St. Margaret Mercy Healthcare Centers

ST. MARGARET MERCY HEALTHCARE CENTERS 350 NLRB No. 20 203 St. Margaret Mercy Healthcare Centers and Service Employees International Union, Local 73.1 Case 13–CA–38629 June 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On January 30, 2002, Administrative Law Judge Karl H. Buschmann issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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,2 and conclusions and to adopt the recommended Order as modified.3 1. We adopt the judge’s finding that the Respondent violated Section 8(a)(1) of the Act by applying its no- solicitation/no-distribution rules to the nurses’ break- rooms and by removing union literature from the break- rooms. As found by the judge, the Respondent’s applica- tion of this policy to the breakrooms is overbroad, be- cause it prohibits solicitation in areas that are neither immediate patient care areas nor in close proximity to patient care areas.4 In view of this finding, we find it unnecessary to pass on the judge’s further finding that the Respondent’s conduct in this regard demonstrates discriminatory application of its policy and that the Re- spondent further violated Section 8(a)(1) by “directing its enforcement solely against the Union solicitation,” as 1 We have amended the caption to reflect the dissafililation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We shall modify the language of the judge’s recommended Order to reflect our finding that it is unnecessary to pass on the judge’s find- ing that the Respondent disparately enforced its no-solicitation/no- distribution rules. 4 See, e.g., Brockton Hospital, 333 NLRB 1367, 1368 (2001), enfd. in relevant part 294 F.3d 100 (D.C. Cir. 2002), cert. denied 537 U.S. 1105 (2003); Healthcare & Retirement Corp., 310 NLRB 1002, 1005 (1993). However, in adopting this finding, we do not rely on the judge’s statement that the Respondent’s antiunion activity in the breakrooms, including posting literature there, is relevant to the lawfulness of the Respondent’s interference with employees’ prounion solicitation and distribution there. See d/b/a Hale Nani Rehabilitation & Nursing Cen- ter, 326 NLRB 335 (1998). these further findings would not materially affect the remedy. 2. The judge found, and we agree for the reasons set forth below, that the Respondent violated Section 8(a)(3) and (1) of the Act by disciplining employee Deborah Plenus for soliciting fellow employee Isabella Skurka to sign a union card while Skurka was working at a nurses’ station. The Respondent argues in its exceptions that its discipline of Plenus by issuing her a written counseling is not unlawful under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We disagree. To prove a violation of Section 8(a)(3) and (1) under Wright Line, “the General Counsel bears the burden of proving by a preponderance of the evidence that animus against protected conduct was a motivating factor in the adverse employment action. If the General Counsel makes a showing of discriminatory motivation by prov- ing protected activity, the employer’s knowledge of that activity, and animus against protected activity, then the burden of persuasion shifts to the employer to prove that it would have taken the same action even in the absence of the protected activity.” North Carolina License Plate Agency #18, 346 NLRB 293, (2006) (citing Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004)), enfd. mem. NLRB v. Griffin 2007 WL 1800600 (4th Cir. Jun. 20, 2007). We find that the General Counsel has met his burden of showing that Plenus’ protected union activity was a motivating factor in the Respondent’s issuance of a dis- ciplinary written counseling. The record shows, and the judge found, that Plenus was an “active union supporter” who distributed union materials at the hospital. The re- cord further shows the Respondent’s knowledge of Ple- nus’ prounion activity: Plenus directly informed her su- pervisor, Gini Lester, of her union support. Finally, anti- union animus is established here by the Respondent’s unfair labor practices found by the judge, which we are adopting, including its overly broad application of its no- solicitation/no-distribution rule and its threat of reprisal against Plenus (discussed below). Accordingly, we find that the General Counsel has carried his burden of dem- onstrating that Plenus’ protected union activity was a substantial or motivating factor in the Respondent’s deci- sion to discipline her. The burden accordingly shifts to the Respondent to prove that the same action would have taken place even in the absence of the protected union activity. The Respondent failed to meet this burden. The Re- spondent asserts that it disciplined Plenus under its pol- icy prohibiting solicitation at the nurses’ station. As found by the judge, however, the credited testimony es- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204 tablishes that employee solicitation at the nurses’ stations was a common practice. These included a wide variety of solicitations, including solicitations for Girl Scout cookies, “beach balm” suntan lotion, March of Dimes, United Way, Secretary’s Day and Boss’ Day, and “going away” parties, birthday parties, and other social occa- sions. Moreover, these solicitations—none of which related to nurses’ duties—were well known to the Re- spondent: the judge found that management “was not only aware of this activity but participated in it.” The record shows that although Plenus received her written counseling for soliciting at the nurses’ station, no such written counseling ever issued in response to the large number and wide variety of other solicitations also oc- curring at the nurses’ station. Indeed, the judge found that nurses routinely discussed a wide range of subjects unrelated to their duties at the nurses’ stations, with no resultant counseling. In these circumstances, we find that the Respondent’s proffered reason for the discipline was a pretext for disciplining her for her earlier prounion activity. “An employer cannot simply present a legiti- mate reason for its actions but must persuade by a pre- ponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” T&J Trucking, 316 NLRB 771 (1995), enfd. mem. 86 F.3d 1146 (1st Cir. 1996). Although the Re- spondent might well have grounds