Baptist Memorial Hospital

BAPTIST MEMORIAL HOSPITAL Baptist Memorial Hospital and American Federation of State, County and Municipal Employees, AFL- CIO. Cases 26-CA-5929, 26-CA-5955, 26-CA- 5992, and 26-CA-6028 April 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 20, 1976, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a supporting 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 2 and has decided to affirm the rulings, findings,3 and conclusions 4 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. As noted by the Administrative Law Judge in his Decision, during a prior unfair labor practice hearing held in November 19755 Respondent's assistant vice president, Stephen Reynolds, testified that employees were free to handbill inside or outside the hospital so long as they did not interfere with the work of other employees or did not carry on their activities in patient care areas. However, as found by the Administrative Law Judge, employees who relied on these assurances and attempted to handbill on the Union's behalf in December 1975 and February 1976 were ordered by Respondent's security guards to stop their activity. Employees, including Jerry Lee Wheeler, who persisted in distributing union materi- als were given disciplinary warnings by their supervi- sors. ' The General Counsel also moved to strike Exhibit "A" appended to Respondent's bnef in support of exceptions on the ground that Exhibit "A" constitutes an ex parte offer of evidence. In its response to the motion, Respondent notes that Exhibit "A" is identical to Appendix "A" attached to the complaint herein. The General Counsel's motion is hereby denied. 2 Respondent's request for oral argument is hereby denied as the record and exceptions adequately present the issues and positions of the parties. 3 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 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. 4 The Administrative Law Judge concluded that Respondent's rule against employees returning to the hospital during off-duty hours violated Sec. 8(aXl) of the Act. In so doing, the Administrative Law Judge relied 229 NLRB No. I On February 25, 1976, Wheeler handbilled in the hospital lobby across from the cafeteria during his lunch break. While so engaged, Wheeler was ap- proached by a security guard who directed him to stop handbilling or be suspended. When Wheeler persisted, the guard threatened him with arrest unless he left the premises. When Wheeler protested that he was scheduled to work, two security guards escorted him to the hospital's entrance where, after some further discussion, Wheeler was taken into custody by the Memphis City police and charged with disorderly conduct. Wheeler was convicted the next day in Memphis Municipal Court and fined $25. Subsequently, Wheeler was discharged by Respon- dent. At the time of the unfair labor practice hearing, the conviction was on appeal. The Administrative Law Judge found, and we agree, that Respondent's solicitation and distribution policies and rules are unlawful. We also agree with the Administrative Law Judge's conclusion that it was Respondent's intention to make an object lesson out of the Wheeler incident, and thereby to chill its employees' enthusiasm for union activity. As the Administrative Law Judge pointed out, "Respon- dent's unlawful policy, compounded by Reynolds' testimony in the earlier unfair labor practice case, was the direct cause of Wheeler's arrest, conviction, and discharge from his job."6 The Administrative Law Judge also observed that credible testimony 7 established that Wheeler conducted himself with decorum throughout the February 25 incident. Based on these findings, the Administrative Law Judge recommended that Respondent be ordered to offer Wheeler full reinstatement and to make him whole for loss of pay and for the $25 fine levied in the court proceedings. Thereafter, the General Counsel excepted to the Administrative Law Judge's failure to include in his recommended remedy a provision requiring Respondent to pay legal fees and expenses incurred by Wheeler in connection with his arrest and conviction on the misdemeanor charge initiated by Respondent. The General Counsel also urges that Respondent be directed to join in a joint upon Respondent's failure to meet the requirements pertaining to no-access rules laid down in Tri-County Medical Center, Inc., 222 NLRB 1089 (1976). Thus, the Administrative Law Judge noted that Respondent prohibited access not only to the interior of the hospital but to the sidewalks and other outside areas. Furthermore, the Respondent permitted access to employees for certain purposes, including picking up paychecks and visiting patients. Although Chairman Fanning and Member Jenkins agree that the no- access rule in issue here is unlawful, they base this conclusion on the view that off-duty employees have a right to remain on or to enter the Employer's premises for solicitation or distribution of union literature subject only to the Employer's need to maintain production, discipline, or security. See, in this regard, the dissenting opinion of Members Fanning and Jenkins in GTE Lenkurt, Incorporaorte 204 NLRB 921 (1973). s Reported at 225 NLRB 525 (1976). AUD, sec. A, par. 12. 7 Respondent's security guard testified that Wheeler had been quiet and cooperative. 