Lafayette Home Hospital, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lafayette Home Hospital, Inc. and Local 1199, National Union of Hospital and Health Care Employees, a/w Retail, Wholesale and Department Store Union, AFL-CIO. Cases 25-CA-7252 and 25-CA-7303 August 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 7, 1977, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 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, Lafayette Home Hospital, Inc., Lafayette, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified. 1. Substitute the following for paragraph !(a): "(a) Maintaining any rule or regulation which prohibits employees from soliciting on behalf of any labor organization on hospital premises, in other than immediate patient care areas, during employees' nonworking time, and promulgating or enforcing any rule or regulation which prohibits employees from distributing literature on behalf of any labor organi- zation in nonwork areas of the hospital during their nonworking time." 2. Add the following new paragraph l(b) and reletter the subsequent paragraph: "(b) Interrogating employees concerning the identi- ty of other employees who engage in union activities or support a union." 3. Substitute the following for paragraph 2(a): 231 NLRB No. 141 "(a) Announce to its employees that it has rescinded its unlawful no-solicitation and no-distri- bution rules and inform them that they have the right to solicit on behalf of any labor organization on hospital premises, in other than immediate patient care areas, during their nonworking time, and to distribute literature on behalf of any labor organiza- tion in nonwork areas of the hospital during their nonworking time." 4. Substitute the attached notice for that of the Administrative Law Judge. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Contrary to the Administrative Law Judge, we conclude that Respon- dent, through Supervisor Miller. unlawfully interrogated employee Brown. In so concluding, we rely on the fact that, in the midst of their discussion of the need for the Union in general terms, Miller abruptly asked Brown "who the head of the Union was." Given this abrupt injection into their conversation of such a pointed question, and because the question itself could reasonably be understood by the employee as seeking the identity of the leading union adherent at the hospital, we find that Miller's question tended to interfere with the employees' Sec. 7 rights Accordingly, we conclude that Respondent thereby violated Sec. 8(a)( I) and shall provide an appropriate remedy therefor. Cf. United Service Corporation, d b'a Forest Park Ambulance Service, 206 NLRB 550, 551 552 (1973). In addition, Member Jenkins finds that Respondent violated Sec. 8(a)(1) by the admitted statement of Head Nurse Hayes to employee Fishman that Hayes had no use for a nurse to be active in a union in the health field, and that Fishman was not to talk union to the staff on duty at any time. :1 In his recommended Order, the Administrative Law Judge provided. inter alia, that Respondent be required to cease and desist from restricting the right of employees, and to announce to employees that they have the right. "to solicit and distribute for the Union during their nonworking time in areas of the hospital other than immediate patient care areas." We, however, shall modify these portions of the recommended Order to conform to the language used in St. John's Hospital and School of Nursing, Inc., 222 NLRB I 150 (1976), and Lenox Hill Hospital, 225 NLRB 1237 (1976). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain any rule or regulation which prohibits employees from soliciting on behalf of any labor organization on hospital premises, in other than immediate patient care areas, during employees' nonworking time, and WE WILL NOT promulgate or enforce any rule or regulation which prohibits employees from dis- tributing literature on behalf of any labor organi- zation in nonwork areas of the hospital during their nonworking time. WE WILL NOT interrogate employees concern- ing the identity of other employees who engage in union activities or who support a union. 830 LAFAYETTE HOME HOSPITAL WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL announce to our employees that we have rescinded our unlawful no-solicitation and no-distribution rules and inform them that they have the right to solicit on behalf of any labor organization on hospital premises in other than immediate patient care areas, during their non- working time, and to distribute literature on behalf of any labor organization in nonwork areas of the hospital during their nonworking time. All our employees are free to become, remain, or to refrain from becoming or remaining members of Local 1199, National Union of Hospital and Health Care Employees, a/w Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. LAFAYETTE HOME HOSPITAL, INC. