St. Joseph Hospital

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Joseph Hospital and Southwestern Council of Industrial Workers, AFL-CIO. Case 28-CA-3866 February 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On October 28, 1976, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and a brief in response to Respondent's exceptions. The Respon- dent also filed exceptions and a supporting brief and a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, St. Joseph Hospital, Albuquerque, New Mexi- co, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Withdraw from the personnel files of Gilbert Moreno and Leroy Sandoval the written reprimands of April 19, 1976, and withdraw from the personnel file of Howard Conrad any written notation concern- ing the oral reprimand given to him by Personnel Director Bates on or about April 21, 1976." 2. Substitute the attached notice for that of the Administrative Law Judge. I While we agree with the General Counsel that the Administrative Law Judge erred in sinking the testimony of Angela Barreras, we are of the opinion that this error was not prejudicial to the General Counsel's case. The General Counsel claims that her testimony constitutes background evidence to show Respondent's animus against the Union and to support its contention that the no-solicitation rules were disparately enforced. Even assuming that her testimony reveals union animus , it is insufficient to establish that the no-solicitation rules were applied and enforced in a disparate manner 2 We have found that Respondent's no-solicitation, no-distribution rules are unlawful. Accordingly, we shall order that Respondent withdraw from 228 NLRB No. 23 the personnel files of Gilbert Moreno and Leroy Sandoval the written repnmands of April 19, 1976, and withdraw from the personnel file of Howard Conrad any written notation concerning the oral reprimand given to him by Personnel Director Bates on or about April 21, 1976. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and had an opportunity to present testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT promulgate, maintain, or enforce any rule or regulation which prohibits our em- ployees from soliciting on behalf of any labor organization on hospital premises during employ- ees' nonworking time, or from distributing in other than immediate patient care areas literature on behalf of any labor organization in nonwork areas of our hospital during their nonworking time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to engage in concerted activities for the purpose of mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. WE WILL withdraw from the personnel files of Gilbert Moreno and Leroy Sandoval the written reprimands of April 19, 1976, and withdraw from the personnel file of Howard Conrad any written notation concerning the oral reprimand given to him on or about April 21, 1976. ST. JOSEPH HOSPITAL DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was heard before me in Albuquerque, New Mexico, on August 24, 1976. The charge was filed on April 22, 1976, the complaint issued on June 4, and was amended on August 3. The amended complaint alleges that the Respondent violated Section 8(a)(1) of the Act by maintaining an unlawful policy concerning solicitation and distribution of materials by its employees, and by disparately enforcing such policy. The Respondent admits the promulgation of the solicita- tion and distribution rule attacked by the amended com- plaint, contends it was superseded by another rule on April 15, 1976, and denies either rule was unlawful . The Respon- dent also denies the alleged disparate enforcement of the rules, and contends further that the rule enunciated by the ST. JOSEPH HOSPITAL 159 Board in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976), to the effect that employer restrictions on solicitation and distribution in visitor access areas - public areas of the hospital where ambulatory patients and visitors have access - are unlawful, was wrongly decided and should not be further followed. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross-examine witnesses . Briefs were filed by the General Counsel and the Respondent, and have been carefully considered. Upon the entire record in the case,' and from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: ST. JOSEPH HOSPITAL NO SOLICITATION RULE SOLICITATIONS BY EMPLO YEES Because of the disruption to health care services of the hospital, no materials shall be distributed to and no solicitation shall be made of any hospital patient or employee in any public area within the hospital premis- es. Any solicitation must be confined to non-work and non-public areas and during non-working time. SOLICITATIONS BY NON-EMPLOYEES FINDINGS OF FACT I. JURISDICTION St. Joseph Hospital, herein called the Respondent, a New Mexico nonprofit corporation, is engaged in the operation of a hospital in Albuquerque, New Mexico. During the past 12 months, in the course and conduct of its business operations, Respondent received gross revenues in excess of $250,000, and purchased and received goods valued in excess of $50,000 from locations directly outside the State of New Mexico. Respondent admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that Southwestern Council of Industrial Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Rules Regarding Distribution and Solicitation by Employees The Respondent operates a 325-bed, short-term, acute care general hospital in Albuquerque, New Mexico, em- ploying approximately 1,240 employees. Sometime during the latter part of 1975, the Respondent's employees commenced organizing activities on behalf of the Union .2 On January 31, 1975, some months prior to the advent of the Union, the Respondent posted the following notice on the employee bulletin board: I The General Counsel has asked that I reconsider my ruling striking the testimony of Angela Barreras. During the investigation of the charge leading to the issuance of the complaint herein , Barreras gave a written statement to a Board agent, which she declined to sign. Because she refused, the General Counsel declined to allege in the complaint or amended complaint certain egregious conduct which Barreras attributed to Avedon Montano, a supervisor formerly employed by Respondent . The General Counsel's explanation for having failed to allege such conduct in the complaint or amended complaint was that Barreras did not want to get involved in this proceeding and "rather than risk the possibility of having to go to District Court in order to enforce a subpoena, the decision was made to omit" the alleged conduct from the complaint. Nevertheless, Barreras was placed under subpena to testify to the same alleged misconduct as "background " evidence to show animus and to support the allegation of disparate treatment between pro- and antiunion sympathizers. While the complaint was amended in several respects on August 3 - only 3 weeks before the hearing - the Respondent had no knowledge the General Counsel would contend Non-employees may not solicit on hospital premises for any reason whatsoever. An employee handbook entitled "Let's Get Acquainted" contains a section entitled "Solicitations," and pasted across the paragraph under that title is a label with the words "SEE BULLETIN BOARD" typed across it. On about April 15, 1976, the following memorandum was handed to all employees with their paychecks: To: All Employees FROM: Sister Celestia, Administrator SUBJECT: HOSPITAL POLICY "NO SOLICITING" It seems to be necessary from time to time to call all our personnel's attention to the hospital policy of no soliciting. SOLICITATIONS BY EMPLOYEES Because of the disruption to health care services of the hospital, no materials shall be distributed to and no solicitations shall be made of any hospital patient or employee in patient care areas or other working areas nor on any employee's working time, either the working time of the solicitor or the employee being solicited. Any solicitation must be confined to non-work areas such as lounges and cafeteria and during non-working time. Montano had engaged in any conduct which might conceivably be violative of the Act, until Barreras actually testified. At the beginning of the hearing, the General Counsel sought and obtained from Respondent - without any explanation - a stipulation that Montano had been an agent and supervisor until May 1976. The fact is that Montano has not been in Respondent's employ since May 1976. In these circumstances, I granted the Respondent's motion to strike in its entirety Barreras' testimony on direct examination, and the issue was not further litigated . I have reconsidered the entire matter, including the General Counsel 's explanation on the record and the argument in his brief, and reaffirm my prior ruling. 2 Rehabilitation technician Gilbert Moreno testified he had engaged in organizing activities for the last 8 or 9 months ; mechanical maintenance employee Leroy Sandoval testified he engaged in union organizing activities from November 1975 until about May 1, 1976 ; Director of Personnel Charles Bates testified he first became aware of the organizing activities in August 1975. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SOLICITATIONS BYNON-EMPLOYEES Non-employees may not solicit on hospital premises for any reason whatsoever. This includes all forms of solicitation including selling chances, tickets, vitamins, Avon products, bread, jewel- ry, cosmetics, baseball and football pools, etc. There have been many warnings about this policy in the past. We therefore feel that the next time an employee violates this policy we shall have to immediately discharge him or her. The record fails to disclose that this memorandum was posted on the employee bulletin board. Despite the is- suance of this memorandum, the record shows that the January 31, 1975, bulletin has remained posted on the employee bulletin board until at least the time of the hearing in this matter.3 Clearly, the prohibition of solicitation and distribution "in any public area within the hospital premises" as set forth in the rule posted