for disciplining em- ployees who solicit in work areas, here the Respondent tolerated such solicitations—except in the case of Plenus. We accordingly find that, by disciplining Plenus because of her prounion activity, the Respondent violated Section 8(a)(3) and (1) of the Act.5 3. We adopt the judge’s finding that the Respondent violated Section 8(a)(1) of the Act by threatening em- ployee Plenus with unspecified reprisals in response to her protected concerted activity. The record shows that on August 4, 2000, Plenus was speaking with other nurses about the Respondent’s newly implemented em- ployee evaluation process and its effect on the receipt of wage raises by the nurses. Plenus criticized the policy, expressing her concerns that the Respondent would be 5 We do not share our dissenting colleague’s view that the Respon- dent’s unlawful discipline of Plenus is properly evaluated only in the context of a discriminatory no-solicitation/no-distribution rule. We make no such a finding, and accordingly find inapposite the dissent’s reliance on 6 West Limited Corp. v. NLRB, 237 F.3d 767 (7th Cir. 2001). Given that we are finding that the Respondent’s discipline of Plenus for violating the Respondent’s no-solicitation/no-distribution rule was a pretext for disciplining Plenus for her earlier prounion activ- ity, we find it unnecessary to address whether Plenus’ solicitation near a nurses station was protected or whether the Respondent may lawfully ban union solicitations at that location while permitting charitable so- licitations. “holding back” on raises or “not giving them the correct raise,” and that the new evaluation process “was just a management ploy” and Respondent’s management was not “being truthful” on these matters. This discussion was overheard by the Respondent’s manager of therapy, Josita DeHaan-Kicmal, who was treating a patient in the intensive care unit (ICU). DeHaan-Kicmal reported the incident to the Respondent’s manager of the intensive care and intermediate care units, Gini Lester, who in turn reported it to the Respondent’s director of critical care, Linda Ray. On August 18, Lester and Ray met with Plenus.6 Ray expressed concern that Plenus’ comments were made in the vicinity of a patient’s room. Ray further told Plenus that her “negative” comments created a “morale” issue. Ray continued by instructing Plenus that, instead of bringing the staff down, she should report her concerns to management. Ray then told Plenus that similar con- duct in the future would be considered under the Francis- can values (general standards of conduct such as respect for life and treating others with compassion), and that this might lead to disciplinary action. We fully agree with the judge, for the reasons set forth in his decision, that Plenus’ comments to coworkers about management policy regarding whether the “correct raises” would be forthcoming under the Respondent’s new employee evaluation process, including her criticism of that policy, constitutes protected concerted activity under Section 7 of the Act. The dissent does not dispute this finding. The judge properly relied on the Sixth Cir- cuit’s explanation that: [P]rohibiting employees from communicating with one another regarding wages, a key objective of organiza- tional activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted ac- tivity. NLRB v. Main Street Terrace Care Center, 218 F.3d 531, 537 (6th Cir. 2000), enfg. 327 NLRB 522 (1999). The judge further found, and we agree, that Plenus’ conduct was not sufficiently egregious to remove her activities from the Act’s protection. As the Seventh Circuit explained in Dreis & Krump Mfg. v. NLRB, 544 F.2d 320 (7th Cir. 1976), “the standard for determining whether specified conduct is re- moved from the protections of the Act [is] as articulated by the Board: communications occurring during the course of otherwise protected activity remain likewise protected unless found to be ‘so violent or of such serious character as to render the employee unfit for further service.’” Id. at 329 6 We correct the judge’s inadvertent references to this date as August 27 and then as August 21. ST. MARGARET MERCY HEALTHCARE CENTERS 205 (quoting NLRB v. Illinois Tool Works, 153 F.2d 811, 815 (7th Cir. 1946)). Plenus’ conduct was certainly not violent, and we cannot find that it was of such serious character as to lose the protection of the Act. The Respondent argues in its exceptions that it never- theless lawfully disciplined Plenus because her conduct interfered with patient care. We agree with our dissent- ing colleague that actual interference with patient care can constitute a legitimate and substantial business rea- son for imposing discipline. But the record here shows that patient care was not the reason for Respondent’s action toward Plenus. Our review of the evidence of Ray’s meeting with Plenus shows that Ray’s key concern was the effect Plenus’ comments might have on fellow employees, rather than disruption to the care of hospital patients. Although Ray mentioned to Plenus that her comments were made in the vicinity of a patient’s room, Ray emphasized that her (Ray’s) key concern was the effect on employee morale and, significantly, the manner in which Plenus should raise her concerns about employ- ees’ terms and conditions of employment: that she should direct her concerns to management rather than discussing them with her coworkers and “bringing them down.” It is axiomatic that discussing terms and condi- tions of employment with coworkers lies at the heart of protected Section 7 activity. Consequently, we agree with the judge’s finding that Ray’s conduct toward Ple- nus constituted an unlawful threat of unspecified reprisal for engaging in protected concerted activity.7 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, St. Mar- garet Mercy Healthcare Centers, Hammond, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(b) and reletter subsequent para- graphs. 2. Substitute the following for paragraph 1(c): “(b) Issuing written counselings to its employees be- cause they engaged in protected union activity.” 