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition to the Municipal Court of Memphis, Tennessee, and the City of Memphis Police Depart- ment to expunge any record of Wheeler's arrest and conviction. For the reasons explained below, we find merit in the General Counsel's exceptions and we shall grant the requested remedy. Under Section 10(c) of the National Labor Rela- tions Act, as amended, this Board is charged with a duty to fashion remedial orders which will effectuate the purposes and policies of the Act. Moreover, the Board has wide discretion in selecting remedies to achieve such ends, subject to the requirement that any relief must bear some rational relationship to the unfair labor practices found.8 Applying these principles to the facts of this case, we are persuaded that only by granting the addition- al relief requested by the General Counsel will we meet our statutory duty. Such a conclusion necessari- ly follows from the fact that one of the basic purposes of our Act is to guarantee to employees freedom to engage in, or to refrain from, concerted activities. In vindicating this guarantee of employee rights, the Board must seek to undo the effects of unlawful conduct by restoring the situation "as nearly as possible, to that which would have obtained but for the illegal discrimination."s As found by the Administrative Law Judge, employee Jerry Lee Wheeler's arrest and conviction in February 1976 stemmed solely from Respondent's persistent effort to maintain and enforce its unlawful policies and to thwart the protected organizational activities of its employees.10 Indeed, the Administra- tive Law Judge concluded that Respondent intended that the Wheeler incident serve as an example to employees of their Employer's intransigent opposi- tion to the Union. It follows from this that legal expenses and fees which have been or will be incurred by employee Wheeler in connection with this incident are directly the result of Respondent's unlawful policies and conduct. Only by requiring Respondent to reimburse Wheeler for these costs will we succeed in making Wheeler whole"1 and in fulfilling our obligation to remove, insofar as is 8 See Retail Store Employees Union Local No. 400, Retail Clerks International Association, AFL-CIO [C W.F. Corporation] v. N.L R.B., 458 F.2d 792 (C.A.D.C., 1972); N.LR.B. v. Union Local No. 3, International Brotherhood of Electrical Workers, AFL-CIO [New York Telephone Compa- ny], 477 F.2d 260 (C.A. 2, 1973), cert. denied 414 U.S. 1065. See also N.LR.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). 9 See N. LR.B. v. Local Union 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America lUnited Parcel Service], 509 F.2d 1075 (C.A. 9, 1975), citing Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 194 (1941). 10 As noted previously, the Administrative Law Judge found, and the record supports his finding, that nothing in Wheeler's conduct on February 26 warranted the action taken against him by Respondent. II It is well settled that by making employees whole for losses suffered on account of unfair labor practices the Board effectuates the public policy possible, the effects of Respondent's unfair labor practices.12 We shall also require Respondent to rectify the effects of its unlawful conduct by joining with employee Wheeler in petitioning the Memphis Municipal Court and Police Department to expunge any record of Wheeler's arrest and conviction. We have long held that an employee who is the victim of unfair labor practices is entitled to have all adverse reports or disciplinary warnings connected therewith removed from his personnel file. Such a remedy recognizes that the existence of an adverse report or disciplinary warning will not only imperil the employee's prospect for advancement with his current employer but may also be the basis for a negative recommendation if he seeks other employ- ment. In the instant case there is a plain nexus between Respondent's unlawful conduct and Wheeler's arrest and conviction. Indeed, the arrest was caused as part of the unlawful effort to stop lawful solicitation. In our view, in these circumstances, there is no more reason for Wheeler to be saddled with the burden of such an adverse record than there is for any employee who receives a disciplinary report or warning for engaging in protected activity. Although we recognize that it is not entirely within Respon- dent's power to wipe the slate clean, we think it reasonable in all the circumstances of this case to require Respondent to take at least those steps which are within its power to undo the damage it has done.13 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, Baptist Memorial Hospital, Memphis, Tennes- see, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: which underlies the Act. N. LRB. v. Jaspeh T Strong d/b/a Strong Roofing and Insulating Co., 393 U.S. 357 (1969). The Board has indicated in a different context that legal expenses are recoverable in certain circumstances. See Tiidee Products, Inc., 194 NLRB 1234 (1972). 12 Nor can we be unmindful of our obligation to demonstrate to Wheeler and his fellow employees that this Board, by its willingness to shape an appropriate and full remedy, is prepared to vindicate their right to engage in protected activity. Indeed, given the circumstances of this case, to do otherwise would make a mockery of the concept of protected rights. 13 In so doing, we realize that in the final analysis it is for the local court to determine whether or not Wheeler's conviction should be reversed and the record expunged. By our action herein, we are not seeking to usurp the authority of the court but merely to effectuate the policies and purposes of the Act. 46 BAPTIST MEMORIAL HOSPITAL I. Insert the following as paragraph 2(c) of the recommended Order and reletter existing paragraph 2(c) and the subsequent paragraphs accordingly: "(c) Reimburse Jerry Lee Wheeler for all reason- able legal fees and expenses incurred by him or to be incurred by him, including costs of appeal, in connection with his arrest on February 25, 1976, and his subsequent conviction and, upon request, join in a petition to the Memphis Municipal Court and Police Department requesting that all records relat- ing to said arrest and conviction be expunged." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 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 parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT promulgate, maintain, or enforce any rule or policy which prohibits employees from engaging in union solicitation on or near hospital premises during nonworking time and from engaging in the distribution of union literature in nonwork areas on or near hospital premises. WE WILL NOT promulgate, maintain, or enforce any rule or policy which discriminatorily or because of vagueness discourages or restricts employees from engaging in union solicitation during nonworking time and from engaging in the distribution of union literature in nonwork areas on or near hospital premises. WE WILL NOT reprimand, cause the arrest and conviction of, discharge, or otherwise discipline employees for having violated the hospital's unlawful no-solicitation, no-distribution, and no- access policies. WE WILL NOT engage in acts of surveillance of our employees because of their union activity. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WILL offer Jerry Lee Wheeler immediate and full reinstatement to his former position or, if that job no longer exists, to a substantially similar job, without prejudice to his seniority or other rights, privileges, or working conditions. WE WILL make Jerry Lee Wheeler whole for any loss of pay or other benefits suffered as a result of the termination of his employment and as a result of his fine of $25. WE WILL reimburse Jerry Lee Wheeler for all reasonable legal fees and expenses incurred by him, or to be incurred by him, including costs of appeal, in connection with his arrest and subse- quent conviction and, upon request, WE WILL join in a petition to the Memphis Municipal Court and Police Department to expunge any record of said arrest and conviction. WE WILL remove all reprimands and counseling interviews from hospital records of employees Wheeler, Fletcher, Johnson, and Maclin which relate to the hospital's no-solicitation/no-distribu- tion policy. WE WILL post a notice which clearly informs employees where they may distribute union literature during their nonworking time. BAPTIST MEMORIAL HOSPITAL DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge: This case arises upon a consolidated complaint, issued March 23, 1976, as amended, by the National Labor Relations Board alleging that Baptist Memorial Hospital had violated Section 8(aXl), (3), and (4) of the National Labor Relations Act. In its answer, filed March 26, 1976, and subsequently amended, Respondent admitted numerous factual allegations in the complaint, but it denied the substantive charges that it had committed any unfair labor practices. The hearing in these charges was held in Memphis, Tennessee, on April 12, 13, and 14, 1976. The General Counsel and Respondent were represented by counsel and afforded full opportunity to adduce evidence, to call, examine, and cross-examine witnesses, and to file briefs. Upon the entire record in this case, including briefs of counsel and from my observation of the witnesses, I make the following findings of fact and conclusions of law with particular reference to the main issue in this case, whether Respondent's no-solicitation or no-distribution policies and their enforcement violated the Act. FINDINGS OF FACT Baptist Memorial Hospital is a respondent in a Board proceeding for a second time in the recent past. On June 30, 1976, the Board affirmed the decision by Administra- tive Law Judge Thomas A. Ricci who found that the 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hospital had engaged in certain conduct prohibited by Section 8(a)(1) and (3) of the Act.' While the challenged practices involved in the present proceeding are different from those found unlawful in the earlier case, I am authorized to rely on certain findings of the Board which are also applicable to this proceeding, as, for example, jurisdictional findings. Baptist Memorial Hospital is a large general welfare corporation doing business in Memphis, Tennessee. With approximately 4,700 employees, Respondent is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, American Federation of State, County and Municipal Employees, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. A. Respondent's No-Distribution and No-Solicitation Policies In its answer and during the hearing, Respondent admitted most of the factual allegations in the complaint. For example, with respect to the gravamen of the complaint, the promulgation and enforcement of no- solicitation and no-distribution policies, Respondent ad- mitted paragraphs 8-11, 13-15, 17, and 18, and substantial- ly conceded paragraphs 12 and 16(a) and (b). With the exception of paragraph III of the amended complaint, Respondent has thereby admitted substantially all the allegations against the hospital dealing with the no-solicita- tion and no-distribution policies. More specifically and without unnecessary repetition of the admitted allegations, Respondent for many years prior to March 17, 1976, has maintained and enforced a policy which prohibited its employees from the distribution of union literature during their nonduty hours, work breaks, or lunch periods on or near hospital premises. This restriction although not in written form was absolute on hospital premises, including the Union East lobby, an area located next to the cafeteria and accessible to employees, patients, and the general public. Also a hospital sidewalk leading to a public sidewalk from the Union East Building was off limits to soliciting employees. While Respondent enforced this policy with the assistance of its security force, listed by name in the complaint, the record shows that Respondent made one exception to its blanket no-solicitation, no- distribution rule and permitted solicitations on behalf of United Way on hospital premises. Moreover, while employees generally were not permitted to return to the hospital for union solicitation purposes, they were permit- ted to return to pick up their paychecks, visit patients, go to the credit union, or return for Christmas parties. In sum, employees were prohibited from passing out union litera- ture at any time in any area which was considered hospital premises. The record is replete with instances which illustrate Respondent's practices of enforcing its no-solicitation, no- distribution rule. Yet in his testimony during the prior unfair labor practice hearing in November 1975, Assistant Vice Presi- dent Stephen Reynolds, Respondent's highest official to testify, explained that employees were permitted to pass out literature at