Harper-Grace Hospitals, Inc.

HARPER-GRACE HOSPITALS, INC. Harper-Grace Hospitals, Inc. and Marianne Jensen, et al. Case 7-CA-18897 September 30, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On June 23, 1982, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party filed an answering brief to Respondent's ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 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, Harper-Grace Hospitals, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the ac- tions set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We are of the opinion that the policies of the Act will best be effec- tuated if the notice which Respondent is required to sign and post also includes an introductory paragraph explaining to employees their rights under the Act and by what process their rights have been upheld. There- fore, the attached notice is substituted for that of the Administrative Law Judge. 264 NLRB No. 89 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT maintain or enforce an un- lawfully broad no-solicitation or no-distribu- tion rule which prohibits employees from en- gaging in union-related solicitation or distribu- tion of literature during their nonwork time in nonwork areas where such activity does not tend to affect directly patient care by disturb- ing patients or disrupting health services. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed by Section 7 of the Act. HARPER-GRACE HOSPITALS, INC. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: Upon an original charge filed by Donald B. Greenspon, Esq., on behalf of employee Marianne Jensen (herein called the Charging Party), the Regional Director for Region 7 of the National Labor Relations Board (herein called the Board) issued a complaint on March 30, 1981, alleging, in effect, that since January 16, 1981, Harper- Grace Hospitals, Inc. (herein called Respondent), has violated Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing a no-solicitation/no- distribution rule which prohibits all solicitations and dis- tributions of literature anywhere on Respondent's prem- ises. By timely answer, Respondent denied it had en- gaged in the unfair labor practices alleged in the com- plaint. The case was heard in Detroit, Michigan, on February 3, 1982. Subsequently, counsel for the General Counsel, 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for the Charging Party, and counsel for Re- spondent filed post-hearing briefs which have been care- fully considered. Upon the entire record and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Michigan corporation, operates a non- profit hospital at 3990 John R. Street in Detroit, Michi- gan. During the calendar year 1980, its gross revenues exceeded $500,000, and during the same period it pur- chased medicines, linens, and other goods and materials valued in excess of $50,000 from suppliers located out- side the State of Michigan. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that Local 79, Service Em- ployees International Union, AFL-CIO (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union represents a segment of Respondent's em- ployees loosely classified as service maintenance employ- ees. Its subsisting collective-bargaining agreement con- tains a bulletin board provision which states as follows: ARTICLE XXV BULLETIN BOARDS Section 1. The Hospital shall provide bulletin boards in appropriate locations for the exclusive use of the Union. The use of these bulletin boards shall be confined to the following notices: (a) Recreational and social affairs of the Union; (b) Union meetings; (c) Union appointments; (d) Union elections, including those required in the Union constitutions, and results of such elec- tions; (e) Union member changes of address; (f) Any proper Union notices. There shall be no distribution or posting by the Union or employees of pamphlets, advertising or political matter, notices, or any other kind of litera- ture upon Hospital property other than as herein provided. Gary Beggs,' formerly a Respondent labor relations rep- resentative, testified that the above-quoted provision was I It was stipulated, and I find, that Respondent's labor relations repre- sentatives, Gary Beggs and Daniel Zuhlke, were, at all times material, agents of Respondent and that Respondent's security supervisor, Lentz was, at all times material, a supervisor within the meaning of Sec. 2(11) of the Act. inserted in the collective-bargaining agreement to restrict patient exposure to distribution activities and to limit the accumulation of litter in the hospital. At some unstated time prior to January 1981,2 a con- tingent of Respondent's employees became dissatisfied with the representation provided them by the Union and they formed a group called the Membership Action Committee. On the morning of January 16, employees Marianne Jensen, Arrundys Wright, Joyce Houston, Shanta Driver, and Catherine Schaaf appeared at various entrances to the hospital at approximately 6:30 a.m. and commenced to distribute copies of an antiunion handbill placed in the record as General Counsel's Exhibit 2. Jensen testified that she and employee Wright stationed themselves at the old Grace basement entrance to the hospital on the morning in question and handed leaflets to union employees who used that entrance, which was reserved for the exclusive use of hospital employees. She indicated that, shortly after distribution activities were commenced, a security guard approached them and in- formed them they had