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: Upon charges filed on July 31, 1975, and August 18, 1975, in Case 25-CA-7252 and 25-CA-7303, respectively, as amended in both cases on September 18, 1975, by Local 1199, National Union of Hospital and Health Care Employees, a/w Retail, Wholesale and Department Store Union, AFL-CIO, hereinafter referred to as the Union, the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, issued a consolidated complaint on September 19, 1975, which was amended at the hearing, against Lafayette Home Hospital, Inc., hereinafter referred to as the Respondent or the Employer, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. A timely answer to the consolidated complaint was subsequently filed by the Respondent wherein it denied the commission of any unfair labor practices. At a hearing, held in Lafayette, Indiana, all parties were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of hearing, within the time extended for filing, timely briefs were submitted by counsel for the General Counsel and for the Respondent. Upon the entire record in this proceeding,' and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence, "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Lafayette Home Hospital, Inc., is an Indiana corporation maintaining its principal office and place of business at Lafayette, Indiana, where it is engaged in the operation of a nonprofit hospital and in the provision of health care services. During the year immediately preceding the issuance of complaint, the Respondent performed services the gross value of which exceeded $500,000. During this same period the Respondent received goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from States other than the State of Indiana. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED I find that Local 1199, National Union of Hospital and Health Care Employees, a/w Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues i. Whether, on certain occasions between February and August 1975, supervisors of the Respondent engaged in conduct violative of Section 8(a)(Xl1) of the Act. 2. Whether the Respondent maintains or enforces unlawful rules pertaining to soliciting or the distribution of union literature on hospital property. 3. Whether, in discharging employee Janet Hicks on July 8, 1975, at the end of her 90-day probationary period, the Respondent did so because of her union activities. 4. Whether, in issuing a disciplinary action report on nurse Ernestine Fishman on June 16, 1975, and subse- quently transferring her to another ward, the Respondent did so because of her union activities. B. The Facts i. Alleged 8(a)(l) conduct At the meeting in late November 1974, attended by a number of employees of the hospital who expressed an interest in a union, officials of the Union commenced a campaign among Respondent's employees. Subsequently, leaflets were passed out, cards were signed, and, during December into February, meetings were held at the union hall every couple of weeks. After slacking off during the I Errors in the transcript have been noted and corrected. 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spring, meetings were again held about every week to 10 days, June through August. During this period certain conversations involving the Union allegedly took place between Respondent's supervi- sors and its employees. Evaughn Zills, a former employee who worked on Two Main under Head Nurse Martha Hayes, testified that during an employee meeting in late January 1975, held in the kitchen, Hayes stated that a union was trying to get into the hospital, that they were handing out leaflets near the emergency room entrance, and suggested that the employees could avoid them by leaving through the back entrance. According to Zills, Hayes continued by generally painting a bad picture of the Union. Further asserted details of this conversation I deem unnecessary. The testimony generally of Zills I find unworthy of belief. Apart from her lack of demeanor, Zills is a good friend of discriminatee Ernestine Fishman, had been formally reprimanded for her work performance by Hayes on two prior occasions, and was being reviewed by Hayes for a possible third. As to this incident, Zills' testimony is without corroboration and is specifically refuted by Hayes and nurse Janet Prather, whom Zills placed at the meeting.2 Zills testified that a couple of weeks after Ernestine Fishman was transferred to Two Main, which occurred on February 16, 1975, Hayes initiated a conversation with her in her office, allegedly warning her that Fishman was an advocate of the Union, that Fishman had been placed on Hayes' floor for closer observation, that she should be careful because the hospital was waiting for a chance to fire Fishman, and that "all those that associated with her or were known to be friends of hers would be fired too." Hayes, a nurse at the hospital for 31 years with strong convictions concerning the nursing profession, and who candidly admitted that she was opposed to nurses in unions, testified throughout in a most forthright manner. I credit her flat denial of Zills' uncorroborated testimony as to this matter. Zills testified that during the middle of May, while at lunch in the cafeteria, on two occasions with no one else present, Hayes asked her if Fishman had been talking to her about the Union. The first time Zills allegedly replied, no, and the second time, yes, followed by her statement that the employees had a right to organize. Upon being led by counsel, Zills also recalled that Hayes had said that anybody messing with the Union could lose his job. Zills testified further that, in the middle of June at the Two Main nursing station, Hayes said to a number of employ- ees, including Janet Prather, that she had had enough of this, that she was not going to have people on her floor harassed and that she wanted Miss Fishman off the floor. Hayes denied that these conversations ever took place. Prather corroborated her denial as to the alleged June incident. I credit both denials of the uncorroborated testimony of Zills and find, as in the earlier instances, that they did not occur. 