breaktime in the cafeteria or outside the hospital. Several employees who followed his advice, however, were promptly prevented from doing so. For example, in the afternoon on December 10, 1975, two employees Jerry Lee Wheeler and Connie Fletcher commenced to hand out union literature on a hospital sidewalk leading from a public sidewalk to the Union East entrance. Security guard Wilkins immediately requested that they leave the hospital premises. When both employ- ees refused to leave, another security guard, Lieutenant Bowling, repeated the request that they move off the hospital premises. Believing to be within their rights, as explained by Reynolds in his previous testimony, the employees refused to comply with the order of the security force. As a result of this episode, employees Wheeler and Fletcher received three written disciplinary warnings from their supervisors. Similar instances occurred on February 7, 1976, involving employees Maclin and Fletcher who commenced handbilling in the Union East lobby on February 12, 1976, with employee Maclin in the Union East lobby, and on February 18, 1976, with employees Wheeler and Johnson also in the Union East lobby. On February 25, 1975, Respondent's strict enforcement of the no-solicitation policy resulted in the arrest and conviction for disorderly conduct of employee Jerry Wheeler. On that day Wheeler proceeded to handbill union literature in the Union East lobby. Within minutes after Wheeler commenced the handbilling, he was told by Security Lieutenant Cohen to discontinue the handbilling or risk being suspended from his job. Wheeler continued in spite of several more requests to stop the practice. He was then confronted by Security Director McCaleb and Sergeant Campbell who informed him several times that he had been suspended and who repeatedly ordered him off the premises lest he be arrested. Even though Reynolds was also present, Wheeler refused, whereupon he was escorted by the security guards to the street. He was given the opportunity to leave voluntarily. Insisting that he had a right to handbill in the lobby area, and that he was scheduled to report for work, Wheeler was finally arrested by city police who had been summoned by the hospital. With the help of the testimony of two of the involved security agents, Wheeler was convicted of disorderly conduct and fined $25. Wheeler was informed, 2 days after his arrest, by separation note that he was fired because he "[rlefused to leave the hospital when asked, [and] insisted on being arrested." In this connection, the credible testimony shows that throughout the entire episode Wheeler had not blocked any area or been boisterous or loud in his demeanor. The record further shows that the conduct of the security force throughout the entire episode had been directed by Stephen Reynolds. Significantly, on March 17, 1976, Respondent changed its no-solicitation, no-distribution policy at the hospital. What had been an unwritten but blanket restriction on any form of soliciting or handbilling (except for the United Way) was now reduced to a written poster displayed at I The decision is reported in 225 NLRB 525 (1976). 48 BAPTIST MEMORIAL HOSPITAL departmental bulletin boards throughout the hospital. The new policy was entitled "Baptist Memorial Hospital Policy on Solicitation For Unions and Distribution of Union Literature As of March 17, 1976," and outlined in eight numbered paragraphs where and under what circumstanc- es solicitation or handbilling on behalf of the Union was prohibited. Nowhere, however, did this notice indicate where and when the union activity would be tolerated. In its opening statement the new policy recognized the hospital's longstanding prohibition against any form of solicitation with one exception, the annual "United Way of Greater-Memphis." It states: "As you know, there had been a long standing policy at Baptist Memorial Hospital against any type of solicitation or distribution with the sole exception of the annual United Way of Greater-Memphis." While the new policy purports "to provide a balance between the rights of all hospital employees as determined by recent National Labor Relations Board guidelines and health care fundamental philosophies" of primarily caring for patients, respecting their friends and families and not interfering with one another's work, the rules were so restrictive and vague that the average employee could never be sure under what circumstances he could exercise his rights without running afoul of the new policy. For example, handbilling was prohibited in "work areas or work corridors." From the viewpoint of an employee, there is absolutely no area in a hospital which is not a work area. Even a lobby is a work area to a janitor who must clean the ashtrays or polish the floors. Another rule prohibited printed union matter from being distributed during an employee's working time or "in such a way as to interfere with the working time of the person being solicited." Yet another prohibition in the new policy was directed against handbilling "where littering the premises or other disrup- tion of normal functions will occur." To a hospital administrator any union activity may disrupt "normal functions." In short, the rules, while cleverly lifted from the language contained in leading cases, were too imprecise and vague to adequately inform employees who are not trained in the law when and whether they might violate the new policy and risk being disciplined. In any case, the immediate impact of the revised rules was that, a day or two after the new policy was put into effect, several employees including Johnson, Fletcher, and Maclin were called into their respective supervisors' office and advised of the new rules. In addition, the employees were informed that their previous "counseling interview" reports were being withdrawn which had cited them for violations of the prior no-distribution policy. However, the record shows that the withdrawn interview reports were merely replaced by new counseling interview reports which stated in substance that their