no right to solicit on Harper Hos- pital property. Jensen replied that she felt they had the right to distribute literature pertaining to the Union on nonworktime in nonwork areas. The guard left to check it out with his supervisor. In a short time Security Guard Supervisor Lentz, who was accompanied by two other guards, approached Jensen and Wright and told them they could not solicit at the entrance and ordered them to accomplish their distribution of literature on the sidewalk of John R. Street, which was public property. Jensen and Wright complied with Lentz' instructions. On the morning in question, employee Schaaf and em- ployee Driver attempted to distribute copies of the above-described leaflet to members of the Union who used the main (Webber) entrance to the hospital. Schaaf indicated that she and Driver positioned themselves close to the entrance which is positioned beyond a circular driveway which leads off John R. Street. Shortly after the employees appeared at the entrance, a security guard approached them and informed them they were not al- lowed to distribute literature on hospital property. Driver protested, but the employees were instructed to move to the street. They complied with such instruction. On Wednesday, January 21, Jensen, employee Joyce Houston, who had attempted to distribute literature at the employee entrance to the emergency room on Janu- ary 16, and Driver went to Labor Relations Representa- tives Zuhlke and Beggs. After explaining that they had been prevented by hospital security from distributing union literature on their nonworktime, they asked for clarification of hospital policy on distribution. Beggs in- dicated he would check into the matter and Jensen pro- vided him with decisions which indicated employees could lawfully distribute literature on nonworktime in nonwork areas. On January 22, Houston and Jensen met with Beggs again. At that time he informed them: The decisions they had given him applied to employees in an organizing sit- uation and were not applicable as they already had a 2 All dates herein are 1981 unless otherwise indicated. 664 HARPER-GRACE HOSPITALS, INC. union at Harper; that a provision of the contract con- trolled such activities; and that Harper would maintain its no-solicitation policy for them. Jensen informed Beggs she continued to feel they could distribute literature in nonwork areas and indicated charges would probably be filed against Harper. B. Analysis and Conclusions The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the Act in two respects; i.e., by prohibit- ing employees from distributing union-related literature during their nonworktime in nonwork and nonpatient areas of Respondent's premises on January 16, 1981, and by informing employees on January 22, 1981, that Re- spondent's policies prohibited all solicitations and distri- butions of literature anywhere on Respondent's premises. Respondent interposed two principal defenses. 3 The first is a contention that I should find that the January 16 activities of the employees in question could have dis- turbed patients and their relatives because the content of the pamphlets was inflammatory and they were to be dis- seminated to employees immediately involved in patient care and would undoubtedly come to the attention of pa- tients and their relatives. The second is a contention that the employees wishing to distribute union-related litera- ture had an alternate method of reaching their intended audience; i.e., they could put a copy of their pamphlet on the union bulletin board. I find Respondent's defenses to be without merit for the reasons set forth below. In Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978), the Supreme Court approved the Board's fashion- ing and application of a presumption that employer rules which prohibit employee solicitation in health care facili- ties in areas other than immediate patient areas are inval- id, stating (at 507): We therefore hold that the Board's general ap- proach of requiring health-care facilities to permit solicitation and distribution during nonworking time in nonworking areas, where the facility has not jus- tified the prohibitions as necessary to avoid disrup- tion of health-care operations or disturbance of pa- tients, is consistent with the Act. Applying the teachings of Beth Israel to the instant case, it is clear that the General Counsel proved, prima facie, that the no-solicitation/no-distribution rule an- nounced by Security Supervisor Lentz on January 16 and reiterated by Beggs on January 22 is unlawful as he established that Respondent's rule prohibits employees from engaging in solicitation during nonworktime in nonwork areas. Accordingly, Respondent's burden was to show that the prohibition was "necessary to avoid dis- ruption of health-care operations or disturbance of pa- tients" Respondent sought to satisfy that burden by es- tablishing through cross-examination of the General Counsel's witnesses that a majority of the union employ- 3 Additionally, Respondent claims that the General Counsel failed to prove that a Respondent supervisor and/or agent prevented distribution at the main (Webber) entrance or the emergency room entrance, and it notes that the General Counsel sought to establish the emergency room incident through hearsay testimony. ees who were targeted to receive copies of the antiunion literature disseminated by Jensen and others on January 16 worked in patient care areas. Having established that fact, Respondent contends I should