressed to "Dear Colleague," to 10,000 nurses in a 6- county area.4 The letter, undated but apparently sent in about September 1976, announced a program of four meetings, to be held on four dates in October and November at four locations, to consider "professional and health care issues." The letter also invited membership in GVNA and suggested that those who chose "not to attend an informational meeting but would like to join GVNA please complete the attached application and mail it to us with your remittance." The attached sheet listed the "Objectives" and the "Advantages" of GVNA member- ship, with places to designate thereon whether an applica- tion was for membership in GVNA at a $15 fee, in the state association only at $50, or in GVNA and the state and national associations at $100. The first meeting listed was that of October 5, 1976, at 7 p.m., to be held in the Respondent's main conference room and to be a "Combination Meeting: Busi- ness/Program/Membership." 5 Dorothy Blewitt, executive director of GVNA, testified, as a witness for the General Counsel, that GVNA, in preparing its program, planned to have a doctor on the staff of the hospital speak on his medical specialty and demonstrate with certain hospital equipment, and arranged the October 5 meeting at the hospital for that reason. The doctor later became unavail- able but another doctor, also on the staff of the hospital in the same special field, was substituted as the speaker and used the hospital equipment for demonstration purposes. Carol Vacanti, chairman of the membership committee and member of the program committee of GVNA, and employed as a director of nursing at St. Mary's Hospital, testified, as a witness for the Respondent, that she helped prepare the October 5 program; that she got in touch with the doctor who was scheduled to speak the previous July; that in July she also told Linda McKenna, a nurse at the hospital who was engaged in nursing service staff develop- ment, who booked the conference room, that the meeting would present a program, including a talk by a hospital staff doctor, but made no mention of a membership drive at this meeting; and that the program calendar, prepared about August 1 and mailed to the entire membership about mid-August, lists events for various dates from September I to December 7, including the "General Busi- ness/Program Meeting" from 7 to 10 p.m. on October 5 at the hospital, states the subject matter of the business meeting to be held at 7 p.m., identifies the hospital doctor and his subject to be presented at 8 p.m., and makes no reference to membership. 4 The names and addresses were obtained from the state association. 5 The other meetings were listed to take place at Alfred University, Keuka College, and Avon Nursing Home. The letter did not state the Blewitt and Vacanti, who were at the October 5 meeting, both testified that about 50-60 were present; that the meeting was open to all members, not the Respondent's nurses only; and that they did not recall whether any of the Respondent's employees were present. Blewitt also testified that she did not recall any discussion of membership, and that she believed there was an announcement that applica- tions were available, and they may have been, but she did not see them distributed. Vacanti testified that membership cards were on a table but she did not see anyone sign one, and that Blewitt made a few remarks at the end of the meeting about the purposes of GVNA as those present were walking out, but there was no "active solicitation" of membership and no specific reference to signing applica- tions. The Charging Party was permitted, over the Respon- dent's objection, to recall Ustick as a rebuttal witness and to question him about use by nonemployees of hospital premises within the 10(b) period. Ustick at this time testified that the Red Cross blood drive occurs twice a year, that posters in the hospital announce the drive, that the Red Cross at the announced time draws blood from donors in the main conference room, that the blood is for the blood bank, and that this is in effect hospital solicitation as the blood drive is for the benefit of the hospital communi- ty. Ustick also testified that posters in the hospital advertise annual sales by Twig of handcraft products; that Twig is an organization of women volunteers whose services and funds are devoted to the benefit of the hospital; that it is under hospital sponsorship as it is part of the Women's board which is part of the board of directors of the hospital; and that the annual fund-raising sale, advertised throughout the area as well as in the hospital, is held at the county fairground, and all the proceeds are contributed to the hospital. Ustick also testified that drug detail men and medical book publishers are permitted to put up displays very infrequently; that he never saw detail men distribute samples of over-the-counter drugs or advertising souvenirs, and the drugs displayed are not for sale to employees or doctors but to the hospital pharmacy based on what the doctors prescribe; and that the books displayed are of interest to doctors, and there is no medical bookstore in the hospital. E. Contentions of the Parties The General Counsel urges that the hospital is bounded by busy highways and by access roads owned by the hospital; that many hospital employees drive to work and park on one of the several hospital parking lots; that the Union has been trying to organize units of hospital employees since 1974, and tried in 1974 to reach the employees by unsafe and unproductive methods at the hospital perimeter; that nonemployee organizers should be given the right of access to parking lots and nonpatient care areas of the hospital because of the inaccessibility to the hospital employees and the ineffectiveness of other purpose of these meetings but the testimony shows they were membership meetings only. 258 ROCHESTER GENERAL HOSPITAL reasonable alternative means of effective communication with them; that the Respondent applies its no-solicitation, no-distribution rule discriminatorily as it grants access to nonpatient care areas of the hospital to others, but bars union organizers there and on the parking lots; and, therefore, that the Respondent's refusal on July 8 to give nonemployee organizers access to employees at the parking lots was violative of Section 8(a)( 1) of the Act. The Respondent