Barnes Hospital

BARNES HOSPITAL Barnes Hospital -andService and Hospital Employees Union, Local Union No. 50 of the Service Employees ]international Union, AFL-CIO-CLC. Case 14-CA-8139 May 2, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 28, 1975, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent each filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, findings,' and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Barnes Hospital, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 In the absence of exceptions, we adopt pro forma the Administrative Law .fudge's conclusion that the Respondent committed four separate viola- tions of the Act by maintaining an unlawfully broad no-solicitation rule and mteriogating employees through its agents concerning union activities We also adopt proforrnathe finding that the General Counsel failed to establish that Respondent's agent, Dee Willden, violated the Act by allegedly sug- gestaig unlawful surveillance in a conversation with employee Fred Hay- wood. 2 In discussing the unlawful photographic surveillance of union agents engaged in distribution and solicitation among employees the Administra- tive Law Judge did not determine whether the organizational activity at the East Pavillion site did in fact take place on-private property To clarify the point, we find that the Respondent has failed to conclusively show that the conduct subjected to surveillance occurred on the private property of Barnes Hospital. 3 Although he discussed the circumstances involved, the Administrative Law Judge did not expressly respond to the charges in the complaint that Respondent's agent, Willden, made an unlawful threat of discharge or change in working conditions, and that Respondent's agent, Marva Johnson, created an unlawful impression of surveillance. Based on the record as a whole, including the implicit conclusions made by the Administrative Law Judge in reference to these charges, we conclude the General Counsel has failed to establish that Respondent violated the Act by the conduct alleged. DECISION STATEMENT OF THE CASE 725 THOMAS A. RICCI, Administrative Law Judge: A hearing in this case was held on December 12, 1974, at St. Louis, Mis- souri, on complaint of the General Counsel against Barnes Hospital, herein called the Respondent or the employer. The charge was filed on September 20, 1974, by Service and Hos- pital Employees Union, Local Union No. 50 of the Service Employees International Union, AFL-CIO-CLC, herein called the Union, and the complaint issued on November 5. The only issues presented are whether the Respondent vi- olated Section 8(a)(1) of the statute by certain alleged coer- cive statements and conduct. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a nonprofit Missouri coporation, is en- gaged in the operation of a hospital and furnishing of related services in the city of St. Louis, Missouri. During the year ending December 31, 1973, a representative period, the hospi- tal derived gross revenues in excess of $250,000, and pur- chased and caused to be transported to its Missouri facility, supplies and other goods and materials valued in excess of $50,000, of which an amount valued in excess of $50,000 was brought from out-of-state sources. I find that the Respondent is an employer engaged in commerce within the meaning of the statute. II THE LABOR ORGANIZATION INVOLVED I find that Service and Hospital Employees Union, Local Union No. 50 of the Service Employees International Union, AFL--CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Unlawful No-Solicitation Rule The hospital publishes an employee handbook which is given to every employee when hired; it is a 50-page printed document setting out in very precise and clear detail employ- ment conditions and rules of conduct. There are between 3,000 and 4,000 hourly paid employees in this hospital, and it was clear on the record that as of the time of the hearing - every one of them had a copy of this booklet in his or her, possession. One of the provisions in the handbook reads as follows: SOLICITATIONS AND COLLECTIONS To protect our employees, the sale of merchandise or tickets and the conducting of lotteries are strictly prohib- ited. Barnes Hospital follows the practice of authorizing only one general solicitation annually among its em- ployee force-for the United Fund of Greater St. Louis. 217 NLRB No. 126 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees are encouraged to participate in this worthy cause. Any other type of soliciting, canvasing, or passing out of literature on the hospital's premises, re- gardless of reason, must have advance written authoriza- tion of the Personnel Director. There was a flurry of activity among the employees to- wards joining the Union in August and September 1974. The Board has held that no-solicitation rules comparable to that set out above are too broad and therefore constitute a coercive restraint on the self-organizational rights of employees and in consequence are violative of Section 8(a)(1) of the Act.' In fact, Walter Hanses, an assistant director of personnel for the hospital, admitted at the hearing as a witness that he knew the rule as printed in the current handbook violates the stat- ute. He contended, however, that beginning in August of 1974 that rule as written has not been in effect. He said he decided it should not be in effect at the time when hospitals were made subject to the Taft-Hartley Act by congressional amendment. As to how the employees were made aware