3. Substitute the attached notice for that recommended by the administrative law judge. CHAIRMAN BATTISTA, dissenting in part. 7 Accordingly, we cannot agree with the dissent that Respondent’s action reflected concern about patient care. There is no evidence that the Respondent prohibited employees from discussing other matters in the vicinity of patients’ rooms even though such conduct might have a similar impact on patients. This further suggests that Respondent was not acting out of a concern that Plenus’ conduct interfered with patient care. Contrary to my colleagues and the judge, I do not find that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing a written counseling to employee Deborah Plenus, or that the Respondent violated Section 8(a)(1) by making threats of unspecified reprisals to Ple- nus. My colleagues contend that the Respondent counseled Plenus for union activity. I disagree. Even assuming arguendo that a reason for the counseling was Plenus’ prior union activity, I conclude that her activity in April 2000 was unprotected, and that the Respondent would have counseled her in any event for this unprotected ac- tivity. The facts concerning Plenus’ unprotected activity are as follows. On April 18, 2000, Plenus, an intensive care unit nurse, received a corrective action notice for solicit- ing fellow employee Isabella Skurka to sign a union card while Skurka was working at a nurses’ station. Although the record shows that employees had engaged in solicita- tion at the nurses’ stations in the past, these solicitations, with one exception, were charitable or social in nature rather than commercial.1 Contrary to the judge and my colleagues, I find that the record fails to establish that the Respondent’s discipline of Plenus was unlawful. First, the Respondent could lawfully prohibit solicitation at the nurses’ stations be- cause these stations are immediate patient care areas. Indeed, the Respondent maintained valid rules with re- spect to patient care areas. The Respondent’s nurses’ stations were open areas located in hallways adjoining patients’ rooms. Thus, patients were free to move about in the corridors, or were moved about for medical pur- poses. They could easily hear what the employees were discussing at the nurses’ stations. Further, it is undis- puted that, at all hours of the day, relatives of patients would consult with nurses at the nurses’ stations about the health status of patients. Consequently, the Respon- dent had a legitimate concern that patient care should not be compromised by distractions.2 I disagree with my colleagues’ contention that the no- solicitation/no distribution rule was discriminatorily en- forced at the nurses’ stations. The record shows that, with one exception (i.e., the solicitations concerning sun- 1 The record shows that employees have been solicited regarding Girl Scout cookies, suntan lotion, March of Dimes, United Way, and “going away” and birthday parties. The suntan lotion was a “concoc- tion” that an agency nurse mixed in her blender. 2 See Intercommunity Hospital, 255 NLRB 468, 472 (1981) (ban on solicitation at nurses’ stations valid where the evidence showed the ban was justified to prevent disruption to patient care or disturbance to the patients); NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 784 (1979) (upholding rules restricting solicitation in areas where doctors con- ferred with patients’ families). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206 tan lotion), the solicitations that occurred in these areas were all charitable or social in nature. The solicitation for the Union was not of this character. In my view, an employer can permit charitable solicitations without opening the door to Section 7 conversations. An em- ployer can draw a lawful line between charitable/social solicitations and commercial solicitations. Solicitations for a union fall into the latter category.3 Of course, it could be argued that commercial solicita- tions are not inherently more disruptive to patient care than charitable/social solicitations, and thus an employer cannot prudently forbid the former and permit the latter. However, the Board’s task is not to second-guess the wisdom of an employer’s practices. The Board’s task is only to forbid an employer from discriminating along Section 7 lines. The Respondent here has not engaged in such discrimination. It has drawn a line between unlike subjects (commercial vs. charitable/social). That is not discrimination along Section 7 lines. I recognize that an employee attempted to sell suntan lotion, a commercial activity. However, a one-time ef- fort to sell suntan lotion is not likely to cause the kinds of controversies that are typically involved in an ongoing effort to unionize. Thus, I do not agree that this one in- stance opens the floodgates for unrestricted union orga- nizing in this patient care area. In short, the Respondent’s prohibition of union solici- tation in these patient care areas was nondiscriminatory and was permissible, and the discipline of Plenus for solicitation was lawful. As noted above, I also disagree with my colleagues that the Respondent violated Section 8(a)(1) by allegedly making threats to employee Plenus. The record shows that Plenus was overheard making critical remarks about the Respondent’s new evaluation process. These com- ments were made to two other employees at a nurses’ station. In response, the Respondent expressed its con- cern to Plenus that her comments were made in the vicin- ity of a patient’s room. This concern clearly implicated patient care. Plenus was also told that similar conduct in the future, i.e., in this patient care area, might lead to disciplinary action. Clearly, a hospital has a legitimate interest in not hav- ing employer-employee disputes aired within earshot of 3 See, e.g., 6 West Limited Corp. v. NLRB, 237 F.3d 767, 780 (7th Cir. 2001) (employer’s prohibition of union solicitation not discrimina- tory even though employees were permitted to engage in solicitations for Girl Scout cookies, Christmas ornaments, hand-painted bottles, etc.). Contrary to the suggestion of the majority, I do not cite 6 West because of any “discriminatory no-solicitation no-distribution rule.” I cite it simply to show judicial approval of the concept that an em- ployer’s permission for charitable-social activities does not mean that it is required to grant permission for union activities. patients. It is reasonable for a hospital to make the judgment that such conduct would be upsetting to pa- tients