UCSF Stanford Health Care

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488 UCSF Stanford Health Care and Service Employees International Union, Local 715, AFL–CIO. Cases 32–CA–16965 and 32–CA–17092 August 27, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE On December 26, 2000, Administrative Law Judge Joan Wieder issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief. The Charging Party filed an answering brief, cross-exceptions, and a supporting brief. The Respondent filed a consoli- dated answering brief and a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified, and to adopt the recommended Order2 as modified. In adopting the conclusion that the evictions of non- employee union handbillers from certain areas outside the Respondent’s facility violated Section 8(a)(1), we rely solely on the judge’s finding that the Respondent failed to make a threshold showing of any property inter- est entitling it to exclude individuals from those areas. We do not rely, however, on Hader v. Co-Play Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963). We find it unnecessary to pass on the alternative theories of viola- tion addressed by the judge. In adopting the conclusion that the Respondent vio- lated Section 8(a)(1) by evicting union organizer Harland from an outdoor bench within its leasehold, we rely solely on the judge’s conclusion that the eviction dis- criminated against Harland based on protected activity. We find it unnecessary to pass on the alternative theories addressed by the judge. Furthermore, we do not rely on Nick’s, 326 NLRB 997, 1000 (1998), enf. granted in part and denied in part, 222 F.3d 1030 (D.C. Cir. 2000), va- cated and reversed in part 332 NLRB 1424 (2000). 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3rd Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satis- fied that the Respondent’s contentions are without merit. 2 We have modified the proposed Order to conform with the conclu- sions of law. We adopt the judge’s finding that the Respondent fur- ther violated Section 8(a)(1) by promulgating, maintain- ing, and distributing an employee no-solicitation/no- distribution rule that was overlybroad on its face, be- cause the Respondent did not demonstrate the rule was necessary to avoid disruption of health care operations or disturbance of patients with respect to areas which were not immediate patient care areas. See Beth Israel Hospi- tal, v. NLRB, 442 U.S. 773 (1979); NLRB v. Baptist Hos- pital, 437 U.S. 483 (1978); and Brockton Hospital, 333 NLRB 1367 (2001). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, UCSF Stanford Health Care, Palo Alto, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b), and reletter the subsequent paragraph. “(a) Promulgating, maintaining, and distributing overly broad no-solicitation/no-distribution rules. “(b) Evicting, attempting to evict, or threatening to evict union organizers from areas for which the Respon- dent has no property interest permitting it to evict indi- viduals. “(c) Discriminatorily excluding union organizers from areas within its leasehold where nonunion individuals engaged in the same activity are permitted.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. 335 NLRB No. 42 UCSF STANFORD HEALTH CARE 489 WE WILL NOT promulgate, maintain, or distribute overlybroad no-solicitation or no-distribution rules. WE WILL NOT evict, attempt to evict. or threaten to evict union organizers from areas in which we do not have a property interest that permits us to evict individu- als. WE WILL NOT discriminatorily exclude union organ- izers from areas within our leasehold where nonunion individuals engaged in the same activity are permitted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind or modify our no-solicitation/no- distribution rules that prohibit employee-to-employee solicitation and distribution in areas that are not immedi- ate patient care areas, and which prohibit all solicitation and distribution by employees to nonemployees. WE WILL rescind or modify our access rules so we do not evict, attempt to evict, or threaten to evict representa- tives of Service Employees International Union, Local 715, who are handbilling in those areas that are near our facility but not on our property. WE WILL rescind or modify our access rules so we do not discriminatorily evict union representatives from areas where nonunion individuals engaged in the same activity are permitted. UCSF STANFORD HEALTH CARE Valerie Hardy-Mahoney, Esq., for the General Counsel. Laurence R. Arnold, Esq. and John H. Douglas, Esq. (Foley & Lardner), of San Francisco, California, for the Respondent. Andrew L. Strom, Esq., of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. These consoli- dated cases were tried on October 18–21, 1999, at Oakland, California.1 The charge in Case 32–CA–16965 was filed by Service Employees International Union Local 715, AFL–CIO (Union or Charging Party), on September 1, 1998, and amended on February 26, against UCSF Stanford Health Care (Respondent). The charge in Case 32–CA–17092 was filed on November 6, 1998. The complaint in Case 32–CA–16965, was issued by the Regional Director for Region 32 of the National Labor Relations Board on November 30, 1998. The complaint in Case 32–CA–17092 was issued August 31, 1998. These cases were consolidated by an order dated September 2. The consolidated complaint was issued September 19. The General Counsel amended the complaint at hearing. Respondent ini- tially claimed one or more of the amendments were prejudicial. Respondent was afforded the opportunity throughout this pro- 1 All dates are in 1998 unless otherwise indicated. ceeding to demonstrate it was prejudiced or denied due process by permitting the General Counsel to change the alleged date of an incident, with sufficient specificity as to warrant my denial of the amendment. Respondent failed to adduce any evidence supporting its claim of prejudice. I therefore conclude that the amendment was appropriate and the Respondent was not preju- diced or denied due process. Principally, the consolidated complaint alleges Respondent violated Section 8(a)(1) of the Act by: promulgating on Sep- tember 21, 1998, a solicitation and distribution rule which con- tained an overbroad definition of patient care areas in banning employee-to-employee solicitation and distribution; and unlaw- fully restricted employee solicitations and distributions to non- employees even in nonworking areas of its premises. Respon- dent issued a letter of clarification on September 21, 1998, which allegedly further improperly expanded the ban to addi- tional areas which are not patient care areas but are areas where patients visit with families and friends; and, Respondent failed to demonstrate it possessed sufficient justification to include the areas where solicitation and distribution was banned by demonstrating such a rule was necessary to avoid disruption of health care operations or disturbance of patients. The consolidated complaint further alleges Respondent vio- lated Section 8(a)(1) of the Act by evicting or attempting to evict nonemployee union organizers without demonstrating it had a sufficient property interest within the meaning of Lech- mere, Inc. v. NLRB, 503 U.S. 527 (1992); that Respondent had, by its actions, broadly invited the public to its premises which, under California law, requires it to permit peaceful union activ- ity on its property; and, the nonemployee union organizers were permitted to leaflet on the exterior premises to the same extent as the general public under the Moscone Act as explicated in Sears Roebuck & Co. v. San Diego District Council of Carpen- ters, 158 Cal.Rptr. 370 (1979), cert. denied 447 U.S. 935 (1980). Charging Party also claims Respondent has discrimina- torily enforced its access policy against nonemployee union organizers Respondent’s timely filed answer to the consolidated com- plaint, as amended, admits certain allegations, denies others, and denies any wrongdoing. Principally, Respondent argues the campuses in question are not “public forums” within the meaning of Robbins v. Pruneyard Shopping Center (Pruneyard), 23 Cal.3d 317 (1979). Assuming Pruneyard, is applicable, the ac- tivities of the nonemployee union organizers were not protected under Pruneyard. Even if the activities were protected, Respon- dent’s actions were reasonable and not violative of Section 8(a)(1) of the Act. Respondent also argues the Moscone Act does not give nonemployees any substantive rights in this case inde- pendent of Pruneyard. Assuming the General Counsel is correct about the applicability of Pruneyard, to hospitals rather than commercial establishments, comity and Supreme Court precedent demand that Indio Grocery Outlet, 323 NLRB 1138 (1997), 187 F.3d. 1080 (1999), cert. denied sub nom. Calkins v. NLRB, 529 U.S. 1098 (1999), and derivatively Pruneyard, not be followed considering the facts and circumstances of this proceeding, and the Board should abandon Indio because it is contrary to the “spirit of Supreme Court Precedent” and precludes the establish- ment of a national policy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490 Respondent avers its solicitation and distribution rule is not impermissibly overbroad, provides ample alternative locations for employees to solicit and distribute literature and the areas encompassed in the rule are “patient care areas,” including hallways “immediately adjacent to the specified patient care areas.” All parties were given full opportunity to appear and intro- duce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Based on the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following2 FINDINGS OF FACT I. JURISDICTION Based on Respondent’s answer to the consolidated com- plaint, as amended at hearing, I find it meets one of the Board’s jurisdictional standards and the Union is a statutory labor or- ganization. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent was formed in November 1997 by the Regents of the University of California and Stanford University. It is comprised of four inpatient hospitals and various outpatient clinics affiliated with the University of California and Stanford University. Two of the hospitals are located in Palo Alto, Cali- fornia, and two in San Francisco, California. This proceeding exclusively involves the two hospitals located in Palo Alto, Stanford Hospital and Lucille Packard Children’s Hospital (Hospitals). B. The Organizing Drive About November 1997, the Union commenced an organizing drive seeking to represent certain of Respondent’s Palo Alto employees at the hospitals and clinics other than registered nurses.3 A representation election was conducted in November 1998 for a unit of nonprofessional employees in which the Un- ion prevailed. Since that election, the Union has continued to attempt to organize the remainder of Respondent’s unrepre- sented employees at the Hospitals and clinics. Respondent op- posed the organizing effort. The organizing drive was reported in media, including three television networks and three news- papers, the San Francisco Chronicle, the Palo Alto Daily and the San Jose Mercury News. These newspapers are available at the gift shops and/or news stands at the Hospitals. C. The Hospitals Both of these Hospitals are acute care facilities that are lo- cated at the northwest corner of Stanford University (Univer- sity). They are physically attached and are connected via an interior corridor. Generally, the Hospitals lease their facilities from the University. In addition, there are a number of clinics within and/or adjacent to the Hospitals. The Respondent also 2 I specifically discredit any testimony inconsistent with my find- ings. 3 The nurses were already represented by a union named CRONA. maintains offices and other facilities at locations not adjacent to the Hospitals. Contiguous to the Hospitals is Stanford Univer- sity Medical School. The Hospitals, clinics, and Medical school are referred to as the Stanford University Medical Center. The clinics outside the actual hospital structures can be reached by sidewalks, bike paths, and roads. The Hospitals are teaching institutions but Respondent does not operate the Medical School. The Medical School can be reached through Stanford Hospital. The Medical School also contains laboratories that service some of Respondent’s patient needs. There is no claim the Medical School is a part of Respondent’s leasehold, but Respondent has assumed some responsibility for some mainte- nance at the Medical School. The Hospitals are a part of a tax-exempt nonprofit benefit cor- poration which receive reimbursement from Medicare and Medi- Cal. They also issue bonds guaranteed by the California Health Facilities Financing Authority. According to its mission state- ment its role is “[f]or the benefit of its patients and the larger community, the mission of UCSF Stanford Health Care is: to care, to educate, to discover.” It is undisputed various State and Federal statutes require Respondent to make its medical services available to the entire community. Respondent voluntarily makes educational programs available to the entire community. The programs are described in greater detail below. Its website describes its Stanford Hospital facilities as follows: Our hospital, at 300 Pasteur Drive on the Stanford University campus, includes 611 licensed beds.4 Our clin- ics offer care in more than 100 specialties. We are located on the northern end of the Stanford University campus at the edge of a expanse of Spanish-style buildings and ma- jestic palm trees. When you approach the entrance of the four-story hospital, fountains and gardens filled with sea- sonal flowers greet you. Within the hospital, our collection of more than 500 original pieces of art and 1600 posters is on display in hallways, waiting rooms and offices. . . . Today, the medical center’s facilities include the Bos- well Building, which is part of the original structure, Blake Wilbur Building; and an outpatient psychiatry facility. . . A branch of our health library, which is open to the public, is located in the hospital. The main library is lo- cated in the nearby Stanford Shopping Center. (A “virtual” branch of the library can be accessed via the World Wide Web. Tours of the hospital are conducted every Thursday at 10 a.m. and begin in the main lobby near the information desk. Special tours also can be arranged. . . . Lucille Packard Childrens’ Hospital (LPCH) has about 162 beds. Respondent employs a staff of about 7000 individuals at its Palo Alto campus which includes about 450 interns and residents, 1500 nurses, approximately 1400 service and mainte- nance employees not including community physicians. The parties stipulated in the fiscal year ending August 1997, Stanford Hospital had annual revenues in excess of $640 mil- 4 Respondent, by Malinda Mitchell, the chief operating officer of Stanford Hospital and Clinics, indicated there are only 450 functional beds at Sanford Hospital. UCSF STANFORD HEALTH CARE 491 lion and LPCH had revenues in excess of $150 million. In the fiscal year ending August 1999, about 19 patients daily arrived at the Stanford Hospital emergency room by ambulance and 82 daily patients arrived at the Stanford Hospital by means other than ambulance. For the year, 181 patients arrived at the emer- gency department by helicopter. Of those patients arriving daily at the Stanford Hospital emergency department, about 18 were admitted as inpatients. Stanford Hospital admitted about 60 patients a day, of which approximately 25 were nonemergent scheduled admissions. Approximately 15 patients a day were admitted to LPCH. A physician’s order is required for all inpa- tient admissions. About 40 outpatient surgeries were performed daily and 32 other outpatient procedures such as laboratory and radiological tests, which require a doctors order or prescription. The Exterior of the Hospitals The Hospitals are served from the west by Pasteur Drive and from the east and north by Welch Road, Quarry Road, or the Quarry Road extension. The main entrance to Stanford Hospital is on Pasture Drive and the main entrance to LPCH is on Welch Road. Rosemary Monroe testified Welch and Quarry are not private roads.5 The sidewalks that connect the Hospitals and Stanford Barn6 also lead to an AndronicO’s supermarket and Stanford Shopping Center which is about one-quarter of a mile from the Hospitals. The shopping center has free parking. Re- spondent leases space in the Stanford Barn which also contains a Wells Fargo Bank, and a restaurant called the California Cafe. The Stanford Barn is across the street from LPCH. The specific lessor associated with Respondent of the Stanford Barn office space was not identified. The nature and extent of the leasehold was not described. There may be tenants other than Respon- dent, the restaurant and the bank in the building. No other ten- ants of the Stanford Barn were described. It was not established on the record whether any of Respondent’s employees included in the units being organized work at the Stanford Barn or trav- eled between the Stanford Barn or other outlying rented or otherwise maintained facilities and the hospitals. The General Counsel notes the grounds around the Hospitals are open, not fenced or gated. Respondent has not paced “no 5 The parties stipulated Monroe, Respondent’s director of human re- sources, was, at all relevant times, a statutory supervisor and agent within the meaning of Sec. 2(11) and (13) of the Act, respectively. It was also stipulated Felix Barthelemy was, at all relevant times, either vice president of human resources or senior vice president of human resources, and is a supervisor within the meaning of Sec. 2(11) and an agent within the meaning of Sec. 2(13) of the Act. It was further stipu- lated Dennis Smith was, at all relevant times, security manager of LPCH, and is a supervisor within the meaning of Sec. 2(11) and an agent within the meaning of Sec. 2(13) of the Act. 6 The Stanford Barn is a nearby building between the Hospitals and Stanford Shopping Center. The shopping center contains many restau- rants and large and small stores such as Bloomingdale’s. Both the Stan- ford Barn and Stanford Shopping center have free parking. There was uncontroverted testimony some or all of the office space Respondent leases on Welch Road contain parking lots which have signs restricting their use to tenants and visitors, prohibiting hospital parking. The signs do not otherwise define the term visitor. Respondent also leases por- tions of other buildings more remote to the Hospitals. The parking situations and limits at these remote sites were not detailed on the re- cord. trespassing,” “private property” or other signs limiting the gen- eral public’s access to the leasehold. On the outside of the Hos- pitals are about 25 to 30 benches, some for smokers, picnic tables, and raised planters that incorporate seating. There are no signs limiting access to or restricting the use of the benches, tables, or other outside seating. Respondent also maintains and operates two multilevel park- ing structures. One, designated parking structure 3, has between 760 and 769 spaces, which primarily serves Stanford Hospital. Monroe was not sure if Respondent leased this structure from the University. The nature and extent of such leasehold was not clearly established therefore it cannot be concluded Respondent has a sufficient property interest to permit a finding it could seek trespass redress for unwanted incursions in this structure. This parking facility charges a flat fee of $3 per day.7 This fa- cility is designated for use as patient and visitor parking by signs posted near the entrance to the structure. The term “visi- tor” was not defined on the sign or otherwise. Charging Party’s nonemployee organizers obtained permits from the University to park in this garage. Therefore, Respondent does not maintain exclusive control of the facility. There is also metered parking in this structure which is not subject to the flat fee schedule. Paul Watkins, Respondent’s support services administrator,8 estimates Lot 3 “changes or turns over five times a day during the daytime hours . . . On the average of five times a day, so that’s approximately 3000 people to and from, so it’s a fair number of people, as well as employees. I would estimate that we probably have 3000 employees on a given day, a weekday.” Additionally, medical staff enters and exits the facilities as well as people on business and delivery men. There is also an overflow parking area that can be opened and is used for Respondent’s evening and night shift employ- ees. The individual who collects the parking fees from those who do not have parking permits are employees of Respondent. Employees must acquire their parking permits from the Univer- sity. The record therefore requires the conclusion Respondent does not have the authority or right to issue parking permits for the parking structures and lots. The overflow lot is a parking area Respondent leases for night-shift employees. The terms of the lease for evenings only have not been presented and Wat- kins testimony fails to establish Respondent has the requisite property interest to bar all access to this area at all times. The other parking structure is just north of LPCH and con- tains 260 spaces. This structure also has a sign that indicates access is limited to patients and visitors. The term visitor was not limited to patients and their visitors or others whose express purposes were related to the operations of the Hospitals. As noted in greater detail below, Respondent has programs and other events that attract the general public. At the entrance to the LPCH structure, there is a gated guardhouse manned by an employee of Respondent, which charges $1 per day. The union 7 Specifically, the sign at the entrance to the garage states there is no charge for 20 minutes or less, a flat fee of $3 for more than 20 minutes for each 24 hours and a $5 flat fee for a lost ticket. 8 His duties include responsibility for: “facilities engineering, which includes design and construction; security, health and safety, infection control, food service, housekeeping, grounds and I believe that’s it— parking, which is part of security.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492 organizers who have parked in that lot just drove up to the gate, handed the attendant $1 and parked their vehicle. Out of ap- proximately six times parking at this structure, union organizer Ronald Ruggiero was asked once what the purpose of his visit was. The one time he revealed his business, he was permitted to park at the LPCH parking structure.9 There is also a lot near the emergency department at Stanford Hospital, which has a gate that is operated by a security guard stationed at the entrance to the emergency department. There are also various parking lots for permitees’ use.10 Monroe testified these lots are owned by the University, not leased by Respondent. There are some metered parking spaces on Pasteur Drive designated “Two Hour Parking” spaces. The University owns and operates at least some of these parking lots which are gated and operated by an access card system. The University sells parking permits, and as noted above, the union organizers obtained such permits from the University. Respondent’s employees must buy their permits from the Uni- versity. There is no evidence the University has a policy con- cerning who could buy such permits. Obviously, the sale of the permits is not limited to students and/or employees of the Uni- versity and Respondent since Union employees were permitted to purchase parking permits. Watkins testified Respondent maintains and operates the two parking structures. Watkins admitted some of the permit park- ing lots used by Respondent’s employees are on University property, property in which Respondent does not have a lease- hold or other clear property interest. Watkins testified the ac- cess as well as the solicitation and distribution rules of Respon- dent apply to those areas Respondent leases from the University but does not apply to those areas where employees park in Uni- versity lots not leased by Respondent. Since Watkins admitted Respondent has maintenance agreements with the University for property not included in the leasehold, the fact it maintains one or more parking areas does not clearly establish Respon- dent has a property interest in such areas sufficient to invoke the State’s trespass laws. Further confusing the matter, when Watkins was asked to de- tail the property leased by Respondent, he answered the Medi- cal Center, which includes the Medical School, an auditorium and other facilities other of Respondent’s witnesses testified were not part of its leasehold. Watkins did not specify which document(s) or other predicates he based his testimony con- 9 The sign near the entrance to this garage reads differently from that in front of the Stanford Hospital garage. The LPCH garage sign reads “LUCILLE PACKARD CHILDRENS HOSPITAL STANFORD PATIENT/VISITOR PARKING ONLY. UNAUTHORIZED VE- HICLES WILL BE TOWED AWAY AT VEHICLE OWNERS EXPENSE.” (Emphasis in original.) The parking structure 3 sign does not have the limiting language “PARKING ONLY” that is contained in the LPCH sign. 10 The University’s policy concerning the acquisition of parking permits was not placed into evidence. The union employees were able to purchase parking permits from the University. There was no infor- mation placed in evidence concerning the availability of parking per- mits for students, frequent visitors, contractors, or the general public. Therefore, Respondent’s claim that these lots are for employee parking has not been convincingly demonstrated and the claim is considered mere surmise. cerning the nature and extent of Respondent’s leasehold. Spe- cifically, Watkins testified: The Medical Center, the main hospital, Stanford Health Services Medical Center, Lucille Packard Chil- dren’s Hospital, Stanford, the 900 Blake Wilbur building, several off-site buildings that are off campus—one at Page Mill, 1520 Page Mill. I’m sorry, there is a very minor ex- ception in that building which we do not have, but pre- dominantly. We have an entire building at—I’m sorry, I don’t know the address but it’s on Hanover, the intersection of Hanover and Page Mill. We have another building in which we have leased the entire building at 1010 Corporation Way. And I believe those are all the buildings in which we have a leasehold on the entire premises. Further confusing the issue is Watkins testimony, as follows: The third [lot] is adjacent to the Emergency department en- trance, walkway entry area and parking lot. The sidewalk in which that sign is posted is within the boundaries of the area that we maintain, have full maintenance responsibility and maintain. JUDGE WIEDER: Is it part of the leasehold? THE WITNESS: Whether or not it’s within the bounds of the leasehold, I could not testify to that. I find Watkins commingled areas within Respondent’s lease- hold with property it maintains but has no discreet property interest and he admittedly did not have personal knowledge of the nature and extent of Respondent’s leasehold. I also find Watkins did not appear forthright or convincing. Based on his demeanor, I will credit his testimony only when it is credibly corroborated or an admission against Respondent’s interests. Supporting this conclusion are: Watkins’ admission he engaged in speculation and surmise: he appeared to be tailoring his tes- timony to fit Respondent’s litigation theories; and, he volun- teered information. There is some evidence concerning whether members of the general public or lessees other than Respondent at nearby build- ings would and could purchase such permits. Monroe testified parking permits can be easily acquired and counsel for General Counsel could obtain one by just going to the University’s transportation department.11 Some of the parking area near the emergency department as well as another University parking 11 Monroe then modified her testimony and claimed permits for the employee lots must be limited to employees. I do not credit the testi- mony of Monroe unless it is convincingly corroborated or constitutes an admission against interest based on her demeanor. She did not ap- pear forthright and direct while testifying. She appeared to be tailoring her testimony to favor Respondent’s case. The above-referenced change in testimony is a case in point. She admittedly was engaging in surmise because immediately before claiming the permits for such lots were limited to employees, she admitted she did not know the rules, if any, concerning who could obtain such permits. She exhibited a pro- pensity to engage in speculation rather than trying to answer questions candidly form her personal knowledge. Moreover, Monroe seemed to be reluctant to testify frankly about matters she appeared to construe as antithetical to Respondent’s interests. On occasion, she had poor and/or selective recall. UCSF STANFORD HEALTH CARE 493 area are leased by Respondent for use by Respondent’s evening and night shift employees. The terms of the lease and the nature of the leasehold interests include areas not involved in the inci- dents considered herein. There is no parking permitted along Welch Road or Blake Wilbur Road. There is some handicapped parking near the hospitals as well as dropoff and pickup areas near the entrances. Not all employees, apparently, use permit parking. Ramirez testified, without contradiction, that during a conversation with one of Respondent’s security guards, she informed him: “[T]he housekeeper doesn’t park in the permit parking. They park in the parking in front, and they use their badge to get inside the parking.” This testimony was unrefuted and I have found Rami- rez to be a credible witness based on her open and direct de- meanor. Harland, another union organizer testified credibly and without contradiction there are permit parking slots at the top level of parking structure 3. D. Access During the course of the organizing drive, shortly before the schedualed representation election, Respondent initiated a new rule limiting the access of nonemployee union organizers. On November 2, Respondent sent to its security supervisors the following directive: Bill [Garber] and I [Dennis Smith]12 just met with Rosemary Monroe regarding union organizers. There have been many complaints lodged against them by hospital staff and because of these complaints it has been decided that:13 Union organizers can only be on SH&C and LPCH property from the hours of [7 a.m. and 8 p.m.]14 They are not allowed to be soliciting inside either hospital. They are not allowed one on one meetings and can eat in the cafeterias but they cannot be soliciting staff who are eating in the cafeteria. If they are heard soliciting, they need to be asked to leave the premises. If a known union representative is seen inside the hospital holding a meeting with two or more staff, they need to be es- corted off the premises. They are allowed at the entrance to the permit lots but they should not be harassing anyone who is coming to work. Exact locations will be coming out but in the pastthey have been at the CVRB Lot and on Campus Drive across from PS1. There is a letter from Felix Barthelemy, Senior Vice President of Human Resources to Ron Ruggiero, Organizer for SEIU, redefining UCSF Stanford Healthcare’s position on union or- ganizing on the premises which should be carried by yourself and all officers. Under Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), non- employee organizers are not authorized to trespass, subject to 12 Respondent’s security manager. 13 The nature and number of complaints was not detailed on the record. 14 The memorandum contained an error and the parties stipulated the hours the Union was limited to be on the property was between 7 a.m. and 8 p.m. limited exceptions15 not applicable in this proceeding. Lech- mere, Id. at 535, holds state trespass law obtains. Therefore, the issue is, first whether Respondent has a property interest in the areas where the removal incidents occurred, and if so, whether, under California law, the nonemployees were trespassing. Con- sonant with the Lechmere decision, the Board held in Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997): [I]n cases in which the exercise of Section 7 rights by nonem- ployee union representatives is assertedly in conflict with a re- spondent’s private property rights, there is a threshold burden on the respondent to establish that it had, at the time it ex- pelled the union representatives, an interest which entitled it to exclude individuals from the property.” [Emphasis in origi- nal.]. Food for Less, 318 NLRB 646, 649 (1995), affd. in relevant part 153 LRRM 2291 (8th Cir. 1996) See, e.g. Pay- less Drug Stores, 311 NLRB 678 (1993), enf. denied on other grounds by unpublished decision (9th Cir 1995); and Bristol Farms, 311 NLRB 437, 438 (1993). . . . . In determining whether an adequate property interest has been shown, we look to the law that created and de- fined the Respondent’s property interest, which is state, rather than Federal, law. Bristol Farms, above, at 438. 1. The alleged removal or attempted removal of nonemployee union organizers a. The September incident The events are mostly undisputed. The first incident occurred in September 1998. At about 5 or 6 p.m. former union organ- izer Bruce Harland,16 was seated in front of the main entrance to LPCH waiting for a clerical worker to end her shift. They had made an appointment to meet after the clericals workday. According to the unrefuted testimony of Harland: When I waited for her, I was—a security [guard] that I was familiar with approached me and told me that I knew that I— He said you know that you’re not supposed to be here and you need to leave. And I said I am waiting for a ride and this is where my ride is going to pick me up. I’m not talking to anybody, I’m not doing anything, I don’t know why you’re bothering me. And he says, well, you’re not supposed to be here and you need to come with me. And he walked me to the end of the street on Welch Road and he told me don’t come back. Since Harland wanted to keep the appointment, he walked back to the hospital. The clerical worker was waiting for him. They were met by the clerical worker’s daughter who drove them away. Before he was approached by the security guard, Harland noticed there were other individuals waiting for rides in the area. There were also some people smoking in the area of the smoker’s benches. There were a few individuals entering 15 There is no claim and no evidence the nonemployee organizers do not have reasonable access to employees outside the employer’s prop- erty, therefore there is no need to consider the accommodation between private property rights and statutory rights under the Act. 16 Harland left the Union’s employee prior to testifying. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494 and exiting LPCH. The guard did not instruct any of the indi- viduals in the same area as Harland that they should not be there. According to Harland’s undisputed testimony, the area where he was waiting is a popular location to meet rides, in- cluding private vehicles, taxis, and airport shuttle buses. Harland described the area as follows: [I]t’s a kind of a circular driveway with some trees decorated like animals, cut in shapes of animals, and there’s a bench outside of the main glass doors which is on the other side of the admitting room. And a few feet from those benches are some more benches where smokers are permitted to smoke. And then the newspaper racks are across that bench from— that’s right by the admitting that you’ve heard. There is no evidence or claim Harland was impeding traffic, precluding clients or visitors from any activity or engaging in any other objectionable conduct. The parties stipulated this incident occurred within Respondent’s leasehold. Harland seemed to be attempting to answer all questions truthfully and fully, without devise or obfuscation. He exhibited good recall of the events. Therefore, I find his testimony is believable. b. The incidents involving Marta Ramirez. Marta Ramirez is a nonemployee lead organizer employed by the Union. She had three incidents where she was asked by Respondent’s security guards to leave an area at or near a bus/shuttle stop described in greater detail below. Ramirez testified in a direct and believable manner. Her recollection of the events appeared unembellished, she seemed to be attempt- ing to testify in an accurate and complete manner. Based on her demeanor, I credit her testimony. Supporting this conclusion is her ready admission when she could not recall or when she did not know. She did not engage in surmise or distortion. During the first incident, Ramirez was seated in one of Re- spondent’s cafeterias with three workers discussing a union leaflet when she was asked, first by one security guard who was joined by another guard, if she was a union representative. When she responded in the affirmative, the guard(s) informed her “[b]ecause if you are a union representative, you have to leave.”17 Ramirez agreed to leave and departed the cafeteria. Then: They said that they going to accompany me to the out- side, and we walk outside and they asked me where is my car and—No, I’m sorry. They asked me—Because that was another incident. They asked me you have to go out- side with us, and then they asked me how—they asked me where is your car, and I said, well, I came on the Margue- rite. And then they say, well, we’re going to wait with you until the Marguerite comes. That’s the shuttle. And while we was waiting there, I asked them—They told me you can’t be talking with workers here. And I asked—I know that we can talk to workers at the cafeteria and they said yes, only if you are talking with one worker, not in a group. And then they said—so you mean that I can’t talk to a group of workers anymore, I have to talk to 17 Respondent’s actions in the cafeteria are not alleged to be a viola- tion of the Act. only one worker? And he said yes, and you have to have an appointment. And I said, well, I had an appointment with them, and they said, well, but it was a group, it was not only one person. And I told them, well, I can’t leave because I have an- other appointment at 12, and they said well, then you can’t wait here. You have to go to permit parking. The guards escorted Ramirez to an area designated “A Parking”. When they reached this area, one of the guards informed her: [Y]ou have to wait for the workers where they park. And then I said, well, the housekeeper doesn’t park in the permit parking. They park in the parking in front, and they use their badge to get inside the parking. So you’re telling that I can’t wait for them there? And he said, well, I can’t continue argu- ing with you and they left. Ramirez waited for the housekeeper at the parking lot because the guard prohibited her from waiting in the area near the bus/shuttle stop. She denies the guard informed the property near shuttle stop and street was the property of Stanford University or Stanford Hospital, he only stated they were Stanford property. Inasmuch as the statement was made by one of Respondent’s guards instructing the union organizer she was not permitted on the property. I credit her testimony the guard indicated he was authorized to remove her from the area around the shuttle stop. Respondent instructed Ramirez she could not sit or stand at the bus stop merely to wait for one or more of its employees. Ramirez was at or near the shuttle stop when the guards in- formed her she could not wait there that she had to wait at a permit parking area. She estimated she was at least 50 feet away from the entrance to the emergency room. There are two shuttles that serve the area, including the Hospitals and the University. One shuttle bus which connects the Hospitals to Bay Area Rapid Transit and Caltrain at the Palo Alto train sta- tion. There is also a free shuttle called the Marguerite shuttle that also connects riders to the Palo Alto train station. The shut- tle and bus services are open to public use without restriction. Stanford University provides the Marguerite shuttle service which operates on Monday through Thursday from 8 p.m. to 12 a.m. and on Friday from 8 p.m. to 2:30 a.m.; on Saturday from 4 p.m. to 2:30 a.m. and on Sunday, from 4 p.m. to 12 a.m. There are shuttle/ bus stops on Pasture Drive, Quarry Road, and Quarry Road extension. Traffic is limited to certain types of vehicles on Quarry Road Extension. There is also public transportation called the “Sam Trans BART Caltrain” connection that serves the University, Stanford Hospital, LPCH, and other locations on the Penninsula, an area south of San Francisco. This service operates from the Hospi- tals to Daly City, where it terminates at a Bart station.18 In addi- tion to serving Daily City, this bus serves the communities of Colma, South San Francisco, San Bruno, Milbrae, Burlingame, San Mateo, Belmont, San Carlos, Redwood City, Menlo Park, and Palo Alto. This bus also connects to transfer points with other Sam Trans bus routes serving many other areas of the 18 Bart is a rail carrier serving a significant portion of the San Fran- cisco bay area. UCSF STANFORD HEALTH CARE 495 peninsula south of San Francisco, California. The Marguerite shuttle uses some if not all of the bus stops. Respondent does not operate, fund, or control either the Mar- guerite shuttle or the Sam Trans bus service. Monroe does not believe the bus and/or shuttle stops are on Respondent’s property. There are about three shuttle/bus stops on Quarry Road and Quarry Extension, and Ramirez was escorted by Re- spondent’s guards to the stop nearest the emergency department of Stanford Hospital. Mitchell also does not believe the shuttle stops are on Respondent’s leasehold, testifying “[o]ur property line does not go out to the street . . . . I can’t tell you the exact number of feet. It goes a number of feet from the building, but Facilities people will have to give you the exact number of feet from the building. It’s a short number of feet from the build- ing.” She estimated the leasehold interest was less than 10 feet from the buildings. Ramirez described the bus/shuttle stop as an area that has a shelter with a bench across from Stanford Hospital. On the other side of Quarry Road there is a sidewalk and seating areas around a tree. The sitting areas include a bench and a planter which people use for seating. The guards escorted Ramirez to this area by the tree. There were other people in the area at the time who were sitting on the bench. The guards did not ask the people seated on the bench to identify themselves. Ramirez had an appointment with a housekeeper whose shift was to end at noon. They were to meet at the bench near the tree. This loca- tion was well over 10 feet from the Stanford Hospital building. Ramirez asked the guards whose property the area around the tree was and the guards replied “everything around here, all the streets, belong to Stanford. You can’t be around anywhere. This belong to Stanford properties.” Watkins admitted Respondent’s leasehold interest is differ- ent at the four shuttle/bus stops near Stanford Hospital and LPCH. The stop closest to LPCH, according to Watkins, is not within Respondent’s leasehold. The next stop south of the LPCH stop is also, according to Watkins, not withhin Respon- dent’s leasehold. The third stop, which is near the emergency department entrance and the site of the incident involving Ra- mirez, is maintained by Respondent but Watkins does not know if it is part of Respondent’s leasehold.19 Watkins testified Re- spondent maintains areas that are not within Respondent’s leasehold under one or more contracts with Stanford University and/or the Medical School. There is no evidence to support a claim Respondent has a property interest in the areas it main- tains outside of its leasehold. The fourth shuttle/bus stop is by the Medical School and is not within Respondent’s leasehold according to Watkins but Respondent has a contract with the University under which it maintains this area. According to Watkins, the bus/shuttle stops across the street from the Hospitals are not within Respondent’s leasehold or maintenance contract; “[t]he curb line is the de- marcation.” Watkins opined the benches at or near the shuttle stop were within Respondent’s leasehold. The exact distance from Stanford Hospital of these benches was not adduced in 19 Watkins later testified the shuttle/bus stop itself is not within Re- spondent’s property, but he has no knowledge that the benches are within the leasehold. evidence, thus it cannot be determined that they are within the 10-foot perimeter mentioned by Monroe. Watkins admitted he did not possess the requisite knowledge to claim with certainty this area was within Respondent’s leashold or that Respondent otherwise held a sufficient property right in the area to permit it to deny nonemployee union organizers access. Watkins described the benches near the emergency depart- ment bus/shuttle stop as not facing the road and about 20 to 30 feet away from the bus stop. Watkins understood the benches to be within Respondent’s leasehold. The disparity between Mon- roe’s and Watkins’ testimony concerning the parameters of Respondent’s leasehold was never reconciled on the record. While Watkins testified initially there were no shelters at any of the shuttle stops, one of the pictures entered into evidence by Respondent depicts such a shelter at the bus/shuttle stop. The bench depicted in this picture,20 near a tree, does face away from the road. The perspective of the picture fails to present a clear determination of how close the bench is to roadway or the Hospitals. There are also picnic tables and a smoking area in the vicinity of the bus/shuttle stop that Ramirez observed being used by individuals for eating and smoking. The individuals involved in this incident, according to Rami- rez, were identified as Stanford Hospital guards based on their uniform of grey pants and blue shirt. They were wearing badges with their names. She had previously seen these guards work- ing at Stanford Hospital in the area of the emergency depart- ment. This identification was not convincingly refuted. Ramirez used the Marguerite shuttle to get to Stanford Hospi- tal on this day and has used it on other occasions. She was never asked for identification as a condition of using the shuttle. Stan- ford University provides office space to the Union on its campus and Ramirez uses the shuttle to go to and from this union office located in a building known as the “Eating Clubs.” The Union represents some of the employees of Stanford University. The week after Ramirez was asked to leave the cafeteria and the bus/shuttle stop area, on a Tuesday morning, Ramirez and about five of her union coworkers were leafletting on the side- walk in front of the previously-described shuttle stop near the emergency department. Ramirez observed one of Respondent’s security guards, a Mr. Lyons, approach the union organizers. He stopped to talk with one of the organizers who was discuss- ing the leaflet with some of Respondent’s employees, then came over to the organizers with Ramirez and addressed Rami- rez as follows: [Y]ou and me, we already talk about this. You have to leave, and then he start doing like this to me, “Shoo, shoo, shoo,”21 and I just went like this (indicating), and I thought that he was going to come over me and then his phone, someone called him on his phone and then he left. I didn’t know what to do when he was like over me. I thought that he was going to hit me or something, because 20 R.. Exhs. 52–55. 21 Ramirez’ replication of Lyon’s gesture was described as: [O]ne that begins with arms sort of folded in front, in the chest, with back of hands moving outward and to straighten the arms, as if one were shooing away something. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496 he was doing like this (indicating), but then when he left, we stayed there and everybody was asking what’s wrong with him, he just came to you. And then we stayed there because there was other workers that they were—we passed them leaflets and then we heard that there was a problem on the other side of Children’s Hospital. At the time of this incident Ramirez noticed individuals go- ing to the parking lot and into the Hospital. There were indi- viduals seated at the planter. There is no claim these individuals were also asked to leave Respondent’s leasehold. After awhile, Ramirez left the area and went to her car which was located in a parking lot. Shortly after this incident, Ramirez was at or near the same location with other union organizers in front of the same shuttle stop when a security guard approached them and inquired if they were union representatives. When they replied in the af- firmative, the guard informed them: [W]ell, you guys need to leave. You can’t be here at this time. And we told him, well, we have been here for most of the time we come here at this time and we do the same. And he says, well, the rule has changed. You have to leave. Ramirez did not recognize the guard but he informed her he was in charge that night. He was wearing the Stanford guard uniform of grey pants and a blue shirt. He was also wearing a badge with his name and picture on it. She was leafletting at 10 p.m. because some of Respondent’s employees in the unit the Union sought to organize began work at 10:30 or 11 p.m. and it was difficult to contact them during the day. At the time of this incident, another individual was seated on the bench who was not affiliated with the Union. The guard did not ask or tell this individual to leave. There was another individual in a car parked near the emergency area who was not asked to leave. At the times of these three incidents, Ramirez claims, with- out refutation, that the union organizers were not blocking in- gress or egress to the Hospital, they were not creating any dis- turbances and no employees complained to her about their presence or activities. While Respondent’s memorandum changing its policy concerning the union organizers access mentions employee complaints, Respondent adduced only two incident reports detailing these asserted complaints. The first incident report, dated November 21, 1997, appears to have involved leafletting at a parking area, not inside the Hospitals’ established leasehold. The second report, dated August 5, 1998, noted a security officer received a report from an employee that a union representative telephoned while she was working in the pharmacy to solicit her to join the Union. This complaint clearly did not involve handbilling by nonemployee union or- ganizers. Respondent admitted that it receives about 1200 patient complaints yearly at Stanford Hospital and 300 yearly at LPCH of which few, if any, involve employee solicitation or distribu- tion. Respondent also argued on brief, contrary to Monroe’s testimony, that it did not adopt the policy in response to particular patient, physician, or other employee complaints about solicitation. Respondent claims the policy is needed to solicitation. Respondent claims the policy is needed to create the appropriate atmosphere for patient care. Ramirez admitted returning to the shuttle stop many times after these incidents to continue with her organizing work. At one or more of these times she saw guards employed by Re- spondent but she does not know if they saw her. After these three incidents, no one sought to remove her from that location even though she continued leafletting up until the election. The leaflets were directed to Respondent’s employees, some of whom also engaged in leafletting. Ramirez did not see anyone other than union organizers and involved employees leafletting at Respondent’s facilities. c. The November 2 incident. On or about November 2, the same date Smith issued his memorandum to security supervisors quoted above, nonem- ployee union organizers Solito Barana, Brian Hooper, and Bruce Harland were assigned to leaflet at LPCH. They began leafletting at about 6 a.m. on a side walk near a parking area across from the back entrance to LPCH. The location was de- scribed as a convergence of walkways between Quarry Road and LPCH. They were about 15 to 20 feet from the back en- trance to LPCH. That location was selected because it was near the entrance used by most of the LPCH employees going to and leaving work. This employee entrance is limited to card key access only, so only individuals who possess such a card can enter at this location. The union organizers selected the early hour for leafletting based on when they could reach the most employees beginning and ending their shifts. The union organ- izers established three shifts for leafletting; one in the morning from 6 to 8 a.m., the second in the afternoon from 2:30 to 4 p.m., and the third at night from 10 p.m to midnight. The sole purpose of the union organizers for being at that lo- cation was to hand out flyers to Respondent’s employees. Ac- cording to the unrefuted and credible testimony of Harland, the union organizers handbilled at that location weekly. They iden- tified the employees by their uniforms and identification badges. Some employees passed by who did not wear badges or uniforms such as secretaries and some supervisors.22 It is un- disputed the principal if not sole users of the entrance to LPCH clossest to the handbillers were employees of Respondent. According to Barana, whose testimony is credited based on his open and convincing manner:23 So as we were handing out flyers to the workers as they came in, around 6:30 a security guard24 came out and asked what 22 While Barana admitted some individuals identified themselves as supervisors who declined receipt of the leaflets, there is no evidence of a confrontation or disturbance on this or any other day between union organizers and employees other than security guards. 23 Barana is an employee of the Union who was assigned to its Stan- ford office during the fall of 1998. While his direct and open demeanor alone warrants crediting his testimony, I note he testified in a consistent manner with no indication of device or obfuscation. Barana also exhib- ited good recall of the events. 24 Harland recognized the security guard as an employee of Respon- dent who worked the night shift. Harland’s version of the event closely tracks that of Barana. According to Harland: UCSF STANFORD HEALTH CARE 497 we were doing there. We said, you know, we were passing out flyers. He said we couldn’t be there before 7 o’clock in the morning, and I said I wasn’t aware that the policy has changed. And then he said if we did not leave, that he would call the cops. So I said we were not leaving, so we continued passing out the flyers. That guard left25 and a few minutes later he returned with four other security guards from Stanford Hospital and an indi- vidual Barana believed was the guards’ supervisor because he took a lead role in the conversations. Barana recalled the lead guard “asked us what we were doing, and I told him we were handing out flyers to the workers. And he said we couldn’t be there.” The lead guard then showed the union organizers the November 2 memorandum quoted above26 and said: “This [The security guard] came out and he said you guys know you’re not supposed to be here. Stop the leafletting. And we said, well, what do you mean, we’re not supposed to be here? We’ve been here every week and you know that. And he said if you don’t stop, then I’m going to call the po- lice. And we said, well, we’re going to continue to leaflet until you call the police and have them tell us to stop. And in that time he called more security guards. . . . He had a radio. And he called more security guards, the majority of them from Stanford. I don’t believe any other security guards from Lucille Packard came. The reason why is because their uniforms are different, and all of the security guards had grey pants and blue shirts, and that’s a Stanford security uniform. They did tell us to all stop and they wanted to show us this memo that they had. . . . . And they said that this says that we can’t be there until 7:00 a.m. And all three of us said, well, we don’t have that Our supervisor hasn’t given that to us. We’re not aware of this memo, and so we’re going to continue to leaflet un- til if you want to, call the police and have them tell us to leave. Then we will leave then. And then a couple of the Stanford officers left and the police came shortly after that, like 7:45—I mean, 6:45, I’m sorry. Barana dealt with the police while Harland and Hooper continued to leaflet. Then they called us over there, the police officer did, and asked if he can see our driver’s license, and he radioed in to his headquarters or wherever that goes, and they ran a check on us. You know, he explained that he was part of a union and that, you know, there was really nothing—he told the security guards there’s nothing we can do, that if they’re not threatening someone or hurting someone or, you know, being abusive to someone, and that they were going to just leave it at this. Then the security guard that first approached us in the morning wanted to file some type of report through the hospital and said that he wanted each of our driver’s licenses. And the police officer told him that you don’t get the driver’s license, you don’t get their names, this is where it ends. And he didn’t want to be called back today. 25 The first guard was wearing a uniform used by LPCH guards con- sisting of polo shirt, khaki pants, and a blue jacket. The guards that he brought back with him were wearing grey pants and blue shirts which is the uniform for Stanford Hospital security guards. Both Harland and Hooper recognized the first security guard as an agent of Respondent from meetings on previous occasions. 26 Respondent argues the copy it retrieved of the memorandum indi- cates it was not distributed through Respondent’s e-mail system until memo said you couldn’t be here, and I said that is a memo ad- dressed to your department. I am not aware that the union has received a memo like this.” The lead security guard then stated “He was going to call the Palo Alto police” and left. The union organizers continued leafletting and about 6:45 a.m. two Palo Alto police office arrived as well as the security guard with whom they had the first conversation at about 6:30 a.m. This security guard informed the police officers the union organizers were not supposed to be there. One of the officers asked what they were doing. The union organizers replied they were leafletting workers. The officer, who was holding the same memorandum the security guard had previously showed Barana, inquired if they knew they were not supposed to be there. Barana replied “That memo is an internal memo to the department. I am not aware of any policy change with regard to our presence here. We’ve been doing this for the past year on a regular basis and we’ve never been asked to leave until this present time.” Barana also informed the police officer: [W]e’re two weeks until the election and I believe that’s the reason why they’re asking us to leave. So the cop said we’re in a union also. As long as you’re not harassing the workers, that’s fine. But he said I’m going to take down your names and he took down our names. He asked for our driver’s li- censes, we showed him our licenses, he took down our names. And then the security guard said, okay, let me take your names also, and the cop said you don’t have to do that. He already took care of it. So the cops left and we stayed, and we continued to leaflet until 8:30. Barana’s testimony the union organizers were not blocking the entrance or exit to the hospital or parking area, and there were no disturbances, disruptions, or confrontations between the union organizers and the employees who were not security guards is not convincingly refuted. There was no claim or evi- dence that the leafletting created litter or interferred in any manner with Respondent’s operations. There is no claim any patients or visitors were disturbed by the handbilling. There were other individuals on the pedestrian path who were not wearing uniforms. One individual was in a vehicle waiting to pick up a family member and other individual who appeared to be waiting at the bus/shuttle stop at that location. None of these individuals were handing out flyers but one individual, the 3:49 p.m. on November 2, therefore it could not have been shown to Barana and the police officers. I find this argument unpersuasive. The memorandum could have been sent more than once, with the copy that was sent later being the one provided by Respondent for introduction into evidence. Based on Respondent’s security guards actions, they were following the directives of the memorandum prior to 3:49 p.m., changing established procedure that permitted the Union to handbill on a regular basis in the same area for about 1 year. Accordingly, the probabilities require the conclusion Respondents security guards re- ceived a copy of the memorandum prior to confronting the union or- ganizers at 6:30 a.m. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498 gentleman in the vehicle,27 was stopping people passing by that he knew, greeting them and asking how they were. Hooper recalled seeing at the time of this incident a delivery man in a bread or food delivery vehicle taking food supplies into the cafeteria and well as pedestrians going in different directions. The security guards did not approach these individu- als and inform them they could not be on or near the pedestrian walkway at that early hour. There were no signs indicating the union organizers were on private property. By the time the police officers left, most of Respondent’s employees had started or ended their shifts and there was very little if any em- ployee traffic. The union organizers stayed for about 10 more minutes and then left. In addition to Harland, Hooper convincingly corroborated Barana’s version of the November 2, events. Hooper testified with an open and forthright mein. He demonstrated good recall of the events. He did not appear to be conforming his testimony to a litigation theory or engaging in hyperbole. Accordingly, I credit his testimony. d. Respondent’s property interest Respondent has several instruments including a Restatement of Lease By and Between the Board of Trustees of the Leland Stanford Junior University and LPCH dated November 1, 1997,28 a Management Services Agreement between LPCH and UCSF-Stanford Healthcare effective November 1, 1997; an Assignment of Lease (Hospital and Hoover Pavilion) By and Among the Board of Trustees of Leland Stanford Junior Uni- versity, Stanford Health Services and UCSF-Stanford Health Care entered into November 1, and a Restatement and Assign- ment of Lease (Boswell Clinic Building) By and Among the Board of Trustees of Leland Stanford Junior University, Stan- ford Health Services and UCSF-Stanford Health care, entered into November 1, 1997. The lease of LPCH has a description of a portion of the leasehold involved herein but no map or testimony by an ex- pert, such as a surveyor or qualified engineer, establishing the parameters of Respondent’s leasehold and easements. The par- ties stipulated the incident involving Harland sitting on a bench waiting to meet an employee leaving work was within Respon- dent’s leasehold and I find, based on the stipulation, that Re- spondent had a valid property interest at the time of the inci- dent. Respondent did not clearly establish on the record it had a similarly valid property interest in the pathway where the No- vember 2, incident involving Barana, Harland, and Holland. The Management Services Agreement between UCSF- Stanford Health Care and LPCH does not more clearly define Respondent’s leasehold. The reassignment and assignment of the lease between the University and Stanford Hospital and UCSF-Stanford Health Care contains a site plan of Hoover 27 Harland recognized the man; he was present and waiting for an employee every time he leafletted in that area. He also recognized a women he went to school with who was a professor at the University of San Francisco; he did not know why she was at LPCH. No guards approached her to ask her purpose for being at that location. He also observed men wearing suits who similarly were not approached by the security guards. 28 The original lease was dated as of April 17, 1986. Pavilion and Stanford Hospital. There was no clear and con- vincing testimony the site plan includes only the survey de- scription of the leasehold described in the Agreement. Respon- dent did not call a surveyor or other expert to demonstrate the incidents involving Ramirez at or near the bus/shuttle stop was within Respondent’s leasehold. Further complicating the issue of the extent of Respondent’s leaseholds is certain paragraphs of the Stanford Hospital lease agreement. Paragraph 6.4 of the agreement provides: Parking. Concurrently with the execution of this Lease, Landlord and Tenant have entered into that certain Inter-entity Agreement of even date herewith, which among its provisions shall govern Tenant’s rights to use parking facilities located in the vicinity of the Premises. Paragraph 6.5 of the agreement provides: Palo Alto Agreement. Tenant acknowledges that Land- lord has certain obligations to the City of Palo Alto arising out of the agreement between landlord and the City of Palo Alto, dated July 1, 1968, providing for the transfer of the City of Palo Alto’s interest in the then-existing hospital to Landlord. As further consideration, Tenant covenants and agrees to continue to assume and take all actions nec- essary to fulfill Landlord’s obligations under said agree- ment and to assume and take all action necessary to fulfill any future obligations arising under said agreement as now constituted. The “parking” provision indicates Respondent’s leasehold interest does not exclusively extend to the parking lots. The record does not clearly establish that the Inter-entity agreement referenced in the “Parking” provision was the agreement in which the provision is contained or another agreement that is not in evidence. Moreover, what, if any property interest or limits on property interest arising out of the agreement with City of Palo Alto was not placed in evidence. There is no basis to find Respondent has any property interest affecting determi- nations in this proceeding arising out of such agreement. As here pertinent, the Management Services Agreement re- quires LPCH, Stanford Hospital, and UCSF-Stanford Health Care, to operate the Hospitals to support the research and clini- cal programs of Stanford School of Medicine, which adjoins Stanford Hospital but is not part of the leasehold. Moreover, paragraph 3.2 of this Agreement limits Respondent’s authority over the leased LPCH and does not include “written policies regarding purchases, contracts and leases which have been approved by [LPCH’s] Board of Directors.” Any such leases, contracts or purchases, as they may affect Respondent’s prop- erty interest in the location of the November 2 incident, were not disclosed on the record. At the very least, the nature and extent of Respondent’s leasehold interest in the location of the November 2, Barana, Harland, and Hooper incident, is not clearly established on this record. The lease of the Boswell Building does not clarify Respondent’s leasehold interest in the site of the November 2, Barana incident or the bus/shuttle stop incidents involving Ramirez. UCSF STANFORD HEALTH CARE 499 e. Conclusions While Respondent has some responsibility to maintain por- tions of the University’s property under an agreement other than the leases, the nature of these obligations has not been clearly demonstrated to create a property right sufficient to permit Respondent to deny any access to these areas. For ex- ample Watkins, who was proffered by Respondent as the expert concerning Respondent’s facilities testified as follows: The third [bus/shuttle] stop is adjacent to the Emer- gency department entrance, walkway entry area and park- ing lot. The sidewalk in which that sign is posted is within the boundaries of the area that we maintain, have full maintenance responsibility and maintain. JUDGE WIEDER: Is it part of the leasehold? THE WITNESS: Whether or not it’s within the bounds of the leasehold, I could not testify to that. Watkins admitted the mere fact Respondent maintains some property under some agreement with the University does not establish that it has a leasehold interest in that property. For example, Respondent performs housekeeping services at Stan- ford Medical School but clearly does not have a leasehold in- terest in that property. Respondent was informed at hearing that the meets and bounds description in the leases do not clearly present its property interests; that there are experts who trans- late those descriptions into maps clearly depicting its property interest. Respondent chose not to present such experts or any other clear and generally acceptable depictions of its property interests. Watkins testified there is such a boundary map that he had seen. That map was not placed in evidence. The maps attached to the Stanford Hospital lease do not clearly depict the boundaries of this leasehold, but do include a map of an area encompassing the Stanford Shopping Center, the Medical School, and a plat of Stanford Hospital which does not depict the boundaries beyond the building in a meaningful and dispositive manner. The consulting engineers who prepared the plat of the Stanford Hospital lease were not called to testify whether the leasehold extends to the bus/shuttle stop near the emergency department entrance to Stanford Hospital on Quarry Road Extension. In fact, only Quarry Road is depicted on the plat, not the extension. There is no comparable plat for LPCH, thus no clear showing the November 2, incident involving Barana, Harland, and Hooper occurred withing any of Respon- dent’s leaseholds. Respondent claims it did not create and does not have any incident reports concerning all the incidents with nonemployee union organizers. No incident reports or other documentation other than the November 2, policy statement indicates there were any complaints concerning the leafletting of the nonem- ployee union organizers. Respondent did not adduce any testi- mony or other evidence supporting this bare claim of com- plaints. As noted in Bristol Farms, 311 NLRB 437, 438 (1993): Further, an employer’s exclusion of union representatives from private property as to which the employer lacks a prop- erty right entitling it to exclude individuals likewise violates Section 8(a)(1) assuming the union representatives are en- gaged in Section 7 activities. [Footnote ommitted.] See Polly Drummond Thriftway, 292 NLRB 331 (1989), enfd. mem. 882 F.2d 512 (3d Cir. 1989); Barkus Bakery, 282 NLRB 352 (1986), enfd. mem. sub nom. NLRB v. Caress Bake Shop, 833 F.2d 306 (3d Cir. 1987) . . . . To determine whether the Respondent had a property right entitling it to exclude the union agents from the sidewalk in front of its store, we must look to the law that created and defined the Respondent’s property interest. It is well established that property rights generally are cre- ated by state, rather than Federal, law. At the Supreme Court stated in Board of Regents v. Roth, 408 U.S. 564, 577 (1972): Property interests, of course, are not created by the Con- stitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[. . . .] The Board continues to follow this rule of law. In Indio Gro- cery Outlet, 323 NLRB 1138, 1141 (1997), the Board reiterated the holding of Food for Less, 318 NLRB 646, 649 (1995), affd. in relevant part 187 F.3d 180 (8th Cir. 1996), cert. denied 29 U.S. 1098 (2000) as follows: “in cases in which the exercise of Section 7 rights by nonemployee union representatives is as- sertedly in conflict with a respondent’s private property rights, there is a threshold burden on the respondent to establish that it had, at the time it expelled the union representatives, an interest which entitled it to exclude individuals from the property.” There is no question the nonemployee union organizers were engaged in protected concerted activity under Section 7 of the Act and their peaceful action did not cause them to lose any protections of the Act. Respondent argues the Board should abandon Indio, id., claiming Indio, is inconsistent with the spirit of Supreme Court precedent and results in the “impermissibl[e] subordination of what should be a uniform body of Federal labor law to a patchwork of State property and Constitutional law. I find this argument to be without merit. As the Supreme Court held in Lechmere, Inc. v. NLRB, 502 U.S. 527, 534-535 (1992): If there is any question Central Hardware [Co. v. NLRB, 407 U.S. 539 (1972)] and Hudgens [v. NLRB, 424 U.S. 507 (1976)] changed Section 7 law, it should have been laid to rest by Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745 (1978). As in Central Hardware and Hudgens, the substantive Section 7 issue in Sears was a sub- sidiary one; the case’s primary focus was on the circum- stances under which the NLRA pre-empts state law. Among other things, we held in Sears that arguable Section 7 claims do not pre-empt state trespass law, in large part because the trespasses of nonemployee union organizers are “far more likely to be unprotected than protected,” 436 U.S. at 205; permitting state courts to evaluate such claims, therefore, does not “create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board’s decision, would find protected. . . .” I conclude Respondent has not met this burden concerning the incidents at or near the bus/shuttle stop and the incident DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500 concerning the leafletting near a parking facility.29 While Re- spondent introduced the leases, the description of the leaseholds were in metes and bounds. These descriptions were not trans- lated into maps, plats, or verbal descriptions that would be readily understandable and subject to meaningful examination by opposing parties. I find the descriptions in metes and bounds are akin to a foreign language which the proponent of the evi- dence bears the burden of translating. Respondent failed to introduce such a translation. Moreover, Respondent admitted in its brief its witnesses, Watkins and Monroe, did not know the boundaries of its leasehold and it maintenance responsibilities for some University property does not establish any claim that property is “necessarily situated within its leasehold.” Accord- ingly, I find Respondent failed to demonstrate the incidents involving Ramirez and Barana, Harland and Hooper, were not clearly shown to involve property where Respondent held the right to exclude or attempt to exclude the union agents. Bristol Farms, supra.30 f. Public access to the hospitals, is it a public forum? 1. Exterior Assuming Respondent clearly established all the nonem- ployee union organizer incidents occurred within Respondent’s leasehold, General Counsel and the Union argue Respondent does not have the right under applicable state trespass laws to remove the nonemployee union organizers. There was no evi- dence adduced concerning the University’s policies involving leafletting or other union activities. There was evidence the University made office space available to the Union and gave union organizers permits to park on the lots maintained by Re- spondent. The issuance of these permits by the University to Union personnel is a further indication Respondent does not have an exclusive property interest in parking lots and other areas near the Hospitals. There is no evidence Respondent has an exclusive property interest in other areas not included in the leases but which it has contractually agreed to maintain. Charging Party argues Respondent is required by State and Federal laws to serve the entire community. Monroe testified Stanford Hospital must make its emergency department avail- able to all who seek to avail themselves of its services. As a Medi-Cal participant, Respondent must render services to Medi-Cal patients. As discussed in greater detail hereinafter, Respondent also reaches out to the neighboring community to advertise its services to the whole community, without differen- tiation between current and potential customers. Respondent 29 I informed Respondent, as follows: JUDGE WIEDER: And there are experts who do make sur- veys to depict that in a map form so we could get a discrete amount, which—but at this juncture, this witness states that he doesn’t have—he’s not privy to that information, and you’re ask- ing him questions where he’s required to speculate and I can’t place any weight on that testimony. 30 The issue of whether the Union had other reasonable means of communicating under NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), is not an issue in this proceeding. The issue of whether the Union had other means to reasonably communicate its organizing cam- paign messages without access to Respondent’s leasehold was not addressed on this record. has not posted any “private property” or “no trespassing” signs on its leasehold. Respondent does not have and/or enforce a check-in policy because, as Watkins testified: “[t]he sheer volume of people coming in, for one thing. I don’t think it would be practical. And the difficulty in ascertaining whether somebody, the le- gitimacy of their—of the reason given for entry, for coming in. I think it would be next to impossible to determine the legiti- macy of each person entering the building.” Watkins further explicated: “The number of people entering and exiting the building at any given day or even, for that matter, any given time of day during the business day hours. It’s just a very large number of people.” Stanford Hospital does not have a sign-in policy. Contrary to Watkins’ testimony, LPCH does have a sign requesting visitors to sign in but Respondent admitted, “[d]uring the daytime [signing in] is not a requirement, and generally that sign is turned around during those hours. . . . So as not to be read. It’s turned against the wall; it’s a one-sided sign, generally.”31 The nonemployee union organizers testified they entered LPCH numerous times and were never stopped or requested to sign in. There is an entry to LPCH through an interior corridor with Stanford Hospital which does not have such a sign or other impediment to access. Particularly during the day, Stanford Hospital is open to the public. Respondent admitted the infor- mation desk was not fully staffed during the day at the times here under consideration. Accordingly, I find the LPCH sign in policy was not observed at all pertinent times. One employee organizer, Paul Trudeau, who appeared pur- suant to a subpoena, is a seating clinician whose duties include customizing wheelchairs. He has worked for LPCH for 10 years. He does not work on site. His work location is about 6 miles from LPCH. He distributed leaflets at his worksite and at two locations outside the Hospitals. One such location was by the road near the parking lot close to the emergency entrance to Stanford Hospital and the other between parking lots marked C and D close to parking structure 3. He leafletted in those loca- tions between August and November during the hours of 6 and 8 a.m. There was no evidence nor claim his remote worksite was a patient care area. He would inform passersby that the leaflet was the latest un- ion news and they would take it or not. On at least one occa- sion, he passed a leaflet to an individual who was not an em- ployee of Respondent.32 Trudeau described the event as fol- lows: Well, the one guy who sticks out in my mind is a guy who took it and then he wanted to stop and talk. And I—you know, there was several of us out there. And I wasn’t sure if he was an acquaintance of somebody else, or whatever. And 31 There is a sign on the main entrance glass door to LPCH which states “All Visitors Please Check in at the Information desk.” The sign that is turned around against a wall during the day so it cannot be read provides: “All visitors please check in at the Information Desk at the first floor main entrance.” Both these statements are in English and Spanish. 