Enloe Medical Center

ENLO MEDICAL CENTER 348 NLRB No. 63 991 Enloe Medical Center and Health Care Workers Union, Service Employees International Union, Local 250. Cases 20–CA–31806–1, 20–RC–17937, 20–RC– 17938, and 20–RC–17939 October 23, 2006 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On August 27, 2005, the National Labor Relations Board issued its Decision, Order, and Certification of Representa- tive in this case,1 finding, among other things, that the Re- spondent violated Section 8(a)(1) of the Act by promulgat- ing a rule barring the placement of union literature in the employee breakroom. The Board found that the rule was discriminatory on its face. On September 28, 2005, the Respondent filed a motion for reconsideration. On April 14, 2006, the Board issued an Order Granting Motion in Part and Denying Motion in Part,2 remanding the complaint allegation regarding the rule on placement of union literature to the judge to provide the Respondent an opportunity to introduce evidence and sub- mit a brief concerning whether the rule was discriminatory on its face and, therefore, violated Section 8(a)(1). On May 2, 2006, the judge issued an “Order on Re- mand,” stating that the Respondent had declined to offer any evidence and instead simply objected to the Board’s remand order as improper. Because no further evidence was pre- sented, the judge found that there was no basis for a sup- plemental decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. Additionally, the General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the Gen- eral Counsel filed a reply brief.3 The National Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the judge’s Order on Remand and the record in light of the exceptions and briefs and has decided to reaffirm its prior finding that the Respondent’s e- 1 345 NLRB 874 (2005). 2 346 NLRB 845 (2006). 3 The Respondent filed a motion for leave to file its brief in support of exceptions. No party has challenged the Respondent’s right to file exceptions and a supporting brief under Sec. 102.46 of the Board’s Rules and Regulations. To the contrary, as noted above, the General Counsel filed cross-exceptions and a supporting brief. Additionally, the Respondent filed a motion to strike the General Counsel’s cross-exceptions and supporting brief, the General Counsel filed an opposition to the Respondent’s motion, and the Respondent filed a reply. As discussed below, we find it unnecessary to pass on the General Counsel’s alternative theory set forth in his cross-exceptions and supporting brief. For this reason, it is also unnecessary for us to rule on the Respondent’s motion to strike. mail message barring the placing of union literature in the breakroom was discriminatory on its face and, therefore, violated Section 8(a)(1). The complaint in this case included an allegation the Re- spondent violated Section 8(a)(1) by the following conduct: “Respondent, by Gale Mitchell . . . about February 19, 2004, promulgated in writing an overly broad no-solicitation rule by prohibiting employees from distributing Union literature in the break room of Respondent’s facility.” At the hearing, the General Counsel introduced evidence showing that the Respondent sent an e-mail message to employees on Febru- ary 19, 2004, stating: “As we discussed in our staff meet- ings, it is not appropriate for union literature to be . . . placed in our break room.” The Board’s decision found that the Respondent’s e-mail message barring the placing of union literature in the breakroom violated Section 8(a)(1) because the message was discriminatory, i.e., it singled out union literature. In its motion for reconsideration, the Respondent argued that the complaint had not put it on notice to defend against a contention that the rule was discriminatory because the complaint alleged that the rule was overly broad and did not allege that it was discriminatory. Therefore, to remedy any prejudice suffered by the Respondent, the Board remanded this complaint allegation to the judge to provide the Re- spondent an opportunity to introduce evidence and submit a brief concerning whether the rule was discriminatory on its face and, therefore, violated Section 8(a)(1). On remand, the Respondent declined to present evidence. The record evidence, thus, remains unchanged.4 As we pre- viously found, the record evidence establishes that the Re- spondent issued a February 19, 2004 e-mail message to employees that was discriminatory on its face, because the message barred only union literature, and no other, from being placed in the breakroom. Accordingly, we reaffirm our finding that the Respondent’s e-mail message violated Section 8(a)(1).5 4 As the Respondent acknowledges, it did not present any testimony relating to why it sent the February 19, 2004 e-mail message. Thus, although the Respondent asserts that it sent the e-mail because it had discovered that employees were leaving union literature in the break- room in violation of a policy against leaving any literature there, the Respondent failed to establish this assertion as fact. In any event, the rule here is discriminatory on its face. 5 