A.T. & S.F. Memorial Hospitals, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD A.T. & S.F. Memorial Hospitals, Inc. and Margaret Smaldino. Cases 28-CA-4143 and 28-CA-4173 January 25, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 23, 1977, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Respondent filed a brief in reply to the Charging Party'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 only to the extent consistent herewith. We agree with the Administrative Law Judge that Respondent's discharge of Margaret Smaldino did not violate Section 8(a)(3) of the Act. However, contrary to the Administrative Law Judge, we are of the opinion that the written counseling memo given to Smaldino on December 6, 1976,2 was issued, at least in part, pursuant to Respondent's invalid no- solicitation rule. Accordingly, we find that this reprimand violated Section 8(a)(1) of the Act. Respondent's Employee Policy Manual contains the following "Solicitations" rule: "[N]o solicitation of any kind is permitted on hospital property without the express permission of the Administrator. This includes circulating petitions, selling merchandise, selling chances, or distributing literature." Respon- dent also maintains a policy prohibiting the personal use of hospital property. It is undisputed that on December 4 Smaldino used hospital stationery in her distribution of union literature in the hospital's intensive care unit. Hospi- tal Administrator Branham subsequently reminded Smaldino that her use of hospital property on that occasion violated hospital policy. In addition, on December 6, Branham gave Smaldino a written memo which stated, in pertinent part: To record the counselling I gave you today, about using hospital stationery on company time to I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 234 NLRB No. 65 distribute private correspondence to nurses, in the hospital work areas ... If you are not working at the hospital, on hospital business, you are not to be here, except for treatment. The Administrative Law Judge correctly found that Respondent had violated Section 8(a)(1) of the Act by maintaining an overly broad no-solicitation rule. However, he further determined that the rule is presumptively valid to the extent that it prohibits certain activities in the intensive care unit. Under the Administrative Law Judge's analysis, the nurses' station in the intensive care unit where Smaldino engaged in solicitation and distribution activities is both a working area of the hospital and an immedi- ate patient care area. He accordingly found that Smaldino's activities in the intensive care unit were not protected from discipline and that the reprimand given to her therefor was not unlawful.3 We do not agree with the Administrative Law Judge's findings in this regard. Initially, the Board has consistently held that when an employer main- tains overly broad no-solicitation and no-distribution rules, such rules are "invalid for all purposes and not valid in part as they apply to a given area." 4 Accordingly, the Administrative Law Judge was incorrect in determining that the no-solicitation rule is valid to the extent that it applies to the intensive care unit. Therefore, if Smaldino's reprimand was the result of Respondent's enforcement of its unlawful rule, then the reprimand is itself unlawful. 5 We are of the opinion that the wording of the counseling memo clearly indicates that Smaldino was being rebuked not only for using hospital property in her distribu- tion activities, but also for engaging in the distribu- tion itself. The fact that one reason for her reprimand was lawful in no way diminishes the fact that the other reason was unlawful. Inasmuch as the repri- mand issued pursuant to Respondent's invalid no- solicitation rule and thereby interfered with Smaldi- no's exercise of the rights guaranteed her under Section 7 of the Act, we find that the reprimand was in violation of Section 8(a)(l) of the Act. 2 All dates are in 1976 unless otherwise indicated. I The Administrative Law Judge further determined that Smaldino was properly reprimanded in accordance with hospital policy prohibiting the use of hospital property for personal purposes. 4 The Times Publishing Company, 231 NLRB 207 (1977). 5 Baptist Memorial Hospital, 229 NLRB 45 (1977). 436 A.T. & S.F. MEMORIAL HOSPITALS AMENDED CONCLUSIONS OF LAW Add the following as paragraph 4 of the Adminis- trative Law Judge's Conclusions of Law and renum- ber the subsequent paragraphs accordingly: "4. By enforcing an unlawful no-solicitation rule and by reprimanding Margaret Smaldino for violat- ing the unlawful no-solicitation rule, Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, A.T. & S.F. Memorial Hospitals, Inc., Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating, maintaining, and enforcing any rule or regulation which prohibits its employees from soliciting on behalf of any labor organization during their nonworking time in other than immediate patient care areas of Respondent's hospital, or which prohibits its employees from distributing literature on behalf of any labor organization during their nonworking time and in nonworking areas of the hospital premises. (b) Reprimanding or otherwise disciplining its employees for having violated its unlawful no-solici- tation rule. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind the "Solicitations" rule in Respon- dent's Employee Policy Manual to the extent that it prohibits employees from soliciting on behalf of any labor organization during their nonworking time in other than immediate patient care areas of Respon- dent's hospital, and to the extent that it prohibits employees from distributing literature on behalf of any labor organization during their nonworking time and in nonworking areas of the hospital premises. (b) Withdraw from the personnel file of Margaret Smaldino all written reprimands or counseling mem- oranda which relate to Respondent's unlawful no- solicitation rule. (c) Post at its Albuquerque, New Mexico, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive 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. (d) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. e In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 em- ployees from soliciting on behalf of any labor organization during employees' nonworking time in other than immediate patient care areas of our hospital, or which prohibits our employees from distributing literature on behalf of any labor organization during their nonworking time and in nonworking areas of the hospital premises. WE WILL NOT reprimand or otherwise discipline employees for having violated the hospital's un- lawful no-solicitation rule. 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. WE WILL rescind the "Solicitations" rule in our Employee Policy Manual to the extent that it prohibits our employees from soliciting on behalf of any labor organization during employees' nonworking time in other than immediate patient care areas of our hospital, and to the extent that it prohibits our employees from distributing litera- ture on behalf of any labor organization during their nonworking time and in nonworking areas of the hospital premises. WE WILL withdraw from the personnel file of Margaret Smaldino all written reprimands or counseling memoranda which relate to the hospi- tal's unlawful no-solicitation rule. A.T. & S.F. MEMORIAL HOSPITALS, INC. 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original charge in Case 28-CA-4143 was filed on Decem- ber 7, 1976, by Margaret Smaldino. The first amended charge in Case 28-CA-4143 was filed on December 27, 1976, by Smaldino. The charge in Case 28-CA-4173 was filed on January 3, 1977, by Smaldino. An order consolidating cases, consolidated complaint, and notice of hearing was issued on January 19, 1977, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 28. The General Counsel's consolidated complaint alleges that A.T. & S.F. Memorial Hospitals, Inc., herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer to the consolidated complaint, raised certain affirmative defenses, and denied the commission of the alleged unfair labor practices. The hearing was held before me on May 3, 4, and 10, 1977, at Albuquerque, New Mexico. Counsel for the General Counsel, the Charging Party, and the attorney for the Respondent timely filed briefs by the due date of June 28, 1977. The briefs have been read and considered. On July 13, 1977, I received a letter from the attorney for the Respondent who indicated that copies of his letter had been sent to all of the parties. The letter pertains to what the Respondent views to be a "misstatement of fact" in counsel for the General Counsel's brief. Thereafter, on August 1, 1977, I received a document entitled "Motion To Strike and Disregard Communica- tion" which was filed by counsel for the General Counsel who requests that the letter from the Respondent's attorney be stricken and disregarded. A similar situation presented itself in an earlier case before me with regard to a letter entitled "Clarification of Facts" which I received from another attorney who asserted in that case that there were "serious misstatements of the record" in the brief that had been filed by another counsel for the General Counsel. My analysis of the Board precedents concerning what is, in effect, a reply brief is set forth in footnote I of International Harvester Company, 227 NLRB 85, 88 (1976). In addition, I advised all of the parties in this proceeding at the time of the setting of a due date for the filing of briefs of the following: "As you know, the Board's rules and regulations do not provide for the filing of reply briefs so this is your one opportunity to brief the case to me." In view of the foregoing and for the reasons set forth in the International Harvester decision, I have decided to reject the letter from the Respondent's attorney, and, therefore, I have placed the letter and the General Counsel's motion in the rejected exhibit file. There are some inadvertent clerical errors in the tran- script, but those can be recognized as such without the necessity of having a detailed correction of the record. However, there is one error which could be misinterpreted by someone who was not present at the hearing. If left alone, the error would be unfair to a witness. The error obviously stems from the fact that the word "there" sounds somewhat similar to "fair," at least it did to the court reporter while I was commenting on an objection made on the basis of hearsay. I was indicating to the witness that she was not "there" or present at the conversation between Smaldino and Monteith. Unfortu- nately, the court reporter recorded the statement as my saying the witness was not "fair." Accordingly, I hereby correct the portion of the record at transcript page 435, lines 4 through 7, to substitute the word "there" in two places instead of the word "fair" so that the record will read: "I don't mean this as critical of you, Mrs. Courney, but you weren't there, so to speak, and therefore did not witness whatever was said between Mrs. Monteith and Mrs. Smaldino, but as I said I'm not criticizing you, but I'm just saying that you were not there... ." FINDINGS OF FACT Upon the entire record in this proceeding and based on my observation of the demeanor of the witnesses, I make the following findings of fact. I. JURISDICTION The Respondent has been at all times material herein a Kansas corporation with its principal place of business located in Topeka, Kansas. The Respondent has operated a nonprofit hospital and has maintained an office and place of business at 806 Central Avenue, S.E., in Albuquer- que, New Mexico. During the 12 months preceding the issuance of the consolidated complaint, which period of time is representa- tive of the Respondent's operations at all times material herein, the Respondent purchased goods and materials valued in excess of $50,000 which were transported in interstate commerce and delivered to its place of business in Albuquerque, New Mexico, directly from States of the United States other than the State of New Mexico. During the same period of time, the Respondent's gross revenue was in excess of $500,000. Upon the foregoing facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was admitted in the pleadings that the International Association of Machinists and Aerospace Workers, AFL- CIO, herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that fact to be so. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings are: 438 A.T. & S.F. MEMORIAL HOSPITALS I. Whether the Respondent maintained, enforced, or otherwise gave effect to a no-solicitation and no-distribu- tion rule which interfered with, restrained, and coerced its employees in violation of Section 8(aXl) of the Act. 2. Whether the Respondent gave a verbal reprimand and a written reprimand to Margaret Smaldino on or about December 6, 1976, because she had violated the no- solicitation and no-distribution rule, and whether the Respondent thereby violated Section 8(aXl ) of the Act. 3. Whether the Respondent discharged Margaret Smal- dino on or about January 4, 1977, for either one or both of the reasons set forth below, and whether the Respondent thereby violated Section 8(aXl), (3), and (4) of the Act: (a) Because she had engaged in union activities or other concerted activities protected by the Act, and/or (b) Because she had filed unfair labor practice charges against the Respondent under the provisions of the Act. B. The Representation Proceedings The parties entered into a stipulation with regard to certain undisputed facts concerning the representation case proceedings. On March 26, 1976, a petition was filed by the Union in Case 28-RC-3142 for an election among certain employees of the Respondent. On April 6, 1976, the Respondent and the Union entered into a Stipulation for Certification Upon Consent Election agreement in which they agreed to the holding of elections in four units of the employees of the Respondent. Unit A was limited to all registered nurses. Unit B was limited to all licensed practical nurses, laboratory and X- ray employees. Unit C was limited to all business office clerical employees. Unit D was limited to all clericals, excluding business office clericals, but including food service employees, porters, maintenance employees, and orderlies. On May 19, 1976, an election was conducted in each of the four units. An original tally of ballots in Unit A indicated that 10 votes had been cast for, and 7 against, the Union, and 4 votes were challenged. In Unit B there were 10 votes against the Union, and 3 votes for the Union. In Unit C there were three votes against the Uniop, and one vote for the Union. In Unit D there were 39 votes for the Union, and 5 votes against the Union. One of the four challenges in the election in Unit A was the challenge made by the Board agent to the ballot of Margaret Smaldino, the Charging Party herein, as her name did not appear on the voter eligibility list. Subse- quently, the Respondent and the Union entered into a stipulation whereby they agreed that one of the challenged voters was a supervisor and that her ballot should not be counted. They also agreed that the other three voters, including Smaldino, were eligible voters and that their ballots should be counted. Subsequently, the revised tally of ballots issued on June 30, 1976, with regard to Unit A indicated that I votes had been cast for the Union and 9 votes had been cast against the Union. Thereafter, on July 16, 1976, the Board issued a Decision and Certification of Representative in which, among other things, the Union was certified as the representative of the employees in Unit A and Unit D. C. A Comment on the Credibility of the Witnesses The findings of fact herein will be based on the credited testimony given by Betty L. Rutter, Diane Dale Courney, Louise Smith, Alan A. England, and 0. C. Branham, as well as on numerous items of documentary evidence and a stipulation of the parties. I found the testimony of the foregoing persons to be the truthful and accurate accounts of the events. Their demean- or on the witness stand was reassuring that they were relating the facts as best as they could recall in view of the passage of time between the events and the hearing. Their choice of words and expressions were not identical, but, if they had been, that would have been most unusual for them to have recalled with identical precision these past events. As will be seen later, there had been sharp conflicts in the past between Smaldino and Rutter, and also between Smaldino and Courney. Notwithstanding those past differ- ences among those persons, neither Rutter nor Courney exhibited a hostile, vindictive, or vengeful attitude towards Smaldino while they were giving their testimony. Even while each one was being cross-examined on the witness stand by Smaldino as the Charging Party their demeanor remained the same. It is noteworthy that both Courney and England were no longer employed by the Respondent at the time of the hearing in this proceeding, but, more importantly, the witnesses named above gave a clear and coherent account of the many events which had taken place. In contrast, Ms. Smaldino's testimony conflicted with these accounts in many respects, and her demeanor on the witness stand and manner in testifying were not convincing nor persuasive that her versions were more reliable. Accordingly, I have considered, but not relied on, her versions of the events in making the findings of fact herein. D. The Employment of Margaret Smaldino in 1975 Smaldino was hired in July 1975 by 0. C. Branham. She held the positions of in-service director and utilization review coordinator at that point in time. O. C. Branham, who has been employed by the Respondent since 1954 and who has occupied the positions of assistant administrator and chief administrative officer since March 1, 1976, said that shortly after Smaldino was hired by him she took part in matters outside her responsibility. He pointed to the fact that Smaldino began assisting the doctors in the hospital's out-patient depart- ment. Her actions in this regard did not please the head nurse in the out-patient department. Branham expressed the opinion at the hearing, "that was always her problem, not getting along with some of the other people and department heads." Alan A. England was employed at the time of the hearing as administrator of the Camino Vista Nursing Center. Previously, he had been employed by the Respon- dent from May 13, 1975, to February 1, 1977. During that period of time, England worked as an administrative assistant to Branham. In that capacity, his functions covered seven different areas-personnel, purchasing, X- ray, pharmacy, maintenance, housekeeping, and dietary. 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In connection with his duties, he discussed personnel matters with Branham on a daily basis. From time to time, these discussions included the job performance of Smaldi- no. England gave several examples of times when he was not satisfied with Smaldino's performance. One instance involved the preparation of a report to the Joint Commission. England gave certain materials to Smaldino in October 1975 to give her a general outline of what needed to be done. Smaldino kept the materials until the latter part of December 1975 and then returned the materials to England. England testified: "She provided me the same material that I furnished her to start with," so England had to do the work. The findings of fact set forth in this section are based on the testimony given by Branham and by England. E. The Events in February and March 1976 Diane Dale Courney worked for the Respondent from May 27, 1975, to February 18, 1977. During the first 3 weeks of her employment at the hospital, she worked as the in-service director. Thereafter, she held the position of superintendent of nurses. She was not an employee of the hospital at the time of the hearing in this proceeding. When Smaldino was hired on a full-time basis by the Respondent, she was given the dual responsibilities of in- service coordinator and utilization review. Courney said that she got along poorly with Smaldino, and that she proposed around the end of January or the first of February 1976 that the function of in-service coordinator for the nursing department be taken away from Smaldino. Ms. Courney recalled an incident in February 1976 at the hospital when she overheard Ms. Smaldino yelling loudly to someone. Her recollection was that Smaldino was saying words to the effect that: "You think you are a know- it-all, you have another think coming, how can you tell me that." The next day Ms. Courney had separate conversations with Nel Monteith, a registered nurse employed by the hospital-home health care organization, and Judy Walden, who was director of that service. In essence, Ms. Walden threatened to discontinue the home health care service for the Respondent's patients because of the complaints from her employees who had come to the Respondent's hospital. Ms. Courney reported this to England, who also testified to receiving a similar telephone call from Ms. Walden. On February 24, 1976, England advised Smaldino by memorandum that henceforth the home health care coordi- nation would be handled through the superintendent of nurses. (See Resp. Exh. 6.) England did this on the basis of the verbal communications from Walden. However, he did ask Walden for a written account. On March 17, 1976, Walden wrote a memo addressed to England and Courney in which she specified the conflicts which had taken place between her employee, Nel Mon- teith, and Smaldino. The memo is two-and-a-half pages long, single-spaced, typewritten, and goes into specific detail of the problems encountered with Smaldino. (See Resp. Exh. 7 for the specific details.) In conclusion, Walden stated: Since Ms. Monteith is an employee of HHC with no formal arrangements or commitment to Memorial, I question the value of her services under this constant tension and harrassment. We would like to continue our services to Memorial and Ms. Monteith has good rapport with Ms. Courney, the staff nurses and physi- cians. The patients are being provided with continuity of care otherwise not available if no in-patient planning is provided. I hope the above information satisfies your request. I would be happy to discuss this with you in person if you have any questions. I feel much of this is subjective, but I have not had a satisfactory, unemotional explana- tion from Ms. Smaldino concerning the stated prob- lems and all I have to go on is what is reported to me by Ms. Monteith. England said that he took a copy of Walden's memo to Branham and talked it