32 Trudeau could not always tell if the passerby was an employee, visitor, or patient. UCSF STANFORD HEALTH CARE 501 then he ended up getting a pile of leaflets and he started pass- ing them out himself. I thought he was, you know, somebody else I hadn’t met yet. It turns out he was a patient. This patient did not indicate or say he was appalled or con- sidered it inappropriate that Trudeau approached him with un- ion leaflets. Trudeau surmised some of the individuals who accepted the proffered leaflets were probably patients. He did not have an individual refuse the proffer indicate any anger or sense they considered his leafletting in support of the Union organizing campaign inappropriate. When individuals refused the literature stating they were patients, Trudeau did not at- tempt to follow them or persuade them to accept the leaflet. This testimony fails to establish any handbilling described in this record by either employee or nonemployees, interferred with Respondent’s provision of patient care or disturbed pa- tients and visitors. 2. Interior LPCH does not have visiting hours. Stanford Hospital tries to have visitors leave by 8 p.m. Also at night, Stanford Hospital limits access to the building to two entrances. Respondent ad- mits there are a “large number of patients, staff and visitors entering Stanford Hospital” and it does not require people en- tering the facility to wear identifying badges or to sign in.33 At night, LPCH can only be entered from one entrance and, as noted, earlier, displays a sign at this time requesting visitors to sign in at the visitors desk. Moreover, at the time of hearing, Respondent did not have sufficient staff to man the information desk and sign in visitors. The parties stipulated as follows con- cerning the sign in policy at LPCH: JUDGE WIEDER: Is there any dispute that individu- als who are not in uniform without badges who enter through either the main entrance or any other entrance into Lucille Packard Hospital are requested for their business, what their business is, or requested to sign in or requested to somehow or other identify the purpose of their pres- ence? MR. ARNOLD: There is a sign at the entrance to Lucille Packard Children’s Hospital that says please do it, but it’s not enforced in terms of no one sits there to make sure that people do. Watkins testified the security staff tries to “identify people that don’t really seem to fit in or don’t have any legitimate business, at least on its face—on the face of what they’re doing, and then make contact with those people to find out; as well as responding to calls from staff with the same kinds of informa- tion.” The nonsecurity staff of the hospital also has received instructions to stop and talk to visitors they think should not be in that area of the hospital. Outpatients who visit the clinics 33 Watkins testified: Q. And how about at Stanford Hospital and Clinics? Is there any attempt made to require people to register or sign in or check in in any way when they enter the building? A. No, there is not. At the main entries, no Q. Do you believe that you could reasonably have a check-in policy at Stanford Hospital and Clinic? A. No, I don’t. must have prior appointments. Respondent admits members of the public can enter the hallways and waiting areas of the clin- ics without appointments. Over the years, Respondent’s security staff has asked indi- viduals to leave when they were being disruptive to patient care or the Hospital’s conducting its business, such as soliciting membership in organizations, and selling items such as ency- clopedias and hospital scrubs. The security department main- tains a record of the individuals it removes from Respondent’s premises. According to Watkins, when Respondent asks indi- viduals it considers are trespassing on its premises to leave, they request that individual to sign a statement admitting they were improperly on Respondent’s property, that Respondent believes they are trespassing, and admonishing them future infringements could result in prosecution. The explicit basis for the issuance of some of these statements was not established. Respondent admits the individual can refuse to sign the state- ments. Respondent’s security department also maintains a binder entitled “Bad Guys.” Some examples of individuals contained in this book include: the “semi-stalker” of an employee whose clothes were dirty and he was unkempt; an apparently homeless person sleeping in a breezeway: another individual sleeping in a waiting area; a women sleeping on a bench in the Pharmacy wait area,34 a person suspiciously pulling on car doors in a parking lot; a person trying to weigh herself in the emergency department; “a suspicious individual sitting at a table listening to static on the radio;” an unknown women asking to visit ba- bies in the nursery who stated “that she had just lost a child and was there to—because she wanted to see the babies,” she could not produce identification and refused to leave and the matter was handled by the police; and, a suspicious man.”35 Respon- dent had recorded 37 trespass events, but there was no disposi- tive demonstration these events were actually determined to be trespass under applicable laws. Respondent admitted on brief it “does not actively or generally exclude nonemployees, non- patients, or non-patient visitors from its premises.” It claims, however, that most of the people coming to its premises are patients, employees, patient visitors, or others who come on business such as delivery persons or salespersons. Respondent did not present obective evidence to support this bare claim. Stanford Hospital and LPCH have a ground floor plus three other floors. They each have a central atrium on the ground floor. The Stanford Hospital atrium has groupings of couches and benches for seating as well as a baby grand piano. The atrium was described as large. The atrium is open to the higher 34 According to Watkins: She stated that she had been discharged 6 days ago and had been sleeping all over he hospital ever since. She was unable to give cause why she should remain in the hospital and she was escorted to the Palo Alto train station. 35 This incident was described as follows: A suspicious Asian male. He was approached. It was determined he had no official business at the Medical Center. He was uncoop- erative and didn’t give personal information, yet he was issued and signed a trespass agreement, then was escorted, once again, to the train station—not for the second time for him, but like the others to the train station. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502 floors so the area containing the piano can be viewed from above. As discussed in greater detail below, concerts are given in this atrium area “[f]or patients and visitors that are in the hospital at the time.” There is also seating around the atrium at LPCH. The atriums at both Hospitals are locations where em- ployees, “patients and their families and friends visit with each other.” Employees are not prohibited from being at or in the areas around the atriums. Monroe testified: They’re not supposed to sit in those couches because those couches are for patients and their families and visitors. If they had a family member there who was a patient, certainly they could go up during their break. Q. Is there a rule forbidding them from sitting in those couches? A. I don’t believe it is stated. I don’t think there’s anything in writing, but I think most people know that that is for the patients and their visitors and families.36 Q. Even if, as in the case when this photograph was taken, there are no patients and their families in that area? A. That’s correct. They’re not supposed to be sitting in those areas because those are for patients and their families. Based on this testimony, I conclude Respondent does not have a rule clearly communicated to employees prohibiting them from sitting in the atriums. There is no evidence Respon- dent, by Monroe or otherwise, ever communicated to employ- ees her understanding employees were not to be sitting in the atriums. The Bing music series is a regularly scheduled event at the Stanford Hospital atrium. The only other regularly sched- uled event at the Stanford Hospital atrium is an “annual holiday tree-lighting ceremony where the Christmas tree is lit.” There is no regularly scheduled musical events at the LPCH atrium. There are areas opening up to the atrium on the upper floors which are accessed through doors which lead outside and look down on the LPCH atrium. Monroe does not consider these areas patient or family waiting areas. There are small triangular areas near the center overlooking the atrium in LPCH which are considered by Respondent to be patient and family waiting areas. Stanford Hospital nursing units are distinguished by using a combination of the floor level and a letter, B through H. Some units are in the core of the hospital, and newer units are on three extensions called “pods,” which are connected to the cen- tral hallway connecting Stanford Hospital and LPCH. In this decision, they are collectively referred to as the “units.” The main entrances to both Hospitals are on the first floor, which admittedly have the heaviest foot traffic and most noise. The lobbies at the entrance of each hospital have seating areas. As found above, there is no check-in procedure clearly estab- lished for either Hospital. Ronald Ruggiero, the Union’s orga- nizing director, testified without contradiction that he first en- tered Stanford Hospital using the main entrance near the cafete- 36 This testimony is another example of Monroe’s propensity to en- gage in surmise. There was no evidence employees were instructed or otherwise informed they should not sit in this area. ria, next to the emergency department and was not stopped from entering, asked to sign in, or asked the purpose of his visit. He was never asked to sign in upon entering Stanford Hospital nor stopped by a guard asking the purpose of his visit regardless of the entrance he used. Similarly, when Ruggiero visited LPCH, entering from the main entrance, he never signed in, he is not aware of any sign- in sheet. Respondent has not proffered any such sign-in at ei- ther Hospital. Ruggiero was not stopped by anyone asking the nature of his business nor told, pursuant to LPCH’s anti- abduction policies,37 that he had to identify himself and state the nature of his business. Ruggiero visited LPCH between 50 to 100 times from the inception of the organizing drive to the date of his testimony. In addition to the lack of refutation, Ruggiero’s testimony is credited based on the open and direct manner of his testimony. Moreover, he exhibited clear recall and appeared to be attempting to testify without device. Ramirez has entered LPCH more than 40 times and has never been stopped by any representative of Respondent in the lobby or asked the nature of her business at the facility. She was never required to wear a badge. Barana first entered LPCH through Stanford Hospital; he also entered from through a back door to the hospital. He has entered through the main entrance more than 100 times. He was never asked to sign in, the nature of his business, stopped by a security guard, or otherwise lim- ited in his access to the facility. Barana entered Stanford Hospi- tal more than 50 times, and similarly was not asked to check in, sign in, or identify himself. Barana’s testimony was not refuted. As previously found, his testimonoy is credited. Although de- meanor alone warrants crediting Barana’s testimony, I also note he exhibited good recall and was candid. For example, he read- ily admitted he could not recall the date he first entered LPCH. The Hospitals have admitting departments adjacent to the main entrance waiting areas. There are main corridors running off the main lobby in each hospital which connect, among other things, clinic’s, gift shops, cafeterias, coffee shops, and news- stands. The Stanford Hospital main corridor separates the cafe- teria from an outside area designated the Bing Garden and Patio, which is accessed through automatic doors. The Bing garden is in front of the Stanford Hospital cafeteria. It is uncon- troverted the garden was “put in to prevent people from walk- ing above the MRI.”38 The garden is a raised platform and is designed to prevent people from walking over the magnet when it is in use. There are other garden areas between the pods of Stanford Hospital. The Bing garden is visible from the corridor. Respondent describes the gardens in a publication it produces to describe its art collection, as follows: From the inception, the gardens were intended to convey beauty, color and inspiration year-round. The seasonal gar- dens may be seen from many vantage points—from up close on the ground level to as high as the third floor. Patios, walk- ways and benches provide a convenient and intimate opportu- 37 There was a question of whether Respondent had an antiabduction policy. Such a policy was never placed in evidence and its existence was never clearly established. 38 MRI is an acronym for magnetic resonance imaging which ws a radiology imaging technique. UCSF STANFORD HEALTH CARE 503 nity to experience the gardens: visitors39 may chose to stroll, or simply to sit and enjoy the peaceful gardens. Also near the Stanford Hospital cafeteria along this main corridor are automatic teller machines (ATMs) from Wells Fargo Bank and Stanford Credit Union. Individuals can use these machines for banking transaction and to buy stamps. There is no limit established on the record concerning who may use these ATMs. The machines are also close to the emergency department. There is no evidence these ATMs are advertised to the general public or otherwise outside Respondent’s facilities. A Mrs. Fields cookie shop is across from the ATMs and near the emergency department in the Stanford Hospital cafeteria. There are several entrances to the Stanford Hospital cafeteria and outside seating. The LPCH cafeteria is on the ground floor and has an outside patio area where patrons can eat. One en- trance to this cafeteria is across from the radiology department. In addition to the cafeterias in each hospital, Stanford Hospi- tal has a separate dining room for doctors and executives of the Hospital. The Stanford Hospital cafeteria, called Market Square Cafeteria, is open from 7 a.m. to 7 p.m. daily. A smaller area is kept open after 7 p.m. for the night staff. This cafeteria can seat about 300 people at a time and serves about 3000 to 4000 meals per day on average. The number of meals served on weekends is substantially lower than the on weekdays. The LPCH cafete- ria is also open from 7 a.m. to 7 p.m. weekdays and from 7 a.m. to 3 p.m. on weekends. It can seat about 100 persons at a time, serving between 700 and 1100 meals daily. The cafeterias also cater certain events, usually meetings. The various attendees of these meetings were not described on this record. The cafeterias are used by Respondent’s employees, physi- cians, employees of Stanford Medical School, students of the school, patients, and visitors. Respondent participates in the Medical School’s intern and residency program. The medical students, Medical School employees, interns, and some of Re- spondent’s employees are eligible to get a declining balance card from the Hospitals to use in the cafeterias.40 Respondent admits these cafeterias are open to members of the public. Re- spondent admitted an individual coming to the Hospitals to have lunch would have a legitimate purpose to enter and make use of these facilities. The declining balance card is one of two discounts offered by Respondent. “Those employees who choose to use the de- clining balance system will receive a ten-percent discount for using that. And that discount is not given to the residents. The residents’ program is actually paid by the Medical School pro- gram itself, so there is no discount on that program.” About 10 percent of the Stanford Hospital cafeteria’s revenues are de- rived from the declining balance cards. In the general vicinity 39 Again, Respondent failed to define the term “visitor” or limit it to patients, employees, or their visitors. On the contrary, the general public is invited by this publication and others to visit the hospital for tours, programs, to see the art or to listen to the musical events, de- scribed in greater detail below. 40 Respondent’s witnesses did not know if any other students and employees of the University were eligible to purchase declining bal- ance cards. The Standford Hospital is at least one-third of a mile from university schools other than the Medical School. of the Hospitals there are several areas that have restaurants. The Stanford Barn has a restaurant called California Cafe and Stanford Shopping Center has several restaurants. The Medical School does not have a cafeteria, it has only a snack bar. Near one entrance to the Stanford Hospital cafeteria are stacks of two free newspapers, the Palo Alto Daily and the Stanford Daily, as well as general circulation papers in vending machines such as the San Francisco Chronicle and the San Jose Mercury News. Newspapers are also sold in vending machines located on LPCH property. The cafeterias are not included in Respondent’s solicitation/distribution ban, but portions of the hallways adjacent to them are, including the main hallway of Stanford Hospital which is adjacent to the cafeteria. General Counsel contends the inclusion of the hallways adjacent to the cafeterias is one reason Respondent’s solicitation and distribution policy is overbroad, in violation of Section 8(a)(1) of the Act. The LPCH cafeteria has a coffee facility called “Java Junc- tion.” There is no evidence Respondent advertises to the public or otherwise beyond its premises, its cafeterias, the Mrs. Fields or Java Junction. The lack of evidence concerning the cafeterias and other food outlets in the Hospitals and the lack of any evi- dence these facilities are advertised to the general public or even outside the Hospitals to special groups requires the con- clusion the maintenance and operation of these facilities does not contribute to the establishment of a public forum. Food items are also sold at the gift shops located in the re- spective Hospitals. The gift shops are open until 9 p.m. The gift shops are staffed by the Respondent’s volunteers as a means of raising money for Respondent. The gift shops also sell items such as magazines, books, gifts, toiletries, greeting cards, chil- dren’s clothes, some adult clothes, jewelry, toys, Beanie Ba- bies, and candy. The LPCH gift shop stocks more toys. As Respondent notes, the gift shops do not sell such general mer- chandise as tires, household goods, furniture, or kitchen appli- ances. For the most recent annual accounting period, the Stan- ford Hospital gift shop had gross sales of $674,787.89 and the LPCH gift shop had gross sales of $322,257.24, resulting in respective profits of $211,276.91 and about $100,000. These profits were donated to the Hospital. There is no evidence the gift shops advertise outside the Hospitals. Blood drives are conducted in the Stanford Hospital cafeteria annex about three times a year. The cafeteria annex is contigu- ous to the cafeteria. According to Respondent’s counsel, since 1997, the blood drives are no longer sponsored by Respondent but by Stanford University Medical School’s blood center, which is a separate corporate entity. The University gets per- mission from Respondent to conduct blood drives in the Stan- ford Hospital cafeteria. Blood is usually donated by appoint- ment because the blood center personal take individuals with appointments before walk-ins. The appointments are made with a contact in Stanford Hospital. Prospective donors are required to complete a medical history card so a medical historian can screen the individual. The donor must also show a picture iden- tification to permit the blood center to check their records prior to permitting the donation. These blood drives are only publicized in the Hospitals by use of notices on cafeteria tables, e-mail to employees, announce- ments over the hospitals public address system, placards on ro- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504 bots that roam the hospital corridors, and posters placed in the units. Approximately 100 people donate at each blood drive. Any member of the public is considered eligible to donate blood at these drives. There was no clear showing of how many people unaffiliated with the hospital participate in these drives. Inas- much as the majority of the individuals donating blood have appointments and go through a screening, I find these blood drives are not a sufficient invitation to the public to come to the Hospitals to support a conclusion they are public forums. The second and third floors of the Hospitals have waiting ar- eas on both sides of the elevators. These wait areas are outside the units housing the patients, the nurses’ stations, and physi- cian workrooms. Also within the units are day rooms, confer- ence rooms, and other areas where patients can visit with phy- sicians, family, and friends. The units are separated from these wait area by doors. In addition to the wait areas outside the unit doors at LPCH, there are four small triangular wait areas on each floor inset into the atrium side of the main hallway, which runs around the perimeter of the enclosed internal atrium. 3. Seminars and programs LPCH has an auditorium on the first floor across from its atrium which is used for, among other things, community ac- tivities and events. Respondent’s counsel represented “my un- derstanding, Your Honor, is that programs that are made avail- able to the general public at the Stanford Hospital are funneled through the health library . . . that is the community outreach mechanism for Stanford University, rather than Stanford Hospi- tal at UCSF Stanford.” Moreover, Respondent’s counsel repre- sented: Now, there are also continuing medical education programs that are sponsored, both at Lucille Packard and at Stanford hospitals, both for the nursing staffs and for the medical staffs of those hospitals, as well as some that are open—a limited number of which are open to physicians and/or health care professionals, both in the local community and potentially on a national basis, given the connection to Stanford Medical School. The LPCH Family Center sponsors community activities and events. One such event included the special appearance by gold medalist Jackie Joyner-Kersee. The event was called “Living With Asthma Fair For Kids.” The purpose of the event was “to motivate children with asthma to exercise and participate in sports.” The fair was held at the Cobb Track and Angell Field at the University. In addition to the special guest, the fair had activities for children, including races, face painting, and asthma screening and information. Admission and participation were free. LPCH also has a health van serving the community, a parent referral and information center and, community education seminars given by various experts to “demystify common childhood problems.” The seminars are “open to the public and offer full audience participation. Seminars are offered for a nominal fee and are held monthly.” The location(s) of the seminars was not clearly established on the record. There is no evidence most of the seminars were held at a location other than LPCH. A brochure provided by Respondent’s does not indicate it holds the seminars at locations other than LPCH. LPCH also operates a teenage health resource line and a pro- gram called Kid Call for children who are home alone. More- over, LPCH operates and participates in a number of outreach clinics throughout California. Stanford Hospital does not have an auditorium but does con- duct community outreach programs and seminars. According to Monroe, these programs are not usually held at the Hospital. One such program held at the hospital is the Perinatal Commu- nity Education Class. Respondent asserts this is a self-funding program conducted for marketing purposes. Respondent uses this and perhaps some if not all of its other programs to market its various services to the public. The perinatal program is ad- vertised at doctors’ offices as well as its health library. Respondent conducts some of its community outreach pro- grams at Fairchild Auditorium at Stanford Medical Center. Respondent also operates two branches of the Laverne Wilson Health Library. One branch is located in Stanford Hospital, and the main branch is located at the Stanford Shopping Center that is about one-quarter of a mile from the Hospitals. The branch in the Hospital is small, about 250 square feet. As noted above, the shopping center is within walking distance of the Hospitals. Both branches of the library are open to the public. There are also affiliated branches not operated by Respondent, including The Health Library of Avenidas and The Health Library at Peninsula Center for the Blind and Visually Impaired. Respondent employs a director of community and patient rela- tions, Jean Kennedy. Kennedy is in charge of the operation of the libraries. Respondent also maintains a virtual library on the “web.” Kennedy testified the libraries were established to meet the “demand that patients and families have to have information about their medical diagnoses and treatments and their general health.” The branch in the hospital is now operated by volunteers who posted the following missive on the door to the library: From the Volunteer staff at the Laverne Wilson Health Library. We try to maintain open hours of 11 a.m.—3 p.m. Monday through Friday. Unfortunately sometimes for rea- sons beyond our control we are not able to staff this li- brary. We apologize for any inconvenience this my cause and invite you to call The Health Library at Stanford Shopping center . . . . We will be happy to send you the information you need. The date the operation of the in-hospital branch became an all volunteer operation was not established on the record. Whether this branch had expanded operating hours on the dates of the incidents concerning the access of the Union’s organizers to the property or at the time Respondent promulgated the distribution and solicitation rule hereunder consideration, was not stated with specificity. Knight admitted the staff became all volunteer after two paid staff members left sometime in 1999, indicating the paid staff members were operating the library at the time the access and solicitation and distribution issues arose. There is no claim the main branch is operated solely by volunteers and therefore the solicitation and distribution rule would apply to those em- ployees assigned to work at the main branch as well as those who UCSF STANFORD HEALTH CARE 505 worked at the Stanford Hospital branch.41 I conclude the evi- dence of record fails to support a conclusion the library branch within Stanford Hospital is utilized by the general public or in- vites the general public to use its limited resources in a manner warranting the conclusion the maintenance of the library, co- joined with the other evidence of record, establishes Respondent maintains a public forum at the Hospitals. Respondent’s library maintains a mailing list of all its mem- bers. Membership is a fundraising device. Membership is open to the general public, not limited to patients and their families. Membership is not a condition precedent to access to any branch of the library. Respondent, by the library, distributes brochures to those on the mailing list as well as distributing them at the various branches, including the affiliates. The li- brary offers custom research packets for fees based on the depth of the research and extent of resources used. There is also a not-for-profit volunteer program that counsels seniors about their health insurance problems. These counseling sessions are by appointment only. There is no evidence such sessions are conducted at the branch located within Stanford Hospital. The branch in the Hospital does not carry general publication magazines like Time or newspapers. The library does sponsor community education forums. In 1998, it sponsored 39 forums. Attendance at these events varied from 30 to as many as 300 people. These events were not shown to have been held at Stanford Hospital. Knight surmised they were held “mostly on the Stanford University campus at Fairchild or we’ve had some at Kresky, and then we co-sponsor some that are held in other areas in down [sic]—you know, in other places outside of Stan- ford campus.” A calendar of events sponsored by the library is published by Respondent. The September 1999 calendar of events indicates Respondent has a Lane Community lecture series presented by Stanford’s Clinical Cancer Center that included three lectures which were held at the Fairchild Auditorium at Stanford Uni- versity Medical Center. There was no fee for the lectures and there is no indication attendance was restricted or otherwise not open to the general public. Advance registration was advised. A program on Estrogen Replacement was offered by Respondent and held at the Health Library of the Aviedas. This program was free and open to the public. A program concerning medi- care and HMO’s for seniors was held at the main library at the shopping center. There was no fee but attendees were asked to register. This program also was not limited to a particular popu- lation. The Stanford Center for Bioethics presented a lecture at the main library on doctor-patient relations. This lecture was free and advanced registration was requested. The general public appar- 41 Respondent maintains a use record of the in-hospital branch. I find this record has little if any probative value because it has no category for use by the general public. No volunteer or paid staff testified con- cerning how they maintained the record. This failure was unexplained. Therefore, there is no predicate to indicate members of the general public, if any, who used this branch, were ever included in the record, or if so, in what category. Thus, I conclude Respondent did not present an accurate record describing the use of this branch, such as category of user and frequency of use. ently could attend. Also listed on the calander was a presentation by the Palo Alto Medical Foundation on “Tips for Medication Management.” Reservations were required and the seminar was held at PAMF Conference Center. The invitation to attend this seminar was not limited to or targeted at a specific group. The calendar of events for October 1999 contains a free presentation of guided imagery entitled “stress busters for teens.” Another guided imagery presentation was for general stress management and was also free. These guided imagery presentations were at the main library. A registration telephone number was provided but there was no clear statement registra- tion was required for attendance. Other events announced in this calendar included a program on visualization and relaxa- tion techniques for mothers and options for long-term care for loved ones. These two programs were free and registration was not required. Registration was required for three programs: one concerning medications for pain; another about insomnia; and, the third regarding sexuality as you age.42 There was no fee mentioned for any of these programs but the last three did not contain the notation “No fee.” The November 1999 calendar of events included programs concerning diabetes, stress management, holiday stress, guided imagery for pain management, and perinatal programs. The stress management program had a $35 fee and was held at the SRI auditorium in Menlo Park, California. There was no evi- dence concerning the exact location of this site. There is no evidence Respondent or the University have a leasehold interest in this facility. The diabetes and holiday stress programs were also held at the PAMF conference center. The perinatal pro- grams were at the LPCH auditorium. This calendar listed sev- eral on-going programs, under the heading Health Improvement Program, including a program called “healthy living program” and a health and fitness assessment program. The healthy living program charges various fees, based on the topics covered. The assessment program charges a fee of $75. Respondent describes its community education programs as a service to the community served by LPCH as well as promot- ing LPCH’s specialty clinics. The communities listed as having been served by these LPCH programs resulting in successful promotion of its services include: Half Moon Bay, San Fran- cisco, San Jose, Gilroy, Morgan Hill and neighboring commu- nities. Respondent admits “[a]t least 30% of the attendees [to these LPCH programs] had no prior relationship with LPCH. Some of these LPCH seminars were: Tummy Troubles, Atten- tion Deficit Hyperactivity Disorder, A Bug in the Ear (ear in- fections), New Baby, Johnny Can You Hear Me?, Fit on the Outside, Fragile on the Inside, and Lice, Ticks, and Poison Oak. Respondent also conducts programs at local fourth and fifth grade classrooms in Santa Clara and San Mateo Counties about injury prevention. LPCH has engaged in other community out- reach programs. LPCH’s office of Community and Physician Relations spon- sors various health education seminars and continuing medical 42 This program as well as those on insomnia and medications for pain were held at the PAMF Conference Center which was not shown to be part of Respondent’s or the University’s property or leasehold. The other mentioned October programs were held at the main library. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506 education programs. One or more of these programs, such as the annual “Pediatric Update,” is marketed to physicians na- tionally. In 1998, the program had 160 registrants from 29 States and 3 foreign countries. Other programs are marketed to LPCH’s referring physicians, which attracted between 10–30 participants. Another program on anesthesia was marketed to pediatricians in the western States and attracted 100 registrants. The attendees pay for the programs, which Respondent intends as a marketing strategy to generate referrals. LPCH also spon- sors about eight Pediatric Community Education seminars a year. These seminars are held in the auditorium on the first floor of the hospital. Usually, these seminars are held on week- days from 7:30 to 9 p.m. The seminars charge $15 per couple for attendance. The attendees of these various programs at the Hospitals were not shown to be of sufficient number, diversity and fre- quency to pernit a finding these activities, cojoined with the other factors discused herein, establish, or lead to establishing, Respondent maintains a public forum. 4. Tours Stanford Hospital invites the public to weekly tours. Stanford Hospital has a flyer which announces it offers weekly tours to the general public, staff, and prospective patients at 10 a.m. Thursdays, beginning at the information desk near the front entrance. These weekly tours are led by a docent and last about 1-1/2 hours. Stanford Hospital also will arrange group tours at other unspecified times. The docents are volunteers. According to Kennedy, in addition to the weekly public tours, Respondent conducted about 29 special tours for groups. She prepared a report which indicated for the reporting year 1998–1999, 163 people took the public tour. There was no record who these individuals were, whether they were patients, relatives or members of the general public unaffiliated with any hospital business. Kennedy described the special tours as: “[s]pecial tours are the tours for usually people that are visiting from foreign countries. Most of them are requested either by physicians or by the international medical services, so that’s usually what they are.” Kennedy admitted the individuals tak- ing the special tours are not patients, their relatives or visitors, employees, or other staff members. Kennedy claimed the mem- bers of these special tours do not use the Respondent’s cafete- rias or gift shops. There are also student tours where an entire class visits the Hospital. The students are usually young, such as second graders, but some high school groups also take spe- cial tours. Respondent also conducts orientation tours for new employees. During the latest reporting year, Respondent con- ducted 10 such tours. The special and childrens tours are con- ducted by prior arrangement. Tours are also conducted at LPCH only upon request not on a regular basis.43 Such requests are received from visiting medi- cal professionals and visiting administrative professionals. Frequently, the requests are from individuals affiliated with other children’s hospitals because they are looking at recon- 43 There is an exception to this policy. LPCH conducts weekly tours called perinatal tours. These tours are part of the “becoming parents” program. As noted above, Respondent has a perinatal educational series. struction of their facility. Tour requests are also received from donors, elected officials, schools groups, and scout groups. Terri O’Grady, director of community and physician relations at LPCH, testified these tours occur, at most, once or twice per month. According to O’Grady: They [the tours by children groups] need to be prescheduled and be by appointment. It’s really important that they are controlled and contained, especially where the children are—when children are involved in the tour. And we also need to do infection disease screening for people coming into the hospital. It’s always been a policy of children’s hospitals or any children’s area I’ve ever worked in, because—especially im- munosuppressed children can have very devastating and fatal effects from common childhood communicable diseases. LPCH has a tour policy that offers to provide tours whenever possible with the caveat specific conditions are met.44 Some of these conditions include LPCH community outreach will ar- range all tours and will be notified of tours conducted by other approved tour leaders. These tours are typed as VIP, donor, general or group. The policy defines these tour types. The gen- eral tours are defined as “those for the general public. These are lead by trained docents on an as-needed basis. Patient care units are not visited.” Group tours are defined as “those for school and other organized groups.” These tours must be arranged with sufficient advance notice, in writing, a minimum of 1 month prior to the tour date. VIP tours are defined as those requested by administration, the Board, medical staff, or those with special relationships with the Hospital such as visitors from other hospitals, vendors, foreign guests of the medical center, etc. Donor tours are for those who are donors of Stanford Hospital, LPCH, or the Uni- versity and are led exclusively by the Lucille Packard Founda- tion for Children. The tour policy limits the tours to particular routes with specific stops. The recommended tour size is 12 participants45 plus the docent. Those tours permitted in patient care areas have a sug- gested limitation of 10 participants. Tours are to be scheduled to avoid lunchtime and staff shift changes. The tour leaders are re- quired to observe infection control guidelines and tour participants must be asked germane screening questions, such as whether they have been exposed to measles, chicken pox, or shingles. Photography is generally limited and photographs of patients are prohibited. Tours including patient care area do not include the Comprehensive Pediatric Care Unit at any time and tours to the Oncology/Bone Marrow Transplant Unit are to be mini- mized. The tours to patient care areas are to enter and leave by the same hallway to minimize disruption. These tours are to consult with the charge nurse before entering patient rooms and are not to linger at the nursing station. The number of persons who attended these tours was not placed in evidence. The re- cord fails to establish many members of the general public are attracted to the Hospitals to take these tours. Accordingly, I 44 The policy bears an original date of May 1992 and was revised May 1995 and April 1998. 