Lutheran Hospital of Milwaukee, Inc.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lutheran Hospital of Milwaukee, Inc and National Union of Hospital and Health Care Employees Lo- cal 1199W RWDSU-AFL-CIO. Cases 30-CA- 3082 and 30-CA-3267 May 27, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On February 27, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding Thereafter, the Respondent 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 brief and has decided to affirm the rulings, findings,[ and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Lutheran Hospital of Milwaukee, Inc, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order Subsequent to the Administrative Law Judge s Decision in this case the Board, in St John's Hospital and School of Nursing Inc, 222 NLRB 1150 (1976), held that a no-solicitation, no-distribution rule which prohibits all solicitation and distribution in all areas to which patients and visitors have access, other than immediate patient care areas, is unlawful Accordingly we find, in agreement with the Administrative Law Judge, that the Respon dent herein violated Sec 8(a)(1) of the Act by maintaining an overly broad no-solicitation, no-distribution rule which prohibits all solicitation and dis- tribution during an employee's nonworking time in all nonwork areas where visitors or the public might be present of Lutheran Hospital of Milwaukee, Inc, herein called the Respondent In issue is the question whether the Respon- dent interfered with, restrained, and coerced its employees in the exercise of their self-organizational rights and there- by violated Section 8(a)(1) of the National Labor Relations Act, as amended,2 by various acts of interrogation concern- ing employee union activities and sympathies, by distribut- ing a letter among the employees soliciting information re- garding the identity of other employees engaged in union activity, by discriminatorily implementing and enforcing a no-solicitation, no-distribution rule because of the advent of the Union, and by threatening an employee with dis- charge for distributing union literature and authorization cards in violation of that rule At the close of the hearing, the General Counsel and the Respondent argued their po- sitions orally and subsequently filed supporting briefs On August 12, 1975, the Union filed another unfair labor practice against the Respondent in Case 30-CA-3267 3 and a complaint based thereon was issued by the General Counsel on September 30, 1975, alleging that on or about April 25, 1975, the Respondent, in violation of Section 8(a)(1) of the Act, promulgated and maintained in force and effect an invalid no-solicitation, no-distribution rule to replace the rule involved in Case 30-CA-3082, in that the revised rule prohibits employees from participating in union activities on nonworking time in nonworking areas In its answer, the Respondent admits the promulgation and maintenance of the revised rule but denies its illegality under the Act On motion of the General Counsel, opposed by the Respondent, the Administrative Law Judge issued a telegraphic order on October 24, 1975, reopening the rec- ord in Case 30-CA-3082 and consolidating that proceed- ing and Case 30-CA-32671 On January 5, 1976, the par- ties, in lieu of a further hearing on the newly created issue, executed a stipulation which provides that the stipulation, the record in Case 30-CA-3082, the pleadings in Case 30- CA-3267, and the stipulated exhibits shall constitute the entire record in the consolidated cases The stipulation is approved, the stipulated exhibits are received in evidence, and the consolidated record is closed On January 30, 1976, the General Counsel and the Respondent filed additional briefs in support of their respective positions regarding the validity of the revised rule Upon the entire consolidated record, from my observa- tion of the demeanor of the witnesses, and with due consid- eration being given to the arguments advanced by the par- ties, I make the following DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge Case 30-CA- 3082, with all the parties represented, was heard on June 19, 1975, in Milwaukee, Wisconsin, on the complaint of the General Counsel issued on April 29, 1975,1 and the answer i The complaint in Case 30-CA-3082 is based on a charge filed on March 18, 1975, by National Union of Hospital and Health Care Employees Local 1199W RWDSU-AFL-CIO, herein called the Union A copy of this charge was duly served on the Respondent the next day by registered mail 2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 Insofar as pertinent, Sec 7 provides that `[e]m- ployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ' 3 A copy of this charge was served on the Respondent by registered mail on August 13 1975 ° On the same date, the General Counsel s motion for judgment on the pleadings was denied 224 NLRB No 36 LUTHERAN HOSPITAL OF MILWAUKEE 177 FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent is a nonprofit 5 Wisconsin corporation engaged in the operation of a hospital at Milwaukee, Wis- consin, and as such is and has been at all material times a "health care institution" as defined in Section 2(14) of the Act Its annual gross revenue from its Milwaukee opera- tion exceeds $100,000 In the conduct of its hospital, the Respondent purchases goods and supplies valued in excess of $25,000 which are shipped directly to the hospital from points outside Wisconsin The Respondent admits, and I find, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It was stipulated, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction, the Advent of the Union The Respondent employs approximately 850 employees at its 425-bed hospital which occupies two and a half square blocks About September 30, 1974, the Union launched a drive to organize some 450 to 500 of the Respondent's employees by distributing among them on the sidewalk in front of the entrances to the hospital during shift changes leaflets to which were attached cards to be filled out and returned to the Union if they were interested in further information As a result of the employee re- sponse, the Union held its first organizational meeting on October 17, 1974, at its offices where the employees were informed of the benefits of unionization to be achieved through contract negotiations with the Respondent Mem- bership dues were also discussed and additional union lit- erature was passed out Another meeting was held a few weeks later at the Union's office at which an employee organizing committee was formed to assist in the Union's drive and the employees were instructed with respect to their statutory rights and the distribution of organizational material in the hospital during nonworking time and in nonwork areas In furtherance of this effort, employee or- ganizers were given at this meeting union authorization cards, fact sheets, magazines, and other campaign material, which they thereafter distributed among their coworkers Other