maintains that the Union did not exhaust other available means of communication with the hospital employees; that the Union tried to organize only on a few days in 1974, and for short intervals on one day in 1976 and 1977 up to the date of the hearing; and that other nonemployee solicitation is permitted on hospital premises only if related to hospital business and health care. The Respondent maintains further that all the evidence present- ed by the General Counsel with regard to disparate application of the Respondent's policy pertained to pre- Section 10(b) matters except the GVNA meeting of October 5 in the hospital conference room; that there was no notice to the Respondent that this meeting pertained to GVNA membership or to any subject matter other than a lecture to an organization of nurses on a medical subject by a hospital doctor using hospital equipment to demonstrate his talk; that there was no actual solicitation of member- ship at the meeting; that there was no evidence that employees of the Respondent attended the meeting; and that there was no evidence that GVNA had labor organiza- tion status. Concluding Findings Much of the evidence presented in this case is based on agreement of the parties or on unrefuted testimony. There are, however, some conflicts in the testimony. I found Ustick, who was called as a witness at different points in the hearing by the General Counsel and the Charging Party as well as the Respondent, a candid, believable, and convincing witness. I therefore credit his testimony where it is in conflict with that of Fox or Blain, witnesses called by counsel for the General Counsel, whose demeanor and testimony I found less reliable than that of Ustick. The General Counsel argues that certain activities that took place on hospital premises show discriminatory application of the Respondent's policy or rule. The activi- ties include Red Cross postering and blood collection in the hospital for the blood bank, postering of sales by a volunteer group which donates all the proceeds to the hospital, displaying of pharmaceutical products that doc- tors might prescribe and the hospital pharmacy might therefore purchase, and displaying of medical books of interest to the doctors. I find, on the record as a whole, that these were work-related activities that assisted the hospital in carrying out its community health care functions and responsibilities, and not such disparate application of a valid no-solicitation, no-distribution rule as to require the 6 The Supreme Court has held, in N.L.R.B v. United Steelworkers of Amenrca, CIO [Nutone, Incorporatedl. 357 U.S. 357, 364 (1958), that "the Taft-Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the Respondent to waive its rule and permit access to its premises by nonemployee union organizers. I find further that the GVNA meeting was booked in the conference room for what the Respondent was informed would be a lecture to an organization of nurses by a staff doctor on the subject of his medical specialty, demonstrated on special hospital equipment, with no reference to a membership drive, and that this meeting likewise does not establish such discriminatory application of the rule as to require that the Respondent give the nonemployee union organizers access to its premises. 6 The General Counsel has established that it is difficult for the Union, lacking access to hospital premises, to organize the units of employees it seeks to represent. Factors contributing to the difficulty are the size of the hospital premises and the number of employees who drive to and from work from widely dispersed geographical areas and park in one of the several parking areas on hospital premises; the problem of identifying the employees of the Respondent, some but not all of whom wear uniforms to and from work in an area where various other health establishments are located; and the heavy traffic on adjoining public roads, particularly at the time of shift changes; and the Respondent's ownership of access roads. The Respondent maintains that the Union did not make a reasonable effort to organize the hospital employees before seeking to gain access to hospital premises. The Union carried on some organizing activity for a very short period in about September-October 1974, and made contact with some of the hospital employees who were interested in organizing. Although, as Fox testified, the union organizers assured these hospital employees that they "would keep in constant touch," the next, and only, further organizing activity took place on one day in July 1976. As Fox also testified, in July 1976 the union organizers tried to reach the contacts made in 1974, but most of them had left the Respondent "so, we discovered that, in fact, we were starting from scratch again." Some turnover among the employees in question during this long interval was surely to be expected. In any event, "starting from scratch" involved leafleting activities for part of one day, July 8, 1976, following which the charge herein was filed. The record does not show that the Union made a reasonable effort to form a nucleus of the employees recruited in 1974 to recruit other employees. I do not credit the assertions that it was not possible for the black employees who expressed a desire for union organization to communicate with the white employees and find that these groups did mingle on hospital premises, as Ustick testified. Moreover, no union effort was made to organize through white employees like Blain, an old friend of Fox's, and evidently sympathetic to union organization. The evidence also does not show that the Union made reason- able efforts to leaflet at different hours and in different traffic situations at the several intersections where cars go employer is using it." See also Super X Drugs of Wert Virginia, Inc., 169 NLRB 264(1968); Block-Southland Sportswear, Inc., Southland Manufactur- ing Company, Inc., 170 NLRB 936, 946 (1968); The May Department Stores Company d/b/a Famous-Barr Company, 174 NLRB 770 (1969); Serv-Air, Inc., 175 NLRB 801 (1969); ef. George Washington University Haspital, a Division of the George Washington University, 227 NLRB 1362 (1977). 