January 31, 1975, is an unlawful restriction upon the Section 7 rights of employees. See St. John's Hospital, supra. The Respondent contends, however, that the St. John's case was "wrongly decided and should not be further followed." While in actual practice the Respondent does not strictly enforce that restriction, it interprets and applies both the January 31, 1975, and April 15, 1976, rules such that solicitations and distributions are prohibited in areas of the hospital where ambulatory patients and their visitors have access, such as hallways, dayrooms, and lounges on the 3d, 4th, 5th, 8th, 9th, and 10th floors? Respondent contends these areas are "patient care areas" within the meaning of the St. John's case. Further, Respondent prohibits solicitation and distribution in all "working areas" of the hospital at all times. "Working areas," according to the Respondent, include all of the service and ground floors except for the main hallways in each, all of the 1st floor with the exception of the hallways and the lobby, all of the 2d floor with the exception of the cafeteria and hallway, and all of the 3d, 4th, 5th, 8th, 9th, and 10th floors including hallways, lobbies, employee lounges, and locker rooms on those floors. Respondent argues that solicitation and distribution are prohibited in specific work areas at all times because employees are supposed to be working while they are in those locations, and they should spend their break and lunch periods in nonwork areas. The following rules found in the employee handbook, contend the Respondent, prohibit employees from spending breaktime in working areas: Rest Periods Everyone benefits from a short break away from work and you may take a fifteen minute break for each 4 hours worked. So that everyone isn't away at the same time, your supervisor will indicate the times best for you to take these breaks and your meals. If you aren't quick at figures, you might like to know that these rest periods equal more than 16 days a year for which you are paid. 3 Bates testified that the April 15, 1976, rule was in effect since that date, and that the earlier rule remained posted on the bulletin board due to "probably carelessness " Meals and Coffee We have a cafeteria and vending machines for your convenience. You are welcome to bring food from home for your one-half hour meal time; in the interest of sanitation, we request that any food be eaten in the cafeteria. Meal ticket books may be purchased to allow you a discount on all food bought in the cafeteria. The Board has addressed itself to the contentions made by the Respondent herein and in particular to its conten- tion the Board should apply to hospitals the rules applica- ble to retail establishments, and has set forth its position with respect to solicitation and distribution rules in health care operations in several cases. A rule forbidding solicita- tion during nonworking time is presumptively unlawful, even though limited to working areas. A rule prohibiting distribution of literature in nonwork areas to which patients and visitors have access is also presumptively unlawful. A rule prohibiting solicitation on nonworking time in strictly patient care areas such as patients' rooms, operating rooms, and places where patients receive treatment, as in X-ray and therapy areas "would seem justified." However, restrictions in visitor-access areas other than those involved in patient care, such as cafeterias, lounges, and the like, are unlawful. St. John's, supra; Baylor University Medical Center, 225 NLRB 771 (1976); Lutheran Hospital of Milwaukee, Inc., 224 NLRB 176 (1976); Beth Israel Hospi- tal, 223 NLRB 1193 (1976); St. Peter's Medical Center, 223 NLRB 1022 (1976); Baptist Hospital, Inc., 223 NLRB 344 (1976). Applying these principles to the instant case, I find that the Respondent has discriminatorily maintained an overly broad no-solicitation, no-distribution rule that prohibits all solicitation in all working areas during nonworking time, and that prohibits solicitation and distribution on nonworking time in nonwork areas such as employee lounges and locker rooms and areas to which visitors have access, including hallways, lobbies, and lounges on all floors above the second floor, thereby restraining and coercing employees in violation of Section 8(a)(1) of the Act. B. The Alleged Disparate Treatment Rehabilitation technician Gilbert Moreno, who had been passing out union literature since the latter part of 1975, testified that sometime in March or April 1976, he called Director of Personnel Bates to clarify the written solicita- tion-distribution policy and to find out where he could pass out literature . Moreno contends he was told that "we could pass it out in the cafeteria" but not in the lobbies "because those are public." Bates testified that he did not recall Moreno asking anything except "is it permitted for me to hand out literature in the cafeteria," to which he gave an affirmative answer. Inasmuch as the answer Moreno attributes to Bates regarding prohibition against distribu- tion in lobbies is