acts of handbilling although not in violation of the new rules had violated the old hospital policy. It is clear that the removal of the prior existing counseling reports was meaningless in view of the existence of the present ones. Moreover, on April 1, 1976, and in spite of the new rules, employee Maclin was again threatened by Lieutenant Cohen with the possible loss of her job if she continued to handbill in the Union East lobby next to the cafeteria. To be sure, Respondent by Assistant Vice President Reynolds spoke to Maclin several days prior to the hearing. He informed her that Cohen had no authority to threaten her with the loss of her job, but that he did have the right to enforce the rules of the hospital. Reynolds also told her that she could handbill in the cafeteria under normal circumstances. The hospital's practices concerning its policy of solicita- tions and handbilling on behalf of the Union, which have only been briefly summarized in view of Respondent's admission of substantially all the factual allegations dealing with the issue, clearly were and presently are in violation of the Act. Respondent so much as admits that its prior policy disallowing any type of solicitation or distribution on behalf of the Union was not in accordance with the Board's decision in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976), since it revised its policy soon after the St. John's decision. In any case, the record is clear that Respondent maintained and strictly enforced-with sometimes drastic consequences-an abso- lute no-solicitation and no-distribution policy with regard to the Union prior to March 17, 1976. In St. John's supra, the Board reiterated that generally a no-solicitation rule is presumed invalid if it extends to solicitation during nonworking time irrespective of whether the solicitation occurs in a nonwork area; and a rule prohibiting distribu- tion of literature is presumed invalid if it extends during nonworking time in a nonworking area. Respondent has failed to present any justification to overcome these presumptions. The fact that Respondent is a hospital whose prime function is patient care where a tranquil atmosphere is essential justifies a somewhat more stringent prohibition on solicitation than ordinarily permitted. Respondent's broad policy, however, restricted handbilling in the Union East lobby and the cafeteria and the hospital sidewalk leading to Union East which are areas where Respondent's care of patients could not conceivably have been disrupted. Indeed, the record shows that attempts to handbill or solicit occurred only in those areas where the visiting public was generally permitted. While there was some suggestion that the employees who were engaged in the distribution of union literature were impeding traffic, this contention is unconvincing. Obviously, interested employees will stop or hesitate momentarily in accepting the tendered literature, but the record does not show that any extensive solicitation with long conversations occurred or that any passageway or walkway was ever blocked as a result of the handbilling. Any suggestion that employees who engaged in the union activity were properly restricted from access to their place of employment during off-duty hours is without merit. The Board has made it clear that any nonaccess rule is valid only under certain circumstances. Tri-County Medical Center, Inc., 222 NLRB 1089 (1976). Respondent has failed to meet at least two of those requirements. First, Respon- dent has prohibited access not only to the interior of the hospital but also to the outside area such as the access way from the public sidewalks to the Union East Building. Second, employees are not restricted for all purposes. The hospital permits, for example, employees to visit patients or to pick up their paychecks during their nonduty hours, and, 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD third, the record does not reflect that the nonaccess policy has been communicated to all of its employees. Respondent's maintenance and enforcement of the no- solicitation, no-distribution, and nonaccess rules were, accordingly, violative of Section 8(a)(3) and (1) of the Act, and any counseling interviews or other adverse actions taken by the hospital against its employees resulting from the enforcement of these rules were unlawful. Lutheran Hospital of Milwaukee, Inc., 224 NLRB 176 (1976). Particularly the incident leading to the arrest, conviction, and discharge of Jerry Lee Wheeler was a drastic consequence of Respondent's blanket policy dealing with distribution of union literature. Without doubt, Respon- dent's unlawful policy, compounded by Reynolds' testimo- ny in the earlier unfair labor practice case, was the direct cause of Wheeler's arrest, conviction, and discharge from his job. Indeed, I firmly believe that Respondent's intention was to make an example of this employee because the incident followed only a few weeks after a meeting among top officials of the hospital to determine what, if anything, should be done if the employees continued to insist on passing out union literature. The fact that Wheeler was arrested for and convicted for disorderly conduct by a local court is not a binding decision upon the Board to the effect that Wheeler was guilty of insubordina- tion, particularly here, where the basis for the conviction was Respondent's illegal activity, i.e., the enforcement of an unlawful no-distribution policy. Numerous cases which General Counsel has cited in his brief support the principle that a discharge as a result of Respondent's enforcement of an illegal policy is a violation of Section 8(a)( 3). Furthermore, Respondent's revised policy, adopted on March 17, 1976, and communicated to all employees, was not in accordance with law. First of all, it prohibited employees who were not reporting for work from the interior of the hospital for purposes of handbilling or soliciting on behalf of the Union. Yet employees who were not scheduled for work were able to return to the hospital for other purposes such as picking up their