over with him. Branham confirmed seeing the Walden memo and discussing the matter with England. The findings of fact in this section are based on the testimony given by Courney, England, and Branham, as well as documentary evidence. F. The Events in April 1976 On April 5, 1976, Courney summed up the difficulties in working with Smaldino in a detailed memorandum to England. (See Resp. Exh. 8.) The memo stated: April 5, 1976 To: Alan A. England, Administrative Assistant From: Diane Courney, R.N., Director of Nursing Subject: I have had difficulties working with Mrs. Smaldino in much the same manner as has been encountered by the two home health care nurses that have been here at Memorial. Since the time of Mrs. Smaldino's employ- ment, I have not been able to communicate with her in any given subject area that has produced any measur- able or meaningful results. Because of the overlapping interests of our positions, Mrs. Smaldino and I should be communicating effectively together, constantly. This has never occurred. It is my feeling that Mrs. Smaldino finds it very difficult to accept and integrate constructive criticism of any kind. This rationale has come about on my part after trying many different approaches in an effort to effect a working relationship with her. My frustration has been great. I have needed to sit down and earnestly discuss numerous matters with her, but most conversa- tions have ended with her accusing me of "pushing her," "expecting too much of her," "trying to tell her what to do" and finally, "I never said that," "that is not true and you know it." A few of these discussions have erupted into the use of abusive language which I believe I have a right not to listen to and I have brought the discussion to a close in the presence of Mr. Branham. This I did for two reasons: one, to close the discussion 440 A.T. & S.F. MEMORIAL HOSPITALS to the use of abusive language, and two, to inform him of the nature of our relationship. Mrs. Smaldino, as win-service coordinator, has set up a general orientation program and I regard her outline of the program highly. However, after contact- ing her twice last August about giving some new employees a general orientation and meeting with varying reasons why she could not do so at that time, I have completely oriented all new personnel to my department since, using her outline. This outline at that time was not typed or distributed as yet but was in rough draft form. In the area of nursing in-service I have always found Mrs. Smaldino quite willing to listen to suggestions from myself and others in the nursing department. However, I feel that very few of these suggestions resulted in effective and strong in-service programs. I feel this is due to her inability to ask me or others for any suggestions that I or others might have had or to accept and integrate suggestions that I or others have offered. At the Medical Staff Executive Committee meeting in November 1975, Dr. Wilkinson spoke to me about the need for setting up more in-service programs for nurses. A few days later Mrs. Smaldino approached me and told me that in-service was her responsibility. I did not agree with her entirely as I feel that I am ultimately responsible for all that does occur within the nursing department. In January 1976, I requested of Mr. Branham that he write a directive more clearly defining my responsibilities'as Director of Nursing in relation to Mrs. Smaldino's responsibilities as In-service Coordi- nator. Ensuing conversations led to my stating that I felt I needed to have my direction and input into nursing in-service education that I was being allowed to do. A change in the in-service coordinator's job description soon allowed me to function in this manner. Both Mrs. Smaldino and I were charged with the responsibility to put a nursing audit committee together and functioning under the JCAH PEP guidelines for audit. Neither of us had any previous exposure to the new concepts. We contacted Mrs. Winifred Halle but she was unable to meet with us in late summer because of her health. There was a lot of pressure on both of us to get something off the ground and to have one complete audit done by January. To be very blunt, I received no help from Mrs. Smaldino at all. She did come to the meetings, but as far as the work she herself put into learning the concepts and helping the commit- tee along with their understanding of the concepts, there was only the facade of knowledge expressed through meaningless double-talk. This constantly con- fused the committee and retarded its progress toward really understanding what it was they were supposed to be doing. The whole situation with the Medical Audit Com- mittee's JCAH review is sad when viewed with the fact that the concepts Mrs. Smaldino was supposed to have been learning in Nursing Audit are also applied to the new approaches in Medical Audit. Mrs. Smaldino sits on both the Nursing Audit and the Medical Audit Committees. The JCAH reviewers also stressed that both audit committees soon merge together to form the Patient Care Audit Committee. I have approached Dr. Hanold on this matter and his reply has been non- commital up to this point. I believe progress towards this achievement has been delayed by Mrs. Smaldino, but this is only speculation on my part. However, I strongly feel that unless we do merge soon, both process and outcome audit will never be a valuable tool at our hospital, nor will [they] be able to stand up in the light to a critical eye. In conclusion, the Assistant Administrator, Mr. Branham has been aware of my difficulties with Mrs. Smaldino since late summer 1975. I have asked for and been granted almost complete isolation from her and her responsibilities. This is not an ideal situation by any means but it is a way in which I have found I can function to the best of my ability with such an existing situation. /s/ Diane Courney Diane Courney, R.N. Director of Nursing The foregoing findings of fact are based on the testimony of Courney and documentary evidence. G. The Events in June 1976 Because of the inability of Smaldino and Courney to get along and work together, Branham transferred the supervi- sion of Smaldino from the nursing service to the adminis- tration. He did this by memo dated June 1, 1976. (See Resp. Exh. 1.) With regard to Smaldino, England was of the opinion that "she had an inherent ability to enter into areas that were not her responsibility." He gave as an example the incident which led to his memo of June 7, 1976, to Ms. Smaldino from him. (See Resp. Exh. 10.) In pertinent part, it states: Reference work requisition submitted by you direct- ed to Maintenance Dept. pertaining to improvements of 2nd floor west bathroom: Requisitions for work pertaining to nursing areas should be coordinated through the Head Nurse on the respective floor, or Mrs. Courney, Director of Nursing, who, if the request is in order, will initiate proper corrective procedures through Maintenance. This will be necessary for budgeting the department as well as overall control for the Nursing departments. Your statement that this work order was due to a safety hazard was out of place. The procedure to follow in the event of an unsafe condition is to first solve the condition, and then look into the problem causing it. In future, if you notice spilled water in the hallways, notify housekeeping of the situation, so they might correct it. Note the individual who was the cause of the situation and report it to his supervisor for their handling so as to help prevent the situation from future occurrences. We can appreciate your concern over a person being a water carrier, but this practice has been in effect for 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately 49 years, and will probably remain in effect until remodeling has been accomplished so as to permit lavatory facilities in each bed room. Your concern in these areas is appreciated, and when channeled through appropriate authority will be given attention. Your cooperation and understanding in this matter is appreciated. The foregoing findings in this section are based on the testimony of England and Branham and upon documenta- ry evidence. H. The Events in August 1976 Another incident took place in August 1976 which Courney believed to be interference by Smaldino in Courney's responsibilities. Courney had the responsibility for in-service training in the nursing department after February 1976. Courney approached Dr. Hanold, who was the doctor in charge at the hospital, around the first of August 1976 with regard to setting up a series of programs concerning arrhythmias, cardiac care, cardiac rehabilita- tion, and pulmonary disease. Dr. Hanold agreed to her suggestion and set a date for the first meeting. Thereafter, Courney discovered that Smaldino engaged in conversations with Dr. Hanold and set up additional lecture sessions in this area. Courney made it clear that she did not object to having the additional sessions arranged, but she did object to not being involved in the discussions Smaldino had with Dr. Hanold. Courney made objections to Branham and asked him to talk to Smaldino regarding the matter. In addition, Courney sent a memo to Smaldino on August 27, 1976, with a copy to Branham. In that memorandum, Courney reminded Smaldino that nursing in-service education was outside of Smaldino's responsibili- ty and, instead, it was the responsibility of Courney. (See Resp. Exh. 14 for the specifics.) Smaldino responded to the memo from Courney in a handwritten memo of the same date. The memo indicates that a copy went to Branham. (G.C. Exh. 31.) It states in pertinent part: 8/27/76 To Mrs. Courney As usual, you have again misrepresented my conver- sation with you, according to this letter that I received from you today. In order to make a general calendar where the conference room would be needed, I requested from you those nursing activities in order to prevent overlap or oversight. Mr. England had requested an activity calendar where all information was assembled for September. In no way was this suggested to usurp your territory of in-service activity & nursing, but only to make a calendar for each department for the hospital, you neither have to remind me or repeat your position. Again, I was assisting Dr. Hanold in his lecture, which developed into additional sessions. Notice was typed long before August 25 by Betty Rutter and placed in the nursing office for your acknowledgement and distribution (maybe you can ask your assistants). In addition ECG fundamentals were offered along with this material for the laboratory personnel or nursing (they preferred not) for better ECG's. I forsee that any material which I get together will somehow get twisted into this same type of gross misleading letter writing, and so I write to you as well as Administration, since you could not come and speak to me as I spoke to you formerly. I believe I offered you that courtesy which you could not even as much begin to perform. I so choose this way as well. /s/ Mrs. Smaldino cc Mr. Branham The findings of fact in this section are based on the testimony of Courney and documentary evidence. I. The Events in September 1976 1. The United Fund field trip Still another incident occurred in September 1976 which prompted another memorandum from Courney to Smaldi- no. As coordinator for the United Fund campaign, Smaldi- no had arranged for a field trip to a rehabilitation center for certain employees of the hospital. However, Smaldino told one or two nurses to go during working hours to the center without the advance knowledge or approval of Courney, who was superintendent of the nurses. In her handwritten memo to Smaldino on September 28, 1976, Courney reminded Smaldino that Courney was responsible for the activities of all nursing personnel during duty hours. (For details regarding this matter, see Resp. Exh. 17.) In addition to the memo, Courney also objected to Branham and England regarding Smaldino's actions. The findings set forth above are based on the testimony by Courney and documentary evidence. 