employee meetings were subsequently held by the Union Apparently, as of the time of the hearing in this case, the Union's campaign did not generate sufficient sup- port to warrant filing a petition for a representation elec- tion However, an unfair labor ractice charge was filed by the Union on March 18, 1975,r charging the Respondent, 5 In accordance with the Respondent s request, unopposed by the Gener- al Counsel, the record is corrected to show that the Respondent is a nonpro- fit institution 6 Unless otherwise indicated, all dates refer to 1975 which admittedly has been aware of the Union's drive since its inception, with engaging in unlawful conduct to impede the Union's organizational effort We turn to a consideration of these alleged unlawful acts and the con- clusions to be derived B The Alleged Interference, Restraint, and Coercion 1 Interrogation of Employee Krenke by Housekeeping Supervisor Fisher In the early part of December 1974, Maryanne Krenke, a surgical technician and a member of the Union's organiz- ing committee, was on a break in the coffee room, drinking coffee with Housekeeping Supervisor William Fisher, as she frequently did Another female technician, Sidney Rose, was also present In the course of a social conversa- tion, Fisher, who was not Krenke's supervisor, asked her whether she had attended a union meeting held earlier that day or whether a union meeting had been held that day Krenke replied that she did not know if there had been such a meeting, although one had actually been held Con- tinuing with his inquiries, Fisher then asked Krenke how many cards were signed, how many employees were in- volved in the Union, and when an election would be held When Krenke replied that she did not know the answers to those questions, Fisher remarked that it couldn't be a good union if she did not know anything about it This evoked Krenke's response that, as he was a supervisor, she could not discuss union matters with him, and that the Federal law prohibited him from questioning her about the Union Fisher thereafter refrained from such conduct 7 I find that Fisher's interrogation of Krenke, no matter how well intentioned, violated Section 8(a)(1) of the Act Not only did Fisher fail to explain the need for such infor- mation to Krenke or Rose, the other employee who was present, but also he gave no assurance that reprisals would not be taken for employee involvement or interest in the Union so as to minimize the necessary coercive impact of such questioning Indeed, Fisher himself understood how information regarding union activity could be misused by management Thus, he testified that, when he witnessed Krenke solicit an employee to sign a union card a few weeks before and he criticized her for doing so, he never- theless did not report her to management lest she "get into trouble," despite the fact that the solicitation had actually occurred on her free time in a nonwork area, the coffee shop, and therefore was permissible activity Nor does the 7 The foregoing findings are based on Krenke s credible testimony which Fisher agreed reflected basically' what had occurred on this occasion although he thought the incident occurred in January 1975 Fisher further testified that he asked those questions because he was `Just inquisitive as a friend Fisher also testified to an earlier episode in the coffee room in the first part of December 1974 when Krenke in his presence handed an em ployee a union card to fill out At that time a nonemployee stranger told Krenke that it was not right for her to solicit on ` company time ' Krenke however replied that she was on a break and that therefore her solicitation was permissible Fisher thereupon expressed his agreement with the stranger that Krenke should not be doing this He further testified that he, neverthe- less did not report this card incident to management because he `didn t want Mary [Krenke] to get into trouble Clearly the Act sanctions union solicitation on an employee's nonworking and free time in a nonwork area 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that the inquiries were made in the course of a friendly conversation sanitize interrogation 8 which is otherwise prohibited by Section 8(a)(1) of the Act 9 2 Interrogation of employee Jackson by Nursing Supervisor Krupo In December 1974, while Marion Jackson, a ward clerk, was bringing some papers to the labor and delivery room, she met Nursing Supervisor Francis Krupo who asked her who was the head of the committee, apparently referring to the Union's organizing committee Jackson answered that she did not know what committee Krupo was talking about Krupo, in turn, stated that he thought she knew and on this note the conversation ended with both going their separate ways 10 Although other employees were in this area, the conversation was evidently not overheard Such an attempt to learn the identity of the leader of the organizing committee might well suggest that the inquiry was prompted by more than idle curiosity and that the information thus obtained would be improperly used to undermine the lawful exercise by employees of their orga- nizational rights This is particularly so here where Krupo gave no reason to Jackson why the information was sought and no evidence appears demonstrating a legitimate need for it Accordingly, I find that Krupo's inquiry was a form of interference, restraint, and coercion of an employee pro- scribed by Section 8(a)(1) of the Act 11 3 The Respondent's January 30, 1975 , letter On January 30, the Respondent distributed to employees along with their paychecks the following letter prepared and signed by Personnel Director Richard J Torstenson TO ALL EMPLOYEES A number of employees have reported that they are being pressured to sign Union cards Some are told that they will have to join a Union if they want to continue to work here You should know that- No one will have to join a Union as a condition of employment at the Hospital No one will have to pay dues to a Union as a condition of employment at the Hospital The Hospital will continue to pay wages and ben- efits that compare favorably with those of any other hospital in the Milwaukee area, regardless of Union or non-Union affiliation You don't have to put up with pestering or pres- sure to join Please let me know if you are bothered I will do my best to see that the law is observed Explaining the circumstances surrounding the issuance 8 Rex Disposables, Division of DHJ Industries, Inc, 201 NLRB 727 730 (1973), Monroe Manufacturing Co, Inc 200 NLRB 62 (1972) 9 C & E Stores, Inc, 221 NLRB 1321 (1976), John H Swisher & Son Inc 211 NLRB 777 (1974), cf Murcole Inc, 204 NLRB 228 234 (1973) 10 Jackson subsequently joined the Union and the organizing committee becoming active on its behalf 11 Rex Disposables, supra at 729 of this letter, Torstenson testified that some 15 or 20 em- ployees stopped him in the hallway and complained that "people out on the sidewalk," whom they did not identify by