paychecks, visiting patients, etc. This is clearly discriminatory and designed to discourage union activity in violation of Section 8(a)( ). Tri-County Medical Center, Inc., supra. Furthermore, the new rules are solely directed against solicitation by employees on behalf of the Union. Yet the record shows that solicitation for the United Way of Greater Memphis is not only tolerated but actively supported by the hospital and apparently sanctioned during work and nonwork time and in work or nonwork areas. Again, the new rules are a discriminatory attempt directed against the Union. Finally, the new rules are ambiguous, vague, and subject to various interpretations. In his testimony, Stephen Reynolds, Respondent's assistant vice president, was unsure himself as to the practical application of the rules. Indeed, I am convinced that Respondent fully intended to draft the new policy in an ambiguous manner in order to create uncertainty in the minds of its employees and thereby discourage any union activity. Most, if not all, of Respondent's employees are not legally trained and any apprehension on their part created by the rules' uncertainty is a form of coercion by Respondent in violation of Section 8(a)(1) of the Act. B. The Poll The records show, as alleged in the complaint, that on February 2, 1976, Respondent by its supervisor, Barabara Garner, conducted a poll of her staff to find out how they felt about the Union. Garner paged approximately 22 employees under her supervision in the department of surgery requesting them to come to the lunchroom. Approximately 18 or 19 of the employees gathered, and Garner told the group that she wanted to have a vote on how the employees felt about the Union. Employee Dorothy Garrison testified that she objected several times to her supervisor about the procedure, but that Garner indicated that she did not care about the identity of who was in favor of or against the Union but that she merely wanted to find out how her employees felt generally about the Union. During a fairly informal meeting, employees were given slips of paper which they were asked to mark with the number "I" if they were for the Union, "2" if they were against it, or "3" if they were undecided. The employees then placed their completed slips into a surgical cap and Garner counted the votes with the help of one of the employees. The count indicated that about 12 employ- ees were in favor of the Union, 2 against, and 3 were undecided. The pieces of paper were then discarded in the trash. The record shows that Garner failed to assure the employees that no reprisals would be taken as a result of the voting, and further that Garner did not indicate what she intended to do about the results of the vote. In her testimony she explained that she found it unnecessary to offer any such assurances, presumably, since the employees knew that no reprisals would be taken. She further testified that the only reason that she wanted this information was to follow up and talk to several employees to test how sound their thinking was. While at first blush the polling seems fairly innocuous, particularly since Garner was a relatively lower echelon supervisor within the hospital, and since there is no evidence that higher officials had approved of the proce- dure or that it had been employed elsewhere within the institution, however, in the light of Respondent's union animus as found in the prior unfair labor practice case and in view of the record as a whole which indicates Respondent's commission of other unfair labor practices, it is clear that this polling practice violated Section 8(aX)(I) of the Act. As the Board stated in Struksnes Construction Co., Inc., 165 NLRB 1062, 1063 (1967): Absent unusual circumstances, the polling of em- ployees by employer will be violative of Section 8(a)(l) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communi- cated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. 50 BAPTIST MEMORIAL HOSPITAL Respondent's practice here failed to comply with several requirements laid down by the Board. The poll was not conducted to ascertain a union's claim of majority, the employees were not informed of the purpose of the poll, nor were any assurances given against reprisals. Signifi- cantly, the poll was taken in the context of Respondent's commission of other unfair labor practices. C. Surveillance of Employees During the hearing, General Counsel was granted permission to amend the complaint alleging that Respon- dent had illegally engaged in acts of surveillance of employees who engaged in union activity. In this regard, the record shows clearly that the Respondent's security guards engaged in a systematic practice of watching union representatives when they were present on hospital premis- es. In performing this duty, security guards were also present and watched when hospital employees handbilled in the hospital. This may have occurred inadvertently in some instances. However, the record shows that members of Respondent's security guards watched employees Ma- clin and Fletcher on February 7, 1976, and employees Wheeler and Johnson on February 18, 1976, while they were passing out union literature. No union officials were present during those times. The inference that Respondent thereby intended to discourage its employees from distrib- uting union literature is particularly unavoidable, since Respondent has so clearly and without exception enforced its no-distribution policy. Respondent's practice has not only an intimidating effect upon the employees who are engaged in the distribution of union literature but also upon other employees who are being solicited. Respondent's violation of Section 8(aXl) is clear since the surveillance of employees' union activity is unlawful, Barnes Hospital, 217 NLRB 725 (1975), even though some employees may have been unaware of it and even though top management had not authorized it. N.LR.B. v. Grower- Shipper Vegetable Association of Central California, et al., 122 F.2d 368 (C.A. 9, 1941). Intertype Company, a Division of Harris-lntertype Corporation