consistent with the Respondent's January 31, 1975, rule in effect at that time, I credit Moreno's testimony over that of Bates in this respect. S Floors 6 and 7 are not yet completed. ST. JOSEPH HOSPITAL 161 Moreno testified that on April 8, 1976, "1 was standing in the doorway of the cafeteria handing out literature" when William Brill, Respondent's director of fire, safety, and security, approached him and "he said that I wasn't to pass out union literature in the hallway, to move into the cafeteria, so I stepped in." 5 Brill's version of the incident was that, while he was having lunch in the cafeteria sometime in May 1976, he observed Moreno standing in the doorway to the cafeteria with some papers in his hand. He testified he approached Moreno in a friendly manner and, as the area was congested, invited him to come inside the cafeteria. Brill denied he took any action to prevent Moreno from passing out literature, nor that he told him it was against Respon- dent's policy. He testified he returned to the cafeteria to finish his meal and a short time later observed that Moreno had left. He denied he either knew or asked Moreno what he had in his hand, or that he took any action to prevent his passing out literature. While the record does not disclose there were other people in the vicinity of the cafeteria entrance so that Moreno's presence in the doorway might have caused a traffic-blocking problem at that point, I am convinced from the evidence, Moreno's in particular, that he was not standing in the hallway outside the cafeteria when the foregoing incident occurred. He denies specifically that he stood outside the cafeteria, but was instead "right under the door." Inasmuch as Moreno was not in fact standing in the hallway outside the cafeteria, I doubt the probability that Brill would have told him he was not allowed to do so. In any event, I conclude and find that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent prevented Moreno from distributing litera- ture in the hallway adjacent to the entrance to the cafeteria as alleged in paragraph 13 of the complaint .6 Director of Personnel Bates testified that on April 19, 1976, as a result of reports he had received from supervisors that employees Moreno and Leroy Sandoval had been soliciting for the Union during their working time and the working time of the employees to whom they had spoken, he composed the following letter, a copy of which was given to both Moreno and Sandoval: 7 SUBJECT: NO SOLICITATION POLICY B The complaint alleges Brill prevented Moreno from distributing litera- ture on behalf of the Union "in a hallway at a point immediately adjacent to the public entrance to the Respondent's cafeteria .. . ' Moreno's testimo- ny makes it abundantly clear that he was standing in the doorway "under the door" to the cafeteria and not in the hallway outside the cafeteria as alleged. 6 While not mentioned in his brief, at the hearing the General Counsel sought to establish disparate application of the Respondent 's solicitation and distribution rule by showing the Hospital Auxiliary had been permitted to sell dinner tickets in the hallway outside the cafeteria, the proceeds of which were used to purchase hospital equipment and supplies ; and that the Auxiliary had "setup booths with pamphlets on different things and set them up in the hallway of the cafeteria, such as diabetes, high blood pressure, things like this." As noted heretofore, the evidence not only fails to show that either solicitation or distribution was prohibited in the hallway outside the cafeteria, but the testimony shows that the Auxiliary sales which took place in the hallway outside the cafeteria occurred prior to the publication of the January 31, 1975, solicitation-distribution rule involved herein, and that It has been brought to my attention that you have been observed soliciting other employees in connection with union activity on working time. So that there will be no question about this I wish to repeat the hospital policy that you are not permitted to solicit on your working time or on any other employee's working time and at no time in patient care areas or other working areas. If you persist in not observing this no solicitation policy, you will be discharged. Please observe our no solicitation policy. Moreno was given his copy of the letter on April 19, by the night supervisor. Sandoval received his from Bates on April 21. Sandoval's version of the conversation between him and Bates at that time was: I walked into Mr. Bates' office and he told me that I have heard you have been observed soliciting union during your working time and then he handed me the letter. And I said, "Well, I don't want to argue the point." I told him it is a he and I said, "Other people have approached me about the family. I don't talk about the union during my working time. I don't like them talking to me about their family policy." And he said, "Well, who has been talking to you about their family?" And I said, "Well, Howard Conrad." And he said, "O.K., what I will do, I will send him