45 Except school groups. UCSF STANFORD HEALTH CARE 507 conclude the conducting of these tours, together with the other evidence of record, fails to establish Respondent is maintaining a public forum. 5. Art tours Respondent advertises its art collection on its web site. The web site indicates the interior of Stanford Hospital contains a collection of about 500 original pieces of art and 1600 posters that are on display in the hallways, waiting rooms, and offices. Kennedy testified there is also art work in patient rooms, rest rooms, back corridors, main public corridors, and the cafeteria. The art program started in 1982 to beautify the interior of the Hospital for the benefit of staff, patients and their families and other visitors. Respondent conducts art tours. There is an Art Commission at Stanford Hospital. The members of the Com- mission are the principal donors of the art work. Kennedy, who is a member of the Art Commission, estimates the posters cost, on average, $45 plus framing and the original art work has 5 to 15 pieces that could be valued at $5000 or more. According to Kennedy, the art program is: [D]eeply involved in getting art for the hospital, for the patient rooms and public areas, and in trying to get donations for that. Part of the art program, though, the art commission doesn’t exactly sponsor it. Some of the people that donate money for it are the artists—art for healing, which is an artist that goes to the bedside and takes art materials to patients to work with. And then we have slightly—the art commission has slightly extended its reach, because one of the members is the donor to the music program. So sometimes the art commission sort of considers that the music and gardens are under it because Mrs. Bing is on the art commission. So the strolling troubadour is sometimes considered by the art commission to be one of their activities. There are a few individuals and groups who come to Stan- ford Hospital to take a tour of the art. Most of these tour par- ticipants are friends of members of the Art Commission. Ken- nedy or her assistant generally give the tour to these friends of the art commissioners. Kennedy recalled there were two such tours. Each tour had about 20 participants. There is also an audio tour. Kennedy claims: “It was intended for families. It’s just of the art in the atrium and it’s intended for families while they’re waiting and—waiting for patients to be operated on or anything like that, give them something to do.” Kennedy admitted if a member of the general public came to Stanford Hospital and asked to take the audio tour they would be given access to the tape and permitted to view the art work. A member of the general public who wanted to tour the art displayed in the Hospital would not have to make advance ar- rangements for such a viewing. A member of the public could take a self-conducted tour without prior approval “by entering into the hospital and walking down the corridors.” In addition to Respondent’s web site, about 6 years ago its marketing department produced a glossy brochure describing and publicizing the art collection. The brochure is currently available at the hospital and is placed in family waiting areas. This brochure somewhat contradicts Kennedy’s estimate that the art collection generally has a low monetary value. For ex- ample, the brochure describes the collection as follows: The first floor of the new wing features outstanding works of graphic art. A compilation of prints and monotypes created since 1967 by noted American artists Frank Lobdell and Na- than Oliveria constitute the display . . . An acrylic by Norman Zammitt measuring 11 feet by 24 feet hangs prominently in the hospital’s galleria. The second floor collection on the new wing com- prises a variety of mediums: watercolors, oils, photo- graphs, tapestries and collages. Artists of critical renown such as Josef Albers, Dan Flavin, Elizabeth Murray and Robert Doiseneau are showcased. Local artists as well as Stanford-trained artists are presented. Part of the artwork is from the Bing collection that is com- prised of 350 pieces in a variety of mediums, including water- color, oil, photographs, monotypes, tapestries and collages. This collection “showcases artists such as Josef Albers, Dan Flavin, and Ellsworth Kelly.” The art works also include pieces loaned from the renowned Anderson collection and includes “70 outstanding works of graphic art and paintings.” The Anderson’s are “the owners of one of the largest private collec- tions of 20th century art in the United States.” The artists repre- sented in the portion of the collection loaned to Respondent include Dan Francis, Frank Lobdell, and Nathan Oliveira. While it appears the art collection contains significant pieces, it has not been established the collection draws significant num- bers of individuals from the general public to visit Stanford Hospital to view the art. The exhibits are only advertised on the web site and in the brochure. There is no evidence these advertisements are widely read or that they attract a significant number of individuals whose purpose in visiting Stanford Hospital is to view the art- work. Respondent considers the individuals coming to the Hos- pital to view the art as visitors permitted to use the parking facilities that do not require permits. This evidence fails to sup- port a conclusion the art collection attracts significant numbers of the general population or is a significant inducement for the general public to visit Respondent. 6. Concerts and strolling troubadour At Stanford Hospital’s atrium, Respondent holds at least twice weekly concerts. The musical events for the period Au- gust 29 through October 9, 1999, were held almost every Wednesday, Thursday, and Friday as well as four concerts on Tuesdays. The concerts are held, according to Monroe, “[f]or patients and visitors that are in the hospital at the time. These concerts are not advertised46 in the local media but they are 46 Kennedy testified: If any member of the public came, of course they could listen to the music. Q. Do you advertise these outside of the hospital at all? A. No. It might have been one time once when we advertised a large event, but its so long ago in the history I can’t remember exactly whether we advertised it or not, but it didn’t work. Q. The advertising? DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508 publicized by Respondent’s community relations department inside the hospital, using signs and notices. There is evidence they are also published on Respondent’s web site. The Wednesday concerts are held at 4: p.m. and the Friday concerts are held at 12:30 p.m. The performances last between 45 min- utes to an hour. It is difficult to determine attendance since people come and go to and from the atrium and some may lis- ten from floors above which are open to the atrium. Some of the musicians are singers, a harpist, a program about the myths of Australia’s aboriginal people, including music made by a didgenidoo, unusual instruments from spoons to an Irish bagpipe, a storyteller, an original play by the San Jose Children’s theater, a pianist, a flautist, chamber music, jazz groups, a barber shop quartet, reggae, calypso, madrigal singers, and rhythm and blues performers. There is no typical profile of the musicians, except usually there are small groups of musicians rather than orchestra size groups. Respondent has had “20 banjos playing in a banjo band and we’ve had rather large children’s choruses come in to sing, things like that. We try to vary the music quite a bit, but mostly it would be smaller groups.” Another large event Respondent had in the atrium was a per- formance of The Nutcracker ballet. Kennedy did not think the event was a success because: A. I’m sorry, I meant that it wasn’t a success in terms of getting people from the community to it. . . A. The one time that we tried, which was way back at the beginning. Q. I see. And were you disappointed about that? A. Yes. Q. Why? A. I guess because I love The Nutcracker and would like to see more people see it, but I wasn’t disappointed in the sense that we didn’t have a large audience, because we had a very large audience for that. Who attended these concerts was not recorded or otherwise re- liably chronicled. union organizers who were present in the hos- pital at the time of a concert went over to the atrium area and listened for awhile without incident. Respondent admits a mem- ber of the public coming to Stanford Hospital to attend one or more of the music series events is considered a “legitimate pur- pose” for being in the hospital. According to Kennedy, the per- formances are not well attended, she has observed just a few to as many as twenty people watching the event. “Then there is a sur- gery reception area that is directly above the atrium and that’s usually fairly packed with people who hear the music. And I wasn’t counting them.” The people she counted was not shown to include individuals on higher floors looking over the railing or sitting in wait areas within listening distance from the atrium. Therefore, her estimates are not considered to be reliable. A. I can’t remember whether somebody put a squib in a paper or we actually bought an ad, but we were so thrilled. We thought maybe somebody will come from the community and nobody came. JUDGE WIEDER: Is it—Are they posted on the web site, the programs? THE WITNESS: No, but that’s a good idea. Concerts are also held at LPCH at an area called the Doobie Brothers Patio because the Doobie Brothers played there once. Concerts in this area can be heard in the main hallways on all levels but probably not in the patient units. Respondent also has “a strolling troubadour that goes out to the units.” The trouba- dour is a Spanish guitar player. He goes into the patient units. He may also play in the public corridors of the hospital. These musical events have not been shown, alone or in concert with Respondent’s other activities, to result in attendance by the general publc sufficient in number to permit the conclusion Respondent is maintaining a public forum. 7. Gift shops Respondent has a gift shop in each Hospital. The gift shop on the first floor of LPCH is just to the left of the main entrance to LPCH. In that area, there is seating but Dr. Hammer does not consider this to be a patient care area. Respondent has a book- mobile which volunteers take to patients rooms to see if they would like to read any of the available books. The volunteers also have a cart with various sundries and snacks from the gift shop that they take to patients rooms. While General Counsel and Charging Party tried to adduce evidence that these gift shops are analogous to shops in a shopping center, I find they do not advertise to the general public or handle a sufficient variety of goods to warrant the conclusion they establish or add sufficient invitations to the general public to prove Respondent maintains a public forum. E. Respondent’s Solicitation Distribution Policy Prior to September 21, Stanford Hospital did not have a so- licitation and distribution policy. Monroe thought there may have been a policy concerning political activities. The sub- stance of this political activities policy was not introduced into evidence.47 Respondent was drafting a solicitation and distribu- tion policy after the UCSF merger with Stanford Hospital and LPCH, but “it just never got finished.”48 The policy was drafted 47 The basis given for its promulgation is that Federal and State laws governing not-for-profit organizations limit political activities on the premises. That is not the case with Union activities, which was one of the predicates advanced by Monroe in her letter for issuing the Septem- ber 21 letter with the attached solicitation and distribution policy. 48 Monroe testified: Q. Shortly after the merger of Lucille Salter Packard Chil- dren’s Hospital and Stanford University Hospital, did UCSF Stan- ford Health Care adopt a solicitation and distribution policy? A. Yes, they did. She then testified the old policy was the same as that attached to her September 21, letter. This claim does not explain her earlier testimony there was no policy at Stanford Hospital, that they never completed a policy. This inconsistency is another reason to not credit Monroe’s testimony. Moreover, this testimony is con- trary to the notation on the policy circulated with the September 21, letter to the effect it was revised on September 21. As noted above, the nature of such revision(s) was not placed into evi- dence. There is no evidence Respondent ever informed its em- ployees of the existence of these policies prior to September 21. Accordingly, I find Respondent had not disseminated such a pol- icy prior to September 21. Monroe then testified Respondent adopted a policy almost identical to the LPCH policy, stating “I think that, for some rea- UCSF STANFORD HEALTH CARE 509 and distributed after the commencement of the union organiz- ing drive. There is no evidence the policy was promulgated in response to or in consultation with any physicians. There is also no evi- dence or claim the policy was promulgated in response to pa- tient complaints. As noted above, the parties have stipulated Respondent has received few, if any, patient complaints refer- encing employee solicitation. There is no evidence any patient complained about employee’s distributing flyers or other printed material. On September 21, 1998, Respondent, by Monroe, distributed a letter to all employees concerning the solicitation and distri- bution of literature policy (policy). Monroe testified LPCH had a similar policy to the one she distributed to all employees prior to September 21. Respondent did not introduce this LPCH pol- icy. The failure to place this solicitation/distribution policy into evidence was unexplained. Respondent also failed to establish that any such policy was distributed to the employees of LPCH. Respondent admitted it was not distributed to the employees of Stanford Hospital. The record further fails to demonstrate Re- spondent enforced such a policy at either of the Hospitals prior to September 21. The September 21 policy applies to all manner of solicita- tion. The Respondent’s September 21, letter provides: The current union organizing effort by some of our employees and SEIU Local 715 has resulted in an increase in solicita- tions and distributions of flyers and other papers. Because there has been some confusion regarding our policies and rules regarding such activities, this memo is intended to eliminate any confusion or misconceptions. This statement indicates Respondent did not have a cogent, well established, and previously circulated solicitation and distribution policy. Based on this admission as well as Respon- dent’s failure to introduce any evidence of a prior policy, I find Respondent did not have such a policy applicable to the Hospi- tal employees prior to September 21. The letter described the policy as follows: As far as solicitations and distributions of literature between employees, our policy prohibits such activities everywhere during working time—that includes the working time of the employee making the solicitation or distribution and working time of the employees to whom the solicitations or distribu- tions are directed. “Working time” does not include breaks and meal periods. [Emphasis in original.] Our policy also prohibits solicitations and distributions of literature at any time in patient care areas. “Patient care areas” include patient rooms and immediately adjacent son, in the original one- I’m trying to think- that you could not so- licit or canvas in work areas, in addition to patient care areas.” The bar against solicitation on working time was not in the LPCH policy. Again, copies of these policies were not placed into evi- dence, and Monroe indicated she was not sure of the exact provi- sions of any policy prior to September 21. Monroe claims she modified the Stanford Hospital policy to conform with that of LPCH. This uncertain, shifting testimony, without any copies of claimed prior policies, is not credited based on the reasons given above as well as its dubious and changing nature. hall areas, treatment rooms and immediately adjacent hallways, patient waiting areas, patient admission areas, and lounges and other areas where patients visit with fam- ily and friends. [Emphasis added.] Solicitations are acts such as passing petitions around or asking people to sign up to join organizations or con- tribute money. Solicitation does not include general talk or conversation. However, we hope that you all recognize that discussions of unions, like politics and other topics that can excite emotions and heated views, should not oc- cur around patients and their families. Finally, our policy prohibits distribution of literature at any time in work areas. Some examples of non-working areas include employee lounges or locker rooms, the cafe- teria, parking lots and other outside areas. [Emphasis in original.] Of course, employees are prohibited from soliciting and distributing literature to non-employees (patients, visi- tors, etc.) at any time on UCSF-Stanford property. Attached to this letter was a copy of the full policy, dated November 24, 1997 and revised September 21, 1998.49 The policy differs from Monroe’s letter. For example, the policy declares: To avoid disrupting patient care and to prevent disturbing our patients and their families, UCSF Stanford Health Care pro- hibits employees from soliciting or canvassing on UCSF premises during work time, and soliciting or canvassing in pa- tient care areas at any time. . . . Solicitation of or distribution of literature to nonemployees is prohibited at all times on UCSF Stanford property. Non-employees are prohibited from entering UCSF Stanford health Care premises to solicit or to distribute literature of any kind . . . . Patient Care Areas: Patient care areas include patient rooms, patient treatment and procedure rooms or areas, patient admit- ting or registration areas, patient waiting rooms, lounges used by patients and their families or visitors, and the hallways immediately adjacent to all such areas. The policy contains exceptions that are not pertinent to this proceeding. The policy has a slightly different definition of patient care areas and provides: To avoid disrupting patient care and to prevent disturbing our patients and their families, UCSF Stanford Health Care pro- hibits employees from soliciting or canvassing on UCSF premises during work time, and soliciting or canvassing in pa- tient care areas at any time . . . . Solicitation of or distribution of literature to nonemployees is prohibited at all times on UCSF Stanford property. 49 Respondent did not clearly demonstrate this November 24, 1997 policy was implemented in either Stanford Hospital or LPCH prior to September 21. There is no claim or other evidence the 1997 policy was ever distributed to Respondent’s employees or was other than a mere draft retained by management as a basis for its eventual development and implementation of a solicitation and distribution policy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510 Non-employees are prohibited from entering UCSF Stanford Health Care premises to solicit or to distribute literature of any kind. . . . Patient Care Areas: Patient care areas include patient rooms, patient treatment and procedure rooms or areas, patient admit- ting or registration areas, patient waiting rooms, lounges used by patients and their families or visitors, and the hallways immediately adjacent to all such areas. Monroe defined patient care areas involving hallways as fol- lows: Q. If the hallway is not immediately adjacent to those patient care or treatment areas or the family and patient waiting areas, may employees, otherwise consistent with the policy, solicit one another there? A. Yes, except for patient admissions area, which I don’t think you mentioned. Q. Apart from the patient admission area or any hall- way immediately adjacent thereto, if it’s not in those areas, may they solicit one another? A. Yes, they may. Monroe considers the following as nonworking areas for the distribution of literature by employees: the main lobby of both hospitals, both cafeterias, employee locker or rest rooms, lunch rooms and outside the hospitals. She believes employees can solicit each other in these areas during nonwork time. Respondent monitors patient complaints, complements, and other comments. Respondent produced 1200 written complaints concerning Stanford Hospital and 300 complaints concerning LPCH. Few if any of these complaints involved solicitation or distribution. Monroe made the bare claim the policy was re- vised and circulated with her letter “because there was quite a bit of solicitation, or complaints about solicitation and passing out of literature on the premises.” None of these complaints were claimed to have been in writing, none were introduced into evidence as the genesis of the September 21 letter or promulgation of revision of the rule. Respondent did not pre- sent any witness or other evidence concerning any complaints to Monroe or other managers about solcitation and/or distribu- tion activities in the Hospitals. While Respondent did provide then current complaints pur- suant to subpoena, any verbal or other types of complaints as the predicate for the union reference in her letter or as the rea- son for the policy, were not specifically identified by Monroe. I find this bare claim to be without merit. Additionally, I have previously determined Monroe was not a credible witness. But- tressing this conclusion is the statement on the record of Re- spondent’s counsel, as follows: JUDGE WIEDER: There’s no claim by Respondent that the policy was promulgated and implemented based on any complaints concerning solicitation. MR. ARNOLD: Correct. There’s no testimony to even suggest that.... JUDGE WIEDER: And you admit that you have no evidence and you don’t intend to adduce any evidence concerning the basis for the promulgation of the no- solicitation/no-distribution rule. MR. ARNOLD: Well, other than what’s already been placed in the record on the promulgation, which was the adopted one—That was at Packard Children’s—there is no evidence. I would agree, based upon my recollection, that there is no record of evidence that would suggest that we im- plemented—promulgated and implemented our rule based upon complaints contained in the documents turned over. Respondent claims solicitation is allowed throughout the ground and first floors of Stanford Hospital and LPCH, except for the enclosed admitting areas and the abutting seating areas, and patient waiting areas, including a patient waiting area in LPCH next to the outpatient ancillary services area on the first floor. The ancillary services include laboratory tests and a pharmacy, which Respondent characterized as patient waiting areas. Distribution is permitted only in non-patient care, non- work areas during nonwork time. Peter Gregory, MD, an employee of the University is senior associate dean of the Medical School and chief medical officer for Stanford Hospital and Clinics. He testified he has not person- ally received complaints from patients about employee solicita- tion. He was not consulted about the contents of the letter or the policy. He read the policy just a few days before he testified. Dr. Gregory supported the solicitation distribution policy, even though he had not seen it until just prior to this proceed- ing, because: I think the best way I can answer that is to say that I think that any behavior that is not perceived directly pertinent to the healing process of recovery and getting those patients out of the hospital is distracting and unsettling, and some- times upsetting. And it doesn’t necessarily mean it’s only solicitation. It could be employees talking about the base- ball game. Susan Flanagan, Respondent’s vice president for patient care services for LPCH, also was not consulted about the letter or policy. Flanagan was not consulted prior to the issuance of the letter about any need to issue and circulate the letter and policy. She has received complaints from patients and their family members concerning the inattentiveness of the staff and as- sumed solicitation and distribution, even in waiting areas out- side the patient care units, would be disturbing to the patients and their families. Flanagan admitted she never received a complaint concerning employees solicitation of one another. She admitted she assumed parents would be disturbed to ob- serve solicitation and distribution in waiting areas outside pa- tient care units. Flanagan gave as examples of family complaints concerning patient care as follows: A. Call lights not being answered in what the family members perceive to be a reasonable time, two employees talking together about something that families don’t think is related to patient care of their child, laughing and talk- ing in an area inside the nursing station. Q. Have you ever received complaints that had to do with that kind of conduct in a patient waiting area? A. Yes, I have. Q. What was the nature of that complaint? UCSF STANFORD HEALTH CARE 511 A. That was—Actually, it was two employees talking and eating lunch in a patient waiting area and the families perceived that it was infringing on their—what they con- sidered to be family space. Flanagan was of the opinion that families play a greater role in the pediatric setting compared to the adult patient setting, “because children are emotionally immature and they really are very dependent on their families to help support them during a hospitalization.” Parents are not considered visitors by Flan- agan. LPCH maintains a bed in the childrens rooms so that one parent can sleep in their room. There are no visiting hours at LPCH to facilitate family involvement regardless of the hour. The parents are faced with difficult situations and decisions. According to Flanagan: There are many circumstances in the kind of hospital that we have where parents really have to be told about different choices that are available to them and make very difficult de- cisions about the future course of treatment for their child, whether it be what kind of chemotherapy regime the child might be placed on, whether to continue with life support or withdraw life support, very difficult decisions like that. The families, in Flanagan’s experience, focus on the care provided their child because they are often unfamiliar with the illness and treatments, so they concentrate on the area they understand. They are thus very observant of the health care provider’s behavior. In Flanagan’s view, LPCH must provide an atmosphere that is focused on the child’s care, “one that’s also nurturing and supportive and as free of distractions as pos- sible.” She admitted her testimony that parents would be dis- turbed if they saw one employee soliciting another was based on surmise, since she has never received a complaint from a family member concerning such solicitation. Flanagan has received a compliant from a family that two employees were eating lunch and talking in an waiting area. She opined “the families perceived that it was infringing on their—what they considered to be family space.” As a result of this complaint, the employees “were talked with.” The incident occurred 7 or 8 years prior to Flanagan’s testimony. The exact nature of this discussion was not placed in evidence. The inci- dent occurred at another hospital, not Stanford Hospital or LPCH. The policies or practices at this other hospital were not placed in evidence. As noted below, employees are permitted to eat in the day rooms within the units at LPCH. Flanagan indi- cated that employees talking about methods of improving pa- tient care, which is the subject of two or more of the Union’s flyers, may not be disturbing to the families of LPCH patients, depending on how the literature or discussion is phrased. The types of areas provided for families in LPCH differ by unit. “In some units, especially the intensive care units, there are particular lounges or family waiting areas right inside the unit itself, and these are closed areas. And then in some of the other areas there are more open waiting areas out in the main corridor where there are clusters of chairs and there are family materials and family information.” There are two day rooms within patient care units at LPCH, “one on Three West and one on Two North.” Employees are permitted to eat in the day rooms. According to Flanagan: A day room really was set up for really patients and families to go to get away from the room and to be in some place where they can watch TV, the families can do laundry in there, there’s cooking facilities in there . . . So the primary purpose is for patients and families. Why this eating and conversing would be less disruptive than employees eating and engaging in general discussion in a wait- ing area outside the unit was not explained. Lawrence Ham- mer, MD, an associate professor of pediatrics employed by the Medical School and Medical Director for Ambulatory Care Services at LPCH, described the day rooms as follows: Those are rooms that are designed to provide a place for fam- ily members with the children to sit. I think they’re equipped with a refrigerator, a microwave, a television. Some of us call them recreation rooms but they don’t have pool tables and ping-pong tables, but they’re lounges. Dr. Hammer50 also was not consulted about the contents of the letter or policy prior to their circulation and only saw the policy shortly prior to testifying in this proceeding. He has also received complaints from patients and their families concerning staff inattentiveness or lack of staff concern for a patient. He has received about six complaints with the last 6 months. None of these complaints involved employee solicitation or distribu- tion. It is uncontroverted employees talk to one another in the day rooms when parents are present. Dr. Hammer testified: A. Well, I think there are too many situations where it’s very easy, even on a patient care unit, to overhear em- ployees engage in conversations about issues that have nothing to do with patient care, sometimes very loud con- versations, not at all in the appropriate mood for that kind of a serious environment. And I mention that because they happen often enough that they’re quite noticeable. Q. Yet and still, the hospital doesn’t have a rule that prohibits conversations amongst employees on the unit. A. Not that I’m aware of. Q. So that employees on the unit can talk about the football game last night, correct? A. I’m not aware of a policy that says that they cannot talk about that, but I will tell you that if I’m on rounds and I can’t hear what we’re supposed to be talking about be- cause conversations are going on ten feet away that are in- terfering with that, I will say something to the employees. Dr. Hammer is of the view that parents play differing but important roles in the treatment of pediatric patients. For the younger patients, the parents possess the historical information concerning the child’s illness. For young and older children, the parents are involved in their care and treatment. There are occa- sions when treatment decisions are made in consultation with the parents. He has observed this to be a very stressful period for the parents who rely on the physicians and other hospital personnel for information about their child’s condition and treatment plan. The amount of time parents are at bedside var- 50 Dr. Hammer has been employed by Respondent or its predeces- sors since 1982. He has a practice in general pediatrics. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512 ies, but it is rare that a parent is not present sometime during the day. It is his experience the parents “expectation is that the focus of everyone’s attention will be on a healthy outcome for their child.” Dr. Hammer meets with his patients’ families in various locations, including the child’s room, and if that is not appropriate under the circumstances, outside the patient units in the waiting areas, specifically the triangular wait areas around the atrium. An employee approaching a family member to distribute lit- erature is inexcusable, according to Dr. Hammer, because: “[I]t’s just common sense that an employee should not ap- proach a family who is in the hospital for the care of their child for any purpose other than related directly to the care of the child.” He based this opinion on an experience he had while in medical school in or around the 1970s at John Hopkins Univer- sity where there was union activity. He has had no experience with such distribution at Respondent’s hospitals. No patient or visitor has complained to him about being solicited on Respon- dent’s property. Dr. Hammer defines solicitation as a discussion between employees where the intent of one employee was to persuade the other. He conceded that if a family member merely saw employees talking without hearing the content of their conver- sation it would not have a negative impact upon the family member. No parent or visitor has ever complained to him about receiving literature on the outside of the hospital property. The record clearly establishes Respondent does not have a policy forbidding conversations between employees other than solicitations. Additionally, Respondent does not prohibit em- ployees from being in any waiting area during their breaks or meals. The record clearly establishes Respondent gave its man- agers antiunion campaign materials to distribute to employees in the patient care areas. One such flyer discussed layoffs, em- ployee benefits, healthcare cutbacks, and requests the employ- ees vote no in the union election. Another flyer discusses strikes, what happens to wages and benefits in the event of a strike, replacement as an economic striker, the likelihood of the Union causing a strike, and requests the employees to vote no in the union election. There is no evidence the managers were specifically instructed or followed instructions to not distribute or post these flyers in the patient care units. Linda Cornell received management flyers normally twice a week during the organizing drive in staff meetings. She saw one such flyer posted with the message “vote no.” This flyer was taped above a sink in within a unit an area that patients have access to and could read the message. Fonseca saw man- agement’s antiunion literature posted “[a]t our staffing window, there’s a large bulletin board in the hallway. And patients go down this hallway to nuclear med for their appointments.” Jose Perez, received various antiunion literature from his manager and with his paycheck. He has seen these flyers posted on the main floor of Stanford Hospital adjacent to a window where patients go to pick up their X-rays. Repetti received one such flyer in her mailbox and others on her computer in the form of e-mail. She has seen the messages from Respondent printed out from e-mail. She has seen these messages to staff concerning the union organizing campaign inside her unit on the nursing counter which is accessible to patients and their families who approach or pass by the counter. Management conducted mandatory meetings to discuss their opposition to unionization. Repetti has overheard employees discussing the content of these meetings while working on the unit. She has heard the staff discuss personal matters with fami- lies, including their wedding, and she discussed a surgery she had to help them go through the experience. There is no claim any of these conversations violated Respondent established policies and/or practices. Dr. Hammer testified:51 Q. And were you aware that UCSF Stanford manage- ment put out information to its employees regarding its position in that organizing drive? A. You never saw any of it. A. No. Q. Were you informed that such information was put out? A. Yes, I was. [Clears throat] Yes. Q. Do you think that it would be disturbing for patients and their families to see information laying around about the possibility of strikes at the hospital? A. Yes, I do. Karen Wayman, an employee of the University, department of pediatrics, is a research associate. Her job is bifurcated, one element is researching the “long-term developmental outcome of children with liver and kidney disease.” The other aspect of her job is as the director of the Family-Centered Care project. She is also a clinician, a developmental interventionist. She sees children and families on the liver transplant service daily. The project involves research, using parent focus groups, to gather information to improve patient care by creating a part- nership between the patient, family, physician and other health care providers. She also meets one-on-one with some families. About 20 to 30 families participate in the monthly focus groups at one time. The families are asked questions such as “what is it about the care at the hospital that’s not supportive? What are ways we can change the care? What’s been traumatizing to you?” She and the other participating professionals then try to develop strategies to give improved support to the families of patients at LPCH. She is also comparing whether using the family center care program provides better outcomes than not using the family center. Wayman admits their family center program is a research project where she is testing certain assumptions that is hoped will result in better outcomes. As the program continues, these assumptions could be modified, including the possibility the program would be discontinued if the assumptions do not prove valid. As a clinician, her duties include determining the child’s de- velopmental status and how the child’s responding to the hospi- talization. She also works with the family to assist them in 51 I note this and other testimony of Dr. Hammer, particularly on cross-examination, demonstrated a lack of candor. I also note his de- meanor indicated he was crafting some of his answers to benefit Re- spondent’s litigation theory. Therefore, his testimony is credited only where it is credibly corroborated or constitutes an admission against Respondent’s interests. UCSF STANFORD HEALTH CARE 513 negotiating their child’s hospitalization. This assistance in- cludes teaching parents to develop a partnership with health care providers, including how to ask questions. If they do not feel they are getting the support they need, she teaches them where to get such support. She also engages in such instruction with the focus groups.52 Concerning the alcove waiting areas outside the transplant unit at LPCH, Wayman testified: Q. Have you ever received any complaints from par- ents who were in this waiting area, either engaging in their recovery or talking with staff, that employees were passing through the waiting area and had disturbed them? Em- ployees in the hallway. A. I’ve received general complaints about the lack of privacy in general in the hospital. Q. But I’m asking a specific question about this spe- cific waiting and the specific hallway. A. It hasn’t been specified in the complaint. Q. Have there ever been any complaints that have been relayed to you regarding conversations outside the triangle area amongst employees that disturbed the family mem- bers in the triangle? A. No. Not specifically. Q. And have there been any complaints about employ- ees passing each other papers in the hallway while the par- ents were in a triangle area? A. Not specifically. Q. And with respect to the waiting area, have there ever been any complaints or concerns raised by parents about employees passing each other papers in the hallway in the waiting area near 2285? A. No. Q. Do parents ever go downstairs in the atrium for re- covery? A. Yes, sometimes. It’s not frequently used, though.53 52 Wayman stated the barriers to good communication between par- ents and staff are: Based on our focus groups as well as our contact with the families in the hospital, there’s numerous barriers to good, equal partnership rela- tionships between health care providers and families. Language is an important one, socioeconomic standing, the status of your child’s health, the length of time you’ve been in the hospital. If you’re usually—parents report, if you’re in the hospi- tal more than one week, their ability to cope is significantly de- creased. In fact, that very senior parent mentor I talked about, who’s a veteran of hospital visits, was rehospitalized with her child a few weeks ago. And after—during the second week, someone spoke to her abruptly, and she could no longer ask ques- tions or advocate for her child till [sic] she was able to get some recovery. So, its a very, very difficult process. So, there are many barriers. So, a staff talking abruptly to you, a staff appearing too busy, not getting the information you need, not having social support. 