2. The in-service coordinator duties are removed from Smaldino Because Branham was not satisfied with Smaldino's performance and was of the opinion that Smaldino was not effective in her job, Branham removed the in-service coordinator duties from Smaldino. This was accomplished by a memo dated September 10, 1976, to Smaldino from Branham. (See G. C. Exh. 9 and Resp. Exh. 9.) In pertinent part, the memo stated: You are relieved of your duties as an In-Service Coordinator for all services. You are to continue your duties as a Utilization Review Coordinator only, as they relate to Utilization Review and Medical Audit. In explanation for his action on September 10, 1976, Branham pointed to the difficulty which Smaldino was having with department heads and supervisors and also to the fact that the orientation course for new employees was 442 A.T. & S.F. MEMORIAL HOSPITALS not being carried out except in the early months of Smaldino's employment. Louise Smith has been an employee of the Respondent since August 4, 1975. She has been a personnel clerk and payroll clerk since March 1976. In her duties as a personnel clerk, she receives records of the employees of the hospital. She recalled that Smaldino showed her a new form entitled "In-Service Training Orientation Review," but since that time Smith had not seen the form filled out for any new employee. The findings set forth above are based on the testimony given by Branham, Smith, and on documentary evidence. 3. The recordkeeping problems England pointed out that on numerous occasions he had requested certain documents from Smaldino on a monthly basis, and that he never received them from her. Although Smaldino's job required the keeping of records, England could not locate any type of record that she had. He said that after certain personnel from Topeka came to the hospital to review records on September 15, 1976, Smaldi- no was given a recordkeeping guideline in a memo from Branham on September 20, 1976. (See G. C. Exh. 10.) However, afterwards England said that he could not detect any difference in her work insofar as records were concerned. England also stated that the orientation forms for new employees were not completed on a regular basis. Branham also described the difficulties he experienced in trying to locate records which were supposed to be kept by Smaldino. He testified: Well, we were having some problems understanding just what she was getting done and what she wasn't getting done. To find her records of what she was doing had always been difficult all the time that she was there performing this. She had told me at one time that she was keeping her records so that they could be found, but none of us who had any access to it or should have access to it were able to determine her system because she kept them fairly secretive and to herself which I objected to. * e Well, I myself and the Medical Records Director and other people needed to have access to these records. She could be sick, she could be on vacation or on other occasions when she was not available, we needed to have access to these records. With regard to the visit to the Albuquerque hospital by personnel from the Topeka headquarters, Branham stated: Well, Mrs. Hammon and Mrs. Anderson pointed out to us in the meeting that the records were quite deficient as far as the Utilization Review Committee minutes were concerned and the other records, some of them, while Mrs. Smaldino said that they existed, they were not in evidence, they couldn't find them. Like England, Branham said that he found no difference in the recordkeeping duties of Smaldino after Branham issued the recordkeeping guidelines to her. The findings of fact set forth above are based on the testimony of England and Branham and on documentary evidence. J. The Performance Appraisal In November 1976, Branham completed a performance appraisal on the work of Smaldino. (See Resp. Exh. 4.) As to 11 factors, Smaldino received the following ratings: I. Quality - Satisfactory 2. Cooperation - Needs Improving. Should not get into areas that are not part of your responsibility. 3. Judgment-Comprehension - Needs Improving. 4. Initiative - Satisfactory 5. Attendance, Punctuality & Dependability - Satisfactory 6. Economy - Satisfactory 7. Use of Privileges - Satisfactory 8. Personal Appearance & Habits - Needs Im- proving. Should reflect an image of a supervisory person. 9. Safety - Satisfactory. Very good. 10. Physical Condition-Coordination - Satisfacto- ry 11. Attitude Toward Patients & Visitors - Satis- factory. Very good. On the form where it called for the listing of outstanding accomplishments, Branham stated: "Worked well in un- derstanding of utilization review and P.S.R.O." Where the form asked what should the person do to improve, Branham wrote: "Work on improving knowledge of this organization, P.S.R.O. etc." The performance appraisal form also provided for comments for the employee. In answer to the question as to whether she was satisfied or dissatisfied with her job, Smaldino checked "satisfied." In answer to the question as to whether she was satisfied or dissatisfied with the appraisal, Smaldino checked "dissatisfied." She also made these handwritten comments on the form: I enjoyed the initial desire of the two-fold experience, that of a combined activity and integrating function (of my varied background) of keeping up with Hospital life and contributing to a Hospital what I learned that was needed. So far, the many rewards have been appreciat- ed with patient, Dr., and family contacts and the job satisfaction has been rewarding in many aspects other than above stated. 2. Under cooperation it is because of my eagerness in many instances where I served all departments that this accusation has been implied. As many staff people relay a variety of opinions or stories back to Adminis- tration where instead if there is a conflict to find the source and not blame it on an innocent bystander or "scape goat." 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Please reflect under personal experience I have never been unkept and want opinion instead of criti- cism in this important area. The foregoing findings are derived from Branham's testimony and documentary evidence. K. The New Job Description In November 1976, Branham had a conversation with Smaldino with regard to her new job description. Branham said that Smaldino objected to being placed in the medical records department and that she said something to the effect that Rutter did not know as much about medical records and utilization review as Smaldino did. Branham testified that Smaldino told him that she was not going to work under Rutter's supervision. Branham's reply was: "I explained to her that that was where she was assigned and if she wished to continue her employment, that's where she would be working." After Smaldino had received her new job description from Branham for utilization review coordinator, England also had a conversation with Smaldino in his office. During that conversation, Smaldino told England that she knew more about utilization than medical records ever would, and she could not see why she had to work for them. England described her tone of voice as being harsh, and he gave this opinion of her demeanor: "She was very emotion- al, very upset and very irate with me." During the foregoing conversation, England did not recall that Smaldino told him that she would not work for the medical records director, but about 2 days later, Rutter told England that Smaldino had refused to work for her. England reported that to Branham. Sometime after that, England made a verbal recommendation to Branham that Smaldino be terminated. England testified: I think at one time after this, when we were having difficulties with Mrs. Smaldino in several areas as far as the recordkeeping for utilization review, the refusal to work for medical records, the non-recordkeeping that we were having in continuing education from past months, that I recommended that unless the employee shaped up, she should be terminated. * * In the best of my opinion and the disrupting manner that had been taking place, I considered that the best thing for the facility would be to terminate the lady. The findings of fact in this section are based on the testimony of Branham and England. L. The Solicitations Rule In the "Employee Policy Manual" which has been in effect since August 1, 1974, and which has been in its present printed form since December 1, 1975, there is a rule regarding solicitations at the hospital. (See G.C. Exh. 4.) The rule states as follows: SOLICITATIONS In order to protect you and our patients from annoyance or disruption of work, no solicitation of any kind is permitted on hospital property without the express permission of the Administrator. This includes circulating petitions, selling merchandise, selling chances, or distributing literature. Solicitation to pa- tients is absolutely forbidden. Should you be solicited within the hospital by outsiders, it is your obligation to report this immediate- ly to your supervisor in order that necessary corrective action may be taken. At the hearing, Branham stated that "union solicitations have been allowed" in addition to solicitations for the United Fund campaign. He said that the rule mostly had been applied to keeping salespersons from bothering patients and employees. He pointed out that the Union had been permitted to post materials on the bulletin boards in December 1976. In a pretrial affidavit which Branham gave on December 16, 1976, he mentioned only the United Way campaign as being an exception to the rule. (See G.C. Exh. 19.) In pertinent part, he stated on this subject: 6. The hospital has a tentative agreement with the Union which provides that the Union can have partial use of five bulletin boards within the hospital for the posting of their materials. The Union just had to show the materials to me and then they can post the materials. The only provision is that the materials must be Union business and not any outside business. The "Solicitations" rule in the employee policy manual is in full effect at the hospital and I do not allow any of the solicitations mentioned in that paragraph so labelled except for the United Way campaign every year. The employee manual went into effect continuously since December 1, 1975, and there has been no change since that time. In weighing the foregoing, it is important to bear in mind the time difference between the time that Branham gave his affidavit in mid-December 1976 and the time of the hearing in May 1977. As indicated in his affidavit and by other evidence at the hearing, agreement had been reached for the