2 This testimony was offered by the General Counsel, not as an 8(aXI) violation. but to show knowledge. As indicated hereinafter. the record adequately reveals that Hayes was well aware of union activity among the hospital staff. including Fishman. As hereinafter discussed, Fishman was transferred to Two Main under Head Nurse Hayes on February 16, 1975. A day or so later, Hayes talked with Fishman as she did every nurse upon being assigned to her floor. After Hayes told her why she had been transferred and what was expected of her, Hayes, according to her own testimony, told Fishman that she was aware that she was involved in the Union and that she (Hayes) had no use for a nurse to be active in a union in the health field, and that she was asking her not to talk union to the staff "on duty at any time." Fishman's version differs from that of Hayes mainly in that Fishman testified that Hayes told her she was not to talk to any of her employees about the Union. I credit Hayes' version. In expressing her opposition to the Union, unaccompanied by threats or interrogation, Hayes did not transgress permissible bounds. Fishman's adherence to the Union was well known at this point, and Hayes' admoni- tion to her not to talk union to the staff while she was on duty was within her province as head nurse. 3 According to Frederick Franz, an employee plumber, on August 5, following receipt of a hospital letter distributed to employees opposing the Union, Bob Smith, one of several employees gathered in the maintenance shop, initiated a conversation with Koven Smith, a supervisor, stating that he felt that the newsletter was the best thing the hospital could have done to promote union activity. When Smith asked why they thought this, Franz spoke, stating that he had been in other unions, and that signing a union card does not take away your right to talk with supervisors. Smith then said he could not understand what complaints the hospital employees had for wanting a union. Franz then explained his own views on the matter. In view of the context in which this occurred, the fact that the union aspect of the conversation was initiated by one of the employees, and that Smith's reply was in effect an uncoercive statement on his part, I find such to not constitute unlawful interrogation within the meaning of Section 8(aX 1) of the Act. On August 12, when David Brown, a dish machine operator, reported for work, he was not wearing his uniform shirt but, rather, a dirty unattractive shirt. His supervisor, Food Production Manager Ronald Miller, asked him to go home and put on the proper uniform, giving him the option of doing so right after the breakfast line and docking himself the time or waiting until his breakfast break. Later in the day, Miller asked Brown what had happened to his attitude, stating that he had had a good evaluation on his probation form, and that Miller could not understand his deliberately coming to work wearing a soiled shirt. Brown replied that the employees needed a union to bridge the gap between management and the employees. In response to Brown's reply, Miller asked whether the Union could solve all their problems, and Brown said that it could. At this point, Miller asked Brown if he knew who the head of the Union was. Brown replied that he did not. Brown then indicated that he was going to file charges against Miller for violation of the Taft- 3 In finding no violation as to this incident, I also find that it does not support the General Counsel's position concerning the enforcement of an unlawful written no-solicitation rule hereinafter discussed. 832 LAFAYETTE HOME HOSPITAL Hartley Act. Miller responded by stating that that was his privilege. Miller's inquiry of Brown as to whether he knew who the head of the Union was might, under different circumstanc- es, be considered a technical violation of the Act. In view of the fact, however, that the conversation commenced with a genuine interest by Miller in the welfare of Brown with Miller having no idea that the mention of the Union would ensue, coupled with the fact that the record contains no evidence that Miller at any other time engaged in employee threats or interrogation, I am of the opinion, and so find, that such inquiry on this occasion does not warrant a finding of unlawful conduct. 