of their new freedom to solicit lawfully in their union campaign, Hanes said he did it two ways: (1) On October 22, 1974, he posted on four or five of the hospital bulletin boards a notice setting out a perfectly proper rule. (2) He told his assistant that from that day on when giving a copy of the handbook to new employees he was to X out the critical paragraph and staple to the book, instead a copy of the newly posted notice. Hanses also conceded, however, that no steps whatever were taken to advise the several thousand employees that the book in their possession was no longer effective. He said the reason why nothing was done towards that end was because the old rule, as printed in the booklet, had also been posted at four or five of the bulletin boards as a separate sheet, and that when, in October, he decided to change the rule, he removed those four posted sheets. He said at the hearing this was his way of alerting all employees that now the strictures of the printed handbook no longer bound them. Mere assertion by a personnel director that the old and illegal no-solicitation rule is not now in effect, and has not been in effect since October 22, 1974, will not serve to defeat the complaint allegation, either that the rule was in effect before October or that in reality it is still in effect today. In an operation the size of this hospital, with so many employees having in their possession a printed instruction precisely pro- hibiting solicitation anywhere and any time on the company premises, it requires more than a mere change of mind within the personnel director, and posting of four notices on some of the boards, to make it clear in the minds of the employee group that they are in fact free to exercise the statutory prerogative of self-organization in a lawful manner. I find that by maintaining an illegal no-solicitation rule the Re- spondent has violated, and is violating Section 8(a)(1) of the Act.2 The complaint alleges that the Respondent committed a separate unfair labor practice when, sometime in September, I Ostby and Barton, 202 NLRB 199 (1973) 2 The fact there is no evidence the Respondent affirmatively enforced the rule is not sufficient reason to ignore its effective existence and illegality Pueblo Supermarkets, 165 NLRB 654 (1967) The purpose of all rules, legal or'otherwise, is achieved when those who are subject to them do not violate them. at a meeting of dietary department employees, the supervisor of that group expressly reaffirmed the illegal, because too broad, no-solicitation rule. Inasmuch as there then was in effect a printed illegal no-solicitation rule, nothing of sub- stance would be added to the case by making an additional unfair labor practice finding that one day a supervisor told the employees about it. In any event, the incident is worth reporting because, obliquely, the Respondent seems to be contending that the supervisor that day dispelled the effect of the written rule. This record does not show how widespread the union ac- tivities were at that time among the several thousand em- ployees of the hospital; all it shows is that the 30 or 40 employees of the dietary department were spoken to by their supervisor and were active in their campaign. Dee Willden, director of food services and over the dietary department group, called the women who worked there to a meeting because, he said, some had complained to him that they were being pressured into joining. Several employee witnesses related what they heard. It was agreed Willden read from a "dos and don'ts" document prepared by someone for man- agement in connection with the then current organizational campaign. Fred Haywood quoted Willden as saying: "If you would be caught soliciting, passing out handbills or-what not on hospital time you will be fired." Another witness, Roechell Holloway, testified Willden said: "If we were to be caught soliciting within Barnes Hospital premises that we would be fired. If we wanted to solicit we would have to solicit outside of the Barnes Hospital, like at the bus stop." From the wit- ness Pamela Coleman: "He said that Barnes did not want or need a union and they would do anything in their power to keep the-union out. . - . . If we were caught issuing out hand- bills, giving people them to sign, we would be fired. . . . In the hospital doing working time." From the testimony of Evonne Peebles: "He said that you could solicit but not on Barnes property. He said if he catches anyone passing out handbills on Barnes property they would be fired on the spot. ... He said we could sign them in the parking lots or on our own time while we were off duty." - If these witnesses quoted Willden correctly he was remind- ing them of the no-solicitation rule which appeared in print in the employee handbook all of them had. The vice of that one still being that it prohibited solicitation on the hospital premises without limitation, Willden then attempted to dissi- pate the effect of the employees' testimony. He said he re- ferred to the written "dos and don'ts" he had in his hands; an item in that document, which all the employees saw him refer to, reads as follows: "You cannot threaten or actually discipline or discharge employees for engaging in soliciting employees to sign union cards during nonworking time." There is no reference in that document, received in evidence, to company premises at all. As Willden told it at the hearing, when speaking to the women that day in September "I said I could not threaten or actually discipline or discharge