and thus detrimental to patient care. The Respon- dent could lawfully apply its no-solicitation/no- distribution rules to this patient care area. My colleagues contend that Plenus’ remarks concerned a Section 7 matter and that the Respondent did not act because of its concerns about patient care. With respect to the first contention, I agree that employees have a Sec- tion 7 right to discuss wages and evaluations. However, as noted above, the employer can forbid the same in pa- tient care areas. With respect to the second matter, the Respondent expressly told Plenus that her comments were made in the vicinity of a patient’s room. Further, an employer need not wait for an actual interference with patient care before taking action with respect to conduct in a patient care area. It is the potential for such interfer- ence which permits an employer to limit Section 7 activ- ity in patient care areas. (Emphasis added.) Accordingly, I find that the Respondent’s comments to Plenus did not violate the Act. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT apply the Hospital’s no-solicitation and no-distribution rules to nonpatient care areas including the nurses’ breakrooms and remove union literature from the breakrooms. WE WILL NOT issue written counselings to our employ- ees because they engaged in protected union activity. WE WILL NOT threaten our employees with unspecified reprisals in retaliation for their protected union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. ST. MARGARET MERCY HEALTHCARE CENTERS 207 WE WILL within 14 days from the date of this Order, remove from our files any reference to the written verbal notice we issued to Deborah Plenus and, WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the warning will not be used against her in any way. ST. MARGARET MERCY HEALTHCARE CENTER Diane Emich and Claire Brosnan, Esqs., for the General Coun- sel. Jeffrey C. Kauffman and James R. Cho, Esqs. (Seyfarth & Shaw), of Chicago, Illinois, for the Respondent. Denise S. Poloyac, Esq., of Chicago, Illinois, for the Union. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge. This case was tried on May 1 and 2, 2001, in Chicago, Illinois. The charges in Case 13–CA–38269 were filed by the Service Em- ployees International Union, Local 73, AFL–CIO, CLC (the Union) on June 13, 2000. The charges were amended on Au- gust 25, 2000. The complaint issued on November 30, 2000, alleging that St. Margaret Mercy Healthcare Centers (Respon- dent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by applying its rule prohibiting union solicitation and distribution to nonpatient care areas and by selectively and disparately prohibiting union solicitations and distributions; by threatening an employee with unspecified reprisals for exercising her Section 7 rights; and by issuing a written warning against an employee because of her union ac- tivities. The Respondent filed an answer on December 12, 2000, admitting certain jurisdictional allegations and denying that it had committed any unfair labor practices. FINDINGS OF FACT I. JURISDICTION The Respondent, St. Margaret Mercy Healthcare Centers, a corporation, with an office and place of business in Hammond, Indiana (North Campus), and in Dyer, Indiana (South Campus), is an acute care hospital providing inpatient medical Health- care. With gross revenues in excess of $250,000 and having received at its facilities products, goods, and services valued in excess of $5000 from points directly outside the State of Indi- ana, the Respondent is admittedly engaged in commerce and is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The Union, Service Employees International Union, Local 73, AFL–CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS In the fall of 1999, the Union began a campaign to organize Respondent’s registered nurses. On March 17, 2000, the Union filed a petition to represent the registered nurses at Respon- dent’s North Campus and South Campus facilities. A represen- tation election was held on May 18, 2000, in which the Union lost. Respondent has maintained a solicitation and distribution policy since at least 1995, ever since the Teamsters attempted to organize another one of the Respondent’s facilities, St. An- thony’s Hospital. The Respondent’s policy is contained in an employee handbook disseminated to the employees and in each department’s administrative guideline book. The relevant sec- tion of the employee handbook, under the heading “Solicita- tions, Distributions, Tips and Gratuities,” states that “employ- ees may not solicit or distribute any written material during working time.” But this section lists a series of charitable and mission related causes which are considered “permissible forms of solicitation” (R. Exh. 6). The administrative guideline manual sets forth the Respon- dent’s policy more comprehensibly (GC Exh. 3). Section 1.3 of the manual reads: Employees are prohibited from soliciting other employees or distributing any materials for any purpose during the sched- uled or assigned working times of either the employee engag- ing in such activity or employees at whom such activity is di- rected. Two provisos, section 1.3.1 and section 1.3.2, qualify the rule. Section 1.3.1 states that the “restriction on solicitation and dis- tribution by employees do not apply during break periods and meal times,” and section 1.3.2 states that: Employees are prohibited from soliciting other employees or distributing any materials at any time [emphasis added] in pa- tient care areas. Patient care areas include patient rooms, op- erating rooms, places where patients receive treatment (e.g. x- ray and therapy areas), halls and corridors adjacent to the above, and other areas adjoining or accessible thereto which are used by patients for patient care, therapy procedures, movement to and from treatment, consultation with staff, and as waiting areas for patients. Section 1.4 of the manual prescribes where distribution is al- lowed during nonworking time: During non-working time (e.g., break time or meal time), dis- tribution of materials is allowed only in non-work areas (e.g., employee locker rooms, employee restrooms, employee break areas, or meal rooms). During the Union’s organizing drive, Respondent’s man- agement held meetings to inform the nurses of the Respon- dent’s distribution and solicitation policy. In apparent conflict with its written policy, nurses were told that solicitation and distribution were not allowed in the lounges or breakrooms,1 because such areas were patient care areas, and that the Hospi- tal wanted to avoid a “hostile environment” close to where the patients were treated. The interpretation of the no-solicitation policy was applied in Respondent’s North and South campuses, in three main areas: the intensive care unit (ICU), the intermediate care unit (IMCU), and the 3A unit of the behaviorial health department (Adult Psych.). The record shows that the “lounge” (the multi- 1 The room is also known as the reporting room. Nurses referred to it as breakroom and Linda Ray used the term, lounge. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208 purpose room or the breakroom) located opposite the patient rooms and is usually separated by the nurses’ station (GC Exh. 2; R. Exhs. 2, 4). It is uncontested that patients do not receive treatments in these rooms. Linda Ray, director of critical care, testified that she con- sulted with upper management and then met with her five man- agers, Blanca Conrad, Karen Bogdan, Joan Dorman, Gini Les- ter, and Cam Adams. She said, “There was some question as to . . . what the lounges were” (Tr. 337). According to the testi- mony, the lounges or multipurpose rooms were initially re- garded as “non-patient areas.” But once the union campaign began, managers declared “that union discussion, employees could not have any discussion in those areas namely because they were in patient care areas” (Tr. 338). Ray further testified that she instructed her managers to communicate this to their staffs. Mary Jo Goins, manager of adult psych., and Dr. Philip Helding, director of behaviorial health, held staff meetings in unit 3A, adult psych. in the fall of 1999 reminding the 12–15 staff personnel (nurses and therapists), that there would be no solicitation of any kind in the breakroom, because it was con- sidered a patient care area (Tr. 209). Similarly in the ICU South, Gini Lester, manager of ICU and IMCU, informed her staff on February 17, 2000, that they could not talk about the Union nor post union material in a patient care room. According to her testimony, patient areas included the breakroom and the nurses’ station. She held a similar meet- ing in March with the evening shift nurses, telling them about the prohibitions on union solicitation in the breakroom. Ray had explained to Lester that the facility is “her house and that she gets to decide the rules.” (Tr. 33.) In March 2000, Blanca Conrad, manager in ICU North, con- ducted meetings about the Union. Geri Jaracz, a nurse in ICU North, recalled that she had a meeting with her supervisors, Conrad and Ray, during which the solicitation and distribution policy was discussed. Jaracz credibly testified that both Conrad and Ray told her that flyers were prohibited at the Hospital, and that nurses were not permitted to discuss the Union, not even in the cafeteria. Geri Jaracz also testified that Conrad entered the North Campus ICU in late March 2000 multipurpose room and tore down flyers from the bulletin board and stated “all areas are patient care areas.” Conrad specifically denied having ever made such statements or removing union material in front of other workers, but she admitted in general that she had removed union literature from the staff lounges. On May 5, 2000, Judith Barkow, a staff nurse in 3A psych., was informed by Linda Thompson, director of behavioral health, that other workers had complained that Barkow had been distributing union materials in the multipurpose rooms. Thompson told her that such distributions were not permitted. The complaints came from Cindy Williams and Margaret Markovich, who were managers in 2A and 4A, respectively. Barkow made an effort to defend herself, by referring to the written solicitation policy and by claiming that the breakroom should not be regarded as a patient care area. Deborah Plenus, an ICU South nurse, received a corrective action notice, dated April 18, 2000, in connection with a union- related incident. Plenus was an active union supporter and had informed her supervisor, Lester, of her union support. Plenus testified that she distributed union materials at the Hospital, and that her postings were always taken down. In April 2000, Ple- nus approached Isabelle Skurka, a clinical nurse educator, in the ICU South. On this occasion she asked Skurka to sign a union card. Skurka refused to sign the card. Despite her first rejection, Plenus approached Skurka who was seated behind the nurses’ station 2 weeks later and asked her to sign a card, stat- ing jokingly or laughingly, “I’m serious.” Skurka testified that she told management about the second incident, because she felt that solicitations in the ICU were a distraction to her job and also inappropriate, and because she felt “pursued.” On April 18, Lester met with Plenus to discuss the Skurka incident. Lester told Plenus that she could not solicit employees at the nurses’ station while employees were working. Lester issued Plenus the written corrective action notice (GC Exh. 19). On August 4, 2000, Josita DeHaan-Kicmal, a manager of therapy at the South Campus, overheard Debbie Plenus speak- ing critically to other nurses about the Respondent’s new evaluation process. DeHaan-Kicmal testified that “the nurse specifically Debbie Plenus made a comment to the effect that this was just a manager ploy and they [management] weren’t being truthful” (Tr. 289). Because DeHaan-Kicmal felt uncom- fortable about the situation, she reported the incident to Lester, who reported it to Ray. In her testimony, DeHaan-Kicmal de- scribed Plenus’ tone as negative and so loud that others could hear it. On August 18, Lester and Ray met with Plenus. Plenus was told that the behavior was completely inappropriate, and would not be tolerated in front of patients. At Ray’s request, DeHaan-Kicmal provided a written statement of the incident (GC Exh. 28). Ray testified that during the meeting she ex- pressed her concern that the comments were overheard in the vicinity of a patient’s room, that Plenus created a morale issue, and that instead of bringing the rest of the staff down creating low morale, she should report her