2. No-solicitation and no-distribution rules Employee Franz testified that, on a morning in late July 1975, he passed out some union leaflets in the hospital parking lot, and, at noon, posted some union meeting schedules in the hospital laundry. The following noon, while eating lunch, his supervisor, Koven Smith, called him into his office and told him that it was against hospital policy to post anything, including union literature, without going through the personnel department for clearance. According to Franz, Smith also told him that he was not to have union literature on the hospital grounds. Franz replied, saying that it was his understanding that as long as he did it during breaktime and lunchtime it was all right. Smith replied that he thought Franz was mistaken. Smith denied that on this occasion he told Franz that he could not have union literature on hospital grounds, but was not questioned as to the rest of that attributed to him. I credit Smith's denial as to the latter. Contained in the Respondent's employee handbook as revised October 1974 is the following rule entitled, "Selling and Soliciting": Solicitation or canvassing on behalf of organizations or special causes, or selling or collecting of any kind from either patients or employees is not permitted within the hospital proper or on any property owned or controlled by the hospital. Exceptions, in the case of community projects, will be allowed on written approval by the Administrator. Personnel Director John Bell testified that recently, when the hospital came under Taft-Hartley, this rule was no longer enforced and that employees are permitted to distribute union literature and to solicit in nonwork areas on hospital property during rest breaks, lunch breaks, and on nonworktime. Bell further testified, however, that, although all supervisors have been informed of the change in the rule, the rule as written has not been corrected nor has any announcement been made to the employees to this effect, and that the broad rule still appears in the employee handbook which is handed out to all employees. Under these circumstances, since the written rule has not been changed and appears in the handbook distributed to employees, it is reasonable to conclude that an employee ' See St. Johns' Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976): Baptist Hospital, Inc., 223 NLRB 344 (1976). - St. Peter's Medical Center. 223 NLRB 1022 (1976). would assume that the written rule is the rule still in effect. Inasmuch as the written no-solicitation rule generally prohibits solicitation of any kind within the hospital or on the hospital grounds, its maintenance is violative of Section 8(a)(1) of the Act. Accordingly, I find that the Respondent maintained an unlawful no-solicitation rule to the extent that it prohibits all solicitation in all areas of the hospital other than in immediate patient care areas,4 thereby restraining and coercing employees in violation of Section 8(a)(1).5 I further find that Superintendent Smith's admoni- tion to Franz to the effect that it was against hospital policy to post anything, including union literature, without going through the personnel department for clearance, supports the complaint allegation that the Respondent orally promulgated and enforced a rule prohibiting the distribu- tion of union literature on hospital grounds, in violation of Section 8(a)(1). As there is no indication that Respondent's employees have been notified that either unlawful rule has been rescinded or informed as to the extent to which they are now authorized to solicit and distribute for the Union, I shall recommend that the Respondent announce to its employees that it has rescinded its unlawful no-solicitation and no-distribution rules and inform them that they have the right to solicit on behalf of any labor organization during nonworking time on the hospital premises other than in immediate patient care areas and to distribute union literature during nonworking time in nonworking areas other than in immediate patient care areas.6 3. The termination of Janet Hicks Janet Hicks, a 17-year-old recent high school graduate, was hired by Respondent on April 8, 1975, as a cafeteria attendant in the dietary department, in which position she worked until her termination on July 8, 1975. Hicks was hired by, and worked under, Supervisor Patricia Bizer. At the time of her hire, Bizer explained the job to Hicks, going through the work schedules, the job description, the dress code, and covering speedy counter service and emergency information. Bizer told Hicks that she would be a relief attendant covering all three shifts, and indicated to her that she would be a probationary employee for 90 days, at the end of which time she would be given an evaluation to determine whether she would become a permanent em- ployee. During the early weeks of her employment, Hicks was slow to learn the work and Bizer found it necessary to spend extra time following up on her work and prodding her to get things done. Approximately 6 weeks into her probationary period, Bizer had a discussion with Hicks concerning her performance on the job. Bizer explained to her that she was not happy with her work record, that her serving techniques were deficient, her cleaning techniques were not up to standard, and that she (Bizer) was having trouble getting her to do certain tasks. Bizer explained to Hicks that she was warning her at this point in order for her to improve prior to her evaluation at the end of her probationary period. 6 See Lenor Hill Hospital. 225 NLRB 1237 (1976); Valley Hospital, Ltd.. 226 NLRB 309 (1976). 