Union to post certain materials on designated bulletin boards at the hospital. A notice about a Christmas party was given as an example of a union notice which had been posted around that time. Thus, when Branham spoke of the fact that "union solicitations have been allowed" during his testimony at the hearing, that statement was made from the perspective of May 1977, rather than mid-December 1976 when the affidavit was given. Significantly, one of the questions asked of Branham prior to his response used December 16, 1976, as a point of reference and asked about "from that time forward till now. . ." which would mean the time of the hearing in May 1977. Then the next question also made the inquiry in the present tense. Considering the foregoing, I do not perceive the conflict in the testimony given by Branham in his pretrial affidavit and the testimony on this point months later at the hearing. The examination of Branham, 444 A.T. & S.F. MEMORIAL HOSPITALS in pertinent part, under Rule 611(c) of the Federal Rules of Evidence, was: Q. I see. Are you familiar with the solicitation rule that is contained in the Employee Policy Manual, I believe it is in an exhibit of the General Counsel, which is General Counsel's Exhibit No. 4, and I will show that exhibit to you and ask you if the, if you are familiar with that exhibit and the rule contained on the exhibit regarding solicitation? A. Yes, the solicitation section on this exhibit. Q. You are familiar with it? A. Yes. Q. And was that rule in effect on December 16 of 1976? A. Yes. Q. It was in effect? A. Yes. Q. And for how long prior to December 16, 1976, was the rule in effect? A. Oh, in it's present form since December 1, 1975. Q. Was the rule in effect after December 16, 1976? A. Well, it's been in print all that time, but it has not been enforced as such. Q. I don't know if you caught the date that I gave you, it was December 16, 1976, this last year, and from that time forward till now, has that rule been in effect? A. Yes, in the same way, it's been printed in our personnel book. Q. And in fact, you don't allow any of the solicita- tions mentioned in that paragraph, isn't that correct, Mr. Branham? A. As far as what is allowed, the union solicitations have been allowed; the United Fund campaign has been allowed; the sales in here has to do with the expressed permission of the administrator and I would serve as the administrator in this situation. Mostly, this is applied to keeping salesmen out because we have, in times past, had salesmen bother patients and employ- ees, insurance salesmen particularly. The foregoing findings of fact in this section are based on the testimony of Branham, documentary evidence, and a stipulation of the parties. M. The Meetings With Department Heads England observed three individuals on the outside grounds of the hospital during the summer of 1976 who were attempting to sell Indian jewelry to employees and patients. England, who had previously worked for the police department for nearly 3 years while attending college, observed that one of the individuals had a concealed handgun in his upper right-hand pocket under his suit. England requested him to leave the premises. As a result of this incident, a meeting was held with the department heads at the hospital. England testified: It was in response to three individuals who we had on outside grounds selling Indian jewelry. This was during the lunch hour and they were accosting patients as well as employees. I approached the individuals. I noticed one of the individuals was carrying a handgun, con- cealed, and I asked him to leave the premises. We later had a meeting with department heads to explain to them that solicitation of Indian jewelry or the sale of eggs, Avon, or anything was not permissible. There was still another meeting with the department heads at the hospital in November 1976. That meeting was to tell the department heads not to discuss union matters with employees. England testified: It was a meeting between our legal counsel and the department heads basically to inform the department heads the do's and don'ts for unfair labor practices and we basically informed them to keep us out of the unfair labor practice game, not to discuss union matters with employees. The findings of fact in this section are based on the testimony given by England. N. The Bulletin Boards Agreement After the certification of the Union as the collective- bargaining representative of certain employees of the Respondent, contract negotiations commenced between the Union and the Respondent. At the bargaining session on September 15, 1976, agreement was reached that there would be five bulletin boards provided on which the Union could distribute its materials. (Resp. Exh. I1.) Thereafter, on October 5, 1976, agreement was reached on a bulletin boards clause. (Resp. Exh. 13.) The clause is set forth in Respondent's Exhibit 12 and states in pertinent part: ARTICLE - BULLETIN BOARDS The Hospital shall make available adequate portions of five (5) bulletin boards at appropriate locations in the Hospital for the exclusive use of the Union. The Union will post on these bulletin boards notices of a non-controversial nature, copies to be submitted to the Hospital's administrator prior to posting. The findings of fact set forth above are based on England's testimony and documentary evidence. O. The Intensive Care Unit The intensive care unit at the Respondent's hospital is a six-bed, one-room facility. A nurses' station is located within the intensive care unit, but is separated from the patients by a glass window through which the nurses can observe the patients. There is a space whereby the nurses can leave the station to attend to the patients. Inside the nurses station is the work area where the supplies are kept, the drug cabinet, the desk where the charts are kept, and the sink area. The intensive care unit is used for recovery room patients, coronary care patients, and medical or surgical patients under acute or critical conditions. It is the hospital's policy to limit visits to those patients to only 5 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minutes per hour. Doors separate the intensive care unit from the rest of the floor at the hospital. Courney pointed out that it was the hospital policy to have as little as possible obstructing the window between the nurses' station and the patients in the intensive care unit. The reason for that is so that the nurses can observe the patients. The findings of fact in this section are based on testimony by Courney. P. The Events on Saturday, December 4, 1976, and on Sunday, December 5, 1976 On Saturday, December 4, 1976, Courney observed some envelopes in the observation window in the intensive care unit. She explained: It came to my attention because they were sitting in the nursing station area slightly up in the observation window which the nursing personnel in the intensive care unit use for observation of their patients that are on the other side. It was a hospital envelope with employee's names on it. Courney said that the envelopes were sealed and that the envelopes had the names of two or three employees of the nursing department who were regularly employed in the intensive care unit. She recalled the names of Shirley Lindermuth and Ruth Chung being on the envelopes. She asked Registered Nurse Schodorf and Licensed Practical Nurse Kaufman, who were on duty in the nurses' station at the time, what the envelopes were. Courney testified: They told me that it was envelopes that Mrs. Smaldino had brought to the unit and had given to them to place around so these nurses could subsequently pick them up later on in the day. * e* They offered the information. The envelopes contained a memo which was titled "Nurses" and they went on to tell me the contents of the envelope, you know, in a general nature. Courney asked if she could remove the envelopes and they agreed. She did so and made a Xerox copy of the outside of the envelopes, but she did not open the envelopes. She returned the envelopes to the intensive care unit personnel who put them back in the observation window in Courney's presence. When she was asked at the hearing as to her reasons for returning the envelopes, Courney responded: "Because of some reasons I under- stood and some reasons I never could comprehend, I barely could turn around without an unfair labor practice charge being brought against me by the I.A.M." Courney said that she had never observed employees of the hospital using supplies and materials for their personal use. The envelopes used by Smaldino were brown legal-size envelopes with the following appearing in the upper left- hand corner of the front of the envelope: The A. T. & S. F. Memorial Hospitals, Inc. The A. T. & S. F. Employees' Benefit Association Albuquerque, New Mexico 87101 In the upper right-hand corner of the envelope where a postage stamp would normally be affixed, if the envelope was being mailed, were the printed letters and initials "R.R.B." On Sunday morning, December 5, 1976, Courney was working as the daytime nursing supervisor when a regis- tered nurse handed her a piece of paper. The document had "Nurses" at the top and concerned a meeting at Ms. Jones' house a few days later. From the information which had been given to Courney the day before by the registered nurse and the licensed practical nurse in the intensive care unit, it appeared to Courney that the memo was the same one as they had described as being in the envelopes left by Smaldino. Around noontime that day, Courney again spoke with LPN Kaufman who verified that the document was the same thing. A copy of the notice which was enclosed in the envelopes was introduced into evidence as General Counsel's Exhibit 12. It reads as follows: NURSES: The man with the answers to your questions regard- ing Union activites will be at 10419 San Gabriel Court N.E. on Tuesday, December 7th. 7:30 p.m. An Invita- tion is extended to all Nurse's in both the Union as well as those who have not participated. Go East on Commanche to Morris. Turn left on Morris-Ist street turn right 1/2 Block to the cul de sac. See you there. You'll get the facts without misrepresentation of the issues. Remember Topeka has a Union and they are not closing their doors. The findings of fact in this section are based upon the testimony of Courney and documentary evidence. Q. The Events on Monday Morning, December 6, 1976 On Monday morning, December 6, 1976, Courney showed England the Xerox copy of the envelopes and the document entitled "Nurses" which she had been given the day before. She expressed the view to England that "it was a very definite misuse of hospital property for other than hospital business." Later that day, around 11 a.m. or 12 noon, Ms. Courney attended a meeting where the matter was discussed. Also present at the meeting were Branham, England, and attorney Adang. England said that he saw a copy of the envelope. It was brought to his attention by Branham on the Monday following the Saturday discovery. As a result, England inquired of Luis Gutierrez, who was one of the Union's negotiating representatives, what his feelings were regard- 446 A.T. & S.F. MEMORIAL HOSPITALS ing union members using hospital stationery for their personal use. Gutierrez told England that he was not aware of it. After England learned of the contents of the