concerns to management. Ray also informed Plenus that similar conduct in the future would be considered under the Franciscan values,2 which might lead to disciplinary action. ANALYSIS The no-solicitation rule. The complaint alleges that the Re- spondent enforced the no-solicitation rule selectively and dis- parately by prohibiting union solicitation and by applying the rule to nonpatient areas. The record shows that the Respondent applied its policy to the breakrooms, also referred to as the multipurpose rooms and that it applied the policy in a discrimi- natory or disparate manner. Indeed, the record is uncontra- dicted that the breakrooms were included in the prohibition. In its brief, the Respondent summarizes the record as follows (R. Br. p. 12): Before and during the organizing campaign, Hospital managers held meetings with nurses to remind them about the Hospital’s solicitation and distribution policy and to remind them that the policy prohibits such activities in pa- 2 These are general standards of conduct such as respect for life, treat others with compassion, Christian Stewardship, etc. (Tr. 379.) ST. MARGARET MERCY HEALTHCARE CENTERS 209 tient care areas. Linda Ray held meetings with the manag- ers responsible for ICU (North and South) and IMCU (South), to remind them to reinforce with staff that the Hospital’s policy prohibited solicitation and distribution in patient care areas including the multipurpose rooms. The Hospital prohibited solicitation and distribution in the mul- tipurpose rooms because they were considered patient care areas and the Hospital did not want to create a potentially “hostile environment” close to areas where patients are be- ing treated. The Respondent also concedes that the prohibition was simi- larly communicated to the managers in the behavioral health department. More specifically, the Respondent admits that on February 17, 2000, “Lester instructed the nurses not to talk about the Union or post campaign materials in patient care areas, including the multipurpose room and nursing station” (R. Br. p. 13). The record also shows that management removed union literature from the multipurpose rooms from time to time and informed the nurses that they were not allowed to solicit for the union or to place union materials in the breakroom. In Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978), a leading case on no-solicitation and no-distribution rules, the Court stated: We therefore hold that the Board’s general approach of requiring health-care facilities to permit employee solicita- tion and distribution during nonworking time in nonwork- 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. Any rules, which prohibit employees’ solicitation in Healthcare facilities in areas, which are not considered immediate patient care areas, are presumptively invalid. Id. at 508. Significantly, it is well settled that “immediate patient care areas” have been described as “patients’ rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas.” St. John’s Hospital, 222 NLRB 1150 (1976), enfd. in part 557 F.2d 1368 (10th Cir. 1977), and cited in Baptist Hospi- tal, 442 U.S. 773, 781 (1979). For example, a rule prohibiting “soliciting or distributing materials during working time or in any work area or resident care area” was held to be overly broad, because such a ban must be limited to immediate patient care areas. Healthcare & Retirement Corp., 310 NLRB 1002, 1005 (1993). In Brockton Hospital, 333 NLRB 1367 (2001), the Board reaffirmed its long standing holding, stating in part: We adhere to the Board’s established precedent. Un- der that precedent, a hospital’s prohibition of solicitation or distribution of literature in immediate patient care areas, even during employees’ nonworking time, is presump- tively lawful. Restrictions on solicitation, during non- working time, or distribution of literature, during non- working time and in nonworking areas, however, are pre- sumptively unlawful even with respect to areas that may be accessible to patients. The Supreme Court has upheld these presumptions as consistent with the Act, and we find no support in the record of this case for departing from these well-settled principles. Under this standard, the General Counsel is correct in ob- serving that the written policy contained in the employee hand- book and the policy manual is valid on its face, but overbroad when applied to the breakroom or multipurpose rooms. These areas can hardly be described as “immediate patient care ar- eas.” It is uncontested that patients do not receive any treat- ment in the breakrooms located in the ICU or the IMCU at the South Campus or the ICU at the North Campus, neither are patients brought or treated in the breakroom at the Adult Psych. area. Neither patients nor family members of patients enter the breakrooms. Instead, these rooms are used as breakrooms for nurses, in which they regularly eat lunch, take breaks, and hold meetings, including work related meetings and social gather- ings for potlucks, pizza parties, and holiday and birthday par- ties. The Respondent has argued that the multipurpose rooms are located as close as 18 to 20 feet to the nearest patient room, that the doors are usually left open, and that the rooms are used for work related activities, such as Tuesday for rounds and meet- ings with social workers, dietary specialists, and nurse case managers. On other occasions, according to the Respondent, the rooms are used for staff meetings, reviewing or completing patient charts, and for unit discussions. However, the Respon- dent has not established that these breakrooms should be con- sidered immediate patient care areas, to permit Respondent’s restrictions on solicitations and distributions. This is particu- larly so because, as more thoroughly discussed below, the Re- spondent tolerated the distribution of materials and solicitations for numerous other causes. Moreover, the Respondent also failed to show that the banned solicitation or distribution of materials in the breakroom adversely impacts patient care. Baptist Hospital, 442 U.S. at 781. There has been no showing that patient care was in any way compromised by such activities in the breakrooms, which were obviously furnished as breakrooms with refrigerators, coffee machines, and televisions. The disputed area