53 Wayman also opined, based on her experience, parents desire: Primarily access to good information and people telling them how to get that information. In the busy hospital, it’s often diffi- cult to find the person to get the information; support from parent mentors helping them advocate, privacy. Often, just as I said, you Linda Repetti is a current employee of Respondent who testi- fied pursuant to a subpoena. She works in the transplant unit of LPCH as a unit service assistant and has been employed by the Hospitals for 21 years. She works the day shift; her hours are 7 a.m. to 3 p.m. Her duty station is in the unit. She described her duties as follows: Basically, we take care of the nursing unit. We process doc- tors’ orders. We’re right there directing families and patients to their rooms when they’re first admitted. We implement the physicians’ orders, schedule appointments, answer phones; generally take care of the function of the running of the unit. Other employees who work full or part time in the unit in- clude: the unit secretary, which is her position, registered nurses, nursing assistants, and staff that comes to the unit as needed such as physical therapists, occupational therapists, dietary workers, transporters and other ancillary staff. Repetti estimates when she comes on duty in the morning there are about 20 employees present on the unit. The number of em- ployees on the unit varies during the day. She has noticed em- ployees talking to each other about matters not related to pa- tient care, at times in front of patients or patient’s families. She has never received a complaint from parents that she was talk- ing about matters unrelated to patient care while she was at work. Terri O’Grady is employed by Respondent as director of community and physician relations at LPCH. As part of her duties, she monitors patient complaints and comments. She also manages the family advisory council which is comprised pri- marily of about 10 parents of children who are frequent visitors to LPCH, and staff who meet monthly “to work on issues that parents have identified as problems or things that they want to do to improve care for the children or promote more of a family centered environment.” She estimates she receives more than 2000 complaints annually. She did not claim any complaints arose because of employee solicitation or distribution. Respondent claims it does discourage employees from talk- ing too loudly, discussing confidential or inappropriately upset- ting or controversial issues in the presence of patients or with know, you’re in for a lengthy period of time. Parents are re- questing that they have more privacy, that people don’t walk in the door without knocking, that they have time for release and recovery, quiet time, down time, psychological recovery. That health care providers approach them in terms of sharing infor- mation instead of telling them how the day’s going to go. So, for instance, health care providers typically come in and tell them what the plan for the day will be. Were now changing health care provider behavior to come in and say, “What are your expectations for the day? How would you like to seethe day go?” and then coming up with a plan together. Those kind of strategies. In the hospital room, parents are often inundated with people. There’s been several studies on the number of people who come into a hospital room, and it can be up to 44 in a day. They’re in- undated with information. They’re required to make decisions, multiple decisions during the day. They need time where they can focus on themselves, to have some quiet time, time without interruption, time with other family members without interruption, and—where they’re not af- fected by things going on in the hospital. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514 patients. As previously noted, during the union organizing campaign here under consideration, Respondent gave its man- agers flyers to distribute to its employees opposing unioniza- tion. These managers were not prohibited from distributing these materials in patient care areas. Flanagan opined employ- ees engaging in solicitation of one another is no more disrup- tive to patient care than discussing political and other contro- versial matters. The families want the employees totally fo- cused on patient care and have complained when they perceive employees do not have this singular direction. Flanagan then testified conversely that she considered solici- tation of any kind, for religious purposes or to sell cosmetics, etc. to be more disruptive than other types on conversations because: “I think the solicitation of whatever is much more active and it would be considered more negative.” There was unrefuted testimony by Repetti,54 who works in the transplant unit and was testifying pursuant to subpoena, that she has ob- served bake sales being conducted in the large waiting areas outside the units on the second and third floors of LPCH. She has brought goods to these bake sales and has observed parents of patients purchasing baked goods at these events. The tables for the sales were placed in close proximity to one of the trian- gular waiting areas around the atrium. She was not aware of any complaints by parents concerning these bake sales. She knows of at least 10 bake sales since her employment at LPCH. The dates of these bake sales were not placed in evidence. Monroe testified: Q. Do you know whether, in fact, Lucille Packard’s Children’s Hospital has bake sales on its premises? A. I don’t know right now. I assume they do not A. Short of sometime after the merger between Stan- ford and Lucille Packard and UCSF—it was after 11/1/97, I heard there were bake sales, and I had to send out a memo saying that we couldn’t have them any longer at Packard. Q. And why was it that you couldn’t have them any longer at Packard? A. Because a year or two prior to the merger, Stanford had been cited by the Health Department for having bake sales that were open to the public. And we were told that we could no longer have those. Repetti has also observed craft sales at the Hospitals. They were held on the first floor of LPCH near the atrium. They could be observed from the upper floors. She has attended craft fairs and has observed both employees and patients’ families attending these events. Monroe did not testify about these craft sales. Interestingly, there was no claim the bake sales disturbed or interferred with patient care, even though they were con- ducted at the outside waiting areas on these floors. This testi- mony that the sole reason for terminating the bake sales was the citations by the Health Department undermines the testimony 54 Repetti works at LPCH. She defined her job as follows: Basically, we take care of the nursing unit. We process doc- tors’ orders. We’re right there directing families and patients to their rooms when they’re first admitted. We implement the phy- sicians; orders, schedule appointments, answer phones, generally take care of the function of the running of the unit. of Respondent’s witnesses that patient care occurs in these waiting areas. 1. Waiting rooms Respondent, on brief, defines patient waiting area as encom- passing admitting and registration areas as well as those “seat- ing areas that are used primarily for waiting and are clearly associated with nearby patient treatment areas.” The admitting and registration areas are discussed separately below. Respon- dent also includes within the purview of its solicitation and distribution rule the numerous seating areas abutting the Hospi- tals’ corridors, asserting patients often wait, frequently with their families, in these unenclosed or partially enclosed areas. Respondent did not detail any procedures being preformed in these unenclosed or partially enclosed seating areas abutting the corridors. Additionally, the Hospitals have waiting areas out- side inpatient units that are not associated with registration or admitting areas. There are waiting and other nontreatment rooms inside the units. Respondent admits it does not specifically prohibit employ- ees from these waiting areas outside the units but expects the employees to not enter these areas except to clean or maintain them, escort a patient or visitor, or traverse them on their way to another location. Respondent asserts the intended use of these areas is for patients or visitors and employees do not know when these persons would want to use the waiting area. Dr. Gregory testified he included patient waiting rooms out- side the units as a patient care area because: Well, I can speak both from a professional point of view and also from a patient point of view. As a patient point of view, that’s when your apprehension builds the most. As a profes- sional, I just notice that it’s usually families in patient waiting areas, but it can be patients in clinics as well, things like that. They’re either waiting for news, which they’re often fearful is bad, or they’re hearing news that they are concerned about. So it’s an area where patient care takes place, as far as I’m concerned. He included family wait areas because: “I think the funda- mental here is that patients and families assume that the people around them are there for one purpose only, and so any behav- ior—and I don’t care what it is—that implies something differ- ent is disturbing, unsettling, and not conducive to what we are all about.” The waiting areas he was referencing mainly con- cerned those located near the entrances into the main wards of Stanford Hospital. He observed these wait areas being used “it seems as sort of an escape valve. Families who are often over- whelmed by what’s going on in the patient care area or need a breather from it, or patients who are well enough to walk out a little bit and get somewhere outside that intense patient care environment. And so I see—I think of them as a swing area in that—at that part of the hospital, and that’s what they’re used for.” He has had occasion to talk with families in these wait areas. He also has observed family members crying in these areas. According to Dr. Gregory, employees are appropriately in these areas to clean or help move the patients. Otherwise, he can think of no other work-related reason for employees to be UCSF STANFORD HEALTH CARE 515 in these wait areas. He has observed employees in these areas, but “not often.” He opined, if employees were using these area for solicitation or distribution, it would cause him concern: Because it would be potentially—Any occupant—How should I put it? If a family and a patient comes out of an area and is looking for a place to talk, they would be intimidated in some sense by any occupant of that room. They’re looking for privacy. And so I would argue that that area should be kept private, just for that reason. Dr. Gregory further testified, the fact Respondent has televi- sions and various magazines55 and other reading material in some waiting rooms, does not create an atmosphere that would also permit solicitation and distribution because: [T]he fact that the televisions are there and the magazines are there—that that’s a distraction that is welcome. It is chosen distraction. They choose the distraction. They may choose not to read the magazine. They may choose not to watch the television. They cannot choose not to observe someone who is talking about something entirely unrelated to their care standing nearby. Dr. Gregory has observed employees soliciting each other. He considered these activities occurred in “perfectly reasonable area[s].” One occurred in the main hallway outside the cafete- ria. Another occurred in a parking lot. He surmised if patients observed and heard this conversation: If we took a hundred patients, there might be nine or six who would not be disturbed about this and would say this is okay. But there would that—the majority, in my opinion, the large majority, in my opinion, would be concerned about the fact that there are people arguing, discussing things that are not relevant to what they’re concerned about at that moment. . . . Q. Why is it that you think that if two employees were discussing their favorite flowers in the hearing area of a patient in the waiting area, are you saying that that conver- sation would cause the patient to feel that these employees are not focusing on their care? A. I think it would—Yes, I do. Q. Yet the hospital does not prohibit employees from discussing their favorite flowers while they’re working. A. As far as I know, they don’t. He has been told by a patient more than once, during his 30 years of experience, that they were concerned about a conversa- tion they overheard between employees. He could not recall the exact number of times he had received such a complaint. Dr. Gregory admitted that some of the musical events held in the hospital may be disturbing to the patients. He also admitted a patient in a waiting area could observe employees engaged in the distribution of literature from one to another and not have their peace disturbed. There is no restriction against children in 55 Charging Party argues the magazines and newspapers cover Re- spondent’s bond ratings, its hiring of management consultants, labor issues, and other issues which leads the community to perceive the Hospitals as a business, which lessens the claimed impact of union activity on hospital grounds. the Stanford Hospital wait areas. There is no restriction estab- lished on the record to food and beverages in these wait areas. Some patients play cards with their families in these areas. The hospital does not limit these activities as potentially distracting or otherwise deleterious to patients. Drs. Gregory and Hammer have not performed any studies on the relationship between patient reaction or recovery and employee conversations. They have not seen any peer reviews on the subject. There is no limit on the nature or type of con- versations that occur in the wait areas. Respondent also does not claim to censor any of the publications kept in the waiting areas or lounges based on their pictorial or verbal content. According to Dr. Gregory: Just generally, in talking to patients. They’re often upset, concerned and irritated by the things that go on around them, not necessarily what’s happened in the examining room; con- cerned about noise, concerned about parking, concerned about someone who doesn’t look up from their desk when they come to the clinic desk, concerned about someone distracted by something else. That’s where you get the complaints. It’s not about the care. There was no evidence Respondent addressed these concerns such as noise, distracted staff, etc., in its other policies. In fact, employees are not restricted in the content of their conversa- tions other than solicitations. Families and other visitors are not limited in the content of their conversations or activities. Chil- dren who are not patients are not prohibited from bringing toys to the waiting rooms. There is no limitation on the content of television shows, magazines, and newspapers in these areas. At LPCH, on the second and third floors, on either side of the elevators, there are two desks, a variety of chairs and racks containing some education material. This area on the second floor is close to the pediatric intensive care unit. Within this unit is a room called a parent waiting area. Also within the units are conference rooms which could be used for confer- ences with families of patients. There are also enclosed waiting rooms. Encircling the atrium are three triangular alcoves on the second and third floors of LPCH which Flanagan considers patient or family waiting areas. Flanagan stated distribution and solicitation is banned in these triangular areas as well as the hallways immediately adjacent to these triangular areas.56 Flanagan defined immediately adjacent to these areas as to the left and right of the entrances to the triangular areas and two to several yards down the corridor from these entrances. In the remainder of the corridor, as she understands the policy, solici- tation and distribution is permitted. Wayman testified the triangular alcoves, waiting rooms out- side the family resource library, the family resource library, the playroom, the family lounge, and other places where there is no active health care going on, are the principal locations families go to get surcease from their child’s illness and to reflect on 56 Wayman testified social workers sometimes meet with families in waiting areas outside the transplant unit, but she did not know how often these meetings occurred in these areas. The waiting rooms near the elevators have parents, doctors, and staff passing by. There is no claim talking is restricted in these area or that discussions are limited to any particular subject matter other than solicitations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516 treatment decisions. Some of the care decisions she is involved with include: Oh, it’s a range of decisions from should we have a certain procedure or how should it go, to a case just the other day, when we were discussing, well—I was supposed to be here on Tuesday afternoon and I couldn’t attend because we were working out with a family when to remove life support and when that might occur. According to Wayman, the locations of the discussions con- cerning these care decisions varies. If the decision involves the removal of life support or whether their child should be se- lected for organ transplant, such discussions are held in en- closed rooms, including the playroom [playroom]. There is no evidence these discussions occur in the waiting rooms and hallways outside the units. If the discussion involves mediation between staff and the family, where the family has concerns about staff issues such as inattentiveness, or if the discussion involves the treatment plan for the day, then she and others will meet with the family in the triangular alcoves “if the room is not appropriate, the room of the child old enough to understand what we’re talking about.” The location of the discussion de- pends on the “sensitivity of the information,” or whether the patient is in a single or double room. Wayman has never received complaints concerning conversa- tions between employees outside the triangular alcoves disturbing family members. She has never received complaints concerning employees passing papers between themselves in the hallways near the alcoves or other waiting areas outside the units on the second floor of LPCH. The increased communication Wayman referenced could include informing parents of the daily staffing changes and when staff members will be taking breaks so they would not be surprised if the staff member was absent or upset of they saw that staff member reading a newspaper. In the transplant unit on the second floor57 is a day room.58 According to Flanagan, the day room is designed for patients and their families as an escape from their room. The day room has a TV, laundry and cooking facilities, toys and games. There are also other wait areas within some of the second and third floor units. According to Dr. Hammer, the day rooms “are de- signed to provide a place for family members with the children to sit. I think they’re equipped with a refrigerator, a micro- wave, a television.” It is his view the support the families can provide their children in these rooms enhances their treatment and assists the healing process. There are also a nurse workroom and a physician workroom within one or more of the units. These rooms, according to Dr. Hammer, are used for, among other things: [C]are conferences, where—in a situation where there’s a complex medical issue, we will bring the parent or parents or other family members in with one or more physicians, social 57 The second floor of LPCH houses a neonatal intensive care unit, a pediatric intensive care unit, the compromised host unit which contains primarily cardiology and renal patients. The third floor of LPCH has general pediatric patients, an oncology unit, and a general medi- cal/surgical unit. 58 There is also a day room on the third floor. work[ers], any of the ancillary personnel that need to be there in order to have a general conversation about the child with multiple people involved. And that would be done behind a closed door. Flanagan described the following as patient care areas on the ground floor of LPCH: “a laboratory, some respiratory therapy, biomedical engineering and those types of services.” She ad- mitted patients would not typically be brought to respiratory therapy and only occasionally to the laboratory. After being shown Respondent’s solicitation and distribution policy distrib- uted September 19, Flanagan admitted there are no areas on the ground floor that meet the definition of patient care areas as defined in the policy. Therefore, as she understands the policy, employees could engage in solicitation and distribution on the ground floor of LPCH. Flanagan portrayed the uses of the waiting rooms at LPCH as follows: Well, there’s a variety of different uses. One might be that the parents for the longer-term patients might bring the child outside the unit into this area to get them outside of the patient care area, per se. Another area, and this is a very frequent use, is it’s very stressful for the parents to be in the room with a sick child continuously, and so they would use this area to get some respite from the ongoing care or being in the room with the child. A third use of the space is for either physicians or other care providers to actually meet with a family or fam- ily members to discuss, you know, care regimes or differ- ent treatment alternatives with families. And a fourth use of the space would be for the families to come and think about these different options and that’s oftentimes what they’re doing is really, you know, evaluating the different options that have been made available to them and making decisions about future medical care for their child. Flanagan believes it would be inappropriate to permit solici- tation and distribution in the waiting rooms and areas because the families are distraught over the condition of their child, often the child is with them in these areas, the family uses these areas to discuss the different treatment options available, and at times they are crying. She opined the families have an expecta- tion the hospital will be supportive of their needs, including protecting them from the intrusion of issues not involving the care of their child. Other than for cleaning, she could think of no legitimate reason for an employee to be in these waiting areas. She has never observed employees in these areas. She believes any employee use of these areas for solicitation or distribution, even when empty, would be inappropriate because a family could come to use them at any moment. On cross-examination, Flanagan admitted the atmosphere in the waiting rooms and other areas outside the units is less in- tense than in the childrens’ rooms and other areas inside the units. She also admitted families have a lower expectation of privacy in these outside the units waiting rooms than inside their child’s room. Repetti has observed employees in the trian- gular waiting area and has never observed a supervisor inform an employee to leave the area. She has also observed a supervi- UCSF STANFORD HEALTH CARE 517 sor and another employee talking to each other in these waiting areas. She did not listen to their conversation. Dr. Hammer understood the triangular waiting areas are “in- tended primarily for family members to sit down outside of the child’s hospital room where they can engage in conversation with one another or where they can conference with a physician or consultant.” The basis for this understanding was not expli- cated on the record. He has met with families there. He has observed both families and small groups of employees in these areas. He does not consider employee use of these areas appro- priate because of his belief they are “patient-care-related areas for family members or for family members engaged in discus- sion about their child’s care. I don’t consider them employee lounges.” There are several other waiting areas on the second and third floors of LPCH. Dr. Hammer does not think there are sufficient waiting areas on these floors because he has had occasions when it was very difficult to locate a place to meet with fami- lies. He did not detail how many times he experienced such difficulties. Dr. Hammer considers distribution and solicitation occurring in or near these waiting areas inappropriate because: “[F]irst of all, it would displace families from their appropriate use of those areas, and secondly, if families are in adjacent areas or in the hallways around those areas they would be within earshot of those conversations.” Dr. Hammer believes it is detrimental for patients and their families to hear employees discussing a baseball game in or near the waiting rooms because, “it is my opinion that families expect employees to be engaged in conversation and activity relating to their job and the provision of care to their children.” As noted previously, Respondent does not ban such conversa- tions. These waiting areas are subject to distractions. As Dr. Hammer testified: “Kids run by and throw balls. I mean, it is a children’s hospital. A lot of things go on there.” Dr. Hammer admitted his opinions concerning patient and family reactions to employee solicitations and distributions was not based on any empirical research he or anyone else performed. Repetti described an additional area used by employees and families of patients, an outside patio area accessed by doors from the second floor hallway that surrounds the alcoves. She has seen patients families in the waiting areas outside the units on the second floor. She has talked to other employees in the hallways near these waiting areas. She has passed a union flyer to another employee, a housekeeper, in this area, not someone who worked in her unit. She did not notice if there were pa- tients in the nearby waiting room at the time she distributed the flyer. She has also distributed flyers to employees inside the unit, at the treatment room or office, which is not adjoining patient’s rooms. Repetti and other employees, as well as pa- tients and their families use the patio at the same time. Repetti has observed employees eating lunch on the patio. The employ- ees talk to one another there and she has distributed informa- tional flyers while out on the patio. She has never observed treatment occurring in this location. Respondent’s witnesses did not testify about this outside area. Repetti has seen children playing in the waiting rooms out- side the units on the second floor of LPCH. She has also ob- served supervisors and other employees using the wait area near the elevators. She has never observed a supervisor inform another employee that waiting area is for patients only. Repetti has solicited employees to sign union authorization cards. These conversations occurred in a normal tone of voice. She has received comments from parents about the union organiz- ing drive to the effect: “Yeah, you guys need it. Go for it. That’s great. Positive. I’ve experienced positive.” Linda Cornell, a unit secretary employed at Stanford Hospi- tal for about 19 years, currently works on the third floor in a unit that treats neurology and short-stay patients. There is an enclosed waiting room about 25 to 30 feet from the unit. There are books and magazines in this room. She has observed em- ployees using this waiting room on breaks and during lunch. A party was held in the room for Secretary’s Day and Nurse Ap- preciation Week. Another party was held in the waiting room for the units “nursing assistants and SSAs in appreciation for them.” The party was “set up” by management. Lunch was served in the room and there were gifts.” Visitors to the unit would have to pass by this waiting room. When the door to the room is closed, the visitors can not see inside. The doors were not closed for the party. Cornell is not aware of any complaints concerning the party. She has had discussions with coworkers in this waiting room only “generally” when there were no pa- tients or visitors present. Respondent failed to demonstrate these uses of this waiting room was consistnent with the limita- tions the witnesses claimed were required. Accordingly, this unrefuted testimony establishes some outside the units waiting areas are not immediate patient care areas. Cornell has observed employees talking to each other in the corridor across from this waiting room. She has spoken to other employees in this area and has passed a coworker a document there. When a family with children use this waiting room, she has observed the children running around and letting “off steam.” On occasion, these children are patients on the unit. When children are somewhat rambunctious on the unit, she has had occasion to caution them. Cornell has asked coworkers to sign union authorization cards. During these solicitations she conversed in a normal tone of voice. She has had discussions with coworkers about subjects not related to work when pa- tients and/or visitors were present. She is not aware of any complaints concerning these discussions. Also in Cornell’s unit, there is an epilepsy daycare room, which is usually reserved for epilepsy patients whose stay on the unit is quite lengthy, “they can go and wait in there. It’s just a larger room for them.” There is also within the unit a small conference room that is used occasionally for family meetings with clergymen or social workers. The conference room is small, quie, and private. This unit has a breakroom. Cornell usually has lunch in the breakroom. The breakroom is so situated that it is out of the normal path taken by patients when they walk within the unit. Charles Fonseca, an 11-year employee of Stanford Hospital, is a crisis nursing assistant house-float. He is not assigned to a specific unit but goes where there is staffing shortage that needs to be filled on a temporary basis. He testified: “I float from floor to floor, wherever they need help. Say, one floor’s getting a lot of admissions, I’ll go help them until things get settled.” He identified a corridor and waiting area on the first floor be- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518 tween units B and C. He estimated, without refutation, that the corridor was about 10-feet wide. He has seen employees seated in this waiting area when patients were present and observed employees talking in this waiting room when patients were present. Fonseca works from 2:45 to 10:45 p.m. Visiting hours end at 8 p.m. There are not many visitors in Stanford Hospital after 8 p.m. There is no evidence patients or their families use these outside the units waiting areas after 8 p.m. Fonseca testified the employee’s breaks are staggered and he has found patients understand that employees get breaks and are not upset by this practice. He has spent breaks talking to patients. They talked about sports. He has watched baseball and football games with patients. He noted that at times he bonds with a patient and they talk about sports. Once during a discus- sion Fonseca was having with another employee on the first floor, a supervisor was present. The supervisor was an assistant nurse manager for a first-floor unit. The supervisor compared the Union’s organizing efforts to those of the union represent- ing the nurses. At the time of the conversation there were peo- ple in hospital garb such as scrubs present as well as patients walking down the hall. Respondent does not claim to have a rule against such conversations. There was no claim such con- versations were more or less disruptive than employee-to- employee solicitation and distribution. He described the corridor adjoining this waiting area as “one of the main arteries” for the Hospital, very near admissions and clinics. This corridor also can be used to enter LPCH. Diago- nally across from the waiting area is the Stanford Hospital gift shop. Another main hospital corridor serving the cafeteria and the rest of the hospital is close to this waiting room. These fac- tors result in a lot of traffic passing by this waiting area. People talk to each other while passing this area which creates noise. Fonseca has sat in this waiting for a ride. There were no pa- tients in the area at the time. Fonseca has also used a second-floor waiting area outside the units in Stanford Hospital to sit in while taking a break. There were no patients or visitors in the room at the time. Fonseca has worked on all the floors of Stanford Hospital and testified in a direct and convincing manner. Based on his demeanor his tes- timony is credited. He noted the configuration of the waiting areas differed slightly on the different floors of Stanford Hospi- tal. On the second floor, in unit D, there is a counseling room which he has never seen an employee use for a break or lunch. He has distributed papers to other employees outside this unit several times when others, perhaps patients or visitors, were present. To his knowledge, no one complained about this activ- ity. He was in uniform when he distributed the papers. Also on the second floor, there is an E-pod or wing where Fonseca has worked. There are two waiting areas serving this pod which is near the intensive care unit. He has talked to co- workers between these two waiting areas. There is a counseling room serving this pod. He has talked to other employees out- side one of these waiting rooms when the door was open and patients or visitors where in the room. There are magazines and newspapers in these waiting rooms. One of them has a televi- sion set. He is not aware of any complaints concerning his talk- ing with other employees outside these rooms. Fonseca also worked on the F-unit on the second floor that is the postpartum unit. There is a waiting area outside this unit but Fonseca has not been in it. He has talked to other employees and distributed literature to other employees outside this wait- ing room. He does not believe there was anyone in the waiting room at the time of these events. He has observed, while pa- tients were visiting with families in the second-floor waiting rooms, that if the patient has an I-MED pump that delivers intravenous fluids which is on a battery that signals an alarm, a nurse going to the waiting room to restart the pump. He has also once observed a nurse bring a patient’s medications to a waiting room. Fonseca has worked in the D unit on the third floor that he identified as “general surgery transplant.” There are two wait- ing areas outside this unit. He has been in at least one of these rooms and has seen other employees in these rooms. He has spoken to other employees as he passed by these rooms. He has distributed literature on this floor near these waiting rooms as well as within a unit. There were individuals wearing street clothes as well as a patient present when he distributed the lit- erature in the nearby corridor. He knows of no complaints per- taining to this activity. The third-floor E-Unit is “ear, nose and throat, and plastic surgery.” Fonseca has worked in this unit which has two wait- ing rooms outside its doors. He has been inside these waiting rooms and has talked to employees inside and outside of them. There were occasion(s) when other people in street clothes were inside the waiting rooms when he talked to coworkers. These individuals did not complain to him about his actions. He has worked in the F unit on the third floor, which he de- scribed as “half of it’s called the ‘Inn,’ which is a short stay, meaning less than 72 hours. And then they have an epilepsy unit on the latter half, the high numbers we call it, and post- stroke study.” This unit has an outside waiting area. Fonseca has been in this room and spoken to other employees in the presence of individuals in street clothes. These individuals in street clothes did not complain to him about his talking to an- other employee in the waiting room. He has also talked to em- ployees outside this room when others were inside the room, without complaint. Fonseca has worked in the units on the ground floor of Stan- ford Hospital. Outside these units are waiting rooms that Fonseca has visited. He has spoken to other employees in one or more of these waiting rooms. He has also distributed litera- ture to employees when he was in the waiting rooms on the ground floor. There were other people in the waiting rooms, some in hospital gowns and others in street clothes. None of these individuals complained to him about his conversations or distribution of literature. Also on the ground floor of Stanford Hospital are seating areas around the atrium. Fonseca has ob- served patients, visitors, and employees going into the atrium. Employees talk to each other and distribute literature to each other when they are in the atrium. He has given another em- ployee literature while in the atrium without comment from supervisors, patients, or visitors. He has observed heated discussions among visitors occurring in waiting areas. When such events occur, the doors to the rooms are closed or the participants are moved to a more pri- UCSF STANFORD HEALTH CARE 519 vate area. He has also observed visitors bring and consume food in the waiting rooms. Fonseca had one discussion with a patient in the elevator about the union organizing campaign. The patient observed his union button and “said, ‘Oh. I heard about you guys.’ And he came out and I said, ‘Well, yeah. We’re just organizing right now. We’re trying to get a union.’ And he said, ‘Yeah. You guys really need one. You guys are really getting screwed.’ And he said that he has some friends that also work, and that’s how he’s been hearing about what’s been going on.” Jose Perez is employed by Respondent in the radiology de- partment as office assistant III clerk. His duties include pick- ing-up and delivering X-rays to all departments of the Hospi- tals, including clinics located outside the hospital grounds. His duties take him all around the Hospitals, but principally Stan- ford Hospital. He has seen employees in uniform sitting in waiting areas, including the one at the entrance to radiology outpatient and the large waiting area near the admitting room. He has seen employees lying down sleeping in waiting rooms, including those near the atrium and admissions. There were patients and visitors in these waiting rooms at the time. He has also observed visitors sleeping in waiting areas. He has not heard of any complaints resulting from any of these uses of the waiting areas. He has also observed visitors playing cards and other games, conversing and consuming beverages in the wait- ing areas. Bernita McKee works for Respondent as a patient admitting representative in Stanford Hospital’s emergency department. She described the emergency waiting room as having a televi- sion and magazines such as Good Housekeeping, Time and sports magazines. She has observed arguments occurring in the waiting room. One incident involved changing the channel on the television. Another occasion involved parents wanting the channel changed so their children would not have to watch a horror movie. The television is on most of the time. She has heard people in the hallway outside the room but could not hear clearly enough to discern their conversations. Her supervisor came to her work area and discussed the union with her. She does not know if any patient or visitor overheard this conversa- tion but “it was right there where anybody could hear.” Again, Respondent failed to demonstrate or claim this behavior by its supervisors was less disruptive to patient care than employee- to-employee solicitation or distribution yet it was not banned. 