envelopes, he also discussed the matter with Gutierrez who told England that he was not aware of a meeting. England said that there was hospital policy against using hospital materials for the personal use of employees. He alluded to the fact that others had been disciplined for doing so, but he did not give specific details. Several years ago, Branham counseled his own secretary who had started to give letterhead stationery to a patient at the hospital who had come into his office. Branham told her never to do that. Branham also recalled an incident in which an employee had taken tools from the Respondent's powerhouse. That employee was reprimanded and discharged by the hospital. Between S40 and $50 was withheld from his final paycheck to cover the cost of the tools not returned to the hospital. The findings of fact in this section are based on testimony given by Courney, England, and Branham. R. The First Counseling Session Betty L. Rutter was director of medical records at the Respondent's facility from October 1, 1976, to February 7, 1977. At the time of the hearing she was serving as acting assistant director of medical records and medical audits. She began working for the Respondent in April 1976. At the request of Branham, she attended both of the counseling sessions involving Smaldino on December 6, 1976. Both sessions took place in Branham's office. Present were: Branham, Smaldino, Smith, and Rutter. Rutter described the first counseling session as follows: Mrs. Smith and I didn't say anything. Mr. Branham asked Mrs. Smaldino if she recognized the envelope and handwriting on the envelope. At first, she denied it, but then he said, "This is your handwriting, isn't it?" She said yes, it was her handwriting. He asked her where the envelope came from or who the envelope belonged to, excuse me, who the envelope belonged to. She said, "The railroad." He said no, and she said, "Well the hospital then." Then he asked her if she was using it, if she used it for her personal use. She said she did. He went on and counseled her that that was not the policy of the hospital, to use hospital property for your own personal use. Rutter was certain that there was no mention of a union at any time during the conversation with Smaldino. She did recall that at either the first or the second counseling session that Branham told Smaldino that she was not to be on hospital premises if she was not there on hospital business. Rutter estimated that the session lasted about 15 or 20 minutes. As they were leaving, Rutter heard Smaldino say to Branham: "I will get you for this thing if it is the last thing I do." According to Rutter, Smaldino had raised her voice during the session and, in her opinion, Smaldino had lost her temper. Rutter had not seen any other employee at the hospital use hospital materials for her own personal use. Smith testified that she attended only the first counseling session between Branham and Smaldino on December 6, 1976. She attended the meeting at the request of Branham who told her that he wanted to have a witness. She recalled that Branham handed her a memo that was on the letterhead stationery of the hospital and also an envelope and asked Smith to read it. After she had done so, Branham asked Smaldino if that was her handwriting. At first, Smaldino said "no." Branham showed it to her once again, and then Smaldino said "yes." He asked if she had written this and Smaldino said "yes." Branham counseled her about using hospital property and pointed out that there was a policy of the hospital which he had told all of the persons in the administrative clerical department to be careful about handing patients stationery because they could come in and ask them to use hospital stationery. Smith said that Smaldino felt that it was all right for her to use the stationery and she said that she thought that other people had done so. Smith said that Smaldino felt that it was perfectly proper, and she did not feel guilty about it at all. Smith said that Branham did not mention union activi- ties at all during the conversation. She said that he did ask her if she had been in his office when she was not supposed to be in there. Branham also said that it had been reported to him that Smaldino had done so. Smith recalled that Smaldino did make a remark to Branham that she felt she would have to get him for that. Smith testified that she had not seen anyone else use hospital property. After conferring with England and Courney, Branham said that he decided to have a counseling session with Smaldino that day. As it developed, there were actually two separate sessions on December 6, 1976. At the first session, Branham showed Smaldino a copy of the envelope and asked her if the handwriting on the envelope was hers. At first, Smaldino denied it, but then Smaldino admitted that it was. Branham told her that it was not permissible to use hospital stationery for private correspondence. He asked her why she had done this. Smaldino told him that since Branham and the department heads had a meeting with the nonbargaining unit employ- ees of the hospital with regard to union negotiations, she was trying to do something on the other side to straighten out the record by arranging to hold a meeting. Branham described Smaldino's demeanor during the meeting as: "Well, she became angry immediately, flushed face and raised her voice and entered into a tirade, I recall that when she left she said, 'I'll get you for this.' " The findings of fact in this section are derived from the accounts given by Rutter, Smith, and Branham. There were minor differences in their recollections of this event, but their accounts were not substantially different. S. The Second Counseling Session At the second counseling session, Rutter observed Branham give the memorandum to Smaldino. Smaldino read it over and then said that she did not have a key to Branham's office. Smaldino also said that she would not 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work for Rutter; that Smaldino knew more about the medical record department than Betty Rutter ever would know, and that she would refuse to work for Betty Rutter. At that point, Branham stated to Smaldino: "Then you may submit your resignation." Rutter observed Smaldino later that day leaving the hospital prior to her quitting time. At the second counseling session that afternoon, Bran- ham said that he gave Smaldino a memo to record her counseling. He said that he placed the emphasis in their verbal discussion on Smaldino's failure to accept the supervision of Rutter. He also requested that Smaldino return the keys to Branham's office. At the second session, Branham described Smaldino as, "still hostile, angry, [with] flushed face and raised voice." A copy of the memorandum which Branham gave to Smaldino was introduced as General Counsel's Exhibit 13 and Respondent's Exhibit 19. In pertinent part, it states: Dear Mrs. Smaldino: To record the counselling I gave you today, about using hospital stationery on company time to distribute private correspondence to nurses, in the hospital work areas. At least two or more nurses observed you doing this. You had told me earlier, that Saturday morning, December 4, 1976, that you were here to catch up on your work. If you are not working at the hospital, on hospital business, you are not to be here, except for treatment. If you have a key to my office door, please turn it in, to me, today. When I gave you your copy of the utilization review coordinator job description, on November 18, 1976, it was pointed out to you, that you would be under the supervision of the medical record director. You object- ed to this. I assured you that you would be assigned to the Medical Records Department. Today, I learned that you had told Mrs. Rutter, Medical Record Director, and Mr. Alan England, that you were not going to work under the medical records director supervision. If you fail to function under the supervision of the medical records director, and do not carry out your assigned duties, you will be terminated from your job. Sincerely, /s/ O. C. Branham O. C. Branham, Assistant Administrator The findings of fact in this section are based on the testimony of Rutter and Branham, and also on documenta- ry evidence. Once again, there are minor differences, in their recall, but their accounts are not substantially different and are consistent with the documentary evi- dence. T. The Reply of Smaldino to the Counseling In response to the counseling sessions with her on December 6, 1976, Smaldino sent a memorandum the next day to Branham, Dr. Hanold, and Dr. McMinn. A copy of that memo was introduced into evidence as General Counsel's Exhibit 15. It states: To: Mr. Branham, Dr. Hanold, Dr. McMinn Date: December 7, 1976 Dear Sirs: Upon the advice of professional judgement I respond to the letter given to me regarding direction from the Medical Records department. First, I learned that the information given to Mr. Branham regarding the model Utilization Plan was erroneous, that the plan was not approved by J.C.A.H and voted upon as described by Mr. England. Secondly, Mr. England took a copy of our plan to read over the weekend, as he was not aware that we had a plan. I refer to my notes for the Quality of Care meetings for October I th and November 8th, where I made known the recommendations and actions for our newly organized status to you Mr. Branham, Dr. Hanold, and Dr. McMinn and there were no objec- tions. Even though Administration was absent from the last meeting I still presented Mr. Branham a copy of that meeting. On November 18, when I was given a copy of my job description and placed under the Medical Records Dept., in the face of all that has been discussed previously I was, to say the least, perplexed and concerned that Administration is so obstinate in the real issues of Utilization and Medical Records does not play an active role. This is a critical time in which the forming of a new department jointly with billing and Utilization benefit Memorial Hospital and also now that there is new leadership and interest with Dr. McMinn assisting us. So initially on this past Saturday, December 4th, when Dr. McMinn dictated a letter to the Hospital Care Committee and I could sit down and discuss pleasantly important matters regarding Utilization I thought the real beginnings were starting, and even reported this to Dr. Hanold. Now I can see the real intention of your actions and letter writing of 12/6/76 is due to union activities and not the issue of supervision nor my work. I realize that the use of two envelopes is the unpardonable sin for which I cannot alter my actions as of this date; however, I can repay the use of items used. Topeka says "you here in Albuquerque have a communication problem," well what good is the talking and all the documentation if no one ever listens. That information, when it is solicited for the sole purpose of improvement, is taken with hostility and disqualified. May I for the purpose, have referred to the article, of support in this situation that Utilization Review and related procedures serve many functions [sic]. Hospital administrators and government planning agehcies view 448 A.T. & S.F. MEMORIAL HOSPITALS Utilization Review as a major mechanism of cost control. Mechanisms ultimately relate to a national system of medical cost control policy. There are important benefits