v. N.LR.B., 371 F.2d 787 (C.A. 4, 1967). Middleton's Reprimand On January 9, 1976, Francis Middleton, a hospital porter, received a written reprimand from his superior, Speck. The reprimand notice states in pertinent part: On Wednesday, January 7, 1976, a day on which he was not scheduled to work, Mr. Francis Middleton was observed on the second floor of the Madison West Building talking to other hospital employees during their working time and, thereby interfering with their work. Mr. Middleton has been warned in the past about being out of his work area or taking excessive time to perform assignments which take him out of his work area and using such occasions to talk to other employees which causes him both to neglect his own work and to interfere with the work of others. In addition to the above warnings, Mr. Middleton was verbally counseled by me on approx. October 9, 1975, on the specific point of not coming back to the hospital except for legitimate purposes at time he is not scheduled to work. This notification to him was necessitated because he was observed by Mr. Bethune on October 3, 1975, on the 6th Floor M. W. talking to the personnel and interfering with their work. He came to the hospital to get a flu shot, but afterwards went out of his way to find and talk to other employees while they were working. S * * Statement: Mr. Middleton is building a considerable history of interruption and interference with the work of other hospital employees both during the time he is supposed to be working himself and also when he has come back to the hospital when off duty and he is not on hospital business or legitimate public use business. General Counsel has gone to a considerable effort to show that the reprimand was at least partially unjustified and that Middleton could not have been in the hospital on January 7, 1976, since he allegedly was in Decatur, Alabama, on that date. Since Middleton had been a strong union supporter and a witness in the prior unfair labor practice hearing, it is General Counsel's contention, that the written reprimand was unjustified and a violation of Section 8(a)(1), (3), and (4) of the Act. Respondent does not contest that Middleton was a union supporter, a member of the Union's organizing committee, and a witness in a prior Board proceeding, but Respondent does insist that the reprimand was fully justified, and that Stephen Reynolds personally witnessed Middleton's pres- ence in the hospital on January 7, 1976. Prior to analyzing the record on the issue whether Middleton was in the hospital on January 7 or in Decatur, Alabama, it is necessary to observe that General Counsel's effort was solely directed towards a portion of the reprimand, i.e., Middleton's whereabouts on January 7. The propriety of the reprimand is therefore unrefuted to the extent that it criticized Middleton for being on hospital premises in violation of the hospital's nonaccess policy on previous occasions, including October 3, 1975, and that it otherwise criticized the employee in the discharge of his duties. The mere fact, therefore, that a part of the reprimand notice may have been without justification does not mean that the entire reprimand was a pretext. In any case, I am also unconvinced by the testimony of General Counsel's witnesses. Middleton himself testified that he and his wife left for Decatur, Alabama, on January 5, and returned on January 8, 1976. He testified that he could not have been in the hospital since he had car trouble on January 7 and had his car repaired at a gas station in Decatur, Alabama. To prove the point Middleton testified that he had requested Mr. Shackelford, the operator of the garage, to give him a written receipt for the work performed. The receipt, however, is dated January 9, 1976. To explain this inconsistency, Middleton testified that he had persuaded Shackelford to date the receipt, not with the accurate day of January 7, but to postdate the receipt with 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 9, 1976. According to Middleton, he had decided not to report for work on January 9, as scheduled, but to use the car trouble as an excuse for his absence. Middleton also admitted that he had persuaded Shackelford to falsify the receipt in yet another respect. Instead of indicating the true amount charged, Shackelford agreed to fill in a far higher amount. This would enable Middleton to obtain money from his relatives. In this regard Middleton testified during cross-examination as follows: Q. So, essentially this receipt was made out at your request with both a false amount and a false date, is that right? A. That's right. Q. And according to your testimony, the false amount was so that you could con your relative into some money, is that right? A. Not con--borrow. * * Q. And you did because you knew if you showed them a bill of $40, they weren't going to lend you any money, isn't that right? A. Well, they probably would have. Q. Well, then why did you do it? A. I wasn't taking any chance on that. Q. So, rather than take a chance, you would just lie to them about it? A. Why sure, why not. Q. So, then the date is on there false so you could lie to your boss about that, is that right? A. That's right. Q. You don't see anything wrong with lying to your mother and brother, did you? A. No, I know a lot of people lies. It is obviously impossible to rely upon a witness whose lack of respect for truth and honesty is so clearly demonstrated. General Counsel called three witnesses to corroborate Middleton's testimony that he was not in the hospital on January 7. Middleton's wife, Mrs. Jessie Middleton, essentially duplicated her husband's story, disagreeing with him in minor respects. For example, contrary to her husband's testimony she testified that it was not her but her husband's idea to return to Memphis on January 8. While her testimony appeared far more credible than that of Middleton, I believe that the possibility of his power of persuasion-effectively employed with Shackelford-simi- larly rendered his wife's testimony unreliable. Shackel- ford's testimony