2. Hallways Respondent’s distribution and solicitation policy, as indi- cated above, also covers the numerous hallways that are imme- diately adjacent to the waiting, admitting and registration areas. The remaining hallways, Respondent claims, are not included in the policy. Respondent’s witnesses gave various and differ- ring definitions to the phrase in the policy “immediately adja- cent.” Dr. Gregory would be concerned if employees were solicit- ing or distributing literature in a manner that could be over- heard or observed by patients for the same reason he is adverse to the employees use of the wait areas for these activities. Mon- roe admitted she did not mean to include entire hallways as part of the patient care areas defined in the policy. However, she also admitted she had not thought about the actual hallway areas included in the definition, such as areas around the door- way to the “LP Day Surgery Waiting area.” Respondent, by Monroe or any other manager, has not met with any employees since September 21, to clarify the areas encompassed within the solicitation and distribution policy. Dr. Hammer did not have an opinion concerning patient and family expectations of staff behavior, including conversations, in Respondent’s hallways. As previously noted, Rapetti has observed bake sales occur- ring in the hallways outside the units on the second floor of LPCH, right next to the waiting area near the elevators. The table for the bake sale was about 5 feet from the triangular al- coves. She has brought items to the bake sales and observed parents purchasing baked goods at these sales. She has attended a few of these bake sales during her tenure with Respondent. Repetti has also observed the previously mentioned craft sales in the hallways. She has never heard of a family complaining about these events. Respondent has not claimed these events adversely impacted patient care. Fonseca noted that there are periods during the day when there is a lot of activity in the hallways. These times include: the start of shifts, deliveries, the stocking of the service centers where supplies are kept, the carts making meal deliveries, and moving patients on gurneys for procedures in other parts of the Stanford Hospital. He has observed an adult in street clothes playing catch with a small child in the hallway on the third floor outside the F unit about a month before his testimony. No one told them to stop playing catch. Perez has heard supervisors who were stopped and conversing in the hallways discussing matters that were not related to their work such as family mat- ters. He has also heard such discussions near the gift shop where the subject matter involved collecting Beanie Babies. 3. Admitting and registration areas Each hospital has a main admitting area near their main en- trances. Some other registration areas are located at or near certain procedure areas such as radiation and therapy, and the outpatient ancillary services area at LPCH,59 outpatient surgery, oncology day care, and the endoscopy procedure area. Respon- dent does not have an explicit policy barring employees from visiting or using these areas but Respondent argues its employ- ees are not expected to be there except for cleaning or mainte- nance purposes, escorting patients or traversing them on their way to another location. This expectation, according to Re- spondent, is based on the fact it is impossible for employees to know in advance when patients or visitors want to use these areas. Respondent maintains visitors comforts and concerns are part of patient care. There is no evidence Respondent related this expectation to its employees. Dr. Gregory opined the admitting area of the main floor of Stanford Hospital should also be included within the purview of the prohibition because: Well, I just interpret patient care as anything involved in go- ing through the difficult process of coming into a hospital, or to a clinic, for that matter. One of the specifics about this par- 59 In this area patients register for laboratory test or have other outpa- tient treatment as well as pick up prescriptions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 ticular area, of course, is that they’re often sensitive financial matters that are being discussed. And these, in particular, pa- tients are concerned about being overheard or even interfering with their concentration on them. But this is just another area of patient care. They have to give sensitive information about their insurance, their home, their relatives, what they’re there for, what’s— coming in for. Feels like part of the process to me. He believes patients are apprehensive from the time they enter the Hospital until they leave it. In general, all of Respondent’s witnesses testifying on the need for the solicitation and distribu- tion rule is that patients and their families desire and need to believe the employees are focused solely on the patients’ prob- lems. Respondent did not explain why, under this thesis, all con- versations not dealing with patient care are not prohibited from the same areas covered by the solicitation distribution policy. He does not consider asking patients being admitted to the Hospital about their medical insurance to be patient care. He has heard patients complain about this question. Dr. Hammer believes it is inappropriate to permit distribu- tion and solicitation in or near the LPCH admission area be- cause it involves an activity not related to the care of the pa- tient. Although, in his opinion, it is not a patient or treatment unit, he considers it a patient care area because: A. Well, the child is being admitted, the dealing with hospital personnel. There is time involved in the admis- sion process. Any delay in the admission process or any increase in the duration of it would delay the child getting to the inpatient unit. So as far as I’m concerned, the child is already, if you will, in a patient care area . . . .60 THE WITNESS: I was just going to add that occa- sionally, physicians will meet patients in this room, this waiting room adjacent to the registration desks in order to talk with families. Dr. Hammer does not meet many patients in the admissions area, [only] about once a month. There was no evidence other physicians similarly meet patients in the admitting area of LPCH, or, if they do with what frequency. Also on the first floor of LPCH, there is what is called a core registration area which is used principally for outpatient regis- tration and registration can occur in the outpatient clinics. In the outpatient clinics, there are waiting rooms and areas or counters where registration information can be taken if needed. Dr. Hammer admitted the hallway near the LPCH admitting room has substantial foot traffic. Dr. Hammer would not go to the lobby to have conferences with patient’s families. He testified: Q. And wouldn’t you agree that there’s a different ex- pectation with regard to patient care that a family has when they’re sitting in their child’s room, treatment room, the room where they’re going to sleep at night, the room where they’re waiting to see you than is the expectation they have when they’re in the lobby area? A. Yes. 60 Dr. Hammer does not consider questions about insurance to be part of patient care. During the course of her duties61 as well as when entering and exiting LPCH, Repetti has occasion to go to and pass by the registration area. She has never seen a doctor in that area or observed any patient care occurring in the admitting room. There is a television and magazines in the admitting room of LPCH. She has observed employees watching the television in the admitting room. She has observed employees talking to one another outside this admitting room. She has observed deliver- ies coming through the LPCH lobby, including UPS deliveries of office supplies to her unit flowers and pizza deliveries. Repetti has observed children playing with toys as well as children crying in the admitting room. She described the hall- way outside the admitting room as “[A]ctive. It’s hustling, bustling, and people are—it’s not serene and quiet. It’s going on. I mean there’s a lot of stuff going on down there. People coming in and out, deliveries being made. There’s stuff all the time.” She opined that unless people in the hallway were yell- ing, an individual in the admitting room could not hear a con- versation occurring in the hallway outside the admitting room. When she was in the admitting room and observed people in the hallway talking, she could not hear their conversation. Perez described the admitting area of Stanford Hospital as crowded most of the time. There are individuals waiting, chil- dren playing and long lines at times at the nearby pharmacy and the front desk of the Hospital. There is a pneumatic tube system in the hallway outside the admitting waiting room. It is used to send documents and specimens throughout the Hospital. This system makes noise that can be heard in the hallway and in the ceiling all over the Hospital, including in patients rooms. There is also a mail drop near the admitting area. Also on the first floor are little seating areas around the atrium as well as other waiting areas outside a laboratory. There is an area called clinic F that has a toy train in the waiting area. There is another wait- ing area near the auditorium in LPCH where Repetti has seen employees sitting. She has seen patients and their families as well as employees seated in the waiting area near the outpatient lab. She has seen books and magazines in this area. She has not observed any medical treatments occurring in this waiting area. Fonseca has spoken to other employees in the admitting area of Stanford Hospital. ANALYSIS AND CONCLUSIONS A. Respondent’s Removal of Nonemployee Union Organizers from Areas Outside the Hospitals’ Buildings 1. Respondent’s property interests State of California law must be applied to determine whether Respondent holds a sufficient property interest to lawfully bar or attempt to evict the union handbillers from the locations involved in this case. The Board held in Bristol Farms, 311 NLRB 437, 438 (1993): In considering the issues raised by this case, we bear in mind the following general principals. It is beyond ques- tion that an employer’s exclusion of union representatives from public property violates Section 8(a)(1), so long as 61 Repetti goes to the registration area of LPCH, on average twice a day to pick up patient related materials. UCSF STANFORD HEALTH CARE 521 the union representatives are engaged in activity protected by Section 7 of the Act.62 See Gainesville Mfg. Co., 271 NLRB 1186 (1984). Further, an employer’s exclusion of union representatives from private property as to which the employer lacks a property right entitling it to exclude individuals likewise violates Section 8(a)(1), assuming the union representatives are engaged in Section 7 activities. See Polly Drummond Thriftway, 292 NLRB 331 (1989), enfd. mem. 882 F.2d 512 (3d Cir. 1989); Barkus Bakery, 282 NLRB 351 (1986), enfd. mem. sub nom. NLRB v. Ca- ress Bake Shop, 833 F.2d 306 (3rd Cir. 1987). . . . . In the present case, the initial question is whether the Respondent possessed a property right that, without consid- ering any possible Section 7 privilege that the union agents may have had, entitled the Respondent to exclude them from the sidewalk area in front of its store. If it did, the Re- spondent’s conduct must be examined under case law ap- plied when there are conflicting Section 7 and property rights. If it did not, however, this case presents no conflict between Section 7 and property rights, and the case law concerning such conflicting rights is not implicated.64 See Johnson & Hardin Co., (305 NLRB 690 (1991). To determine whether the Respondent has a property right entitling it to exclude the union agents from the sidewalk in front of its store, we must look to the law that created and defined the Respondent’s property interest. It 62 The Board, in fn. 6 of this decision noted: Indeed, in Lechmere (Lechmere, Inc. v. NLRB), 502 U.S. 527 (1992)), although the Supreme Court, reversing the Board, re- cently held that an employer lawfully barred union organizers from a shopping center parking lot owned by the employer, the Court did not grant certiorari to consider the Board’s holding, confirmed by the court of appeals, Lechmere, Inc. v NLRB, 914 F.2d 313, 325 (1st Cir. 1990), that the same employer violated the Act by attempting to expel the organizers from public property adjoining the shopping center. On remand, the Board reaffirmed its finding of this particular unfair labor practice. Lechmere, Inc., 308 NLRB 1074 (1992). 63 The Board observed in fn. 7: This precept is not altered by the Supreme Court’s decision in Lech- mere. The employer there owned the shopping center parking lot from which it excluded the union organizers and it possessed a sufficient property interest to exclude individuals from the parking lot. 64 Fn. 8, of the Bristol Farms decision, like this case, remarked: There is no contention that the union agent’s picketing and handbilling was not protected activity. We find it clearly protected under the sec- ond proviso to Sec. 8(b)(7)(C), which concerns picketing or other pub- licity for the purposes of truthfully advising the public that an em- ployer does not employ members of, or have a contract with, a labor organization. The right of union representatives to engage in this type of activity is well established. See D’Alessandro’s, Inc., 292 NLRB 81 (1988) (union agents’ 8(b)(7)(C) proviso picketing and handbilling is concerted activity within “mutual aid or protection” language of Sec. 7); see generally Longshoremen ILA Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 202 (1970) (White J. concurring). Gamer v. Teamsters Local 776, 346 U.S. 485, 499–500 (1953) (state court injunction of nonemployees’organizational picketing found improper, freedom of unions to engage in picketing except where specifically prohibited by the Act found to serve the public interest). is well established that property rights generally are cre- ated by state, rather than Federal, law. As the Supreme Court stated in Board of Regents v. Roth, 408 U.S. 564, 577 (1972): Property interests, of course, are not created by the Con- stitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . . The Court reiterated a similar notion in Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 84 (1980): Nor as a general proposition is the United States, as op- posed to the several States, possessed of residual authority that enable it to define “property” in the first instance. Thus, the law of the State of California defines the extent of Respondent’s property rights. The seminal case in California was Robbins v. Pruneyard Shopping Center, 153 Cal.Rptr. 854, 592 P.2d 341 (Cal. 1979), affd. 447 U.S. 74 (1980). As noted above, Respondent has the burden of demonstrating it has suf- ficient property rights in the areas it excluded or attempted to exclude the union organizers from handbilling or meeting an employee or employees. Respondent has failed to clearly demonstrate it has such a property interest in these areas, with the exception of the bench in front of LPCH. The leases descriptions in metes and bounds were not translated by a surveyor or other competent professional, even though I requested such a clarification of Respondent’s leasehold. See generally Doral Building Services, 273 NLRB 454 (1984). For the purposes of this proceeding, the parties stipulated the bench in front of the main entrance to LPCH is within Respondent’s leasehold. Thus, Respondent’s eviction of Harland on or about September 5, will be considered under the Pruneyard, criteria. The Board, in R & R Plaster & Drywall, 330 NLRB 87 (1999), adopted the holding of Indio Grocery Outlet, 187 F.3d 1080, 1095 (9th Cir. 1999), cert. denied 29 U.S. 1098 (1999), as follows: [I]n cases in which the exercise of Section 7 rights by non- employee union representatives is assertedly in conflict with respondent’s private property rights, there is a threshold burden on the respondent to establish that it had, at the time it expelled the union representatives, an interest which enti- tled it to exclude individuals from the property. [Emphasis in the original.] Respondent has failed to clearly demonstrate it has a suffi- cient property interest in the area near the bus stop and the area near the parking lot to permit a claim of right of removal. Ex- pertise of a nature not provided in this proceeding was needed to accurately translate the metes and bounds descriptions in the leases. Survey maps coinciding with the metes and bounds descriptions were not provided. Respondent has failed to pro- vide clear and convincing evidence it was “in possession and control for trespass purposes.” Hader v. Co-play Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963), followed by the Board in R & R Plaster & Drywall, supra. Since the Ramirez incidents occurred at or near a public bus stop as well as University run shuttle stop, there is a possibility she was on a public sidewalk DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 or property owned by the University and not within Respon- dent’s leaseholds. Respondent has failed to demonstrate the Ramirez incidents as well as the November 2 or 3 incident where Respondent attempted to remove Harland, Barana, and Hooper occurred within Respondent’s leasehold. Even on brief, Respondent does not aver the descriptions in the leases establish its leaseholds encompass the locations where its guards removed or attempted to evict Ramirez, Harland, Barana, and Hooper. Watkins admit- ted he was speculating about Respondent’s leasehold parame- ters and that Respondent’s maintenance obligations exceed its leaseholds. Monroe limited Respondent’s leasehold interests to approximately 10 feet from the buildings. The evidence demon- strates the Ramirez and November 2 or 3 incident involving Harland, Barana, and Hooper, occurred at points further than 10 feet from the buildings. Respondent has failed to clearly dem- onstrate Stanford University or any other property owner, gave Respondent a property interest in these areas. As found above, there is no question but that the activities of Ramirez, Harland, Barana, and Hooper were protected under Section 7 of the Act. There is also no question Respondent’s guards were acting as its agents at these times. Additionally, Respondent did not present evidence on this record of the nature of its relationship with the University. Thus, if the November 2-3 events with Harland, Barana, and Hooper and the three incidents with Ramirez occurred on Uni- versity property, there is no evidence Respondent was empow- ered by the University to expel nonemployee union organizers who were peacefully handbilling or waiting for employees on university property. The University provides the Union with an office on its property and issues union organizers who are not employees of the University or Hospitals, parking permits. The evidence indicates the University permits nonemployee union organizers to engage in protected concerted activity on its prop- erty. Accordingly, I find Respondent has violated Section 8(a)(1) of the Act by ordering nonemployee union organizers from the sidewalks near the garage and near the bus/shuttle stop, prop- erty in which it failed to demonstrate it retained a sufficient property interest to permit these actions. Respondent has failed to demonstrate Stanford University or other appropriate entity delegated to Respondent its property interest in these areas for any purpose. The failure of the police to find trespass and the failure of Respondent to obtain trespass warrants for their arrest is further indication that Respondent did not have the right to remove these nonemployee union organizers. 2. Assuming Respondent has a property interest, could it lawfully exclude nonemployee handbillers Assuming arguendo that all the incidents occurred within Respondent’s leasehold, it must be determined whether Re- spondent’s leasehold is a public forum under California law, as General Counsel and Charging Party argue, or whether the nonemployee union organizers were trespassing on Respon- dent’s property. If they were trespassing, was their removal discriminatory? Were Respondent’s new restriction reasonable as to time, place and manner? Was the Union permitted under the Moscone Act to trespass with impunity? While many of the access cases involve shopping centers, the California decisions also consider handbilling, picketing, and other organized activities at banks, abortion clinics, a medical center, a university, a Federal government laboratory, and apartment complexes. Pruneyard, involved a suit brought against private owners of a shopping center to enjoin them from denying students from soliciting signatures for a petition to the government. The Pruneyard court found the California State constitution afforded greater free speech rights than the United States Constitution which subordinates constitutional guaran- tees attaching to private property, particularly where the inter- ests of the private property owner conflict with the general welfare. This finding was affirmed under the supremacy clause of the United States Constitution in Pruneyard Shopping Cen- ter v. Robbins, 447 U.S. 74 (1980). In Agricultural Labor Rela- tions Bd. v. Superior Court, 16 Cal.3d 392 at 403, 128 Cal.Rptr. 183 at p. 190 (1976) the California court concluded that private property rights may be restricted and subordinated to the public interest in collective bargaining. Quoting Miller v. Board of Public Works, 195 Cal. 477, 488, 234 P. 381 (1925). The Pruneyard California court, found the growing signifi- cance of suburban shopping malls rendered them akin to down- town shopping centers that had traditionally been the situs of protected free speech, ie. a public forum. The Court noted, By no means do we imply that those who wish to disseminate ideas have free rein. We noted above Chief Justice Traynor’s endorsement of time, place, and manner rules. (In re Hoffman, supra, 67 Cal.2d at pp. 852–853, 64 Cal. Rptr. 97, 434 P.2d 353) Further, as Justice Mosk stated in [his dissent in] Dia- mond II [11 Cal.3d at p. 342, 113 Cal. Rptr at p. 476, 521 P.2d at p. 478], “It bears repeated emphasis that we do not have under consideration the property or privacy rights of an indi- vidual homeowner or the proprietor of a modest retail estab- lishment. As a result of advertising and the lure of a congenial environment, 25000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the shopping center there). A handful of additional orderly per- sons soliciting signatures and distributing handbills in connec- tion therewith, under reasonable regulations adopted by de- fendant to assure that these activities do not interfere with normal business operations (see Diamond (I) 3 Cal.3d at p. 665, 91 Cal. Rptr. at p. 478, 521 P.2d at p. 470 (dis. opn. of Mosk, J.).) Respondent argues its Hospitals are like a modest retail es- tablishment rather than a large shopping center such as that in Pruneyard. General Counsel and Charging Party argue Re- spondent’s invitations to the general public through its art and music programs, lecture and other series, cafeteria’s and other food service providers, blood drives, library on site, and other actions to attract the public at large to its facilities render the Hospitals public forums. I do not find this argument persuasive. General Counsel and Charging Party have failed to demonstrate the Hospitals were akin to a “miniature downtown.” Pruneyard, supra at 910 fn 5. Moreover, it has not been demonstrated that the Hospitals are locations “where people mingle freely and gather to exchange viewpoints on public questions, and second, that it is an end des- UCSF STANFORD HEALTH CARE 523 tination in itself and the people in it are not on their way to any place else.” U.C. Nuclear Weapons Labs Conversion Project, v. Lawrence Livermore Laboratory, 154 Cal.App. 3d 1157, 1162 (1984). In the Lawrence Livermore Laboratory, decision, the issue was weather a visitors center operated by the Federal Gov- ernment is akin to a public street or park. The court held the concept of “public forum . . . is a continuum, with public streets and parks at one end and government institutions like hospitals and prisons at the other.” (Citations omitted.) The Hospitals are not analogous to public property. They do not invite the general public, only individuals seeking medical care at their facilities and their visitors and/or caregivers. There is no basis to conclude the Hospitals are public forums, i.e., public property or an evolution to a place similar to public property like a large shopping mall that invites the public to come for a broad spectrum of activities. The areas where the public is given access in the Hospitals are not advertised broadly. Parking lots have signs designating their use for pa- tients and visitors. While visitors could be construed to mean the public in general, Respondent’s cafeterias, other food ser- vices, and gift shops are not advertised to the general public. The number of visitors to the art collection, hospital tours, concerts, and other activities such as seminars, have not been demonstrated to be analogous in numbers or otherwise, to those visiting a large shopping mall, public park, or central down- town area where the general public is invited to gather. Federal and State regulations require Respondent to provide health care to the public. The intended purpose of these regula- tions is the availability of health care, not public places to con- gregate for all manner of purpose. In Planned Parenthood of Santa Barbara, Ventura & San Luis Obispo Counties, 14 Cal.App. 4th 162, 175 (1993), the court held: “Private medical facilities not devoted to general public use are under no consti- tutional burden to guarantee individuals access for the purpose of physical or verbal expression. (Planned Parenthood v. Wil- son, 234 Cal. App.3d 1662, 1674 (1991)). The exercise of the right to free speech at private abortion clinics is appropriate only “within the traditional public forum of the public side- walk.” Ibid. Charging party distinguishes the medical office building cases from the instant proceeding because they did not involve union activity. While in the instant case, unlike Planned Parenthood v. Wil- son, Id. there was no impeding or obstructing access of Re- spondent’s clients to its facilities, nor is the volatile issue of abortion involved, there was no demonstration the leafletting here under consideration occurred on public property. There was no demonstration that the Hospitals allow other leafletters to operate on its property. Indeed, it could be argued Respon- dent has a legitimate interest in preventing disruptions on its property. But, as held in Widmar v. Vincent, 454 U.S. 263, 270 (1981), involving a college, citing Healy v. James, 408 U.S. 169, 184 (1972): “While a college has a legitimate interest in preventing disruption on campus, which . . . may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of that action.” In this case, the handbillers were acting peacefully, without any claim of disruption or impeding any activity of the Hospi- tals. Respondent failed to justify the change in its rules when it banned distribution by nonemployees before 7 a.m. and after 8 p.m. There was no evidence of any disturbance or other inci- dent requiring the new ban. Accordingly, I conclude Respon- dent has failed to demonstrate the new policy was the imple- mentation of reasonable time, place and manner restrictions. The time restrictions appear to have limited access by the Un- ion to two shifts of Respondent’s employees without any dem- onstration of reasonableness. Respondent adduced no evidence concerning how these restrictions served its legitimate interests. There is no evidence the Union’s nonemployee organizers routine handbilling at these locations impeded Respondent’s provision of service to patients and their visitors. There were no demonstrable complaints from patients or visitors concerning handbilling outside the 7 a.m. to 8 p.m. time period. Respon- dent’s bare assertion there were complaints, has not been cred- ited. There is no evidence these routine and regular handbilling activities caused any complaint at any time sufficient to warrant as reasonable its the imposition of time, place, or manner [of] restrictions. The areas where these activities occurred were open to the public to ride buses, use the sidewalks to enter Re- spondent’s as well as the University’s buildings and to access university and public transportation. Individuals waited in their vehicles near these sites for employees. All these activities were permitted by Respondent after the policy change. Respondent did not limit the hours of deliveries, such as food supplies. Respondent limited only union activity by time and place restrictions. These permitted activities were not shown or claimed to be less disruptive than the handbilling permitted. The handbilling and other banned activities of the nonemployee union organizers before 7 a.m. and after 8 p.m. were not shown to be disruptive or in any way or impeded Respondent’s mis- sion of providing patient care. The Respondent has failed to demonstrate it has narrowly tailored its time, place, and manner [of] restrictions for legitimate reasons. See Grayned v. City of Rockford, 408 U.S. 104 (1974); H-CHH Associates v. Citizens for Representative Government, 238 Cal. Rptr. 841, 854 (Cal. App. 2 Dist. 1987), cert. denied 485 U.S. 971 (1988). There- fore, this record requires the determination Respondent failed to demonstrate its November 2, time, place, and manner [of] re- strictions were reasonable or that the handbilling was incom- patible with the usual activities at the involved locations. The Hospitals’ interests as a nonpublic forum must be weighed against the interests of the union organizers. As the court held in U.C. Nuclear Weapons Labs Conversion Project, v. Lawrence Livermore Laboratory, supra at 1164 citing Perry Educ. Assn. v. Perry Local Educator Assn., 460 U.S. 37, 103 S.Ct. 948, 957 (1983): This last category is a “nonpublic forum.” The court said that in such a place “distinctions in access on the basis of subject matter and speaker identity . . . are inherent and inescapable in the process of limiting a nonpublic forum to activities com- patible with the intended purpose of the property. The touch- stone for evaluating these distinctions is whether they are rea- sonable in light of the purpose which the forum at issue serves.” The issue then is whether the nonemployee organizers were engaged in expressions that are basically incompatible with DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 Respondent’s normal activity at the times and places here in- volved and whether Respondent’s property interests entitle it to exclude union organizers from its property? General Counsel and Charging Party, relying on In Re Lane, 71 Cal. 2d 872, 878 (1969), argue that a business that “invites the public generally to patronize its store and in doing so to traverse a sidewalk opened for access by the public,” may not rely upon private ownership of the sidewalk to strip the public of its right to en- gage in free speech activity on the sidewalk. This holding has been applied by the Board to a grocery store in finding a viola- tion of the Act to prevent union organizers from leafletting on the sidewalk in front of the store. Indio Grocery Outlet, 323 NLRB 1138 (1997), enfd. sub. nom. NLRB v. Calkins, 187 F.3d 1138 (1999). Respondent claims the sidewalks were not public areas thus it could legally bar or limit handbilling. The State of California has allowed union picketing on private property. In Sears, Roe- buck & Co. v. San Diego City District Council of Carpenters, 25 Cal.3d 317 (1979), the court held: In summary, the decisions of the United States Supreme Court and of this court recognize that the State of California, by statute or by judicial decision, may permit union activity on private premises. Our earlier decisions in Schwartz- Torrance Investment Corp. v. Bakery & Confectionery Work- ers Union, 61 Cal. 2d 766 (1964) and Lane,—rulings which have not been overruled or eroded in later cases—established the legality of union picketing on private sidewalks outside a store as a matter of state labor law. Charging Party maintains that this rule should apply to hand- billing with even greater force than picketing because handbill- ing is “pure speech” while picketing is “a mixture of conduct and communication.” DeBartolo Corp. v. Florida Gulf Coast Bldg. & Construction Trades Council, 485 U.S. 568, 580 (1988). This issue has admittedly not been considered by the California courts. However, Charging Party avers there is no reason to believe the California courts intended to carve out an exception to the Lane holding for hospitals. Particularly, the Union argues, where hospitals are increasingly acting like other employers and businesses and “a full-service hospital is closely analogous to a supermarket in that it provides an essential ser- vice, and it is fully open to the entire community.” I find this argument takes the concept of businesses that invite the general public like a shopping mall as similar to the Hospitals to far. These Hospitals are not areas of general entertainment and shopping as the meager attendance at its tours, programs and usage of its cafeterias and gift shops illustrate. In sum, while I have found the handbilling incidents were not shown to have occurred clearly within Respondent’s lease- hold or agency for purposes of enforcing trespass prevention rights, if such property interests are found, I conclude General Counsel and Charging Party have failed to demonstrate Re- spondent’s facilities are public forums within the meaning of Pruneyard. The gift shops and cafeteria’s maintained by Re- spondent are not publicized to the general public by advertising to the surrounding communities. While Respondent failed to enforce its sign in requirements and granted access to the public for art tours, musical events, general tours of its facilities, and programs and seminars, the attendance at such events almost all the time was less than 100 persons. Based on the evidence of record, I conclude Respondent is not a public forum as defined in Pruneyard, and its progeny. However, I further find Respon- dent has failed to demonstrate its time, place and manner [of] restrictions were reasonable under the presented circiumstances of peaceful, not disruptive handbilling or quiesent waiting for employees at a location others tranditionally waited for rides and to meet employees. Respondent has not presented any evi- dence these activities disrupted or otherwise impeded any nor- mal activity in these areas. Grayned v. City of Rockford, 408 U.S. 104, 116 (1974). 