name, were forcing union literature and cards on them and that they resented being pressured Torstenson further testified that, although he suggested to the complaining employees that they tell those "people" to leave them alone, the employees insisted that the Respondent reply to the Union's leaflets, take a position with respect to the Union, tell those "people" to leave them alone and not bother them, and advise the employees of their rights However, no complaining employee furnished testimony at the hearing regarding their alleged unhappy experience with these "people " There can be little doubt that in the closing paragraph of the letter the Respondent, in effect, invited employees to report to Personnel Director Torstenson union solicitation by fellow employees and their related activities, whether or not these activities occurred during their free or working time or in work or nonwork areas Indeed, as Torstenson himself testified, this letter was prompted by employee complaints of union solicitation and distribution of union literature which union supporters engaged in on the public sidewalk in front of the hospital Certainly, the information sought by the Respondent was broad enough to encompass employee organizational activities protected by Section 7 of the Act Moreover, the Respondent's declared interest in being informed of the identity of union solicitors can rea- sonably be expected to instill fear in employees of the con- sequences of union advocacy and thereby deter and re- strain them from exercising their statutory rights Contrary to the Respondent's contention, the fact that the Respon- dent euphemistically couched the conduct of union advo- cates in terms of pressuring, pestering, and bothering em- ployees does not render the invitation to inform on union solicitors any less coercive Nor has the Respondent dem- onstrated, injustification of its action, a legitimate need for the information to prevent a disruption of hospital opera- tions Accordingly, I conclude that the invitation to inform on employees indicated in the Respondent's letter to employ- ees violated Section 8(a)(1) of the Act 12 4 The Respondent's alleged discriminatory enforcement of its no-solicitation, no-distribution rule, the alleged discharge threat to employee Jackson if she violated the rule From 1967 until about April 25, 1975, when its rule was revised,13 the Respondent had the following posted no-so- licitation, no-distribution rule in effect at its hospital Unauthorized distribution of literature, written or printed matter of any description in working areas on hospital premises during working time and the unau- thorized solicitation or collecting of contributions for 12 Bank of St Louis, 191 NLRB 669 673 enfd 456 F 2d 1234 (C A 8 1971) Poloron Products of Mississippi Inc 217 N LRB 704 (1975) 13 The validity of the revised rule is the subject of the subsequent com plaint issued in Case 30-CA-3267 and consolidated with the earlier pro- ceeding which will be later discussed LUTHERAN HOSPITAL OF MILWAUKEE 179 any purpose whatsoever is strictly prohibited accord- ing to Lutheran Hospital policy The complaint acknowledges the existence of that rule but does not challenge its validity 14 Instead, it alleges that on March 14 the rule was discriminatorily implemented and enforced "because of the advent of union organizational activities," and that on that date employee Jackson was threatened with discharge if she violated the rule Essen- tially, it is the General Counsel's position that the discrimi- natory application of enforcement of the rule is established by the fact that acts of nonunion-related solicitation and distribution of literature were tolerated at the hospital, while the rule was strictly enforced against union activity, citing only the Jackson episode In support of this theory, the General Counsel presented the following testimony during both working and break time, employees have taken up money collections among themselves for employees who were sick or hospitalized or suffered a death in the family 15 There is no evidence, how- ever, that these collections were made in the presence of supervisors or with their knowledge or consent In the past spring, a Sunshine Club was also formed at a unit staff meeting, chaired by Supervisor La Rose,16 for the purpose of creating a fund derived from employee contributions to be used for birthday, marriage, and other gifts for employ- ees in that unit A notice was subsequently posted on a bulletin board to alert employees whether they were cur- rent in their contributions Testimony was further adduced to the effect that several employees had engaged in commercial activities Thus, one or two employees had been taking orders for Avon prod- ucts during working and free time However, the testimony does not indicate that any supervisors were present on these occasions There is testimony, on the other hand, that Avon catalogs were available for such purposes at various places in the hospital, including nurses' stations, and thus presumably within the knowledge of supervisory nurses stationed there An employee testified that the last time she had seen an Avon catalog in the hospital was about 1-1/2 months before the hearing, while another employee testi- fied that she had noticed such booklets around the hospital between 1972 and 1974 but that she had never been asked 14 Because the validity of the rule is not in issue in this case I make no comment in that regard Also concededly not in issue in this case is the version of the rule, as set forth in the Respondent's Employment Relations Policy Manual," a copy of which is customarily given to employees at the time of their hiring The manual makes it an offense, subject to discipline and ultimate discharge, for an employee to engage in 7 Soliciting or collecting contributions for any purpose whatsoever on Hospital time 10 Distribution of literature, written or printed matter of any de scription on Hospital property without permission from the Personnel Director According to the testimony of Personnel Director Richard Torstenson the phrase "Hospital time" means working time and the phrase "Hospital prop ertly' refers to the Hospital building itself 5 Employee Jackson testified to an occasion 3 or 4 years ago when a collection was taken up by employees in her section for a gift for a supervi sor who was leaving to get married i6 However other than her title, no evidence of La Rose s supervisory authority or duties was presented at the hearing by anyone to buy Avon products According to Personnel Director Torstenson, when he recently learned that em- ployee Vrtalie was engaged in promoting Avon products at the hospital he directed her to stop it In addition, there is testimony by employee Jackson that certain unidentified kitchen workers have offered for sale to employees small dolls and purses and that this witness herself had sold nuts in the hospital Here, too, the evi- dence does not indicate whether this activity was