em- ployees for engaging in soliciting employees or signing a card during nonworking hours or in nonworking areas." The wit- ness' injection of "areas" or any reference to premises, as distinguished from hours, is not persuasive on this entire record. I am inclined to believe the employees. Willden started his testimony by saying he did not know of any union organizational activities when he called the meeting. Later, BARNES HOSPITAL before he was through, he said he certainly did. More impor- tant, it is the position of the Respondent that by that time the no-solicitation rule-excluding union activities anywhere on the premises-had been changed in the office of the personnel director. Willden was asked did he say to the gathered em- ployees that day the rule, as it appears in their handbook, had been changed, and he answered no. It really matters not whether Willden did or did not draw a distinction between prohibiting solicitation during "work- ing hours" or "working time." See Essex International Com- pany, 211 NLRB 749 (1974). The written rule, in the hands of thousands of employees at that very moment, prohibited activities anywhere on the premises, and the whole of neces- sity includes the sum of its parts. The Respondent must take -positive steps so that all employees become aware of the complete removal of any improperly restrictive rule. In his brief the General Counsel requests a precise unfair labor practice finding on the testimony of employee Bruce that at this meeting Willden said he knew "some" of the employees were engaged in union activities. Willden called the meeting to speak of the "dos and don'ts" strictures on management, and he was, of course, talking about the union activities of the employees. It is argued that because Willden, in talking to the employees about union activities, said he knew they were so engaged, he "created the impression of illegal surveillance." I find the argument unconvincing. B. Illegal Surveillance On the morning of September 20, three union agents ap- peared at two entrances to the hospital and distributed union handbills to employees as they arrived or left. Two men, J.C. Gwin and Thomas Tecklenburg, stood on the sidewalk on Euclid Street immediately in front of a regular entrance. Another man, Walter Pearson also of the union, stood at the entrance of what is called the east pavilion of the hospital. Richard Mansfield is an assistant director of security on the hospital's security force. In a van distinctly marked "Barnes Hospital" he drove slowly down the street along Euclid Street that morning with a video camera in his hand pointed directly at the two union agents as they were distributing union litera- ture on the sidewalk. He was in the rider's seat of the van sitting next to the driver, also a security man in uniform. Having passed the spot where those two union men were distributing, Mansfield continued and made a right turn pro- ceeding along in front of the hospital premises and entered a small parking lot immediately off the entrance. He parked the van there, pointed directly at the entrance to the east pavilion, where Pearson stood with his literature. At the hearing Mansfield equivocated as to whether he saw employees come and go, talk to the agent or not talk to him, accept or not accept union cards. But he admitted frankly his reason for being there was to observe the union agent, whether or not he was distributing union literature. Mansfield candidly ad- mitted his purpose was to photograph the man and what he was doing. Unless there is adequate explanation to remove this activity of the security guard from what the Board has held to be illegal surveillance of organizational activities by employees, it must be found that at each location, by the activities of this 727 guard in taking such photographs, the Respondent violated Section 8(a)(1) of the Act. As to the activity at the Euclid Street entrance, Mansfield's explanation is that he was driving slowly only because the traffic was heavy, that his only purpose then was to get to the end of the street and -arrive at the second location. He said he was holding the camera close to his face, pointed at the union agents, as he slowly went by, but only did so because he-was "focusing" the machine. He just said he did not take any pictures of anybody at that entrance, explaining he wanted to set the camera to the proper light, and was not concerned with distance. His story will not do as a defense to his activities. That he gave those people, employees and union agents, the impression he was photographing the'union activity there going on, Mansfield did not even attempt to belie. He said there was no film in the camera at the moment, and it may well be he took no picture at that moment, for Mansfield did not look like a dishonest witness to me. But assertion after the event that ' his camera was vacant-albeit unknown to anyone else-can hardly be a defense to what has all the appearances of photographic sur- veillance. Northern Industrial Plastics, Co., 159 NLRB 792 (1966). As to Mansfield's activity at the second location, he admit- ted he did make video tapes of what he saw-although saying it was only a 10-second run. No question again that he was pointing his camera at organizers and employees who might be there. Here the defense is that that particular entrance, not on the public sidewalk but somewhat inside the Company's premises, was private property, and therefore a place where an employer may spy on and take photographs of whatever is