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For a period following this discussion, according to Bizer, Hicks' work performance showed improvement, but then she commenced slipping back into her old habits. From time to time Bizer would point out a deficiency and would ask Hicks to redo something, and Hicks complied. According to Bizer, Hicks was deficient in cleaning techniques and on occasion, contrary to policy, was prone to disappear from the serving line in order to get something for a customer. On a number of occasions, Bizer found it necessary to admonish her for slamming carts against the walls. Bizer characterized Hicks' attitude throughout as being basically disinterested in her job. During this period, on a weekly basis, Bizer spoke with Food Production Manager Ronald Miller concerning her problems with Hicks. Hicks admitted that, on several occasions during the week prior to July 8, Bizer approached her about her work, specifically with respect to wiping dining room tables and cleaning the microwave oven. Finally, toward the end of her 90-day probationary period, it came time for Bizer to make an evaluation of Hicks' work performance. On July 7, after filling out the report but before talking with Hicks concerning it, Bizer spoke with Ronald Miller concerning Hicks and her evaluation of her. Bizer, who had never terminated an employee before, registered compassion for Hicks who was to enter school shortly, but told Miller that she felt that Hicks was not an asset to the department. Bizer read over the evaluation to Miller. Miller then asked Bizer, whose intention to leave her employment at the hospital in the near future was common knowledge, whether she would keep Hicks on the basis of the evaluation were she (Bizer) staying on. Bizer replied that she would not. Miller told Bizer that the decision was up to her, that he would back her either way she decided. While Bizer contemplated giving Hicks an extension of time on her probationary period, for which there was precedent, she decided entirely on her own that Hicks should be terminated. Bizer's performance evaluation report indicated that, of 16 job factors to be checked, Hicks was above standard in none, met the standard in 12, and was below standard in 4. Bizer's written comments on the report reflected that Hicks was quick but that her work demanded constant followup, that she exhibited poor attitude and abuse toward equipment, and that her acceptance of criticism, although rated standard, seemed to fall more toward the negative. On the reverse side of the report, Bizer was more specific in enumerating those factors giving rise to her unfavorable evaluation, specifics relating to poor attitude, need for constant supervision, and abuse of equipment. On July 8, Bizer met with Hicks, went over the report with her, and told her that based on the evaluation she was to be terminated. Hicks signed at the bottom of the report, noting in writing that she had seen the evaluation but disagreed with it. According to Hicks' testimony, she asked Bizer if this had anything to do with her union activities, and Bizer replied that, "this was something she had thought of when she was writing the evaluation up, that she had been thinking that the Union was real important to me 7 I was most impressed with the demeanor while testifying of two important witnesses in this proceeding. One is Patricia Bizer. I found her to he a most credible witness whose demeanor and manner in answering and this was something real important but it hadn't affected her decision at all." Hicks finished out the day, at the end of which she was terminated. Analysis and Conclusions Contrary to the assertions of the Respondent that Hicks was terminated at the end of her probationary period solely because of her poor job performance rendering her an unsatisfactory employee, the General Counsel alleges that Hicks was discharged due to having engaged in union activities. With respect to her union activity, Hicks testified that during April she discussed the Union once or twice a week with one employee, namely, David Brown, and that she signed a union card on May 7. Hicks arranged for a meeting with the union organizer, Stephen Poor, on June 25, which was followed a few days later by a union meeting, concerning which she had contacted some five or six employees in the dietary department. Hicks also attended one other general meeting prior to July 9, and several thereafter. During the 3-week period between June 16 and her July 8 discharge, Hicks also distributed literature and passed union cards among Respondent's employees, many of which were subsequently returned to her and, in turn, to Poor. Thus, summed up, the record reflects that Hicks was an employee with a poor work performance who also was an active supporter of the Union. It also reveals that her less than satisfactory performance on the job commenced from the outset and that such performance and a warning to improve preceded her overt activity on behalf of the Union, which did not occur until the last 3 or 4 weeks of her probationary period. To what extent Bizer was aware of Hicks' union activities is not reflected in the record. While it appears that Bizer knew that the Union was important to Hicks, she testified that at no time did she ever hear of or see Hicks soliciting, passing out handbills or cards on behalf of the Union, or engaging in any other union activity. Bizer, who no longer is employed by the Respondent and whose intention to leave its employ was commonly known at the time of her termination decision, is not charged with any other unlawful conduct. Nor is there record evidence reflecting antiunion conversations or animus on her part. Bizer testified, truthfully I find, that union considerations had not a thing to do with her evaluation of Hicks' work performance and subsequent decision to terminate.7 I find that Hicks was terminated at the end of her probationary period for reasons connected with her job performance, and that the General Counsel has failed to prove by a preponderance of the credible evidence the complaint allegation that Respondent discriminatorily discharged her in violation of Section 8(aX3) of the Act. questions on both direct and cross-examination was impressive. I believe her and credit her testimony. 