observed by supervisors or whether it was engaged in during working time Employee Krenke, a union activist, testified that dur- ing the past March she had taken orders from her cowork- ers for Coventry Jewelry and in that connection had placed brochures and order forms in the coffee shop where she told the girls to fill out the order forms Krenke further testified that she would pick the orders up before work or during lunch time Moreover, Irene Milass, a switchboard operator, whose work area is in the lowest level in the hospital building gave testimony that Beth Fohr, who had since left the Respondent's employ, had taken orders from employees for Vanda cosmetic products However, Milass did not in- dicate where this occurred and whether it was on working or free time She also testified that Vanda booklets were on a table at Milass' work location "off and on" until January or February 1975 and that, although her supervisor, Joan Moore,17 had a desk in that area, Moore never directed the removal of those booklets However, it appears that the Vanda booklets were removed under unspecified circum- stances at least a month after they were placed there Mi- lass also credibly testified that on one occasion in February or March 1975 Moore brought into the hospital some bars of candy which her son was selling in connection with a high school promotion drive for funds to purchase sports equipment and that she sold the candy to several employ- ees However, Milass did not observe Moore enter any other areas in the hospital to sell the candy Another employee, Rex Hutchinson, testified to a dem- onstration of Amway products which a nurse conducted in March or April 1975 during working time for two or three employees in a small room used for staff conferences This room was about 15 to 20 feet from the nurses' station where Supervisor La Rose had her desk At the time of the demonstration, the door to the room was closed and no evidence was adduced that any supervisor was aware of it Other testimony was adduced that Supervisor Grobe once a year has displayed for sale on her desk several cans of candy in connection with a fund drive for American Operating Room Nurses' Association 18 Finally, there is testimony that the Respondent itself posted a notice on the bulletin board, with copies distributed among the employ- ees, offering used hospital furniture and other items for sale to employees Personnel Director Torstenson, whose function it is to enforce the no-solicitation, no-distribution rule, testified 17 However, no testimony concerning Moore 's duties or supervisory au thority was furnished 18 Testimony was also adduced that about 3 years ago an employee sold Girl Scout cookies in the coffee shop , lockerroom and cafeteria during breaktime and that another employee at one time had brought into the coffee shop a fashion catalog and solicited orders from employees 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, whenever a violation of the rule is called to the atten- tion of the Personnel Department, the employee guilty of such conduct is directed to refrain from that activity How- ever, since complainants are usually reluctant to identify the violators, there have been few instances when the viola- tor has been spoken to One of the instances where he had spoken to an offender of the rule involved Vitalie, men- tioned above Torstenson also testified that, whenever liter- ature not pertaining to the hospital is found in the building, it is removed In addition, Torstenson alluded to occasions when insurance agents, merchandising outlets, and real es- tate companies have been denied lists of, and access to, employees at the hospital for solicitation purposes More- over, he testified to a recent incident in which he ordered an employee to remove petitions she had placed at various work stations to allow the astronauts to carry a Bible with them on their mission Similar treatment was accorded to religious literature which was brought into the hospital by Seventh Day Adventists and other individuals Torstenson also testified that he had put a halt to the sale in the hospi- tal of tickets to charities and other events However, he testified, the hospital permits United Fund pledge cards to be distributed among the employees once a year, and the Women's Auxiliary to post a notice on the bulletin board announcing a benefit event it was running for the hospital According to Torstenson, the foregoing policy has been uniformly pursued since prior to the appearance of the Union and supervisors have been under instruction to see that the rule is observed In answer to specific questions put to him on the witness stand, he credibly testified with- out contradiction that he had never heard of the Sunshine Club or the Amway demonstration until the hearing in this case, nor was he aware that any supervisor had ever violat- ed the rule Except for the Jackson episode presently to be discussed, there is no evidence that the Respondent ever talked to, reprimanded, or otherwise disciplined any employee for engaging in union organizational activity in violation of the hospital's no-solicitation, no-distribution rule, although it is clear that union supporters have conducted such activity during their free nonworking time in nonwork areas such as the cafeteria, coffee shop, and other places where em- ployees take their breaks Indeed, Jackson, who was a member of the Union's organizing committee, admitted that on occasions other than the one in question, she also discussed the Union with employees while she and they were working under the belief that it was not against hospi- tal policy to do so The events leading up to the Torstenson's interview of Jackson, which is alleged to con- stitute a discriminatory application of the rule, are these On March 5, while Helen Daniels, a pharmacy techni- cian, was stocking medical supplies in a utility room away from her regular pharmacy station, a registered nurse, Ec- kert, who was also performing one of her duties there, asked Daniels when she had come back to her job, which she had left several years ago Eckert then informed her of the employees' efforts to bring a union into the hospital to help them secure better working conditions In the course of this conversation, Jackson entered the room, made some remarks which Daniels did not hear, and departed Shortly thereafter, Jackson returned and, as Daniels was reaching into a cabinet, Jackson put two union cards in Daniels' pocket, requesting her not to say anything about this oc- currence as she (Jackson) was not supposed to engage in such activity while working Jackson thereupon left 19 When Daniels returned to the pharmacy, which was her official station, she reported this incident to Sister Gladys, her supervisor and director of pharmacy services, and, at the latter's request, handed over the union cards she had received from Jackson However, Daniels did not tell Sister Gladys that Jackson had put pressure on her to join the Union, nor that