going on. There is no way of separating the activities of an outside, paid union organizer, in solicitation activities, from the simultaneous cooperation of-the employees themselves. This was overt surveillance of employee activity, for the en- trance was clearly a place for coming and going of the em- ployees themselves. It may be that the Respondents here had the right to have Pearson, or any other nonemployee union official, removed from the premises on the ground of the conflict in interest between private property and statutory organizational rights.' Cf. Central Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972); Babcock and Wilcox Com- pany, 351 U.S. 105 (1965). The Respondent took no steps to remove the organizers from that entrance, and therefore its right to do so is not the question of this case. Compare: Scott Hudgens, 205 NLRB 628 (1973). Nor is this a case of isolated, momentary glancing towards the protected activity. Mans- field said he stayed parked in plain sight of the entrance used by the employees, his van aimed straight at them, for 15 or 20 minutes. Nor is there evidence, or claim, of abuse by the organizers, obstruction, misconduct or interference with op- 3 As articulated at the hearing, the Respondent's defense to the surveil- lance that concededly took place at that entrance is as follows I took the tape to have a video audio evidence to support any security action that may be involved in the arrest of such an individual had the decision been made to arrest him I also took the video tape to distin- guish Barnes Hospital private property and the public property and for any other reason that the hospital saw fit of any repercussions of the particular incident. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erations. The cases cited in the Respondent's brief are there- fore inapposite. I find that by surveilling and photographing the activities of both union organizers and employees who accepted or rejected union leaflets, the. Respondent violated Section, 8(a)(1) of the Act. C. Restraint and Coercion Fred Haywood also testified about two personal conversa- tions he had with Willden. Shortly after his return to the job in August 1974, and hopeful, as he said, of progressing to assistant supervisor, Haywood went to the supervisor's office and asked "When would it be available for me [the supervi- sory job]," and "What was with the union." Willden talked of both subjects with him, and also read from the "dos and don'ts" that he already had. Willden also told the man it was not obligatory upon him to sign a union card, and that once he became involved he could not get out of it. Sometime later Haywood again found himself in conversation with Willden in a corridor and, as he recalled, Willden asked "If the people in my department were still interested in a union." When he said yes, still according to Haywood, the superior said: "I could go to the meetings and see what I was getting myself involved in and I could come back and talk to him any time." Haywood made clear the superior did not ask him to report on anything he might see or hear at any union meeting. Willden gave a somewhat different version of his second conversation. He denied asking were the people in the depart- ment still interested in the Union; all he asked, according to him, was "how's it going, Fred?" Willden said it was Hay- wood who brought up the subject of the Union that second time also. But Willden also conceded that in the course of the conversation he said to Haywood: "Why don't you go find out for yourself?," meaning go to a union meeting. I credit-Haywood and I find that Willden did interrogate him concerning the continued or abandoned interest in the Union of the people in the department in which Haywood worked. This is the same department which Willden called together to reiterate to them the unlawful no-solicitation rule. I-find that he violated Section 8(a)(1) of the Act in asking Haywood whether the employees in the department were still unionminded. As to his suggestion that Haywood go to union meetings if he wanted to learn more of the union movement, and even that the employee could again talk to the supervisor if he so wished, I find nothing improper in the conversations chargeable to the Respondent. It was Haywood who chose to talk to the boss about the Union, for reasons of his own, and for the supervisor to say more could be learned directly from the Union, could'hardly be an unfair labor practice. Willden did not tell Haywood to come back and report anything about what might take place at union meetings; all he said was, just as Haywood had chosen to talk to the supervisor about the Union once, he could choose to do so again if he wished. There is also evidence of unlawful interrogation by Super- visor Marva Johnson, the immediate supervisor over the die- tary department ladies. According to Coleman four or five women were working in the dishroom one day late in August and Johnson asked them ". . . why did we think we needed a union and she went on to say that we would have to pay high dues, the union would take away some of our benefits which they don't have any business taking away." Coleman also quoted Johnson-as saying the women would have eco- nomic problems if the union called a strike, it might last "months and months," and "they [the Company] could do without us because she could call in caterers. ..." Peebles quoted Johnson as asking: "Why did we want a union, why did we feel that we needed a union ." Peebles also said John- son