a letter, too." And I said, "O.K., and I walked out. That was it and I went back to work.8 Sandoval testified that about the middle of March 1976, while working in the engineering department located on the sixth floor, employee Howard Conrad, who was on a cofl'eebreak, had approached him. His testimony regarding the conversation that followed was: Well, I don't know what started the whole thing, but anyway he started telling me about the union, that he had been in the union before or something. I really can't remember that good, that it is not worth it, it is no good, you shouldn't be joining the union. And then he came out with this president deal, that I wanted to become president of the union or something. I told him, "Howard, do me a favor. Please don't talk to me about since that time they have been conducted within the cafeteria Moreover, the Board has declined to find that similar beneficent acts establish disparate application. See, for example, Serv-Air, Inc, 175 NLRB 801 (1969). 7 While Moreno denied having solicited on behalf of the Union in any place other than the cafeteria, and Sandoval denied soliciting on working time, the latter admitted on cross-examination that he had talked to another employee about the Union on working time in response to questions asked by that employee Furthermore, the complaint alleges in par It, and the answer admits, that the letters of April 19 had been written "because Bates had been advised that said Moreno and Sandoval had solicited other employees on behalf of the Union on their working time " In light of the pleadings, the General Counsel's argument that the failure of the Respon- dent to present evidence that Moreno was ever observed engaging in union activities other than the April 8 incident at the entrance to the cafeteria, must lead to the assumption that the April 8 incident "caused the .. letter of reprimand to be issued to Moreno" is rejected as lacking in merit. 8 The "family" is a group of employees against the Union. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any family policy or anything." I said, "Because I don't talk to you about union during my working time." And he kept on. He kept insisting. So I started getting angry and that is when my boss walked in. Q. And who is your boss? A. Jim McBride. Q. Was that the end of the conversation? A. No, I told Jim, I said, "Jim, could you please do me a favor? I don't talk to you guys about union when I'm working, could you do me a favor and tell Howard not to talk to me about any family policy or anything?" And then he told me, "Leroy, there's nothing I can do. You're for the union and he's for the family and there's nothing I can do." And so that was it .9 Conrad, who was called as a witness by the General Counsel, denied on cross-examination that he had told Sandoval the Union was "no good," that he had ever belonged to a union, or that he understood Sandoval was trying to become president of the Union. Bates, who first learned of the conversation between Sandoval and Conrad on April 21, when he gave Sandoval a copy of the April 19 letter, testified as follows: Q. What did he [Sandoval] say and what did you say on the subject matter of the Howard Conrad incident? A. I had asked him to stop by the office to pick up the letter about the no-solicitation rule and he said, "Other people are talking for and against the union also." And I said, "My knowledge is that you have been doing so, and we just wanted to warn you." He said, "Well, Howard Conrad was talking to me while we were working together about how good a place the hospital is to work and how good the benefits are. And I told him that he was entitled to his opinion as I was entitled to mine and I did not want to hear him talking about such things to me while we were working." So I said, "He has no more right to talk against the union than you have to talk for it while you are working." I said, "I will take it up with him. Q. Did Mr. Sandoval, in his relating to you of the incident he had with Mr. Conrad, make any claim that Mr. Conrad had been talking about the family? A. No. Q. Have you told us as fully as you can recall what Mr. Sandoval did say to you on that occasion? A. Yes. Q. What did you do next? A. I called Mr. Langner, who is the director of the plant services, and I told him what had happened and I said, "Will you get Mr. Conrad in and tell him that he must not be doing this because what applies to one employee applies to all employees." Conrad testified that Langner called him into the office and said that Sandoval had told Bates that Conrad had been talking about the family and had stated that if Conrad "could talk about the family, then he [Sandoval] could talk about the Union." Conrad's testimony regarding his response to Langner, and a subsequent conversation with Bates, is as follows: I explained to Mr. Langner that I was referring to Mr. Sandoval, the benefits that we had at the hospital that they did not have outside of the hospital, such as birthdays off and coffee breaks. If you work outside the hospital, which I have