3. Did Respondent discriminatorily or otherwise improperly enforce its access rule against Harland The evidence clearly demonstrated that Respondent’s agent removed Harland from a bench in front of LPCH when he was merely sitting awaiting an employee and they would leave the premises together in the employee’s relatives vehicle. He was not engaged in any leafletting or solicitation of employees. The bench is admittedly on Respondent’s property. Charging Party argues this was disparate treatment of an union organizer con- trary to the requirements of Lechmere, supra, 502 U.S. 527.65 General Counsel argues Harland’s eviction was improper under the applicable California law. See also Babcock & Wilcox, 351 U.S. 105 at 112 (1956). Under this exception, “an employer may be found to have engaged in discrimination under Section 8(a)(1) if it denies union access to its property while allowing comparable activities by other nonemployee entities.” Charging Party argues that by removing Harland from the bench, Respondent discriminated against the Union because it did not demonstrate that it evicted other nonemployees from the benches in front of LPCH, citing Nick’s, 326 NLRB 997, 1000 (1998): Contrary to the suggestion of our colleagues, we do not be- lieve that the Respondent must monitor every table conversa- tion to make sure that solicitations do not occur. Thus, if the employer has reasonable cause to believe that union agents are soliciting at a table (e.g. they are talking to employees and displaying cards), the employer may invoke an otherwise valid rule against solicitation. And, if the employer has rea- sonable cause to believe that other persons are engaging in comparable solicitation, the employer may apply such a rule to that activity. In order to establish a violation, the General Counsel would have to show that the employer forbade the union agent’s conduct and permitted the other person’s com- parable conduct. I find General Counsel has met this burden. While others were seated on the benches and were in the same general area as Harland that September day, the guard only asked Harland to leave. Harland readily admitted the security guard knew he was a nonemployee union organizer. While Respondent may argue the security guard had reason to believe Harland was violating a hospital rule, Harland informed him he was merely waiting 65 There is no claim or issue that Respondent’s employees are be- yond the reach of reasonable efforts by the union to communicate with them. UCSF STANFORD HEALTH CARE 525 for a ride. The guard then informed him he was not permitted to be there and his statement indicated exclusion regardless of activity. There was no sign on or near the bench limiting its use. This ban was imposed prior to Respondent’s issuance of the memorandum by Smith on or about November 2 and the solicitation andl distribution rule. Moreover, the guard issued a general ban against Harland being on Respondent’s property regardless of his activities, when he walked him to the end of the street on Welch and in- structed him “don’t come back.” Harland’s actions at this time were not shown to be in violation of any of Respondent rules or policies either before or after November 2. That Harland walked back to the same area and met the employee, then left in her relatives car, does not constitute repudiation or mitigation sufficient to remedy the situation. The record has several ex- amples of individuals waiting for workers to give them rides in vehicles in front of or near exits of Respondent’s facilities. This testimony was not refuted. There is no claim by Respondent that it routinely or by a date certain, precluded friends, family and other nonemployees from waiting on or near its property to give rides to employees. Accordingly, I conclude the guards’ removal of Harland in September was violative of Section 8(a)(1) of the Act because it discriminated against him because he was a union organizer. Assuming Harland’s eviction was not discriminatory, I find, under applicable California precedent, Respondent improperly removed Harland from its premises because he was in a place any other member of the general public merely peacefully sit- ting on that bench was considered as lawfully stationed. Sears, supra. General Counsel also persuasively argues Respondent did not demonstrate the exclusion of Harland was persuant to reasonable time, place, or manner [of] restrictions. Harland’s sitting on a bench awaiting a ride was similar to the normal activity that occurred at that location at that time. Grayned, supra. Respondent failed to establish its removal of Harland was based on any objective criteria inasmuch as the restriction against his sitting on the bench awaiting a ride was not shown to have been based on any interference with the conduct of Respondent’s business or the customary use of the bench, such as impeding or blocking movement of patients or visitors. There was no evidence anyone was inconvenienced to the least degree by Harland’s sitting on the bench. Id. at 853. Accord- ingly, under this alternative theory, I find Respondent improp- erly evicted Harland in violation of Section 8(a)(1) of the Act. 4. Union access under the Moscone Act General Counsel argues that California law, particularly the Moscone Act, Cal. Code of Civ. Proc. Sec. 527.3, prohibits Respondent’s exclusion of the nonemployee organizers. The seminal case on this issue is Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 25 Cal.3d 317 (1979), 599 P.2d 676 (1979). The Sears decision involved a union’s peaceful picketing on Sears’ privately owned sidewalks that it had opened up to public use. For the purposes of this decision, I find Respondent’s side- walks where the union organizers were handbilling or waiting to meet an employee, are analogous to the sidewalks in the Sears case. Respondent did not post the areas involved with no trespassing or other signs limiting their use and access. The area involved in the Ramirez exclusions served a public bus as well as a university shuttle without limit to the identity or pur- poses of the passengers. The area where the three union organ- izers were handbilling on or about November 2, was at the intersection of several pathways joining parking, Hospital, and university facilities. There was no evidence of littering, disturbance, disorder or other interference with the use of the Hospitals, University, parking or the orderly use of the sidewalks and streets. There is no question the union organizers conducted themselves in a peaceful and quiet manner at all times involved herein. There is no claim the union organizers engaged in any unlawful activity other than Respondent’s claims of trespass. There were no claims of breach of the peace, disorderly conduct, blocking access or egress to any area within Respondent’s leasehold or control, or interference with Respondent’s State Constitutional right to privacy. See In re Frederick A. Hoffman, 67 C.2d 845, 434 P.2d 845 (1967). The Sears case was decided on remand from the Supreme Court to determine the appropriateness of enjoining the union’s picketing on Sears’ sidewalks under State law. The Sears deci- sion concluded the Moscone Act “establishes the legality of certain labor practices and limits the equity jurisdiction of the superior court to enjoin such practices.” Thus, General Counsel convincingly argues, there was no trespass and the Lechmere, decision requires the employer to have a property interest suffi- cient to make the union’s presence a trespass. The Moscone Act exempts the handbilling and other organizing activities of the nonemployee union organizers from the State’s trespass laws. Therefore, Respondent could not lawfully evict or attempt to evict these union organizers under applicable State law in the circumstances of this case. The Sears court, supra, referred to the preamble of the Moscone Act which provides: In the interpretation and application of this act the public pol- icy of this state is declared as follows: Under prevailing economic conditions the individual unorganized worker is commonly helpless to exercise ac- tual liberty of contract and to protect his freedom of labor and thereby to obtain acceptable terms and conditions of employment. It is therefore necessary that he have full freedom of association and self-organization and the right to engage in concerted activities for the purpose of collec- tive bargaining, picketing or other mutual aid or protection . . . . Subdivision (b) of the Moscone Act provides: The acts enumerated in this subdivision, whether per- formed singly or in concert, shall be legal, and no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent in- junction which, in specific or general terms, prohibits any DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 526 person or persons,66 whether singly or in concert, from do- ing any of the following: (1) Giving publicity to, and obtaining or communicat- ing information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace. (2) Peaceful 67 picketing or patrolling involving any la- bor dispute, whether engaged in singly or in numbers. (3) Assembling peaceably to do any of the acts speci- fied in paragraphs (a) and (2) or to promote lawful in- terests. The Sears decision found the last clause on subdivision (a),68 requires the conclusion that “the provisions of subdivision (b) . . . .shall be strictly construed in accordance with existing law governing labor disputes with the purpose of avoiding any un- necessary judicial interference in labor disputes.” The Sears court maintained that even prior to the Moscone Act, a prior State court decision: “establishes that peaceful picketing on privately owned walks outside the employer’s store is not sub- ject to injunction, those decisions also explain that judicial intervention in such a case is ‘unnecessary’ to protect substan- tial rights of the employer.” The Sears decision, citing both State and Federal precedent, found both governing entities “may grant unions rights to con- duct activities on the employer’s property, albeit, private prop- erty.” Therefore, the court concluded the union’s picketing on private property “is lawful conduct so long as it does not in- volve fraud, violence, or breach of the peace.” Moreover, it determined “a person does not violate subdivision (n) [of the Penal Code section 602] by refusing to leave property on re- quest of the owner, his agent, or the lawful possessor of the property, if the person is ‘engaged in lawful labor union activi- ties which are permitted to be carried out on the property by the California Labor Relations Act. or by the National Labor Rela- tions Act.’” That the Sears case involved a retail store does not alter the applicability of the Moscone Act to this case. 66 This subdivision clearly does not limit its application to the activi- ties of employees for it refers to the defined actions of any person or persons. 67 I find this provision clearly includes the peaceful noninterfering handbilling by nonemployee union organizers. The incidents were in areas “where any person or persons may lawfully be.” 68 Subdivision (a) of Sec. 527.3 declares: In order to promote the rights of workers to engage in con- certed activities for the purpose of collective bargaining, picketing or other mutual aid or protection, and to prevent the evils, which frequently occur when courts interfere with the normal processes of dispute resolution between employers and recognized em- ployee organizations, the equity jurisdiction of the courts in cases involving or growing out of a labor dispute shall be no broader than as set forth in subdivision (b) of this section, and the provi- sions of subdivision (b) of this section shall be strictly construed in accordance with existing law governing labor disputes with the purpose of avoiding any unnecessary judicial interference in labor disputes. Respondent’s witness Watkins admitted its understanding of the circumstances leading to the removal of individuals from the Hospitals’ properties were based on the laws of trespass as follows: A. Well, it could be a number of circumstances. The general circumstances would be being disruptive to patient care or business operations, which would fall more under normal trespass. The being in a restricted area all the way to not having a purpose to be in the hospital or the area in the hospital that they’re in. Soliciting material or mem- bership or organizations or selling things, really of any kind. Those types of reasons would be a reason to talk to somebody about their right to be in the facility. Q. Does the Security department maintain a record of those people that it removes because of trespass? A. Yes, it does. There is no evidence the incidents involving eviction or at- tempted eviction of nonemployee union organizers in this case involved circumstances where they were disruptive of patient care or any of the business operations of the Hospitals. The Supreme Court in Lechmere, Inc. v. NLRB, supra 502 U.S. 527 at 535, acknowledged the impact of the Sears decision on Sec- tion 7 and concluded “arguable Sec. 7 claims do not preempt state trespass law, in large part because the trespasses of non- employee union organizers are ‘far more likely to be unpro- tected than protected.’” The fact that the union activity is pro- tected rather than private property rights under California law, does not alter this holding of Lechmere. Thus, under California law, nonemployee union organizers peaceful handbilling or other lawful actions are not trespass and are protected conduct. The Moscone Act clearly privileges peaceful handbilling by nonemployee union handbilling on private property and ex- empts such activity from its trespass provisions. The State’s laws do not protect property owners or their appropriate agents from the requirements of the National Labor Relations Act for conduct not shielded by its trespass laws. The State abrogated Respondent’s property rights in the case of peaceful and other- wise lawful union handbilling and other organizing activities. The United States Supreme Court has not found the granting of access to nonemployee union organizers “an unacceptable ‘compelled subsidization.’” Abood v. Detroit Board of Educa- tion, 431 U.S. 209 (1977); Lechmere, id at 98. Therefore, I conclude that under the circumstances of this case, Respondent was not privileged under state trespass laws to exclude or at- tempt to exclude the nonemployee union organizers from hand- billing or meeting employees during certain times and in certain places outside the Hospitals. Respondent argues the Moscone Act does not confer any sub- stantive rights to the nonemployee union organizers where there is no public forum. In Allred v. Shawley, 232 Cal. App. 3d 1489 (1991), involving enjoining antiabortion protesters from entering a private parking lot of a professional center, the court noted “the heightened weight given to the speech rights . . . because they pertained to union interests.” The property involving these union interests, contrary to Respondent’s contentions, was not limited to public forums. Rather, as was noted in the Sears decision, the private property interests of the owner or appropriate agent, were UCSF STANFORD HEALTH CARE 527 subrogated to those of the State where concerted employee activ- ity was concerned, including the activities of nonemployee union organizers, as exemplified by the reference to “any person” in the Moscone Act being included in the protected activity. Respondent’s letter to the Union by Smith and the actions of its security agents enforced and then published an invalid pol- icy. Since these handbillers were lawfully on Respondent’s asserted property, assuming arguendo it was within the lease- holds, its exclusion and attempts to exclude these handbillers, therefore, is violative of Section 8(a)(1) of the Act because Respondent interfered with activities protected by Section 7 of the Act when those union organizers were in location the may legally handbill or meet employees under California law I conclude Respondent’s claim its action in excluding or at- tempting to exclude the union organizers were de minimis to be without merit. Respondent did not reverse or otherwise at- tempt to repudiate the actions of its security guards. While Ra- mirez, during one incident, initially engaged in activities in the Stanford Hospital cafeteria, she was also asked during the inci- dent to leave the area of the bus/shuttle stop.and go to a parking lot. Ramirez complied and went to the parking lot. Respondent claims she continued her activities there without interference. There was no demonstration the employees she reached in the parking lot were all the same employees she would have con- tacted at the bus/shuttle stop. In fact Ramirez testified, without contradiction, that she could not contact some of the employees she would have contacted at the bus/shuttle stop. Some of the employees may have used the bus or shuttle and not have been in the area of the parking lot. As noted above, Respondent agents’ action within the hospital are not claimed or found to be violative of the Act. In sum, I conclude Respondent has failed to establish that the union organizers it evicted or attempted to evict were clearly within its leasehold; the eviction of Harland from its leasehold was discriminatory or otherwise unlawful; the Hospitals are not public forums; and, the Moscone Act limits Respondent’s prop- erty rights so that even if the handbillers were within its lease- hold, Respondent was not privileged to evict or attempt to evict them under the Moscone Act. Respondent failed to prove these actions were necessitated by the Hospitals unique patient care responsibilities. Accordingly, I conclude its evictions and at- tempted eviction violated Section 8(a)(1) of the Act. B. Is Respondent’s Solicitation and Distribution Policy Overbroad? General Counsel and Charging Party claim Respondent’s so- licitation and distribution policy is overbroad because it unlaw- fully bans solicitation and distribution in patient admitting and registration areas, general waiting areas and lounges, hallways and other unspecified areas where patients visit with friends and family. The two lead cases involving hospitals rules con- cerning solicitation and distribution are NLRB v. Baptist Hospi- tal, 442 U.S. 773 (1979) and Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). The general principles concerning the balancing of employer and employee rights was stated in NLRB v. Babcock & Wilcox Co., supra, 351 U.S. 105, 112 (1956), as follows: “Accommo- dation between [employee-organization rights and employer- property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other.” The Board applied this holding by establishing the presumption that any restrictions on employee solicitation and distribution during nonworking time in nonworking areas are violative of Section 8(a)(1) of the Act unless the employer demonstrated special circumstances or a need to maintain production or discipline. The determination in this decision are based on the predicate any solicitation or distribution would not occur on working time in working areas. In St. John’s Hospital & School of Nursing, 222 NLRB 1150 (1976), the Board found a different rule should be applied to hospitals than other business based on their special circum- stances and attributes, as following: [T]hat the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohi- bitions on solicitation than are generally permitted. For exam- ple, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the patients’ rooms, operating rooms, and places where pa- tients receive treatment, such as x-ray and therapy areas. So- licitation at any time in those areas might be unsettling to the patients—particularly those who are seriously ill and thus need quite and peace of mind. The Board further determined in the St. John’s Hospital case it had to consider the circumstances to ascertain the probability of disruption of patient care in areas like lounges and cafeterias. The Board held, absent a demonstration disruption of patient care would result if solicitation and distribution were allowed in those areas, a rule preventing solicitation at those locations is overbroad. The Board, therefore, indicated it would consider as presumptively invalid, hospital rules that ban solicitation in other than “immediate patient care areas.” There is a greater limitation on distribution. Distribution may be banned from work areas that are not patient care areas. Respondent cannot ban distribution in non-working areas during nonworking time unless it had demonstrated the prohibition is necessary to main- tain discipline and production. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). The Court held in Beth Israel Hospital v. NLRB, supra at 506–508: In the hospital context the situation is quite different. The main function of the hospital is patient care and therapy and those functions are largely performed in areas such as operat- ing rooms, patients’ rooms, and patients’ lounges. The Board does not prohibit rules forbidding organizational activity in these areas. . . . In summary, we reject as without merit petitioner’s contention that, in enacting the 1974 health-care amend- ments, Congress intended the Board to apply different principles regarding no-solicitation and no-distribution rules to hospitals because of their patient-care functions. We therefore hold that the Board’s general approach of re- quiring health-care facilities to permit employee solicita- tion and distribution during nonworking time in nonwork- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528 ing areas, where the facility has not justified the prohibi- tions as necessary to avoid disruption of health-care opera- tions or disturbance of patients, is consistent with the Act.... Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique con- siderations that do not apply in the industrial settings with which the Board is more familiar. 1. Clear patient care areas I find the units housing patients and the waiting areas for pa- tient services such as radiology, oncology, outpatient surgery, endoscopy, laboratory work, and other procedures and therapies are clearly immediate patient care areas as defined in St. John’s Hospital & School of Nursing, supra,. That Respondent en- gaged in distribution of its antiunion literature in some of the units, does not alter the fact that the activities within the units is clearly immediate patient care and Respondent’s actions do not abrogate or alter the need to protect the provision of immediate patient care in these areas. I further find the day rooms, which are also used by employees, because they are within the units and are clearly areas that are used by patients and their families to visit and are overseen by the staff for patient care, are also properly included in the ban. The Union, for the purposes of this proceeding, assumes the hallways inside the nursing units qualify as working areas and therefore the ban on solicitation distribution in these inside the unit hallways is appropriate. Some of the units have breakrooms. Respondent has not demonstrated these rooms, designed for employees to take their breaks and meals, should be included in the ban of solicitation and distribution. The employees have two 15-minute breaks and one-half hour for their meal period. The breaks are stag- gered and there may not be the requisite privacy in those break- rooms in some units. Therefore, the Union argues, there is a need to permit solicitation and distribution in areas close to the employees work stations. The question then is whether Re- spondent has borne its burden of proving the ban against em- ployee solicitation and distribution to outside the units hall- ways, waiting areas, admitting areas and/or registration areas, except the breakrooms, was justified by demonstrating these were immediate patient care areas “as necessary to avoid dis- ruption of health care operations or disturbance of patients.” Beth Israel, supra at 507. In this case, employee solicitation and distribution are permit- ted in the Hospitals’ cafeterias. In Baptist Hospital, the Court found, in fn 11: “Solicitation may disrupt patient care if it inter- feres with the health-care activities of doctors, nurses, and staff, even though not conducted in the presence of patients. And so- licitation that does not impede the efforts of those charged with the responsibility of caring for patients nonetheless may disturb patients exposed to it.” The court considered the testimony of some of the Hospital’s medical staff concerning their perceptions of the effects of solicitation being disruptive of patient care and the success of treatment in areas where patients and their families may be disquieted by the actions of hospital staff that demon- strated concerns other than patient care. The Supreme Court held in Beth Israel Hospital, 98 S.Ct. 2463 (1978) at 2472–2473: If Congress was willing to countenance the total, albeit tem- porary, disruption to patient care caused by strikes in order to achieve harmonious employer-employee relations and long- term improved health care, we cannot say it necessarily re- garded appropriately regulated solicitation and distribution in areas such as the cafeteria as undesirable without evidence of a substantial threat of harm to patients. In light of Congress’ express finding that improvements in health care would result from the right to organize, and that unionism is necessary to overcome the poor working conditions retarding the delivery of quality health care, we therefore cannot say that the Board’s policy—which requires that absent such a showing solicitation and distribution be permitted in the hospital except in areas where patient care is likely to be disrupted—is an im- permissible construction of the Act’s policies as applied to the healthcare industry by the 1974 amendments. The next question then, is whether Respondent bore its bur- den of demonstrating “a substantial threat of harm to patients,” Ibid, through the evidence it adduced in this proceeding con- cerning the areas outside the units as well as treatment, proce- dure and therepy waiting rooms. 2. Should the opinion testimony of Respondent’s witnesses be considered? Charging Party argues under Daubert v. Merrell Dow Phar- maceutical, Inc., 509 U.S. 579 (1993), Respondent failed to demonstrate their experts testimony met the requisite standard of evidentiary reliability. The Daubert “gatekeeping” require- ment of experts is not restricted “to scientific testimony but to all expert testimony,” including technical and other specialized knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). It is important to note the gatekeeping function required in Daubert and Kumho, does not supplant cross-examination and the presentation of contrary evidence as the appropriate means of testing shaky or questionable testimony. Daubert, supra at 596. The testimony here in issue is experience based testimony that the Kumho decision stated may be subject to the Daubert criteria. The first question is whether the Daubert or other rea- sonable criteria are appropriate in this instance. The Daubert criteria applied to: “(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” The Kumho decision expanded the Daubert criteria to all expert testimony. The Daubert criteria required the trial court to de- termine: “(1) whether the theory can and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the theory’s general acceptance.” Ibid at 593. As the Kumho court held: “But as the Court stated in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclu- sively applies to all experts or in every case.” Charging Party and General Counsel argue the opinion tes- timony of Drs. Gregory and Hammer, and Ms. Flanagan69 is not admissible under Rule 702 of the Federal Rules of Evidence, which states: 69 I have also considered the testimony of Wayman using the Kumho criteria. UCSF STANFORD HEALTH CARE 529 If scientific, technical, or other specialized knowledge will as- sist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The first requirement under this rule is the expert’s knowl- edge must be helpful to the finder of fact. I conclude the testi- mony of Drs. Gregory and Hammer, and Ms. Wayman and Ms. Flanagan meet this criterion. The second requirement is the witness must be qualified. Dr. Gregory has been a physician for 36 years with a specialty in internal medicine and liver disease. He is employed as the senior associate dean at the University’s medical school. From September 1994 through November 1997 he was the chief medical officer at the Respondent’s predeces- sor Stanford Health Services. Since April 1999, he has been the chief medical officer at Stanford Hospital. He has been a treat- ing physician since his graduation from medical school in 1963. During the course of his duties as a treating physician he talks to patients and their families frequently. There was no chal- lenge to Dr. Gregory’s status as an expert. Dr. Hammer has been a doctor of medicine since 1976. He has been a pediatrician since 1980 and currently practices gen- eral pediatrics. He was also an assistant then associate professor of pediatrics at Stanford University since 1982. He is currently the medical director for ambulatory care services at LPCH which covers all the outpatient clinical services at LPCH and “those that are satellites to” LPCH. He treats both inpatients and outpatients. In the course of treating pediatric patients, which he considers includes individuals through the age of 18, he routinely deals with their parents “[a]ll the time.” Based on his background, I find Dr. Hammer is an expert. Flanagan is the vice president for patient care services at Stanford Hospital. She has held the position for 1 year. Prior to that, she was employed in the same position as LPCH’s prede- cessor. For 9 years before that appointment she was the admin- istrative director for maternal child services at the University of California, San Francisco. She is a registered nurse holding a Bachelor’s and Master’s degree of science. She has been a nurse for 27 years, principally “in pediatric and intensive-care- unit settings in a variety of different academic medical centers and children’s hospitals.” She worked as a staff nurse for about 17 years and an administrator for the past 10 years. She over- sees the family resource center at LPCH whose mission in- cludes augmenting the efforts of LPCH’s health care team by providing medical information and health education; fostering understanding of pediatric medical and health issues, assisting the patients and their families to cope with illness and hospi- talization, encouraging communication between patients, their families and the health care professionals and, contributing to the healing environment of the Hospital through reading, story- telling, and the arts. It was not established on this record how frequently she met with patients and their families in the past or, whether her ad- ministrative duties the past 10 years brought her into regular contact with patients and their families in a setting that lends validity to her opinion: [T]hat families play a greater role in the pediatric setting, be- cause children are emotionally immature and they really are very dependent on their families to help support them during a hospitalization. . . . Because they really need to be there with the child to help comfort the child, to help familiarize the child with the surroundings, to help really convey to the staff the child’s routines at home so we can incorporate them into the hospitalization. We have to do many painful procedures to children, such as stick them with IV’s and do other proce- dures, and we really rely on the parents to help us comfort the child during these procedures. Respondent failed to establish how Flanagan’s oversight of the family services program or other duties have made her an expert in the needs of patients and their families and visitors, particularly in the registration or admitting areas, waiting areas and hallways outside the units. There was no evidence how frequently she has met with pa- tients and their families or the subject matter of these meetings. There was no evidence how frequently she visited and exam- ined the areas outside the units that Respondent included in its solicitation and distribution policy. There is no evidence she participated in the formulation of the rule circulated to the en- tire staff of both hospitals after the commencement of the union organizing campaign. Accordingly, I conclude Flanagan has not been shown to be an expert concerning the needs of patients and their families in these locations. Moreover, on one or more occasions during her testimony she did not appear to be very familiar with these areas. The next issue is whether the testimony of these witnesses, which are clearly opinions, are based on sufficient facts or data. Wayman is currently employed by the University’s department of pediatrics. One of her duties “is as the director of the Family- Centered Care project, which is a project that’s looking at modifying patient care as we give it today and it’s, again, a research project using parent focus groups as a way to gather information to change that model of care.” Wayman described the project as follows: It’s a model of care that moves away from the current care, which is an expert-driven model where physicians tell patients what to do and they do it, or not, and then looking towards partnerships in which parents and physicians and other health care providers are making decisions together on the child’s health care plan. To reach this goal, Wayman stated that she is developing the “research methodology which is, as I said, as a focus group methodology and also come up with quantitative measures. To develop a model of [sic] program, a training program for fami- lies and health care providers. To make sure this model shows efficacy and, thereafter, to broadcast it throughout the hospital.” She began this research project at another hospital and it was moved to the University in 1994. She holds monthly focus groups with families and healthcare professionals to determine what aspects of hospital care they consider not supportive of the patients and families needs. She has prepared several peri- odic reports. She also meets with families individually. The project’s data must be summarized yearly. Some of the results of her study are incorporated into the models and training mate- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530 rial developed during the course of the study. She and/or Re- spondent did not present any of the reports, training materials or models developed as a result of the study to this trial. This failure was unexplained. Wayman admitted the study was based on a set of presumptions which are being tested by the program. Based on the results of the study, the program will be modified or discontinued. She did not give any of the preliminary results of the study. This failure was unexplained. Respondent did not present any similar studies preformed in other hospitals. Wayman also testified about her experiences as a develop- mental interventionist where she daily sees children and fami- lies on the liver transplant service. She described these duties as twofold: “One is to determine the child’s developmental status and see how the child’s responding to the hospitalization. And the second is to work with the family in terms of their ability to negotiate the hospitalization.” I conclude she is an expert in this area. She described one result of the focus groups was the de- termination: [T]hat parents feel very reluctant to ask questions, to advocate for their child while in the hospital; that they have a lack of social support. So, our training is really focused on those as- pects. How do you develop a partnership with health care providers? How do you ask questions? If you don’t feel sup- ported, where do you go to get the support? Who do you go to to get the support? We’re really focusing on empowering families to be able to ask questions while their children are hospitalized. . . . So, if you are—after we give them the strategies to work with health care providers in the hospital, then we’re in the hospital room supporting that partnership between health care providers and the families and being a media- tor between the two. She opined, based on her research and experience, that staff members; talking abruptly to parents, appearing too busy, not getting needed information, and the lack of social support, are some of the many barriers to developing the desired family-care giver partnership. She has determined from her study the par- ents primarily want access to good information, including di- rection as to how to acquire that information. They also want assistance from mentors to assist them in getting that informa- tion and to help them advocate for their child. Parents have also raised the need for more privacy [T]hat people don’t walk in the door without knocking, that they have time for release and recovery, quiet time, down time, psychological recovery.70 That health care providers ap- proach them in terms of sharing information instead of telling them how the day’s going to go. So, for instance, health care providers typically come in and tell them what the plan for the day will be. We’re now changing health care provider behavior to come in and say, “What are your expectations for the day? How would you like to see the day go?” and then coming up with a plan together. Those kind of strategies. . . . 70 She defined recovery as “getting a break from the intensity of the room.” In the hospital room, parents are often inundated with people. There’s been several studies on the number of people who come into a hospital room, and it can be up to 44 in a day. They’re inundated with information. They’re required to make decisions, multiple decisions during the day. They need time where they can focus on themselves, to have some quiet time, time without inter- ruption, time with other family members without interrup- tion, and—where they’re not affected by things going on in the hospital. According to Wayman, the families go for quite time and re- covery to the alcoves in the hallways outside the LPCH units, the waiting rooms outside the family resource library, the fam- ily lounge, and the playroom or day room “because they’ll take siblings or even their child to the playroom. That’s a place where there’s not active health care going on. There’s devel- opmental intervention going on.” According to Wayman, when she participates with families in the decision making process, they meet in a variety of locations depending on the nature of the decision under consideration. If there are decisions, of course, such as removal of life sup- port or patient selection, we are in enclosed rooms. If it’s a decision where families—when we’re doing some of that me- diation or discussing the plan for the day, we will meet in the alcoves if the room is not appropriate, the room of the child old enough to understand what we’re talking about. Or if we’re looking at developmental status, well, we can go to the playroom and we’ll do our intervention in the playroom and discuss what the next steps should be. It depends on the level and the sensitive—sensitivity of the information. Wayman did not testify how frequently she participated in conversations with parents in the alcoves adjacent to the atrium on the second and third floors of LPCH. She did not testify to having any such conversations either inside or outside the units at Stanford Hospital. Her testimony concerning her observa- tions of where patients and their families go is based solely on her experiences with the liver transplant patients and their fami- lies involving the unit located on the second floor of LPCH. Within the unit housing the liver transplant patients at Stanford Hospital, there is a day room. Wayman speculated that the so- cial workers and other professionals could meet with families in a family room or alcoves outside the unit, in the patients’ rooms depending on the nature of the conversation, whether it is a double occupancy room with both beds occupied,71 and the age of the patient. She opined the alcoves were preferable because the day room and family waiting room are more likely to have other families and patients in them. Wayman has observed social workers speaking with families in the alcoves while people walked past them in the adjoining hallway 4 or 5 feet away. She has not received a specific com- plaint from patients in the waiting areas outside the transplant unit that employees passing by disturbed them. She only re- 71 She admitted on cross-examination that at times, all that is done in a double occupancy room is to draw the curtain around one bed to hold a conference with the patient and/or family. UCSF STANFORD HEALTH CARE 531 ceived generalized complaints concerning the lack of privacy in the Hospital. Patients would like to have more enclosed rooms for privacy, rather than the alcoves which are open to all pass- ing in the hallway. She has not received a specific complaint concerning people passing by the alcoves. Wayman further testified parents infrequently go downstairs to the LPCH atrium for recovery. Her testimony indicates LPCH patients and their families do not have an expectation of privacy in the wating areas and adjoining hallways outside the units. Under the Daubert criteria, I find the testimony of Drs. Gregory and Hammer, Flanagan and Wayman relevant to de- termining the issue of the scope of the area included in the term patient care. The next area of concern is whether their testi- mony is reliable or even subject to the requirements of Rule 702 of the Federal Rules of Evidence. None of their testimony has been shown to have been subjected to peer review or publi- cation. Their observations of patient and family needs do not have a known or projected rate of error. However, the observa- tions of Drs. Gregory and Hammer and Wayman were based on their first hand observations. The Kumho decision specifically made expert testimony based on observation and experience the subject of the reliability test of Daubert. Respondent has not adduced any evidence of the results of Wayman’s study. Although Wayman testified the theory behind the study has been around since about 1950, Respondent has failed to introduce any literature or preliminary results from Wayman’s study that has been subjected to peer review or pub- lication. In fact, Respondent is subjecting the validity of the claims of these witnesses that the families need to be free from employee solicitation and distribution throughout the areas described in its rule to be tested in the study headed by Way- man. However, the Daubert and Kumho Courts recognize the inapplicability of the factor of general acceptance to “help show that an expert’s testimony is reliable where the discipline itself lacks reliability.” However, in the instant case, the general reli- ability of these witnesses observations during the course of their practices have not been shown to come from an unreliable discipline, and therefore establishes some ground for finding their testimony reliable. As noted in Kumho Tire Co., supra, at 152: It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that charac- terizes the practice of an expert in a relevant field. . . [T]he trial judge must have considerable leeway in determining the reliability of challenged expert testimony. . .That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony. The initial question, then, is whether the observations of Drs. Hammer and Gregory present a theory concerning family and patient needs that can and has been tested. Wayman is testing these needs in her study but Respondent has failed to adduce the admittedly available documents detailing any of the results of her study. This unexplained failure raises in inference the study results to date would have been adverse to Respondent’s position and would not have supported Drs. Hammer and Gregory and Wayman’s testimony. SDC Investment, 299 NLRB 779 (1990) and cases cited therein. Wayman’s activities demonstrate the issues addressed by Drs. Gregory and Hammer are subject to scientific study and evaluation. Wayman testified the theories she is testing were postulated in the 1950s and are the subject of studies. The results of any of these studies were not placed in evidence. Any oversight and evaluation of Way- man’s studies was not placed in evidence so there is no infor- mation concerning peer review, publication or whether her information has been tested. Respondent through Wayman or otherwise did not address the issue of the known or possible errors in the positions adopted by its witnesses. The last