to the system, and there are also important dangers to the system and to the patient which may not be immediately obvious, and in no way relate to Medical Records. I asked these questions which seem to have a parallel as when I review my patient's for Utilization, "do I receive the support and care daily from a needed Physician?", "is the intensive care supported"?, "can the person do well on her own"?, "is this service in the Hospital a needed requirement or does it have an educational value"?. My real concern is to bring finally to your attention where can I serve you? If, you so choose Medical Records I can not relate as the interests are not mutual and for that reason you disqualify my responsibilities. If, you reconsider the above and also the previous described meetings notes I will support the institution as well as job functions. Again, I do not have a key to your office, nor do I have the need to enter your office or any one else's at any time, and for being accused of this action I plan to take action in my behalf. Margaret Smaldino R.N. Utilization Review Coordinator The findings of fact in this section are based on documentary evidence. U. The Meeting on December 9, 1976, Between Smaldino and Rutter On Thursday, December 9, 1976, Rutter, who at that time was the director of medical records, prepared a memorandum to Smaldino. Rutter explained at the hearing that she did so for the purpose of getting "our utilization in order for the joint commission" on January 1. Another purpose was to initiate some communication between the two persons. Rutter acknowledged that she had not previously in- formed Smaldino that Rutter was her supervisor, although she believed that Branham or England had done so. When she was questioned regarding this, she replied: "I could not talk with Mrs. Smaldino and tell her such a thing. . . If I tried, she became belligerent and I couldn't talk. This is the idea of the memo, because I felt that we had to get some communication started." The memo reads as follows: December 9, 1976 To: Mrs. Smaldino, RN, URC From: Mrs. Rutter, ART, Director, Medical Records Although it was not our wishes, the Revised Utiliza- tion Review Plan is in effect. Therefore, since I am held responsible, and we have two weeks, I think we should lay some definite plans. 1. UR Committee meeting; Please suggest a defi- nite date-Fourth Thursday?, First Friday?, Second Wednesday? 2. Doctors for the committee: Consider six, (which constitutes 25% of the Active Staff), perhaps meeting with the Chairman more often. What about asking new doctors on the Staff? Dr. Maier?, Dr. Carmody?, or an older one who would benefit too, such as Dr. Conklin? 3. We must have all UR's, Recertification copies, and letters alphabetically filed. I can name many reasons, but the main one is an organized look. Use a requisition form and order alphabetical dividers for the file cabinet, pens and other supplies that you need. 4. Forms: I have heard you say we could use a much better form. Then why not? Draw one up, -or several that you need for Medicare, Medicaid, Private, or EBA patients. If you feel a better form can help you provide better Utilization, then get one. Let's get organized, and since we must begin some- where, let's start where it shows. I will meet with you in your office Monday morning at 9:00 to discuss your suggestions on these matters. Thank you, /s/ Betty Rutter cc: Mr. O.C. Branham That afternoon of December 9, 1976, there was a conversation between Smaldino and Rutter. According to Rutter, Smaldino raised her voice to her and lost her temper. As a result of that conversation, Rutter became ill and went home. Rutter testified: Well she came into the office with this and said that she was sick and tired of everyone trying to do her job or think that they knew more about her job than she did, and that is when I crossed the hall with her and we had the meeting in her office or tried to. Well I just told her that I was trying to get together so that we could have some basis of getting together on the joint commission problem, and she became very- I wish I could remember all that was said in that because there were a lot of things I felt were derogatory to me and to my position, and as I stated, I felt we had to get together, but she became very upset and lashed out, and since I cannot answer when someone lashes out, I became upset and left the office and then I went home. The next morning Rutter spoke with Branham in his office and told him that Smaldino had refused to cooperate with Rutter and that she did not see how they were going to go forward. The foregoing findings of fact are based on the testimony of Rutter and on documentary evidence. 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. Branham's Decision To Terminate Smaldino After receiving the report from Rutter regarding her conversation with Smaldino on December 9, 1976, Bran- ham started thinking about terminating Smaldino. He discussed the matter with Dr. Hanold, who was the doctor in charge of the hospital. Dr. Hanold expressed the view to Branham that he would not want to see Rutter run away from the hospital. Branham testified, "[W]e agreed that we couldn't permit this to keep on." Nevertheless, action was not taken immediately because of the need to find a replacement for that position. Branham explained: "It's necessary that our connections with Medicare and for other reasons that this type of work be carried on without interruption." In this connection, Branham spoke with two department heads regarding suggestions for a replacement. Ann Cun- ningham, who was the in-service director at that point in time, suggested an individual named Joanne Hurry who was employed at a hospital in Las Vegas, New Mexico. On December 23, 1976, Cunningham telephoned Hurry at that hospital. The telephone records kept by the switchboard operators at Respondent's facility corroborated Branham's testimony with regard to the telephone call between those two persons on that date. (See Resp. Exh. 5.) On Wednesday, December 29, 1976, and Thursday, December 30, 1976, the following advertisement ran in the "Albuquerque Journal" under the headings "Employment" and "Admin./Profession" in the classified advertisement sections of the newspaper: Utilization review coordinator. Call 268-1915 after 6:00 p.m. Monday through Friday. The portions of the editions of the "Albuquerque Journal" pertaining to the above were introduced into evidence as General Counsel's Exhibits 20 and 21. Bran- ham's home telephone number is the one shown above. Branham recalled that he had placed the advertisements a day or two before they actually ran in the newspaper. He said that he usually ran such ads for 2 days. The first person to replace Smaldino was a relief nurse who had worked part time at the hospital. She took over Smaldino's position within the next day or two after the termination of Smaldino. The permanent replacement was Joanne Hurry who began her employment at the hospital on February 7, 1977. The foregoing findings of fact are based on the testimony of Branham and documentary evidence. W. The Reasons for Discharging Smaldino When he was asked at the hearing why he discharged Smaldino, Branham gave the following rationale: Well, I finally came to the conclusion that she was not going to cooperate well enough with department heads and those with whom she had to deal, to carry out the proper function of her job and maintain the records that we required. I thought that a year and a half for anyone was enough to give them a fair trial in their responsibilities and duties and if they couldn't get it all together, so to speak, in that length of time, that we had to make a change that would no longer jeopardize the position of the hospital any longer and we needed to make a change in personnel. Branham denied that he terminated Smaldino because she had passed out notices of a union meeting, or because she had filed unfair labor practice charges against the Respondent. Branham acknowledged that the cost of the envelopes used by Smaldino would be approximately 6 to 8 cents a piece, but he said that he did not approve of using hospital materials for personal use. On December 30, 1976, Branham prepared a letter of termination for Smaldino. He said that he gave the letter to her on January 3, 1977. (See G.C. Exh. 18.) Her termina- tion was to be effective on January 4, 1977. In pertinent part, the letter from Branham to Smaldino states: This letter is to notify you that your employment by this hospital is terminated, effective January 4, 1977. Any annual leave you are entitled to receive will be paid on the check you receive January 23. Your inability to work under the supervision assigned to you, and your repeated refusal to do so can no longer be tolerated. You have, for several months, shown a tendency not to cooperate well with department heads and other employees. You have been counselled about these things without any noticeable improvement. On the "Employee Separation Report" completed by Branham on January 4, 1977, with regard to the termina- tion of Smaldino, Branham gave the reason for her separation as: "Terminated because of failure to cooperate with supervisors." The form further indicated that he did not recommend reemployment for Smaldino. The findings of fact in this section are based on the testimony given by Branham and on documentary evi- dence. X. Conclusions In St. John's Hospital and School of Nursing 222 NLRB 1150 (1976), the Board cited its earlier holding in Stoddard- Quirk Manufacturing Co., 138 NLRB 615 (1962), with regard to certain presumptions applicable to no-solicitation and no-distribution rules and stated: 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 during 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. 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. The Board also stated in the St. John's Hospital case that it recognized that the primary function of a hospital is patient care. In this connection, the Board stated: 450 A.T. & S.F. MEMORIAL HOSPITALS We recognize that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may bejustified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the 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. Consequently, banning solicitation on nonworking time in such areas as described above would seem justified in hospitals and to the extent that Respondent's rule prohibits such activity in those areas it is valid. Respondent's broad restrictions, however, are not justified by these considerations insofar as they apply to other areas. Applying the Board's holding in the St. John's Hospital decision to the facts in this case, I conclude that the "Solicitations" rule in the Respondent's "Employee Policy Manual" is too broad in providing: "[N]o solicitation of any kind is permitted on hospital property without the express permission of the Administrator." Insofar as the rule prohibits Respondent's own employ- ees from soliciting on behalf of a labor organization during their nonworking time in other than immediate patient care areas at the hospital and insofar as the rule prohibits Respondent's own employees from distributing union literature during their nonworking time and in nonworking areas of the hospital's premises, I conclude that the rule interferes with, restrains, and coerces its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Accordingly, I further conclude that the Respondent has violated Section 8(a)(1) of the Act by maintaining such a rule in these circumstances at least since June 27, 1976, which is the date alleged in the General Counsel's consoli- dated complaint. I have read the recent opinion of the United States Court of Appeals for the Tenth Circuit in the St. John's Hospital case. St. John's Hospital and School of Nursing, Inc. v. N.L.R.B., 557 F.2d 1368 (1977). The Respondent's hospital involved in this proceeding is also located within the geographical boundaries of the Tenth Circuit. However, with due respect for the court's opinion, it is Board precedent which is to be applied in these circumstances by its Administrative Law Judges, and that is what is being done here. Turning now to an examination of the effect of the agreement between the Respondent and the Union with regard to the use of certain designated bulletin boards at the hospital for the use of the Union, I conclude that the agreement could not waive the Section 7 rights of the employees of the hospital. As the Board succinctly held in its decision in McDonnell Douglas Corporation, 210 NLRB 280, 281 (1974): The Union may be permitted to silence its own voice, but the Supreme Court ruled that it may not silence that of the employees. The Board's reference was to the Supreme Court's decision in N.LR.