834 LAFAYETTE HOME HOSPITAL 4. The alleged discriminatory treatment of Ernestine Fishman Ernestine Fishman was hired by the Respondent on May 20, 1974, as a graduate nurse, and, in August, became a registered nurse. As such she worked the night shift on the Two North under Night Supervisor Ruth Brown. In early February 1975, Fishman asked for a transfer to the day shift. On February 16, she was transferred to Two Main under Head Nurse Martha Hayes. Just prior to the transfer, the associate director of nursing, Doris Bowman, told Hayes that Fishman would be coming to her floor for orientation to days, and in hopes that she could improve her nursing care and her personal care and appearance. Hayes had a full staff and Bowman indicated that this was to be a temporary assignment. On the second or third day, as was her custom with each new nurse on her floor, Hayes talked with Fishman concerning the reason for her transfer, specifically because there had been some diffi- culty on nights, that she was being orientated for days. Hayes told her that she was to improve her appearance, her uniform, and her body. During this conversation, accord- ing to Hayes' own testimony, Hayes told Fishman that she "knew she was involved in the Union and I had no use for a nurse for a union to be active in the health field, and that I would ask her not to talk to the staff on duty at any time." During the immediate period that followed, Fishman's appearance improved, but, according to Hayes, not to her standard. On a number of occasions Hayes spoke to Fishman concerning her shoes, her cap, the excessive time she took to pass medication, and the fact that she spent too much time with patients resulting in her work not being done. On one occasion, Hayes talked with Fishman about complaints of other RNs concerning the time she took to do her work, resulting in their having to "carry a double." On another occasion, Hayes found it necessary to admon- ish Fishman for not adhering to her policy that a nurse passing medicine shall not empty bedpans and "answer lights," such policy based on cleanliness and the need to eliminate medicinal errors. On May 9, Hayes gave Fishman a written employee evaluation and, during the discussion, indicated to Fish- man that she was a good nurse, that her appearance was improving, but, based upon reports from other nurses and aides, that she talked about the Union too much during lunches and the other nurses resented it. Hayes also admonished Fishman for disobeying her instructions by counseling an aide where Hayes had told her to observe the employee only and to report to her on the aide's performance. The written evaluation, which generally was good, contained Hayes' comments as follows: "Tina Fishman is a good nurse and patients like her. Her attitude seems to have changed some for the better since she came on the floor. My only complaint is-she feels the need to be involved in the lives of a couple aides, which the conversation carrys on from the dining room to the floor and sometimes interferes with the work being done. My nurses object to going to lunch with her because she refuses to talk about anything else except union which they feel lunchtime is a time a person should have to relax." Thereafter, on May 22, Hayes made a request of the director of nursing that Fishman be transferred from her floor. The request was turned down to see if things would work out better. On June 10, upon returning from a few days' vacation and receiving complaints concerning Fish- man from Supervisor Hamady "that the floor was really bad," Hayes filled out a disciplinary action report on Fishman and, on the same day again requested that she be transferred off her floor. The report contained the follow- ing handwritten comments of Hayes: On May 22, '75 I asked that Tina Fishman be transferred off of 2nd Main - because of her general attitude & open discussion of her thoughts is upsetting my RN's, L.P.N.s. Also her influence on two of my aides. I was asked to re-orientate her from nights to encourage her to improve her appearance & attitudes. I feel as a nurse she is fairly capable, but it is other interferences that are very dissatisfying. She will pick out one or two patients on the floor & demand for things to be done for them, or to ask the doctors to get more help (welfare) for them. Doctors resent this. When Mrs. Hamady or Mrs. Prather are in charge & they don't act on her request "right now" she keeps at them all day, regardless how busy. When she & Mrs. Hamady was on alone, she gave medications only, Mrs. Hamady was in charge, did the treatments & all the charts. It takes her two hours at times to give medications to one team [10-11 patients]. I wrote again this am June 2, for her to be transferred for I feel I have orientated her - as for neatness, but her attitude remains the same & keeps me & my staff upset. Fishman asked for Hayes to remove the disciplinary report, a request over which Hayes has no control. Fishman then wrote her own comments on the reverse side of the report as follows: i. Even on the job I fall under the protection of the Ist Amendment and can exercise freedom of speech except where confidential medical information is divulged. 