Jackson had warned her that she was re- quired to join the Union to work there, which Jackson manifestly did not do Daniels also mentioned the Eckert conversation but did not identify Eckert by name since she did not know it at the time Subsequently, Sister Gladys relayed Daniels' report to Personnel Director Torstenson, who did not act on this information at that time The next day, March 6, while on her lunch hour, Jackson entered a small room in the pharmacy section of the hospi- tal and, in the presence of Patricia Brusky, a staff pharma- cist, handed Daniels a rolled-up union magazine contain- ing a union card and other pieces of union literature for her to read and departed The entire incident lasted a sec- ond or two Clearly, the room was a work area, and wheth- er or not Daniels was actually working at this time or only talking to Brusky,20 Daniels was on duty and not on her own free time After Jackson left the room, Daniels report- ed this incident to Sister Gladys and again, at Sister Gladys' request, gave her the union material she had re- ceived from Jackson Daniels did not inform Sister Gladys that Jackson had forced her to take the union material About a week later, Torstenson, who had also been ap- prised by Sister Gladys of the latter incident, interviewed Daniels and Brusky concerning that occurrence and the one on March 5 Acting on the advice of the Respondent's attorney, Torstenson on or about March 14 summoned Jackson to his office 21 He opened the interview by inform- ing her that he had received reports that she had passed out leaflets and cards to an employee and that he did not know whether or not she was then on duty or whether this con- duct occurred in a work or nonwork area or whether the employee who was given the material was working at the time Torstenson then reminded Jackson of the Re- spondent's rule or policy concerning the distribution of literature of any type and solicitation which was designed 19 The foregoing findings reflect Daniels testimony, which I credit Jack- son testified to a conversation she had had prior to the pharmacy incident which will be presently discussed It is not clear whether or not Jackson s testimony relates to the event recited in the text above According to Jack- son at one time when Daniels came to Jackson 's work area and both were working Jackson asked her if she was interested in the Union but, as she recalled no union literature was handed out 20 In view of my disposition of the issues in this case it is unnecessary to resolve the conflicting testimony in this respect 21 Torstenson testified that for several months he had been aware of Jackson s involvement in the Union s organizational campaign as well as the involvement of other employees and that it is not his practice to prevent such activity so long as it is not conducted in work areas and employees are not bothered while they are working Jackson admitted discussing the union with employees not only in the cafeteria, snackbar coffee shop and class room but also while employees were working She however denied distrib uting union literature to employees while they were engaged in the perfor mance of their duties LUTHERAN HOSPITAL OF MILWAUKEE 181 to protect employees, patients, and visitors from being "un- duly pestered " Jackson readily admitted that she had passed out union literature but added that it was done on her own time during breaks and her lunch hour, as well as before and after work, and that she was fully aware that she was not supposed to engage in such activity during working time or in work areas Torstenson expressed his gratitude for her comments since he had conflicting reports and he preferred giving her the benefit of any doubt The interview ended with Torstenson pointing out that, under the Respondent's rule, the distribution of literature on an employee's working time or hours 22 could possibly result in discharge 23 However, Jackson was not personally repri- manded for violating the rule The General Counsel contends that the foregoing evi- dence establishes that on March 14 the Respondent dis- criminatorily enforced and applied its no-solicitation, no- distribution rule because of the advent of the Union and on that occasion unlawfully threatened employee Jackson with discharge if she violated the rule I do not agree As noted above, the Union initiated its organizational campaign approximately 6 months before March 14 at a time when the no-solicitation, no-distribution rule had been in existence for 7 years During the 6-month period, supporters of the Union freely and generally in a manner not prohibited by the rule engaged in union solicitation and the distribution of union literature inside and outside the hospital Indeed, although Personnel Director Torsten- son learned that Jackson had given employee Daniels union cards in a work area and the next day had handed her union material in another work area, in violation of the rule, he simply discussed the matter with her in his office, accepted her assertion that she customarily confined her union activity in the hospital to her own nonworking time and in nonwork areas, and only reminded her that a viola- tion of the rule could lead to discharge Clearly, Jackson was not reprimanded for her conduct In these circum- stances, it can hardly be inferred that the Respondent was prompted discriminatorily to enforce the rule because of the appearance of the Union at the hospital or that it dis- parately applied the rule to Jackson,24 particularly since the record is absolutely devoid of any evidence that employees were permitted to engage in antiunion activity in the hospi- tal in disregard of the rule 25 22 The terms ' working time' and "working hours were used interchange- ably by the witnesses in their testimony However, viewing Torstenson s conversation with Jackson in its entirety, I find that Torstenson 's remarks were not intended to, and did not, convey the idea that the Respondents then current rule prohibited union solicitation during an employees free time or that it barred the distribution of union literature in nonwork areas during nonworking time Cf Essex Inte-national Inc 211 NLRB 749 (1974), and The Contract Knitter, Inc, 220 NLRB 558 (1975) 23 The foregoing findings are based on a composite of Jackson s and Torstenson s testimony, which I find reflect what probably occurred at the interview During this interview, Torstenson also mentioned his experiences with unions It is unimportant to the issues here presented to determine whether Torstenson stated to Jackson that he had "come up against twelve unions since his association with the hospital and that the unions were unable to get in, as Jackson testified, or whether Torstenson told her that he had had a good relationship with them , as he testified 24 Luxuray of New York Division of Beaunit Corporation 185 NLRB 100 (1970) 25 See The Contract Knitter, Inc supra The General Counsel, nevertheless, cites various instanc- es of employee solicitation