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and out of the hospital premises and at the several bus stops. Further, although the Respondent is the second largest hospital in Rochester, the Union has organized the largest. And as to the lack of identifying uniforms on some of the hospital employees, many plants are organized where none of the employees wear uniforms. The Union has likewise not used radio, television, or newspaper advertising, bus placards, bumper stickers, or displays of union signs on Portland Avenue, nor has it tried to obtain names and addresses from license plate numbers in attempting to organize the Respondent's employees. Fox testified that these methods were not tried because, as a matter of union policy, they are considered too costly and/or ineffective. As the General Counsel's brief points out, the Board does not require a union to utilize means of communication shown to be too costly or ineffective for organizational purposes. The methods are referred to not as a list of what a union must do to organize but as an indication of the various means of communication avail- able to nonemployee union organizers without access to the employer's premises. The General Counsel also points to the very small percentage of unit employees whose names and addresses the Union was able to obtain as showing the great difficulty of organizing these employees without access to the Respondent's premises. This may equally be the result, however, of an inadequate organizing effort by the Union. The United States Supreme Court, in N.L.R.B. v. The Babcock & Wilcox Company, 7 pointing to the distinction to be made between rules of law applicable to employees and those applicable to nonemployees, held that "an employer may validly post his property against nonemployee distri- bution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution." The Court stated further that accommodation between an employer's prop- erty rights and employee organization rights "must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization." The Court went on to state that "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communi- cation of information on the right to organize." The Court concluded that the plants involved in that case "are close to small well-settled communities where a large percentage of the employees live. The usual methods of imparting information are available.... The various instruments of publicity are at hand. Though the quarters of the employ- ees are scattered they are in reasonable reach. The Act .... does not require that the employer permit the use of r 351 U.S. 105 (1965); see also Central Hardware Company v. N.LRKB., 407 U.S. 539 (1972); Hudrens v. N.L.R.B., et al., 424 U.S. 507, 521 (1976). s The Court referred, with regard to a union's usual methods of imparting information, to contacts with employees not only by distributing literature to some but also by sending them literature through the mails, talking to them on the streets, going to their homes and talking with them its facilities for organization when other means are readily available."s The Board has declared, in considering, on remand, the rights of access in organizational and picketing situations, that "Section 7 of the Act was intended to protect the rights of employees rather than those of nonemployees .... seeking to organize them"; that a violation found in this situation is based on the principle that "it is the employees' right to receive information on the right to organize that is abrogated when an employer denies nonemployee union organizers access to the employer's property"; and that "[I ]n an organizational campaign, the group of employees whose support the union seeks is specific and often is accessible by means of communication other than direct entry of the union organizers onto the employer's property, such as meeting employees on the street, home visits, letters, and telephone calls." 9 Further, the Board requires that the evidence must show that a union is unable by reasonable efforts through other available channels of communication to reach the employees with its message before it will require an employer to grant nonemployee organizers access to its premises, and has set forth various available methods whereby a union may reach employees without access to an employer's premises.i 0 I find that, while the General Counsel has shown in this case that it was difficult for the nonemployee union organizers to organize the Respondent's employees in the units the Union seeks to represent, the record does not establish, in all the circumstances of this case, that the Union was unable by reasonable efforts through various available channels of communication to reach the Respon- dent's employees, or that the Union made a reasonable effort to do so, or that the difficulty has been shown to warrant requiring the Respondent to waive its rule and grant the nonemployee union organizers access to its premises. I likewise find that the record does not establish that the Respondent has discriminatorily applied its valid no-solicitation, no-distribution policy or rule to prevent union activities on its premises by nonemployee union organizers. Accordingly, I find, in conclusion, on the basis of the foregoing and the evidence in its entirety that the General Counsel has failed to establish, by a preponder- ance of the credible and probative evidence, that the Respondent has engaged in unfair labor practices in violation of Section 8(aXl) of the Act.l I shall therefore recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Rochester General Hospital is an employer engaged in commerce and a health care institution within the meaning of Section 2(6), (7), and (14) of the Act. there, and talking with them on the telephone. See also Central Hardware Company v. N.L. R. B., supra; Mike Yurosek d Son, 229 NLRB 152 (1977). 9 Scott Hudgens, 230 NLRB 414.416(1977). i' The Falk Corporation, 192 NLRB 716 (1971). II See G. C. Murphy Company., 171 NLRB 370(1968); Monogram Models, Inc., 192 NLRB 705 (1971); The Falk Corporation, spra, Mike Yurosek & Son, supra; Forest City Tool Company, 231 NLRB 370 (1977). 260 ROCHESTER GENERAL HOSPITAL 2. 1199 National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has, as alleged in the complaint, engaged in unfair labor practices in violation of Section 8(aX)(1) of the Act. " 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. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 12 It is ordered that the complaint herein shall be, and it hereby is, dismissed in its entirety. 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. 261