is not one which patients, especially those who are fragile or in critical condition frequent, nor are patients transported through these areas. The breakrooms provide natural gathering areas for the nurses and are not public rooms or sitting areas where patients meet with families or friends, or where patients confer with their doctors. Indeed, testimony shows that patients cannot hear what is going on in the breakrooms even when the doors were left open. A patient may observe from time to time that nurses congregate in the breakrooms, especially on special occasions for such events as holiday or birthday parties and patients may even hear a birthday song. Under such circum- stances, it is difficult to fathom how union solicitations or the passing out of union literature in the breakrooms would be noticed by patients as an unusual event or somehow disturb their care or create an atmosphere different from the norm. That the breakrooms are in close proximity to patients’ rooms is not supported by the Respondent’s own diagrams which show that the breakrooms are located in the corridor opposite patients rooms and to some extent separated by the nurses’ stations (R. Exhs. 2 and 4; GC Exh. 2). The Respondent’s ar- gument is also belied by its own practice of permitting anti- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210 union dialogues in the breakroom as well as the posting of anti- union literature. Fairfax Hospital, 310 NLRB 299 (1993). The Respondent submits that other nonwork areas were available to the employees such as the cafeteria, lobby, locker room, and bathrooms. However, the record shows that a great deal of confusion existed among members of management as to exactly which area could be used by the employees for their union activity. There was testimony that the cafeteria could be used; yet several employees were under the impression that no area within the Hospital was permitted for solicitations and distributions. Moreover, the cafeteria is located in the North Campus and accordingly inaccessible as a practical matter to the nurses in the South Campus, located in a different town. That locker rooms were available was not clearly communi- cated to the nurses. In short, the Respondent failed to make an area available or communicate to the employees that a particu- lar location was appropriate as a nonworking area. The Respondent, having failed to justify the validity of its broad policy prohibiting union solicitations and union literature in the breakroom as disruptive of patient care, violated Section 8(a)(1) of the Act. The complaint alleges that the Respondent also applied its solicitation and distribution policy in a discriminatory manner. Accordingly, even if the Respondent had prevailed on its argu- ment that its policy was not overly broad and therefore lawful, the record clearly shows that the Hospital applied its policy in a disparate manner. Not until the Union began its campaign in late 1999, were supervisors told to enforce the policy against solicitation and distribution in the breakrooms. For example, Linda Thompson, who is responsible for five managers in the behavioral health unit, testified that she learned the rules about the solicitation and distribution policy from the meetings with consultants after the union petition was filed and that the lounges were considered patient care areas. Blanca Conrad also recalled that she learned about the rules regarding the so- licitation policy during educational meetings with management in the spring 2000. Similar testimony came from Ginni Lester and Linda Ray. The Board has held that the precipitous en- forcement of a presumptively valid rule in response to a union campaign reveals a discriminatory motive and therefore vio- lates Section 8(a)(1) of the Act. Youville Healthcare Center, 326 NLRB 495 (1998). Moreover, the record is replete with information that the Respondent did not enforce its policy in the breakrooms for other causes. This, despite management’s awareness that nurses solicited for Avon products, Girl Scout cookies, Taffy Apples, and Pampered Chef in the presence of Lester in the ICU breakrooms. Employees solicited for the sale of candy, for the March of Dimes, Relay for Life, and for the sale of personal items, including houses and cats. The record shows that this activity occurred in the breakrooms in 3A psych. as well as the ICU (GC Exhs. 8–15). Only after the filing of a charge in this case, was one of the nurses asked to remove a solicitation for Girl Scout cookies. The record clearly supports the allegations in the complaint that the Respondent did not apply its prohibitions on solicita- tion and distribution in a uniform manner. Specifically, man- agement made an obvious effort to stifle union solicitation and distributions. In disagreement with the Respondent, I find that the evidence did not merely show sporadic and isolated in- stances of solicitation, but it showed that for a period of years, nurses took it for granted that the breakroom and its bulletin board were appropriate for the types of solicitations represented in the various photographs which clearly show commercial advertisements, as well as items for sale (GC Exhs. 4–17). Testimony reveals that these items were typical manifestations of a practice, which the Respondent tolerated before and during the time of the union drive. Moreover, during the same time, the Respondent posted its own antiunion literature in the break- rooms. Under these circumstances, the record clearly shows a pattern of discriminatory application of the solicitation and distribution policy. Accordingly, even if the Hospital’s policy were regarded as valid, directing its enforcement solely against the union solicitation renders the practice unlawful. Mercy General Hospital, 334 NLRB 100 (2001); Vincent’s Hospital, 265 NLRB 38 (1982), enfd. in part 729 F.2d 730 (8th Cir. 1984). The Discipline of Deborah Plenus. On April 18, 2000, the Respondent issued an “Employee Corrective Action Notice” to Debbie Plenus, which states: “At 5 p.m. on 4/10 by the nurses station at ICU South you approached another R.N., from an- other department who came to ICU to perform her job duties, requesting that she sign a union card.” (GC Exh. 19.) The no- tice further stated: “You are expected to follow SMM policies in regards to