Daubert, factor is the theory’s general acceptance. While the similarity of the testimony of Drs. Hammer and Greg- ory, and Wayman could be argued to favor a finding of general acceptance, the evidence of record, including Respondent’s rules or lack thereof, mitigate against such a finding. Respondent does not limit any conversations other than solicitations. Drs. Ham- mer and Gregory testified any conversations that did not deal with patient care could be upsetting to families and patients. Respondent has not adduced any reliable testimony that un- ion solicitations are any more disturbing than conversations involving religious, political or other potentially volatile sub- jects. The employees similarly are not restricted from passing magazines that might contain controversial articles to one an- other. Respondent does not screen the periodicals and other reading materials it sells on its premises to avoid patients and their families from seeing potentially controversial information. Drs. Hammer and Gregory did not see any solicitation or distri- bution, therefore they could not testify as to the actual impact of such activity upon patient care. That Respondent does not restrict employees’ use of the waiting areas outside the units or the content of their discussions or activities save for solicitation and distribution raises the inference employees’ activities such as discussing controversial subjects or passing controversial literature nnote related to unionization is not perceived by Re- spondent as disruptive of health care. Based on the unrefuted evidence, the opinions of Drs Hammer and Gregory, and Way- man were merely unsubstantiated surmise. Drs. Hammer and Gregory, and Flanagan and Wayman did not claim to have conducted any research into the effect of union or other solicitation and distribution upon patients and their families. The Court in Daubert, supra at 590, defined knowledge as: The word “knowledge” connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good ground. Respondent, based on its institutional knowledge, has not seen fit to limit the general scope of the conversations of its employees to noncontroversial subjects within the patient units. Therefore, I find it has failed to demonstrate the opinions of two of its doctors and one of its administrative staff, who has not been shown to deal regularly with patients and their fami- lies in therapeutic settings, is more than subjective belief. Re- spondent receives and monitors patient complaints, including complaints from families, yet it admits it has not received DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532 many, if any complaints concerning employee solicitation and distribution. Respondent has also not analyzed the complaints to demonstrate it has a factual basis to infer employee solicita- tion and distribution are more detrimental to patient care than conversations and printed materials dealing with controversial matters. In fact, newspaper and other media comments concern- ing the instant organizing efforts were distributed in the Hospi- tals in newspapers and on television. There is no evidence pa- tients and families seeing or observing this reporting of the Union’s efforts were adversely affected, nor did it impact upon patient care. I further find Respondent did not establish by other means that the testimony of its witnesses was otherwise reliable. In addition to failing to differentiate solicitation and distribution from other potentially disruptive conversations and actions, Respondent itself, on several occasions, permitted distribution of its antiunion flyers in undisputed patient care areas where Respondent mentioned the potential for strike. Respondent’s institutional experience did not cause it to insure the distribu- tion of this material was done in a manner that it was not visible to patients and their families. I further find the testimony of Respondent’s witnesses does not qualify as lay opinion testimony under Rule 701 of the Fed- eral Rules of Evidence, which provides: If a witness is not testifying as an expert, the witness’ testi- mony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Drs. Gregory and Hammer, and Flanagan admitted they never heard employees engaging in solicitation and never ob- served employees distributing materials to one another in the areas of the hospital outside the units and other immediate pa- tient care areas involving admission, registration, therepy and proceedures. They never observed this activity involving pa- tients and their families. Therefore their observations and speculations concerning their opinions about such activity is not based on first hand knowledge or observations. U.S. v. Rea, 958 F.2d 1206, 1215 (1992). Their opinions have not been shown to have greater reliability than mere speculation. Medi- cal Center Hospitals, 244 NLRB 742 (1979). Moreover, the opinions of these witnesses were admittedly not the genesis or other impetus in the issuance of the solicitation and distribution policy. Monroe admitted Respondent’s medical staff did not request the policy and there is no claim its medical staff was consulted prior to its promulgation and distribution. Monroe did not present any testimony establishing the policy was prepared with the specific design to meet patient care needs. In contrast to the testimony in Baptist Hospital, Respondent did not adduce any reliable evidence concerning its reasons for adopting the rule other than unspecified unadduced complaints. Monroe was the sole witness to testify concerning the genesis for her publication and distribution of the solicitation rule and she gave as her reason “[t]o clarify the policy and to make sure that employees had a copy of the policy.” She determined to “clarify” the rule “because there was quite a bit of solicitation, or complaints about solicitation and passing out of literature on the premises.” She did not specify the content or genesis of the complaints to tie the complaints into concerns “about the ill effects of union organizational activity on patients.” 442 U.S. at 782–783. Monroe did not claim the policy was promulgated and distributed due to concern solicitation and distribution in those areas outside the units and waiting areas for treatment, diagnostic procedures or therapy would have an ill effect on patients or impact adversely on patient care. These “complaints” could have come from hospital manag- ers who were participating or assisting in Respondent’s anti- union campaign. There was no specific nexus established by Respondent between these complaints, the context and content of which were not provided on the record, and patient care concerns. Respondent’s failure to have such a solicitation and distribution policy prior to 1997 was not shown to have resulted in any adverse impact upon patient care. This lack of specificity and evidence of causal nexus, leads to the conclusion the rule was promulgated to include all corridors and waiting areas, not just those involved with immediate patient care, “to stifle and interfere with the employees’ exercise of their Section 7 rights.” Youville Health Care Center, 326 NLRB 495 (1998). Moreover, the testimony of Respondent’s witnesses appears to be post hoc to the formation and issuance of the rule, thus, this evidence did not reliably establish the need for the rule since the reasons advanced by these witnesses were not shown to be a predicate for its formation. Southern Maryland Hospital, 293 NLRB 1209, 1219 (1989). 3. Is the rule overbroad by including waiting areas and hallways outside the units? Assuming, arguendo, the testimony of Drs. Gregory and- Hammer, and Wayman and Flanagan is reliable opinion evi- dence, it still does not establish the necessary nexus between the rule and their concerns. These witnesses did not differenti- ate the actions of Respondent’s employees during solicitation or distribution activities and their allowable conversations and distributions, even if they involved controversial subjects. The only solicitation Flanagan observed occurred in a normal tone of voice. There is no evidence such activity in the disputed areas is or would be more disturbing to patients and their fami- lies than the permitted conversations about controversial mat- ters. There are the patients’ rooms, day rooms, and conference rooms within the units which are used for the sensitive discus- sions with patients and/or their families. There is no evidence such activity in these areas outside the units and other treatment and diagnostic areas, would be more disruptive or upsetting than a concert or musical event containing music which a patient strongly dislikes, Dr. Gregory admitted such disliked music would disturb a patients tranquility. Respondent does not ban employees from the waiting areas outside the units, the registra- tion area or the hallways. It does not limit their conversations in these areas beyond the policy here under consideration. Respondent has not adduced any evidence that conversations concerning union or other solicitations are more disruptive or harmful to patient care than any other conversation that did not involve patient care. To the contrary, Respondent’s witnesses UCSF STANFORD HEALTH CARE 533 testified the patients and families are disturbed by any conver- sations or activities that do not directly relate to patient care. Respondent has failed to justify its differentiation of the banned conduct from the permitted conduct. Flanagan attempted to analogize the upsetting of family members to the upsetting of patients. However, Respondent admitted that any activity that does not appear to focus on patient care is upsetting to families, yet it does not include all such behavior from its ban. This failure was unexplained and the basis for its selectivity not presented and therefore unjustified. For example, Flanagan admitted if a patient or family mem- ber observed an employee passing a piece of paper to another employee, they would have no predicate to assume this activity was not patient related. Respondent’s failure to restrict conver- sations and other actions involving controversial subjects in the disputed areas indicates it does not consider such activity ad- verse to immediate patient care. Analogously, solicitation and distribution in the outside unit waiting areas and hallways would be similarly not disquieting to patients and their caregiv- ers, even if the caregivers are assumed to include family. As noted above, Respondent did not restrict the areas where it supervisors could distribute antiunion literature. Respondent similarly failed to distinguish its own activity from the distribu- tion of Union literature. While Dr. Hammer opined it would be disturbing for a patient or families to see literature in the hospi- tal referencing the possibility of strikes, Respondent did circu- late literature mentioning the possibility of strikes at the hospi- tal without limiting the areas of its distribution. This literature was posted and/or retained in areas that were accessible to pa- tients and their visitors. There was no union literature placed in evidence that similarly referenced the possibility of strikes. There was no evidence the placement of the Respondent’s strike referring literature where patients could see it had an adverse impact on patient care. Unlike the testimony in Baptist Hospital, Monroe’s testimony did not claim a nexus between the issuance of the rule and concern for creating a tranquil envi- ronment for patients in the areas outside the units and treatment and procedure waiting rooms. The testimony of health care workers appearing for General Counsel and/or Charging Party further disputes the testimony of Drs. Gregory and Hammer, and Flanagan. Fonseca has worked throughout Stanford Hospital and was in most of the waiting areas outside the units in this Hospital. There was no specific evidence all of these waiting areas were used by pa- tients or their families. Assuming some use by patients and their families of some of these rooms, the frequency of such use or the relation to immediate patient care was not clearly estab- lished by Respondent. There was no evidence patients or their visitiors used these areas after 8 p.m. when visiting hours ended at Stanford Hospital. Therefore, Respondent failed to demon- strate there was a need for the rule outside the units at Stanford Hospital when visitiors were not permitted. Fonseca’s undisputed testimony is that some of these areas, particularly on the main floor of Stanford Hospital, were noisy without any privacy due to the substantial amount of floor traf- fic. Respondent’s own supervisors apparently felt it was not inconsistent with patient care to discuss the merits of unioniza- tion in a first-floor hallway, as demonstrated by the previously- described conversation between Fonseca and the assistant nurse manager, identified as Roberta. During this conversation pa- tients and employees were walking by. There is no evidence or claim Respondent instructed its supervisors to avoid such con- versations prior or subsequent to the promulgation of the rule. This failure buttresses the conclusion Respondent has failed to meet its burden of demonstrating solicitation and distribution in these areas threatens to disrupt patient care or establish this corridor is a patient care area. There was no evidence this area is one where patients wait for or receive treatment. There was no evidence there is any patient treatment occur- ring on the ground floor of Stanford Hospital. The atrium is on the ground floor and has wooden benches in the garden and leather couches in various locations around its circumference. Fonseca has observed patients and visitors in the atrium as well as employees engaged in conversation and passing literature to one another. He has distributed literature in this area without comment from patients or visitors who were present at the time. The areas around and including the atriums of both Hospitals have also not been shown to be patient care areas. They are open to the public, the sites of concerts and major art collec- tions. Craft sales attended by patients’ families have been held near one atrium, without any claim of disruption to patient care. Concerning the waiting area outside the units on the second and third floors of Stanford Hospital, Fonseca has engaged in solicitation and distribution in these areas without complaint or any demonstration these activities disturbed the tranquil atmos- phere of the hospital. During shift changes and meal deliveries there is commotion and noise in the corridors. Fonseca has observed an adult and small boy playing catch on the third floor about 1 month prior to his testimony, without any intervention by staff. He has also observed heated discussions between visitors without any intervention by Respondent. He has ob- served visitors eating in the waiting areas outside the units. There are no “quiet” signs posted in these waiting areas nor the adjacent corridors. There was no evidence concerning patient movement in the corridors outside the units. Thus, Respondent has failed to establish solicitation and distribution in these cor- ridors would adversely affect or interfere with patient care. The testimony of Repetti establishes the waiting areas out- sided her unit at LPCH are not tranquil areas functioning as the location of patient care. Respondent failed to demonstrate the hallways outside the units at LPCH are frequently used to transport patients to other areas of the hospital. Thus, I con- clude Respondent has failed tosustain its burden of establishing the employees engaging in union solicitation and distribution in the waiting rooms and corridors outside the units and those waiting areas that are not related to treatment and diagnosis is warranted. The doctos who testified indicatedany activities unrelated to a patient’s care would be disruptive of such care. On the contrary, Fonseca, Repetti and others have engaged in solicitation and distribution in these areas without adversely affecting patient care or disturbing patients. In NLRB v. Baptist Hospital, supra at 784–785, the Court found: The evidence concerning the corridors and sitting rooms adjoining or accessible to the patients’ rooms and treat- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534 ment rooms on the upper floors of the hospital provide more detailed illustration of the need for a no-solicitation rule applicable to those areas. Patients in the most critical and fragile conditions often move or are moved through these corridors, either en route to treatment in some other part of the Hospital or as part of their convalescence. The increased emphasis in modern hospitals on the mobility of patients as an important aspect of patient therapy is well known, and appears to be a part of patient care at the Hos- pital. Small public rooms or sitting areas on the patient- care floors, as well as the corridors themselves, provide places for patients to visit with family and friends, as well as for doctors to confer with patients’ families—often dur- ing times of crises. Nothing in the evidence before the Board provided any basis with respect to those areas of the Hospital for doubting the accuracy of the statements made by [named witnesses] that union solicitation in the pres- ence or within the range of hearing of patients may have adverse effects on their recovery. In the instant case, unlike NLRB v. Baptist Hospital, the genesis for the policy was not shown to be patient use of these areas. There is no evidence that patients are frequently moved through the corridors outside the units. Respondent has not presented any evidence concerning the movement of patients to and from the units and treatment or procedure rooms outside the units. Respondent has not presented any evidence concern- ing the frequency of patients using hallways and waiting areas outside the units to walk as part of their recovery regimen or otherwise. The hallways near the cafeterias were not shown to be patient care areas. The location of ATM machines and newspaper racks outside these cafeterias, as well as their access to Stanford University students, particularly medical students, dispels any claim patent care occurs in the hallways near the Hospitals’ cafeterias. Similarly, the gift shops and hallways adjacent to them, have not been shown to be patient care areas or areas where patient care would be disrupted. Respondent similarly failed to demonstrate the rule was necessary to main- tain discipline or effective employee job performance. Thus Respondent has failed to demonstrate the rule was promulgated to further its management interests. While there is evidence Drs. Hammer and Gregory use the waiting rooms outside the units to talk with families, Wayman testified, without refuta- tion, that: If there are decisions, of course, such as removal of life sup- port or patient selection, we are in enclosed rooms. If it’s a decision where families—when we’re doing some of that me- diation or discussing the plan for the day, we will meet in the alcoves if the room is not appropriate, the room of the child old enough to understand what we’re talking about. Or if we’re looking at developmental status, well, we can go to the playroom and we’ll do our intervention in the playroom and discuss what the next steps should be. It depends on the level and the sensitive—sensitivity of the information. Thus, there is clear evidence that at LPCH, sensitive material is not discussed with the families in the open hallways and waiting areas outside the units. At times of crises, there is no evidence these outside the units areas are used by the patients or their families for sensitive discussions or conferences. Also unlike the Baptist Hospital case, there is evidence of solicita- tion and distribution occurring in the hallways adjoining the waiting areas outside the units without any disruption of patient care. Drs. Gregory and Hammer did not observe any such dis- ruptions to patient care in the hallways and waiting areas out- side the units. Respondent’s apparent lack of concern of distur- bances to patient care in these areas is demonstrated by its fail- ure to place these areas off limits for any other conversations or activities other than solicitation and distribution, a rule promul- gated and implemented during a union organizing campaign without any documented complaints concerning such activities. Drs. Gregory and Hammer did not explicate in the requisite detail the frequency, duration and hours of their use of any waiting areas outside the units. Since Respondent’s policy bars solicitation and distribution in these areas, including portions of the corridors, 24 hours a day, 7 days a week, I find Respondent has failed to justify this ban; particularly during the hours when their may be little or no use of these areas by medical care pro- fessionals meeting with patients or their families, or by patients and their families or other visitors. Those waiting areas adjacent to the main hallway connecting the Hospitals which are not registration areas or waiting areas for treatment, therapy, or diagnosis, also have not been shown to be areas where patient care occurs. In fact, Respondent, by Monroe, testified it does not ban solicitation in hallways which are not immediately adjacent to waiting rooms outside the units. I find Respondent has failed to demonstrate solicitation in these nonpatient care areas would or did disturb patients. There is no showing solicitation and distribution in these busy hall- ways on the main floors of the Hospitals would disrupt patient care, in fact Monroe admitted as much. Supervisors are not bared from conversing with employees about the Union in any areas, whether inside or outside the units or other immediate patient care areas. There is no claim on-duty employees would be disrupted if solicitation and/or distribution were permitted in these outside the unit corridors and waiting areas which I have found have not been shown by Respondent to be patient care areas, as de- fined above. Supporting this finding is the testimony of the witness who admitted to distributing literature in several of these location. At times, there were individuals in street clothes in the waiting room. These employees never heard of any com- plaints concerning their activities. Fonseca was in uniform at the times he engaged in distribution. Respondent’s witnesses have given various definitions and descriptions of the areas considered hallways “immediately adjacent” to waiting, admitting and registration areas. For ex- ample, Flanagan considered two to several yards down the hallway from a waiting area to be adjacent to and included in the prohibited areas. Monroe adopted a different definition, including those portions of the corridors abutting or adjoining the waiting areas as included in the ban. Respondent failed to explicate whose definition is appropriate. There is no clear and convincing evidence on this record that patients taking walks frequent the corridors and waiting areas outside the units. UCSF STANFORD HEALTH CARE 535 In sum, Respondent has not produced evidence of any com- plaints generated by its employees solicitation and distribution activities and admitted its rule was not a result of such com- plaints. There is no evidence the employees use of these area displaced any patients or visitors. Dr. Hammer admitted he did not have insight into what patients and their families’ expecta- tions from employees were in hallways. Thus the inclusion of those hallways not immediately adjacent to those areas found herein to be the sites of patient care has not been documented on this record. Moreover, Respondent has failed to adduce any clear evidence such activities did or would result in an adverse effect upon patient care in the waiting areas outside the units and hallways immediately adjacent to these waiting areas. Dr. Hammer admitted observing employees in one of the alcoves and did not inform them they were barred from that waiting area. Respondent permits activities similar to solicitation such as conversations involving potentially volatile subjects in these areas and does not bar employees from using these areas on breaks and during meals. Drs. Gregory and Hammer opined these activities which are not banned would have as adverse an effect upon patient care as solicitation and distribution. Re- spondent has also failed to demonstrate the nature and extent of patient use of these areas, if any. There is evidence Respondent realized that some solicitation and distribution would not adversely affect patient care nor impede the provision of patient care. For example, as noted repeatedly herein, Respondent distributed antiunion materials in the units. It did not restrict supervisors from seeking to con- vince employees to not support the organizing efforts of the Union. It did not restrict all controversial conversations or literature or otherwise limit employees’ activities that could be analogized to solicitation and distribution. It permitted em- ployee use of the waiting areas outside the units for all purposes other than solicitation and distribution. Respondent has even held parties in one or more of these waiting areas. Similarly the craft and bake sales in these areas were not shown to be disrup- tive of patient care. Respondent’s termination of events was not based on patient care concerns. Monroe admitted the bake sales were stopped because of health considerations and she did not give a reason for the termination of the craft sales. Respondent left antiunion literature containing potentially upsetting references to strike, laying or posted within units. It permitted CHRONA to post union literature in the hallway near the cafeteria where it could be read by nonemployees. Respon- dent invited the public to its facilities to view its art collection, to tour its facilities or attend educational or informational fo- rums. The music programs also can be readily heard in the areas outside the units, which admittedly could be equally dis- turbing as employee solicitation and distribution. Accordingly, I find Respondent, based on the evidence in this case, failed to demonstrate the ban on solicitation and dis- tribution on nonworking time in the waiting rooms outside the units where treatment or therapy is not occurring and the hall- ways adjacent to them is warranted because they are patient care areas which would be disrupted by such activities. In this case, the patient care units are enclosed and separate from these waiting areas and hallways. Respondent also failed to demon- strate that patients frequently use these areas for walking or other purposes. There was evidence that patients do walk within the units and did pass by an area where one of Respon- dent’s managers posted one of Respondent’s antiunion flyers. This action by Respondent further contradicts the opinions of Drs. Hammer and Gregory.72 Keeping in mind medical prac- tices, the role of hospitals, and the interests of the patients, the record in this proceeding requires the conclusion, based on the proof presented, that Respondent has failed to justify its ban on solicitation and distribution to employees in these areas. Ac- cordingly, I find the inclusion of these areas in its ban is over- broad and therefore, is a violation of Section 8(a)(1) of the Act. Assuming Respondent has demonstrated the waiting areas and corridors outside the units other than those already found herein to be immediate patient care areas, also qualify for that discription, I find the policy is still overbroad becasue it fails to adequately define which areas of its corridors are specifically included in its ban. 4. Admitting and registration areas Respondent has not presented any evidence concerning the movement of patients to and from admitting and registration areas. There is some evidence a physician may rarely meet a patient at the admitting area, and there is discussion of insur- ance, a matter admittedly upsetting to patients and their fami- lies. General Counsel and Charging Party argue there is no demonstrated need for the ban in these areas. I disagree. When a patient is in these areas awaiting admission to the Hospitals or treatment, therapy, or testing, there is a demonstrated need for them to be shielded from employees engaged in solicitation or distribution. Accordingly, I find the rule is not overbroad con- cerning the admitting and registration areas. Patients, during admission and registration are asked personal and confidential questions, such as medical histories. Therefore, I conclude ad- mission and registration are part of the process through which patient care is provided and therefore, is part of patient care. 5. Solicitation and distribution to nonemployees General Counsel and Charging Party claim Respondent’s ban on solicitation of and distribution to nonemployees anywhere on its property, including nonworking areas is unlawful, be- cause it has failed to establish special circumstances warranting such a broad ban, citing Republic Aviation v. NLRB, 324 U.S. 793 (1945), NCR Corp., 313 NLRB 574 (1993), Payton Pack- ing Co., 49 NLRB 828, 843 (1943); Le Tourneau Co.; 54 NLRB 1253 (1944); and Gayfers Department Store, 324 NLRB 1246 (1997). In NCR Corp., supra at 576, the Board held: The right of employees to distribute union literature during nonworktime and in nonwork areas is not limited to distribu- tion to prospective union members. Employees have a statuto- 72 Respondent did not claim or place into evidence any need to ban solicitation and distribution from elevators and stairways. The rule does not ban solicitation and distribution from them and therefore there is no need to make a determination regarding these areas. However, it is noted large waiting areas near the elevators and the hallways adjacent to them were included in the ban. The failure to include the elevators and stairways near these waiting areas is further affirmation there is no need for the rule in these areas outside the units. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536 rily protected right to solicit sympathy, if not support, from the general public, customers, supervisors, or members of other labor organizations. Charging Party analogized Respondent’s ban on activities involving nonemployees to the situation obtaining in Handi- cabs, Inc., 318 NLRB 890 (1995); enfd. 95 F.3d 681 (8th Cir. 1996); where the Respondent banned employees from: “Dis- cussing complaints or problems about the company with our clients” and made breaking this rule grounds for immediate dismissal. The employer claimed its customers, because of their ages and disabilities, made them similar to hospital pa- tients. The employer discharged an employee for discussing work-related problems and union activity with passengers. Administrative Law Judge Pannier found: To be sure, some words and conduct do cause greater concern for a vulnerable person than is the fact for other individuals. Still any work rules intended to address such greater concerns must be narrowly tailored to avoid unnecessary deprivation of employees’ statutory rights. As a general proposition, employees do not “lose their protection under the ‘mutual aid or protection’ clause [of section 7 of the Act] when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate em- ployee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1987). That protection can be lost when- ever employee communications to third parties do not re- late to labor practices of the employer, such as disparaging the employer’s reputation or quality of its product, or whenever those communications are maliciously moti- vated. See generally NLRB v. Local 1229 IBEW (Jefferson Standard), 346 U.S. 464 (1953). But portions [of the ban] are not limited to those types of communication. Analogously, Respondent’s ban in this case is not limited to the above-described or other unprotected activity. For example, the ban was not limited to comments concerning Respondent’s reputation or provision of health care services. The ban was not confined to areas impacting patient care, it included all of Re- spondent’s property. It did not delineate which leased proper- ties, but included office buildings which are not attached the hospitals.73 There was no claim any of the Union’s actions threatened work stoppages. On the contrary, Respondent dis- tributed materials raising the possibility of work stoppages in its antiunion campaign within the units. Moreover, the concern over strikes was a matter considered by Congress in its amendments to the Act, and the possibility of strikes did not constitute a ground to preclude organizing activity at health care facilities, including hospitals. See Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). The rule is so broad as to encompass all lawful employees petitioning of public support regardless of where such solicita- 73 Respondent admits some offices are rented in buildings that con- tain other tenants. There is no evidence concerning the need for the ban in all of these remote locations. There is no evidence patients and their families visit all of these areas, including those that customize medical equipment such as wheelchairs. tion or distribution occurs on Respondent’s property. As found above, Respondent does not know the boundaries of its lease- holds; its managerial personnel and guards exercised denials of access or attempted to deny access in areas where Respondent does not have a clearly established property interest. The ban clearly bars protected activity throughout the Hospitals and other areas defined only as Respondent’s property, without establishing a special need for such a broad ban. There was no showing patients would receive such literature outside the hos- pital buildings or in the cafeterias, gift shops, maintenance, or utility areas. Employees, absent a showing of special circum- stances, are not barred from standing in front of hospitals and handing out literature concerning a labor issue. Respondent has failed to demonstrate the existence of special circumstances in this case. To the contrary, Respondent permits the nurses’ union, CRONA, to post notices on a bulletin board in the lobby of Stanford Hospital. The bulletin board is near the entrance to the cafeteria and accessible to patients, visitors, and other nonem- ployees such as students. Since CRONA’s posting of its litera- ture inside Stanford Hospital is not deemed adverse to patient care by Respondent, then to bar solicitations by or literature distributed by Charging Party and others is disparate treatment. In further contrast to its claims of a need for such a broad ban, Respondent’s actions in distributing literature raising the potential of strikes in clearly immediate patient care areas such as within the units, indicates it was not concerned with the po- tential of this kind of literature upsetting patients or believed it would disturb them. This does not mean that I am condoning such activity in patient care areas, but such actions by Respon- dent dispel any unsubstantiated claim of a need for the ban within any of its leaseholds; inside and outside its hospitals. In sum, Respondent has failed to meet its burden of demon- strating the need for a complete ban of solicitation and distribu- tion to nonemployees on any of its leaseholds. Respondent has not presented any persuasive evidence such a broad ban is nec- essary to protect patients. There was not any evidence the regu- lar leafletting by the Union outside the Hospitals during the organizing campaign prior to the ban, discussed in detail above, had any adverse effect upon patient care. I therefore conclude the ban is overly broad in violation of Section 8(a)(1) of the Act. Kinder-Care Learning Centers, 299 NLRB 1171, Handi- cabs, Inc., supra. CONCLUSIONS OF LAW UCSF-Stanford Health Care, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, has committed unfair labor practices affecting commerce by excluding and attempting to exclude union organizers from areas it failed to demonstrate it had the appropriate property rights to permit such exclusion; by discriminatorily excluding a union organizer from its property; by promulgating, maintain- ing, and distributing overly broad solicitation and distribution rules forbidding solicitation and distribution in areas not estab- lished as patient care areas; and by banning all solicitation and distribution to nonemployees on its premises, in violation of Section 8(a)(1) of the Act. UCSF STANFORD HEALTH CARE 537 REMEDY Having concluded that UCSF-Stanford Health Care has en- gaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and, further, take certain affirmative action to effectuate the policies of the Act. Charging Party seeks as an additional remedy, that Respon- dent be required to post the notice, attached as “Appendix,” hereto, in each department of its Hospitals and Clinics and to individually distribute the notice to each employee. The basis for this request is that Respondent disseminated its overbroad solicitation and distribution policy individually to each em- ployee. Charging Party analogizes the solicitation and distribu- tion of the policy to that of an unlawful rule contained in an employee handbook. Citing Brunswick Corp., 282 NLRB 794, 795 (1987); Farr Co., 304 NLRB 203, 215–216, 257 (1991); Marriott Corp., 313 NLRB 896 (1994); and Employee Man- agement Services, 324 NLRB 1051 fn. 3 (1997). Inasmuch as Respondent must rescind or revise its solicita- tion and distribution rule so that it is not unlawful, the uncon- troverted evidence that employees work staggered shifts and have staggered breaks which are taken in various areas inside and outside of the hospitals, the lack of any evidence all the affected employees use locker rooms or other centralized facili- ties where only posting of the notice would reach all the em- ployees, and the fact Respondent determined the most effica- cious manner of distributing the policy was individually, I con- clude there is merit to Charging Party’s request and will require Respondent to distribute the notice to all of its employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended74 ORDER The Respondent, USC Stanford Health Care, Palo Alto, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an overbroad solicitation and distribution policy. (b) Evicting or threatening to evict nonemployee union or- ganizers peacefully handbilling or meeting employeesfrom property surrounding the Hospitals that Respondent has not demonstrated was within its leasehold or met the requirements of the Moscone Act, Cal. Code of Civ. Proc. Sec. 527.3; and, discriminatorily enforcing its access rule. 74 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Rescind or modify its overbroad access and solicitation and distribution rule which prohibits employees from engaging in solicitation and distribution in areas that have not been shown to be patient care areas and banning all solicitation and distribution to nonemployees on its property. (b) Rescind or modify its policy prohibiting nonemployee representatives of Service Employees International Union, Lo- cal 715, from engaging in peaceful waiting for employees out- side the Hospitals or handbilling with a reasonable number of persons in a manner that does not unduly interfere with the normal use of facilities or operation of the Hospitals. (c) Within 14 days after service by the Region, post at all places notices to employees are customarily posted and distrib- ute to each employee the attached notice marked “Appendix.”75 Copies of the notice, on forms provided by the Regional Direc- tor for Region 32, after being signed by Respondent’s author- ized representative, shall be posted and individually distributed immediately upon receipt. The posting shall be maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respon- dent has gone out of business or closed any facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by the Respondent at any time since Feb- ruary 2, 1994. (d) Within 21 days after service by the Regional Director, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. 75 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”