infer that the persons receiving copies of the leaflets would naturally take them to patient care areas where patients and their relatives would see them and become upset. Thus, in effect, Re- spondent contends that any solicitation or distribution ac- tivities conducted on its property, whether accomplished in patient care areas, or in areas never visited by patients or their relatives, will disrupt its health care operation. During the past several years, the Board and the courts have repeatedly resolved issues concerning no-so- licitation or no-distribution rules in medical care facili- ties. Recently in Central Solano County Hospital Founda- tion, Inc.. d/b/a Intercommunity Hospital, 255 NLRB 468, 471 (1981), the Board stated its approach to such issues: In applying the general standard of immediate pa- tient care areas to specific areas in a hospital, the Board must, as stated by the Supreme Court in N.L.R.B. v. Baptist Hospital, Inc., 442 U.S. 773, 789 (1979), take "into account the medical practices and methods of treatment incident to the delivery of pa- tient-care services in a modern hospital." The Board must also take "into account the statutory extension of organizational rights to hospital employees. In balancing these accounts, we have determined that prohibitions on solicitation in immediate patient care areas are presumptively valid and that solicitation may be legitimately prohibited in other areas if jus- tified by the hospital as necessary to further patient care.... The standard applicable for determining what justification is necessary to validly ban solici- tation is not based on a general view of the pur- poses of a hospital but is based on a showing that the areas in question serve important and direct functions in the care of patients. In other words, the standard is that solicitation may lawfully be prohib- ited where it is shown that it would tend to directly affect patient care by disturbing patients or disrupt- ing health services. This, in essence, is the rule set by the court in Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978). In the instant situation, it is clear that Respondent is claiming that any solicitation or distribution activities conducted on its property affects patient care in the hos- pital. It is equally clear that it has failed to show that the distribution activities conducted by employees at the en- trances to the facility, including the old Grace entrance which is reserved for the exclusive use of employees, had a direct effect on patient care or patients. In the cir- cumstances, I find that Respondent has failed to rebut the General Counsel's prima facie showing that its rule is invalid. Respondent's alternative contention is that the mem- bers of the Membership Action Committee should be denied the right to solicit support for their cause by dis- tributing literature on the premises because article XXV, section 1, of the subsisting collective-bargaining agree- ment gives them the right to post their antiunion material 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the union bulletin board. I reject the contention for several reasons. In the first place, it appears Respondent is contending indirectly that the Union agreed by acced- ing to the above-mentioned clause that it would waive any rights that employees had to engage in solicitation on hospital premises. Long ago in Gale Products, Div. of Outboard Marine Corp., 142 NLRB 1246 (1963), the Board considered a similar, albeit not factually analogous situation, in which the employer and the union had agreed to a contract provision prohibiting distribution of any literature or solicitation of membership in any orga- nization on the employer's premises at any time. When employees who desired to replace the incumbent union with another union distributed authorization cards at the facility, the employer invoked the contract provision and attempted to stop such activity. The Board found that the employer's actions violated Section 8(a)(l) of the Act stating, inter alia (at 1249): Upon consideration of all the relevant factors, we are persuaded that, in the circumstances of this case, an unlimited contractual prohibition against union solicitation and distribution would unduly hamper the employees in exercising their basic rights under the Act. Their place of work is the one location where employees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to per- suade fellow workers in matters affecting their union organizational life and other matters related to their status as employees. This is undeniably so in the case of employee dissatisfaction involving ef- forts to change their bargaining representative. While other problems might well be aired at union meetings, the desire to designate a different repre- sentative is hardly an appropriate subject for discus- sion at a meeting held under the auspices of the very union sought to be displaced. However, the effect of the present contract clause goes far in per- petuating the incumbent union by withholding from employees their customary opportunity for expres- sion of opinions. The Respondent's only legitimate basis for the prohibition in question would be to eliminate inter- ference with production. But the instant clause ex- ceeds the permissible limits for accommodating such employer interest with the organizational rights of employees under the Act. Needless to say, neither an employer nor an incumbent union is entitled, absent special circumstances which do not appear here, to