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974). See also the Board's decisions in Yellow Cab, Inc., 210 NLRB 568 (1974), and Massey- Ferguson, Inc., 211 NLRB 487 (1974). Finally, with regard to the no-solicitation rule, I have considered the Respondent's contention that, since the no- solicitation rule was mentioned for the first time in the amended charge in Case 28-CA-4143 filed by Smaldino on December 27, 1976, after the taking of the Respondent's evidence during the investigation of the original charge by an agent of Region 28 of the Board: "The circumstances and timing are such as to suggest that the amended charge was solicited by the Board agent." (Resp. br., p. 15.) I sustained the objection made by counsel for the General Counsel to the Respondent's attempt to inquire into this matter at the hearing. I reaffirm that ruling here. Smaldino had already filed the original unfair labor practice charge in Case 28-CA-4143 on December 7, 1976, which alleged violations of Section 8(aX1) of the Act both specifically and also generally "by the above and other acts...." (See G.C. Exh. l(a).) Thus, this was not a situation where it was contended that a Board agent had initially gone out and solicited a person to file an unfair labor practice charge. Furthermore, the Board has held that an unfair labor practice charge is not a pleading, but that it merely serves to initiate an investigation by the General Counsel to determine whether a complaint should be issued. The Board has held that it is the function of the General Counsel's complaint, rather than the unfair labor practice charge, to serve notice on a respondent of the particular conduct alleged to be violative of the Act. Texas Industries Inc., 139 NLRB 365, 366-367 (1962). Thus, even if an amended charge had not been filed in Case 28-CA-4143, I conclude that there was a sufficient relationship between the original charge and the complaint allegations regarding the no-solicitation rule to permit the litigation of the subject at the hearing. See, for example, Rice Growers Association of California, 224 NLRB 663, 664, fn. I (1976), where in an earlier case before me litigation of specific complaint allegations of 8(aXl1) conduct was permitted at the hearing even though the unfair labor practice charge had not specified the alleged 8(a)(1) conduct. Although I have concluded that the Respondent's no- solicitation rule is unlawful to the extent that it prohibits employee solicitation during their nonworking time in other than immediate patient care areas at the hospital, and to the extent that it prohibits employee distribution of union literature during employees' nonworking time and in nonworking areas at the hospital, it does not necessarily follow that the verbal and written reprimands given to Smaldino following her solicitation and distribution activi- ties on December 4, 1976, were unlawful. First, the nature of the intensive care unit must be considered. A description of the intensive care unit has been given previously herein. It seems clear that its use is 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intended for patients whose conditions are such that they require more than routine attention at the hospital. Unlike the ordinary nurses' station on a hospital floor, the nurses' station in the intensive care unit is located within the single room which houses the separate unit. I conclude that the nurses' station in these circumstances is both a working area of the hospital and also an immediate patient care area because it is located within the intensive care unit. When Smaldino was speaking with the registered nurse and the licensed practical nurse on duty at the nurses' station in the intensive care unit on December 4, 1976, and when she left the envelopes there at the nurses' station, she was soliciting and distributing in both a working area and an immediate patient care area of the hospital. The Respondent's rule is presumptively valid insofar as it prohibits such activities in those particular areas, and the presumption of validity to the extent that the rule is applicable to working areas and immediate patient care areas has not been overcome. Under these circumstances, I conclude that Smaldino's activities were not protected from discipline when she solicited and distributed at the nurses' station in the intensive care unit. This is unlike the situation in Baptist Memorial Hospital, 229 NLRB 45, 46 (1977), where employee "Wheeler handbilled in the hospital lobby across from the cafeteria during his lunch break." See also the situation in Marvin Neiman d/b/a Concourse Nursing Home, 230 NLRB 916 (1977), where the employee distributed union pamphlets during her lunch break in the dining room. In both of those recent Board cases, the activity occurred in places which were not working areas or immediate patient care areas. In addition, the evidence shows that the rule was promulgated long before the representation proceedings were begun at the hospital, and thus, the rule was not promulgated just to stifle union activity. Nor does the evidence show that the rule was disparately applied to permit other solicitations or distributions at the nurses' station in the intensive care unit, or other similar working areas or immediate patient care areas. Moreover, from the Respondent's point of view, Smaldi- no also disregarded established hospital policy by using hospital envelopes in her distribution. While the envelopes were of small monetary value, that was not the major concern in this instance. Branham made it clear at the hearing that it was a matter of concern to the hospital not to have its stationery used for other than hospital business. The testimony also shows that Branham personally has made a point of this in the past. The evidence does not establish that the Respondent has disparately applied its policy by permitting others to utilize hospital stationery or hospital materials for other than hospital business. Significantly, there is an absence of expression of union animus in this case, and, other than the 8(aXl1) violation found with regard to the no-solicitation rule, the allegations of the consolidated complaint pertain solely to the repri- mand and termination of Smaldino. Insofar as the record shows, the Respondent has not expressed hostility to the union organizational activities of its employees, and, to the contrary, the record reveals that the Respondent has recognized its statutory obligation to bargain with the collective-bargaining representative of its employees, and it has done so. In a similar manner, there is no evidence that the Respondent has expressed or demonstrated any hostility towards the filing of unfair labor practice charges against the Respondent. While such expressions of animus or hostility are not a sine qua non to the finding of a violation of Section 8(aX3) and (4) of the Act, it is at least a matter to note. Also significant are the criticisms and the memoranda from the Respondent directed to Smaldino prior to her activities on December 4, 1976, and prior to the filing of the original charge on December 7, 1976. For example, note the Respondent's removal of Smaldino from the in- service coordinator position in September 1976 and the Respondent's dissatisfaction with her inability to work harmoniously with department heads and supervisors. I do not think that it can be fairly said that Smaldino was unaware of the criticisms of her performance and the difficulties which she had encountered with department heads and supervisors, or that the Respondent condoned and acquiesced in her actions. The final event which led to Branham's decision to terminate Smaldino was the December 9, 1976, confronta- tion between Smaldino and Rutter. The evidence is persuasive that it was the last incident, rather than the filing of the unfair labor practice charge, which precipitat- ed the Respondent's decision. As the Board stated in Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, 227 NLRB 1800, 1801 (1977): In sum, a finding of illegal motivation in these discharges requires an affirmative conclusion that one of the reasons for the discharges was the employees' union activity, or in Gorney's case his testimony under the Act. That conclusion cannot be reached here as the evidence falls far short of establishing a union-related or statutory-related reason for the discharges. The Board also noted in footnote 3 at 1801 in that case that "mere timing and the severity of the disciplinary action do not necessarily lead to the conclusion that his discharge was discriminatory." Accordingly, I conclude that a preponderance of the evidence does not establish that the Respondent violated Section 8(a)(1) of the Act when it reprimanded Margaret Smaldino on December 6, 1976, nor that the Respondent violated Section 8(a)(), (3), and (4) of the Act when it terminated Smaldino effective January 4, 1977. Therefore, I shall recommend dismissal of those allegations in the General Counsel's consolidated complaint. Upon the basis of the findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 452 A.T. & S.F. MEMORIAL HOSPITALS 3. By maintaining the "Solicitations" rule in the Re- spondent's "Employee Policy Manual" which prohibits its own employees from soliciting on behalf of a labor organization during their nonworking time in other than immediate patient care areas at the Respondent's hospital, and which prohibits its own employees from distributing union literature during their nonworking time and in nonworking areas of the hospital's premises, the Respon- dent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed them by Section 7 of the Act. The Respondent has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in the other unfair labor practices alleged in the General Counsel's consolidat- ed complaint in this proceeding. THEm REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(aXl) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. [Recommended Order omitted from publication.] 453