and collection of funds for non- union-related purposes which had taken place in the hos- pital, as described above, to support his claim of discriminatory enforcement of the rule However, many of these episodes of solicitation and collection occurred dur- ing the employees' free time and in nonwork areas More- over, with respect to other instances of such conduct, it was not shown that supervisors were present or were aware that such activity was going on during working time or in work areas 26 or that the activity otherwise interfered with hospi- tal routine In the two instances where supervisors sold candy, the sales were isolated acts which were made in conjunction with an annual fund raising drive for the bene- fit of a high school's athletic program and a professional nurses' organization As for the formation of the Sunshine Club in the course of a staff meeting and the subsequent posting of a notice on a bulletin board regarding the em- ployees' dues standing in that club, they certainly cannot be viewed as violations of the no-solicitation rule Nor is it evidence of discriminatory enforcement of the Re- spondent's rule the fact that the Respondent itself had the occasion to post and circulate in the hospital a notice offering for sale to its employees used hospital furniture and related items Undeniably, a no-solicitation rule, as a general proposition, is not intended to, nor does it restrict the employer from engaging in the activity encompassed by the rule 27 Also of dubious value as evidence of discrimi- natory application of the rule is the fact that Respondent permitted United Fund pledge cards to be distributed among the employees once a year and the Women's Auxili- ary of the hospital to post on bulletin boards an announce- ment of a forthcoming event being run for the benefit of the hospital 28 Such "beneficent acts fall far short of estab- lishing forbidden discrimination " 29 In short, all things being considered, including the size of the hospital and its employee staff, management's efforts to enforce its rule, and the absence of sufficient proof of management's deliberate toleration of nonunion-related solicitations and collections on working time and in work areas, I find that the General Counsel failed to sustain his burden of establishing by a preponderance of the evidence that the Respondent's no-solicitation, no-distribution rule was discriminatorily enforced and applied against union adherents, particularly employee Jackson, in violation of Section 8(a)(1) of the Act 3 Accordingly, the relevant alle- 26 Serv Air, Inc 175 NLRB 801 (1969) on remand from 395 F 2d 557 (C A 10 1968) where the Board noted that "even if we were persuaded that the solicitation occurred on work time, there is no evidence that this inci- dent came to the attention of management, and hence it is no basis for a finding that Respondent permitted it without retaliatory action " 27 See N L R B v United Steelworkers of America, CIO [Nutone Inc ] 357 U S 357 (1958), where the Supreme Court held that it was not an unfair labor practice for an employer to enforce against employees a no-solicita- tion rule in itself concededly valid, while the employer engages in coercive antiunion solicitation 28 Serv Air supra, Astronautics Corporation of America 164 NLRB 623 627 (1967) 29 Serv-Air, Inc v N L R B, 395 F 2d 557 560 (C A 10, 1968) 30 Cf Serv-Air, Inc 175 NLRB 801 (1969), Astronautics supra at 625, The Seng Company 210 NLRB 936 (1974) The cases relied upon by the General Counsel for a contrary result, such as, Montgomery Ward & Co 202 NLRB Continued 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gations of the complaint in Case 30-CA-3082 will be dis- missed 5 The alleged illegality of the revised rule (Case 30-CA-3267) The no-solicitation, no-distribution rule, which is the subject of the complaint in Case 30-CA-3267, was first posted on April 25, 1975 The rule reflects a revision of an earlier rule, whose enforcement is considered in the preced- ing section of this Decision, and is the result of a program to revise the employee handbook entitled "Working To- gether" begun in July 1974 The new rule was drafted by the Respondent's counsel on the basis of his views regard- ing legal developments in the area of no-solicitation, no- distribution rules in the health care field As embodied in the employee handbook, the challenged rule reads, as fol- lows Solicitation & Distribution of Material We receive numerous requests from various persons, groups and organizations to be allowed to solicit pa- tients or employees for various causes, or be allowed to distribute books, pamphlets, etc , throughout the hospital These are a source of annoyance to the pa- tients, as well as disruptive to our routines This has led us to adopt a rule prohibiting members of the pub- lic from doing any soliciting or any distributing of ma- terial on hospital premises at any time Outside of working hours an employee becomes a member of the public, and the foregoing rules will apply During working hours , employees should not solicit or distribute written matter for any purpose in any part of the hospital during working time ("Working time" applies not only to the employee doing the soliciting, but includes the person being solicited) During the non-working time of employees ' working hours, solicita- tion is permitted only in non patient and in non-public areas of the hospital, and distribution of written material is limited to non-work areas and non patient areas and non-public areas [Emphasis supplied ] Included in the record pursuant to the parties ' stipulation are 11 large blueprints of the Respondent's facilities on which are designated by color code the areas where em- ployees are allowed or not allowed, to engage in solicita- tion and distribution in accordance with the rule 31 978, 979 (1973), and Daylin, Inc Discount Division d/b/a Millers Discount Dept Stores, 198 NLRB 281 (1972), are distinguishable from the present case in that management in those cases permitted more extensive nonunion related activities to be conducted in violation of the rule while it prohibited union solicitation in order to impede and discourage the employees organs zational effort 3i Specifically , the stipulation provides 4 Areas on the Plans which are shaded with red lines are nonwork nonpatient and nonpublic areas in which employees are allowed to engaged (sic) in solicitation and distribution in accordance with the Rule Patients and members of the public (including persons visiting patients) are not allowed in these areas Areas shaded in green are work areas in which neither the public nor patients are allowed and in which employees may engage in solicitation in accordance with the Rule Un- shaded areas are either areas in which the public and/or patients are Quoting only the italicized portion of the rule, the com- plaint alleges that since April 25, 1975, the Respondent interfered with the employees ' statutory rights in violation of Section 