told the women, union dues and initiation fees would be high, and "that our benefits would be taken away from us. They would 'take some of our benefits away from us." Supervisor Johnson denied all of this testimony. She said all she recalled was a very brief conversation with three women, and maybe one man , where "they were passing around something," but nothing else was said, "there wasn't any discussion at all."4 To the extent that the witnesses Coleman and Peebles said Mrs. Johnson asked why were they interested in having a union, and that because of the union some benefits might be lost to them, I do credit the em- ployees. I find that by such interrogation and by the state- ment the employees might lose advantages, Johnson violated Section 8(a)(1) of the Act. As to the testimony of Coleman that Mrs. Johnson also threatened to replace strikers with caterers, I do not believe Mrs. Johnson made that statement. This because of the testimony of another employee, Peebles, whose direct testimony was that it was she who said the company might use caterers.' A final item of testimony is by Coleman, that on or about September 9 Johnson asked her individually "if I was still participating in the union and if I was going to the meetings." I do credit this testimony, despite Johnson's denials. I find-the interrogation was still another violation of Section 8(a)(1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above have a close, inti- mate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 4 Johnson placed this incident "around the 21st of August " The Respond- ent therefore argues that because the effective date bringing this hospital under the coverage of the statute was August 25, there can be no unfair labor practice finding based on this incident There were three women present-Coleman, Peebles, and Bruce, and all three recalled the talk as occurring on August 27 Bruce was clearly mistaken because she was not at work that day There is also testimony that the incident came about a week before Willden's talk to the assembled employees, which took place on September 5. The employees may have been wrong as to the precise date of their talk with Johnson, but they certainly remembered more substance than she did. Her position at the hearing was rather that she really remem- bered nothing On the total record I am satisfied Johnson spoke to the girls after August 25. 5 From Peebles' testimony She said that we would be subject to go out on strike. She said `What do you think we'll do, then' I said, `You'll probably bring in caters.' And she said, `That's right, that's what we'll do."' BARNES HOSPITAL 729 CONCLUSIONS OF LAW 1. By maintaining a no-solicitation rule entirely prohibiting union solicitation on company premises, by surveilling the distribution and solicitation activities of union agents and of employees accepting union literature from them , by interro- gating employees respecting their adherence to any union or their reasons for favoring unions, and by telling employees they might lose benefits as a result of union activities, the Respondent has engaged and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Distribute to each of its nonsupervisory employees a written notice informing them that the solicitations and col- lections statements appearing on page 42 of the Respondent's employee handbook is not in effect. (b) Post at the hospital in St. Louis, Missouri, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representatives, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places throughout the hospital complex where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this decision, what steps the Respondent has taken to comply herewith. The Respondent, Barnes Hospital, Sit. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: I:a) Maintaining a no-distribution rule entirely prohibiting union solicitation on company premises, surveilling the dis- tribution and solicitation activities of union agents and of employees accepting union literature from them, interrogat- ing, employees respecting their adherence towards any union or their reasons for favoring unions, or telling employees they might lose benefits as a result of union activity. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the right to self-organization, to form, join or assist Service and Hospital Employees Union, Local Union No. 50 of the Service Em- ployees International Union, AFL-CIO-CLC, or any other labor organization, to bargain collectively through represen- tatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's 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 be changed to read "Pot,ted 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 The National Labor Relations Board having found after a hearing that we violated the Federal law by coercing and restraining our employees in their union activities: WE WILL NOT maintain a no-solicitation rule entirely prohibiting union solicitation on company property. WE WILL NOT engage in surveillance of union activities of union agents or employees cooperating with them in the distribution and solicitation of membership. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT tell our employees they may lose benefits as a result of union activities. WE WILL NOT in any like or related manner mterfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Service and Hospital Employees Union, Local Union No. 50 of the Service Employees International Union, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. BARNES HOSPITAL