The Respondent contends that the evidence is insufficient to estab- lish that the e-mail message was facially discriminatory because, al- though the message barred the placing of union literature in the break- room, it did not expressly permit the placing of other types of literature in the breakroom. This contention is without merit. See Colburn Elec- tric Co., 334 NLRB 532, 551–552 (2001) (rule barring union activity during working hours found unlawful on its face; evidence of em- ployer’s allowing other types of solicitation not needed to show viola- tion); Montgomery Ward, 269 NLRB 598, 599 (1984) (rule prohibiting DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992 We recognize that this violation is not precisely the same as that which the complaint alleged. The complaint referred to a no-solicitation rule and the complaint alleged that the rule was overly broad. The Board found that a no- distribution rule was discriminatory on its face. The Re- spondent does not argue about the first discrepancy. As to the latter, ‘‘It is well settled that the Board may find and remedy a violation even in the absence of a specified allega- tion in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully liti- gated.’’ Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). We find that the violation here is closely related to the complaint allegation. The complaint specifically alleged that the rule in question violated Section 8(a)(1), and it referred specifically to Mitchell’s conduct on February 19. Thus, the complaint itself put the lawfulness of the specific rule in issue. Conse- quently, the violation is closely related to the allegation con- tained in the complaint. We also find that the violation was fully litigated, because the lawfulness of the rule was put in issue by the complaint, the e-mail containing the rule was introduced into evidence at the hearing, and the Respondent was provided an oppor- tunity to introduce evidence concerning whether the rule was discriminatory on its face. Thus, as this violation was closely related to the complaint allegation and was fully litigated, our finding of the violation is proper. Additionally, we find without merit the Respondent’s contention that the Board erred in remanding the case to the judge to provide the Respondent an opportunity to introduce evidence and submit a brief concerning whether the rule was discriminatory on its face. The Respondent itself, in its motion for reconsideration, stated: “[H]ad the Employer been put on notice that it was facing these unalleged charges, it would have had the opportunity to put on differ- ent and additional evidence.” Thus, the remand was respon- sive to the Respondent’s motion and served to remedy any prejudice suffered by the Respondent. Further, in remand- distribution of union literature without mentioning distribution of other literature found discriminatory on its face). ing, the Board was not altering the essential contention of the complaint allegation, i.e., that the Respondent’s Febru- ary 19, 2004 rule prohibiting employees from placing union literature in the breakroom violated Section 8(a)(1). Finally, the Respondent did not file with the Board a motion seeking reconsideration of the remand order. We also find no basis for the Respondent’s contention that the Board lacks authority to find the rule facially dis- criminatory because the General Counsel declined to amend the complaint to allege discrimination in regard to the rule. The Board made it clear, in its remand order, that it was considering the complaint to allege facial discrimination in regard to the rule. The General Counsel did not disavow this construction of the complaint, and he has supported it at all times after the Board’s order.6 Thus, the General Coun- sel has at least implicitly adopted this construction of the complaint. Accordingly, for the foregoing reasons, we reaffirm our prior decision finding that the Respondent’s e-mail message violated Section 8(a)(1) insofar as it prohibited the place- ment of union literature in the breakroom.7 ORDER The National Labor Relations Board reaffirms its original Order, reported at 345 NLRB No. 54 (2005), and orders that the Respondent, Enloe Medical Center, Chico, California, its officers, agents, successors, and assigns, shall take the action set forth in that Order. 6 At the original hearing, the General Counsel attempted to introduce testimony concerning discriminatory enforcement of the rule. The Respondent objected on the basis that the testimony went beyond the scope of the complaint. The judge sustained the objection, and the General Counsel declined to amend the complaint. However, contrary to the Respondent’s contention, the General Counsel’s refusal to amend the complaint to allege discriminatory enforcement of the rule does not preclude our finding the rule to be discriminatory on its face. 7 Because we are reaffirming our prior finding that the Respondent’s e-mail message violated Sec. 8(a)(1) as facially discriminatory, we find it unnecessary to pass on the General Counsel’s alternative theory set forth in his cross-exceptions and supporting brief.