8(a)(1) of the Act "by promulgating and main- taining in force and effect an invalid no-solicitation and distribution rule which prohibits employees from partici- pating in union organizing activities on nonworking time in nonworking areas " 32 The General Counsel contends that the rule is on its face ambiguous and overly broad and therefore infringes upon the employees ' organizational rights in violation of Section 8(a)(1) of the Act The Re- spondent, on the other hand, urges that the validity of its revised rule may not properly be judged by the legal princi- ples normally applicable to industrial plants Instead, it ar- gues that special consideration should be given to the na- ture of its hospital operations , its concern with the health and welfare of its patients, and the presence of the public visiting the patients , and that the Board should therefore find, as it has done in the case of retail establishments and other health care institutions, that these factors outweigh the employees' organizational rights and justify the broad scope of the rule The Supreme Court has observed that the "place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees " 33 In recognition of this truism, the Board with court approval, after striking a bal- ance between the employees ' organizational rights and the employer's interest in maintaining production , discipline, and safety,34 has evolved a set of principles to govern union solicitation and the distribution of union literature by em- ployees on their employer's premises Thus, an employer rule prohibiting union solicitation b employees during working time is presumptively valid,3 as is a rule prohib- iting the distribution of union literature in work areas, whether or not it occurs on working time 36 If the rules go beyond these limitations and ban union solicitation by the employees during their free time or prohibit their distribu- tion of union literature in nonwork areas during their non- working time, these rules are invalid and constitute an un- reasonable impediment to the employees' exercise of their Section 7 rights violative of Section 8(a)(1) of the Act, un- less the employer can demonstrate exceptional circum- stances justifying such broader restrictions present or are unoccupied No solicitation or distribution is allowed in the occupied areas which are unshaded 32 Although the complaint thus challenges only a part of the rule the General Counsel nevertheless argues in his brief that the first paragraph of the rule dealing with the rights of off duty employees is also unlawful Man ifestly that issue is not before me under the complaint and the stipulation In any event the General Counsels position is of doubtful validity GTE Lenkurt incorporated 204 NLRB 921 (1973) 33 N L R B v Magnavox Company of Tennessee 415 U S 322 325 (1974) 34 Republic Aviation Corporation v N L R B 324 U S 793 797-798 (1945) 35 Id at 803 See Essex International, Inc 211 NLRB 749 (1974) where the Board clarified the distinction between working time or worktime and working hours It held that a prohibition of solicitation or distribu- tion during ` working ame or `worktime' is valid on its face since it con- notes the time spent in the actual performance of fob duties and excludes the lunch and break periods while working hours conveys the idea of business hours which includes the employees free time and therefore the prohibition is presumptively invalid 36 Stoddard Quirk Manufacturing Co 138 NLRB 615 (1962) LUTHERAN HOSPITAL OF MILWAUKEE 183 In applying the foregoing principles, the Board has been confronted with the special problems that employers oper- ating retail enterprises experience as a result of employees coming in contact with the public in the course of their work To avoid a possible disruption of business if employ- ees engage in union activity in the presence of customers, the Board has sanctioned employer rules which proscribe union activity in selling areas whether or not employees are on their own free time 37 However, the Board has declined to extend the prohibition against union solicitation by em- ployees during their nonworking time to nonselling areas, even though customers may be present, where convincing evidence justifying such extension is not adduced 38 In the case of hospitals and other health care institutions, the Board has similarly indicated an inclination not to apply the above principles mechanically but to approve no solici- tation and distribution rules which impose additional re- strictions on employees' organizational rights where unusu- al circumstances and special needs are shown to warrant them 39 As noted previously, the Respondent's revised rule pro- vides that "[d]uring the nonworking time of employees' working hours, solicitation is permitted only in non-patient and in non-public areas of the hospital, and distribution of written material is limited to non-work areas and non-pa- tient areas and non-public areas " Manifestly, the rule does not describe with sufficient clarity the particular areas where employees may or may not engage in union solicita- tion and distribution during their nonworking time There is no reliable indication in the rule whether, for example, employees are permitted to engage in this activity in the cafeteria, refreshment places, restrooms, or lounges where they might be during their free time if a visitor or other member of the public happened to be present Indeed, to define the specific areas where union solicitation and dis- tribution are permitted or forbidden under the rule, the Respondent made part of the record in this case 11 blue- prints of the hospital facilities on which numerous areas are designated However, there is absolutely no evidence that this information was ever conveyed to employees or that they were otherwise aware of it Such vagueness and ambiguity in the Respondent's newly adopted rule can have no other than a deterrent effect on employees who might otherwise desire to exercise their organizational rights lest they risk discipline for unwittingly violating the rule Yet, as the Second Circuit Court of Appeals had the occasion to observe in a comparable situation, "The true meaning of the rule might be the subject of grammatical controversy However, the employees of respondent are not grammarians The rule is at best ambiguous and the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are sup- posed to abide by it " 40 Nor is the ambiguity weakness in the rule eliminated by the Respondent's suggestion in its brief that, if the employees have any questions concerning the scope of the rule, they could seek clarification from their department head or the personnel department Cer- tainly, such inquiries would reveal the employees' union involvement or sympathies which they are undeniably priv- ileged not to disclose to their employer Apart from the ambiguous nature of the rule, there can be no doubt that the rule imposes restrictions on union solicitation and distribution during an