2. In working with Mrs. Hamady it was my understanding that I pass medication and she do treatments. In addition, I said to her, "Is there something I can do further to help you or is there something I'm doing wrong." None of the things that are mentioned here were stated to me by her. The problem was that during Mrs. Hayes' vacation we needed more help on the floor or maybe the supervisor relieving us so we could have a lunch break. 3. It is true I have taken longer to pass medication when patients were more serious and had difficulty swallowing and taking medications. Upon occasion other nurses have also taken longer than usual. Further, when nurses rush errors occur as when six medications were not signed out for [Sunday, June 15]. 4. That complaint was made when I inquired of the headnurse if we could in some way help a patient with financing an electric wheelchair [this patient had little use of his hands]. Mrs. Hayes attitude was that no one 835 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever helped her financially and this was outside the scope of nursing concern. I feel the fact of complete disability on the part of the patient was being ignored. 5. The real issue is my support of the National Hospital Union 1199. It is my support of this union that has caused Mrs. Hayes to cite me for disciplinary action. On June 17, in writing attached to the disciplinary report, Hayes recorded the following: "On reading the comments of Tina Fishman after the Disciplinary Action of June 16, I want to make this comment. I did not take disciplinary action because she is a member of Union 1199. I took it because she causes so much dissatisfaction and keeps the staff in an upheaval all the time - which is not for good nursing care." Fishman remained on Two Main for a few days, was assigned to different hospital areas (called floating) for a short period, took a 2-week vacation in July, returned, and floated for another 2 weeks. In August she was asked by the assistant director of nursing, Mary Everhart, if she would like to be placed in orthopedics, and, when Fishman indicated that she would, Fishman was transferred to the orthopedic ward on Three North. Analysis and Conclusions The General Counsel asserts that, in issuing the disciplin- ary action report on June 16, 1975, and subsequently transferring Ernestine Fishman to a different floor and to a more arduous job, the Respondent did so because of her union activities in violation of Section 8(a)(3) of the Act. The Respondent denies the discriminatory allegation, and asserts that the action taken with respect to Fishman was based upon her poor work performance, her poor attitude and disregard for authority, her lack of cooperation, and the disruption which she created while temporarily as- signed to Two Main. It is clear from the record that Fishman was an early leader in the drive to organize the hospital employees, that she signed a union card in November 1974 and served on the union committee, that she was active in her attendance at union meetings at the Center Labor Council in Lafayette commencing in late 1974 through March 1975, when meetings ceased during April through June and then subsequently thereto, and that, in addition to espousing the Union's cause among her fellow employees, she signed up a number of nurses aides. It is equally clear that Hayes, although perhaps not on notice as to the totality of her activity, was fully aware of Fishman's intense interest in the Union, and was free to voluntarily admit her aware- ness. Further, that Hayes was opposed to unions in the nursing profession was also admitted by Hayes. While these factors in the usual discharge situation might well warrant a finding of unlawful motivation and a discriminatory termination, I am firmly and unequivocally convinced that such was not the case here with respect to 8 To the extent that there is a conflict in testimony on any given matter as between Hayes and Fishman, and such does exist, I credit Hayes. I found Hayes to be a very honest, forthright, and credible witness, who freely admitted to facts against her interest, and whose demeanor on the witness stand throughout was truly impressive. While Fishman was also candid on a Fishman's transfer. And this conviction is based almost exclusively on the combined testimony of Fishman and Hayes. The common thread that permeates the testimony of both is the existence of a complete difference in philosophy, attitude, and views as to the nursing profes- sion. patient care, and authority. Mrs. Hayes, a registered nurse at the hospital for 31 years, is clearly of the "old school," one who believes in following the strict rules in the practice of nursing and the care of patients, and believes that a nurse is a professional with a duty to care for patients in an efficient and dispassionate manner. On the other hand, Ms. Fishman, as she chose to be called, a young girl new to the profession, is admittedly possessed of a liberal philosophy toward life in general and in her approach to the nursing practice in particular. In short, it is readily apparent that, as between Hayes and Fishman, there existed from the beginning an obvious clash in personalities. The implication, if not outright admission, is that, upon transfer to Hayes' ward, Fishman resented the authority of Hayes and the strict standards under which she operated her ward. Fishman's total disregard for this authority and certain of the standards is a matter of record. 