done, when you straighten up, they ask you what's wrong and they want you to continue with work and the benefits that we had at the hospital were so much greater than you had outside. s s s s s About two days after I talked to Eric, I met Mr. Bates on the second landing between the first and second floor, and I said, "Charlie, it is a hell of a note when a man can't tell a person that he likes his job." And Charlie said, "That's right, but it is against the law." He said, "If I tell one that he can be discharged for talking against the hospital or against the union , I can dis- charge, by the same token, I would have to discharge someone for talking against the union." * s s I explained to Mr. Langner this is what I had discussed with Leroy Sandoval and he said, "Well, let me call Mr. Bates and see if this is illegal ." Then he called Mr. Bates and he got him on the phone, I could hear Mr. Bates very clearly on the phone. I sat across the desk and he asked him if this was illegal and Mr. Bates said, after thinking a while, he said, "No, we hadn't better. Speaking for the hospital could possibly be construed as speaking against the union, so we don't do it." And this perturbed me greatly when Eric said, no, we can't do it. r s s s s I asked Eric why a man can't tell his fellow employees that he likes his job. Why is that illegal? And Eric said, he has a way of putting it across to you, he just said, "Howard, don't do it." And that was the end of our conversation. I left his office. The record also shows that on April 19, the date of the Moreno-Sandoval letters regarding the Respondent's no- solicitation policy, Bates sent copies of the following letter to Shirley LeBlanc in the housekeeping department and Sue Boggs in the engineering department, both known to be active on behalf of the "family": SUBJECT: NO SOLICITATION POLICY. Although I have not been informed that you have been soliciting employees on working time, either on yours or other employees, and I believe that you have not, I wish to call your attention to the hospital policy on no solicittion [sic] which applies to all employees. 9 It was stipulated that McBride is a supervisor and agent within the meaning of the Act ST. JOSEPH HOSPITAL 163 So that there will be no question about this I wish to repeat the hospital policy that you are not permitted to solicit on your working time or on any other employee's working time and at no time in patient care areas or other working areas. Please observe our no solicitation policy since the penalty for breaking this policy is discharge. I would suggest that you also caution other members of your hospital family committee. While apparently ignoring the fact that LeBlanc and Boggs received letters advising them that the penalty for breaking the Respondent's no-solicitation policy was dis- charge - the same as that contained in the Moreno- Sandoval letters - the General Counsel contends the Respondent's failure to similarly reprimand Conrad in writing is evidence of disparate enforcement of its no- solicitation rule vis-a-vis pro- and antiunion activists. The General Counsel alludes to Sandoval's testimony to the effect that he said to his supervisor, McBride, "Jim, could you please do me a favor? I don't talk to you guys about union when I'm working, could you do me a favor and tell Howard not to talk to me about any family policy or anything?" and to McBride's reply, "Leroy, there's nothing I can do. You're for the Union and he's for the family and there's nothing I can do." It is clear that McBride did not overhear the conversation between Conrad and Sandoval, nor do Conrad and Sandoval - both witnesses for the General Counsel - agree on what was said between them. Further, as soon as Bates, who initiated the April 19 letters, learned from Sandoval on April 21 that Conrad had been talking about the "family," he took immediate steps to put a stop to it, and it is clear from Conrad's testimony that Bates informed him personally that "if I tell one that he can be discharged for talking against the hospital . . . I would have to discharge someone for talking against the Union." Thus, it is seen that Moreno, Sandoval, LeBlanc, Boggs, and Conrad had all been advised of discharge as the penalty for violating the Respondent's no-solicitation rule. In a further attempt to establish disparate enforcement of the Respondent's rules, the General Counsel contends "the family" was allowed to post several notices on the bulletin board, presumably while the Union was refused such permission. Sandoval testified he observed two or three 10 At the commencement of the hearing, the General Counsel sought, and obtained a stipulation that Montano was a supervisor until May 1976 when he left Respondent's employ. During the hearing, the General Counsel sought to elicit the details of a purported conversation between Sandoval and Montano in January 1976 Upon objection by the Respondent that such testimony went beyond the allegations in the complaint , the General Counsel represented that the testimony which he sought to elicit went "to the animus and the background of disparate treatment which is alleged in paragraph I I of the complaint." The General Counsel further gave me to understand that he was not contending Montano's purported statements were in violation of the Act or covered by the complaint . Upon those representations, Sandoval was permitted to testify that Avedon had offered him a job in his department as a supervisor on the day shift . His testimony regarding the conversation was: So I went down there and I went into his office and he [Montano] told me to sit down and he said, "Leroy, I've heard you've been having trouble with mechanical." And I said, "Yes." And he said, "How would you like a job with me?" I said, "Well, I don't know. Doing what9" And he said, "Supervisor ." And I said, "In the night or day?" I didn't want to letters "from the family" posted on top of each other on the bulletin board in the back of the sterilization room. There is no evidence to show that the Respondent authorized or was even aware that such letters were posted there or that more than five employees frequented that location. Further, Bates testified there was a hospital policy which prohibited use of the bulletin boards for either union or family literature, and he knew of only one instance when family literature had been posted on a bulletin board located on the third floor, and it had been removed as soon as the head nurse saw it. In these circumstances, I find that the General Counsel has failed to prove by a preponderance of the evidence the disparate enforcement of its no-solicitation rule vis-a-vis pro- and antiunion activists.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY It having been found that Respondent has promulgated and maintained rules unlawfully restricting employee exercise of rights guaranteed by the Act, I shall recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. Upon the foregoing fmdings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. St. Joseph Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southwestern Council of Industrial Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. work nights. And he said, "In the day-time." And I said, "Well, it sounds good." He said, "How much do you get now9" And I told him And he said, "Well, we might be able to get that or even better." And I said, "Well, that sounds fine to me." He said, "What about the union?" I said, "What do you mean about the union?" And he said, "Well, Leroy, we don't need the union here in the St. Joseph Hospital. We don't want it." And I just looked at him and I told him, "Well, I don't know. I'm going to have to think about it " He said, "You're going to have to tell me fast because I 've got to post this I've got to post it on the bulletin board for ajob opening." And I said, "Well, I'll let you know by Friday." And that was it. Then I went up to work. Sandoval later declined the job. In his brief, the General Counsel contends that "Montano's remarks were an obliquely phrased but thinly veiled open solicitation of Sandoval to refrain from his pro-union activities " My imagination is not as fertile as that of the General Counsel; therefore I must rely solely on the testimony which I find fails to establish either a thinly veiled open solicitation to refrain from prounion activities or the "animus and the background of disparate treatment" which it purports to show. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By promulgating and maintaining rules restricting the areas in which employees on nonwork time may orally solicit for labor organizations, and restricting the nonwork areas in which employees on their nonwork time may distribute materials on behalf of labor organizations, Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated the Act in any other respect. 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: ORDER" The Respondent, St. Joseph Hospital, Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating any rule or regulation prohibiting its employees from soliciting on behalf of any labor organiza- tion on Respondent's premises other than immediate patient care areas during nonworking time, or prohibiting the distribution of union literature in nonworking areas during employees' nonworking time. 11 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. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind its rules restricting the areas in which employees may solicit on behalf of labor organizations during the employees' nonworking time insofar as it applies to other than immediate patient care areas, and prohibiting distribution of union literature during employees' nonwork- ing time in nonworking areas of its operations. (b) Post at its operations in Albuquerque, New Mexico, copies of the attached notice marked "Appendix." 12 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 it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) 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 herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 12 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."