employee's non- working time and in nonwork areas beyond those normally permissible under established law 41 While the Board rec- ognizes that a broad no-solicitation, no-distribution rule may be valid under special circumstances, the record con- tains no evidence demonstrating the need for prohibiting such activity in the specific areas claimed by the Respon- dent For example, no evidence was adduced to show a reasonable probability of interference with hospital opera- tions or efficiency or that the health and care of patients would be adversely affected if union solicitation or distri- bution occurred during an employee's nonworking time in nonwork areas where visitors or the public might be pre- sent In fact, as previously discussed, nonunion related so- licitation has taken place in the hospital in the past without any apparent serious disruption of hospital routine Plain- ly, the mere assertion that broad restrictions on union so- licitation and distribution in the hospital are required can hardly prove the need or justification for them In view of the absence of special circumstances shown by the Respondent to warrant the restrictions imposed by the quoted portion of the revised rule and in view of its ambiguity, I find that the rule to that extent is invalid and constitutes an infringement of the employees' Section 7 rights and therefore violates Section 8(a)(1) of the Act IV THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and like and related conduct and that it take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and the entire record in the case , I make the following CONCLUSIONS OF LAW 37 The May Department Stores Company, et al 59 NLRB 976 981 (1944) Marshall Field & Company, 98 NLRB 88, 92 (1952), Two Wheel Corp d/b/a Honda of Mineola, 218 NLRB 486 (1975) 38 Marshall Field & Co, supra, 93-95, see also The May Department Stores Company supra 39 Summit Nursing Convalescent Home, 196 NLRB 769, 770 enforcement denied 472 F 2d 1380 (C A 6, 1973), Guyan Valley Hospital Inc 198 NLRB 107 (1972), Cedar Corp d/b/a West Side Manor Nursing Home 203 NLRB 100, 103-104 (1973), Harold R Bursten and Dr Robert Bursten, A Partner ship, d/b/a Shorewood Manor Nursing Home & Rehabilitation Center, 217 NLRB 331 (1975), Member Penello's separate concurring and dissenting opinion I The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By coercively interrogating employees concerning a union meeting, the number of union cards signed by em- 40 N L R B v Harold Miller et al d/b/a Miller Charles & Co 341 F 2d 870, 874 (C A 2, 1975) 41 See for example Summit Nursing Convalescent Home supra Cedar Corp, supra at 104 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, the number of employees involved in the Union, and the identity of the employee head of the Union's orga- nizing committee, by inviting employees to report to the personnel director union solicitation by fellow employees and their other organizational activities, and by promul- gating and maintaining in effect an invalid no-solicitation, no-distribution rule which unduly limits such activity by employees on behalf of the Union during their nonworking time in nonwork areas, the Respondent violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5 The Respondent did not engage in other conduct vio- lative of Section 8(a)(1) of the Act, as alleged in the com- plaint in Case 30-CA-3082 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed ORDER 42 The Respondent, Lutheran Hospital of Milwaukee, Inc, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Coercively questioning employees concerning em- ployees' union sympathies and activities, meetings held by National Union of Hospital and Health Care Employees Local 1199W, RWDSU-AFL-CIO, the number of cards signed by employees for the named Union, the number of employees involved in that Union, and the identity of the employee head of that Union's organizing committee (b) Inviting and requesting employees to report to it union solicitation by fellow employees or their other orga- nizational activities (c) Promulgating, maintaining in effect, and enforcing any rule or regulation which prohibits employees from en- gaging in union solicitation in the hospital during non- working time and from engaging in the distribution of union literature in nonwork areas in the hospital, unless special circumstances and needs of the hospital require such restrictions (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist National Union of Hospital and Health Care Employees Local 1199W, RWDSU-AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as 42 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 a condition of employment, as authorized by Section 8(a)(3) of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Forthwith rescind its rule promulgated on or about April 25, 1975, to the extent that it prohibits its employees during their nonworking time from soliciting in its hospital on behalf of a labor organization or from distributing union literature in the nonwork areas in the hospital (b) Post at its hospital in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix " 43 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, particularly where notices to employees are custom- arily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS FURTHER ORDERED that the complaint in Case 30- CA-3082 be, and it hereby is, dismissed insofar as it alleges violations of Section 8(a)(1) of the Act other than those found herein 43 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 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 coercively interrogate employees con- cerning employees' union sympathies and activities, meetings held by National Union of Hospital and Health Care Employees Local 1199W, RWDSU-AFL-CIO, the number of cards signed by employees for the named Union, the number of em- ployees involved in that Union, and the identity of the head of that Union's organizing committee WE WILL NOT invite or request employees to report to us union solicitation by fellow employees or their other organizational activities WE WILL NOT promulgate, maintain in effect, nor en- force any rule or regulation which prohibits employees from engaging in union solicitation in the hospital during nonworking time or from engaging in the dis- tribution of union literature in nonwork areas in the hospital, unless special circumstances and needs of the hospital require such restrictions WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, tom, or assist the above-named Union or any other labor organiza- LUTHERAN HOSPITAL OF MILWAUKEE 185 tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act WE WILL forthwith rescind our rule promulgated on or about April 25, 1975, to the extent that it prohibits our employees during their nonworking time from so- liciting in our hospital on behalf of a labor organiza- tion or from distributing union literature in the non- work areas in the hospital LUTHERAN HOSPITAL OF MILWAUKEE, INC