8 Hayes denied the accusation at the time of the disciplin- ary action report and again on the witness stand that Fishman's involvement with the Union had anything to do with the disciplinary action report and the requested transfer. On the record as a whole, and based upon my observation of her while testifying, I specifically credit Hayes as to her testimony that "I asked for a transfer because she cause [sic] dissatisfaction and kept my floor in an upheaval. She did not do her work well. She was not a permanent nurse on my floor. She was there for orientation and I felt I had gone as far with her as I could." I am further of the opinion, and so find, that Hayes felt that she had grounds for issuing the disciplinary action report on June 16 and that she did so for the reasons she expressed on the face of the report and not because of Fishman's union sympathies. Nor, apart from the motivation for Hayes' action, does it appear that Fishman was opposed to the transfer, as she testified that she did not mind being transferred since "It was obvious that Mrs. Hayes and I had different ideas about patient care, and that since we didn't get along I wouldn't mind being transferred." Finally, I find no credible record evidence to support the General Counsel's assertion that Fishman was transferred "to more arduous or less agreeable job tasks." Upon leaving Hayes' floor in the latter part of June and before being permanently assigned to orthopedics with her acquiescence in August, Fishman floated, performing nursing duties from day to day in different wards of the hospital. "Floating" is a normal occurrence, with some nurses floating all of the time. The RN work to which Fishman was assigned during this period was the same type work she had been doing on Two Main. While it is claimed that her permanent assignment to orthopedics on Three number of matters, particularly with respect to her relationship with Hayes, I was impressed with her zeal on behalf of the Union and employees' needs concerning welfare, and felt that this at times caused her testimony to veer from the truth. 836 LAFAYETTE HOME HOSPITAL North was more arduous because it involved handling orthopedic patients, the record reveals that most of the patients on Two Main from which she was transferred were terminal or stroke patients requiring complete care, including lifting and turning. I find, on the record as a whole, that the General Counsel has failed to prove by a preponderance of the credible evidence that, in issuing a disciplinary action report on June 16 to Ernestine Fishman, and in subsequently transferring her to a different floor of the hospital, the Respondent did so because of union considerations. Accordingly, I find that neither constitutes a violation of Section 8(aX3) of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Lafayette Home Hospital, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1199, National Union of Hospital and Health Care Employees, a/w Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining a no-solicitation rule and enforcing a no-distribution rule restricting employees' right to solicit and distribute for the Union during their nonworking time in areas of the hospital other than immediate patient care areas, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, 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 the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 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. Upon the basis of the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 The Respondent, Lafayette Home Hospital, Inc., Lafay- ette, Indiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Maintaining a no-solicitation rule and enforcing a no- distribution rule restricting employees' right to solicit and distribute for the Union during their nonworking time in areas of the hospital other than immediate patient care areas. (b) In any like manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, and 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, 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 in Section 8(aX3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Announce to its employees that it has rescinded its unlawful no-solicitation and no-distribution rules and inform them that they have the right to solicit on behalf of any labor organization during nonworking time on the hospital premises other than in immediate patient care areas and to distribute union literature during nonworking time in nonworking areas other than in immediate patient care areas. (b) Post in conspicuous places at its hospital in Lafayette, Indiana, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 'o Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized representative of the Respondent, shall be posted by it, as aforesaid, immediate- ly upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, 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 be dismissed insofar as it alleges violations of Section 8(a)(3 ) and (1) not herein found. io In the event 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." 837