freeze out another union by trenching on statutory rights of employees to engage in protected activities. Accordingly, the contractual waiver is without warrant in the present circumstances. Subsequently, in N.L.R.B. v. Magnavox Company of Ten- nessee, 415 U.S. 322 (1974), the Supreme Court consid- ered Magnavox's contention that it could lawfully prohib- it employees from distributing literature even in non- working areas during nonworking time because the em- ployees could reach their audience by posting material on an official union bulletin board. The Court rejected the employer's contention finding that "so long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute Section 7 rights." The Court further observed (at 326): It is argued that the use of the bulletin board is a fair substitute. But as the Fifth Circuit said in the Mid-States case the bulletin board may be an ade- quate medium for "preserving the status quo" and yet not give a union's adversaries "equal access to and communication with their fellow employees." 403 F.2d at 705 Moreover, a limitation of the right of in-plant dis- tribution of literature to employees opposing the union does not give a fair balance to § 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure § 7 rights as those in opposition. The Board's position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with § 7 rights of employees. It is the Board's function to strike a balance among "conflicting legitimate interests" which will "effectuate national labor policy," in- cluding those who support versus those who oppose the union. In the instant situation, Respondent claims that mem- bers of the Membership Action Committee had the right to post material on the bulletin boards reserved "for the exclusive use of the Union." While several of the Gener- al Counsel's witnesses stated during cross-examination that they felt that they could post antiunion literature on the bulletin boards, my inspection of article XXV of the contract leads mie to conclude that the Union could have objected if its official bulletin boards were put to such use. In any event, I find that Respondent and the Union could net, by agreeing to the contractual provision under discussion, place Respondent's employees in a position wherein they could be lawfully prohibited from distribut- ing antiunion literature at the entrance to Respondent's facility. In sum, I find that Respondent's no-solicitation/no-dis- tribution rule contained in article XXV of the subsisting contract is unlawful as it prohibits employees from en- gaging in solicitation or distribution of literature during their nonworktime in nonwork areas as Respondent has not demonstrated that such prohibited activity would tent to directly affect patient care by disturbing patients or disrupting health services. I find, as alleged, that by preventing employees Jensen and Wright from distribut- ing union-related literature at the old Grace entrance to the hospital on January 16, 1981, and by preventing em- ployees Schaaf and Driver from distributing like litera- ture at the main entrance to the hospital on the same date, Respondent violated Section 8(a)(l) of the Act as alleged. 4 Additionally, I find, as alleged, that Respond- 4 As Respondent placed the unidentified security guard who informed Schaaf and Driver they could not distribute literature on Respondent's property in a position which identifies him with management and the em- Conrinued 666 HARPER-GRACE HOSPITALS, INC. ent, through the comments of Beggs January 22, 1981, to employees Jensen and Houston, violated Section 8(a)(1) of the Act as alleged. Finally, I find that Respondent has violated Section 8(a)(1) of the Act since January 16, 1981, by maintaining and enforcing a no-solicitation and no-distribution rule which is too broad. 5 CONCLUSIONS OF LAW 1. Harper-Grace Hospitals, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the unfair labor practices described in section III, above, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes and policies of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ployees could have reasonably believed that, when making the comments under consideration (which were reflective of management's views) he was speaking and acting for management, Respondent is responsible for his conduct See Hanover Concrete Co., 241 NLRB 936 (1979). Rexarr Color & Chemical Co.. Inc., 246 NLRB 240 (1979). 5 As the General Counsel sought to show literature distribution at the emergency room entrance through hearsay evidence, I refrain from find- ing that Respondent violated the Act by preventing literature distribution at that location on January 16, 1981. ORDER 6 The Respondent, Harper-Grace Hospitals, Inc., De- troit, Michigan, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Maintaining or enforcing an unlawfully broad no- solicitation or no-distribution rule which prohibits em- ployees from engaging in union-related solicitation or distribution of literature during their nonworktime in nonwork areas when such activity does not tend to di- rectly affect patient care by disturbing patients or dis- rupting health services. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the purposes of the Act: (a) Post at its Detroit, Michigan, facility copies of the attached notice marked "Appendix." 7 Copies of said no- tices, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's authorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. e In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 667