was also unconvincing. At the mere suggestion of Middleton, a stranger, Shackelford knowing- ly signed a receipt which contained false information. His recollection was in some cases hazy and in some his practices were questionable. For example, he erroneously placed "Alabama 1976" in the space on the cash receipt which is actually reserved for the car's license number and state. The third witness was Mary Hogard, office manager of the hospital's credit union. She merely testified that Middleton made a loan application on January 5, that the loan was approved on January 7, and that the check was not dispersed until January 9, 1976. Her testimony does not establish that Middleton could not have been in Memphis on January 7. For the foregoing reasons, I find that General Counsel has failed to show that the reprimand of January 9, 1976, was unjustified and a violation of Section 8(a)(1), (3), or (4). CONCLUSIONS OF LAW 1. Respondent Baptist Memorial Hospital is an em- ployer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union, American Federation of State, County, and Municipal Employees, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(aX)(l) of the Act by maintaining and enforcing for many years prior to March 17, 1976, a no-solicitation, no-distribution policy which prohibited its employees from soliciting or handbilling on behalf of the Union on or near hospital premises in nonwork areas during nonworking time. 4. Respondent violated Section 8(a)(1) of the Act by promulgating on March 17, 1976, and thereafter maintain- ing and enforcing a no-solicitation, no-distribution, and no-access policy which is discriminatorily directed against the Union, and which is too ambiguous to inform adequately its employees of their rights to solicit and handbill in nonwork areas during nonworking time. 5. Respondent violated Section 8(aX)(1) and (3) of the Act by enforcing unlawful no-solicitation, no-distribution policies and by reprimanding employees Maclin, Fletcher, Johnson, and Wheeler for violations of the unlawful no- solicitation, no-distribution policy. 6. Respondent violated Section 8(a)(1), (3), and (4) of the Act by reprimanding employee Maclin who was a witness in a prior Board hearing for violating Respondent's unlawful no-solicitation, no-distribution policy. 7. Respondent violated Section 8(aXl) and (3) of the Act by suspending, discharging, refusing to rehire, and causing the arrest and conviction for disorderly conduct of employee Wheeler because of his refusal to comply with Respondent's unlawful no-solicitation, no-distribution policy. 8. Respondent violated Section 8(aXl) by acts of surveillance of employees who were handbilling on behalf of the Union. 9. Respondent violated Section 8(aXi) by the acts of Supervisor Garner in conducting a poll of its employees to ascertain their union allegiance. 10. Any other allegations in the complaint have not been sustained and are dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(aX)(1), (3), and (4) of the Act, I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recommend that Respondent be ordered to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. 52 J BAPTIST MEMORIAL HOSPITAL In addition, I recommend that Jerry Lee Wheeler be offered full and immediate reinstatement with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 also recommend that Respondent be required to expunge all reprimands or counseling interview records in Respondent's possession which deal with the hospital's no-distribution, no-access policy concerning employees Wheeler, Maclin, Fletcher, and Johnson. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following recommended: ORDER 2 Respondent Baptist Memorial Hospital, Memphis, Ten- nessee, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Maintaining, promulgating, and enforcing any rule or policy which prohibits employees from engaging in union solicitation during nonworking time and from engaging in the distribution of union literature in nonwork areas on or near hospital premises. (b) Maintaining, promulgating, and enforcing any rule or policy which discriminatorily or because of ambiguity or any other reason discourages or restricts employees from engaging in union solicitation during nonworking time and from engaging in the distribution of union literature in nonwork areas on or near hospital premises. (c) Reprimanding, causing the arrest and conviction of, discharging or otherwise disciplining employees for having violated Respondent's unlawful no-solicitation, no-distri- bution policies. (d) Engaging in acts of surveillance of its employees because of their union activity. (e) Conducting polls of its employees to ascertain their union allegiance without meeting adequate safeguards. (f) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights protected by Section 7. 2 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. 2. Take the following affirmnative action necessary to effectuate the policies of the Act: (a) Offer Jerry Lee Wheeler immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered, including reimbursement of the $25 fine, in the manner set forth in the section hereof entitled "The Remedy." (b) Remove all reprimands or counseling interviews from the hospital records of employees Wheeler, Fletcher, Johnson, and Maclin which are in any way related to Respondent's no-distribution, no-solicitation rules. (c) Publish at its bulletin boards or other areas where Respondent customarily attaches notices to its employees a written notice which clearly, adequately, and unambigu- ously informs its employees where they may distribute union literature. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Memphis, Tennessee, copies of the attached notice marked "Appendix." 3 Copies of said notice on forms provided by the Regional Director for Region 26, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places at all locations where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event the Board's Order is enforced by a Judgment of the 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." 53