distribution and solicitation on hospital property.” Although the written counseling was not placed in the file maintained by the human resources office, it was made a part of the manager’s file and would be considered for future discipli- nary action. The complaint alleges that the Respondent’s conduct in this regard violated Section 8(a)(3) of the Act as discriminatory. The record shows that the brief statement in the notice is an accurate summary of Plenus’ solicitation efforts on April 4, 2000. Plenus, a registered nurse in the ICU, was an active un- ion supporter who had signed a union card, who openly solic- ited for the Union, and who frequently posted various union literature in the breakrooms. She admitted that she had asked a nurse at the nurses’ station during worktime to sign a union card. This was perceived by management as a clear violation of the Respondent’s solicitation and distribution rules. I find it significant that the gravamen of Plenus’ alleged mis- conduct consisted of a verbal request or a mere remark rather than activities related to postings of written materials or to col- lect money. The General Counsel argues that the application of the no-solicitation policy to Plenus’ activities at the nurses’ station was unlawful for two reasons: first, the Respondent failed to prove that the nurses’ station was an immediate patient care area or that union solicitation would disrupt or interfere with patient care.3 Second, according to the General Counsel, the Respondent’s prohibition against union solicitation at the nurses’ station was discriminatory because the record shows that numerous forms of solicitations for other causes were usu- ally tolerated at the nurses’ station. Several witnesses provided 3 Because of my finding that the policy was not uniformly enforced, and violative of the Act, I have not addressed the General Counsel’s alternate theory. ST. MARGARET MERCY HEALTHCARE CENTERS 211 unequivocal testimony that solicitations at the nurses’ station was a common practice. For example, Plenus testified that she observed nurses engage in solicitations for cookies, March of Dimes, United Way, and others at the nurses’ station. She saw envelopes for collections for going away parties and birthday parties at the nurses’ station. She was solicited at the ICU South nurses’ station by a nurse trying to sell Beach Balm lo- tion in the presence of Lester. Lester did not prohibit the prac- tice even though the incident occurred shortly after the union election. Dorothy Hopper testified that the nurses would col- lect money at the nurses’ station for potluck parties or birthday parties and that the collection would usually last 2 to 3 weeks. Collections were also conducted for bereavement purposes. Management was not only aware of this activity but partici- pated in it. Judith Barkow, staff nurse at 3A psych., similarly recalled that collections for social events were solicited at the nurses’ station on the medication cart. Lester testified about collections for going away gifts, for secretary’s day, or boss’ day occurring at the nurses’ station. The testimony of Isabelle Skurka, a nurse educator, supported the notion that solicitations at the nurses’ station was not uncommon (Tr. 400): I see like signs for putting money in an envelope for people going away. Those kinds of things.” Barkow testified that her supervisor, Goins, contributed to her solicitations for the March of Dimes. Furthermore, nurses discussed a range of subjects unrelated to their duties or the work at the nurses’ station without being reprimanded. Geri Jaracz, a nurse in the ICU, North Campus, similarly testified that solicitations for social occasions oc- curred at the nurses’ station. Virtually every witness testified that the nurses engaged in conversations about subjects unre- lated to their duties without being reprimanded. I must there- fore reject the Respondent’s arguments that solicitations at the nurses’ station was sporadic and isolated and, in any case, not known by management. Plenus’ reprimand was based on her oral request to a co- worker to sign a union card, not related to any distributions or postings of union materials. I, accordingly find that the prohi- bition directed against union talk and union solicitation, while permitting nonwork discussions and solicitations was discrimi- natory. Mercy General Hospital, 334 NLRB 100 (2001). As the Board decided in Cooper Health System, 327 NLRB 1159 (1999), an employer violates Section 8(a)(3) when an employee is disciplined as a result of an unlawful application of a no- solicitation rule. Threats of reprisals. The complaint alleges and the General Counsel, as well as the Charging Party, argue that the Respon- dent made unspecified threats of reprisals directed at Deborah Plenus because of her protected concerted activity. On about August 27, 2000, Linda Ray and Ginni Lester, met with Plenus and informed her that she was overheard making derogatory comments about management. The person who overheard the incident and who reported it to management was Josita Dehaan-Kicmal, a manager and physical therapist at the South Campus in August 2000. She testified that in early Au- gust 2000, she was treating a patient in the ICU, a patient care area across the center of the nurses’ station, when she over- heard a conversation among three employees. Plenus, another nurse and a ward clerk talked about the annual employee re- view process. Dehaan-Kicmal summarized the substance of the conversation in her testimony as follows (Tr. 289): Well, I overheard a conversation regarding the changes in the nursing annual employee appraisal process. And they were discussing how things had changed and now their eval dates had been moved back. And so they were going to be late. And then their dissatisfaction with that process. The Ward Clerk, since they were kind of, obvi- ously not happy with it, the Ward Clerk, I recall, did say something about that the Nurse Manager had brought up the reasons why the timing or something had changed. And then the and then the nurse specifically Debbie Plenus made a comment to the affect that this was just a manager ploy and they weren’t being truthful. Convinced that Plenus’ comments were inappropriate in a patient care area, she reported it to Lester on August 17, 2000. Several days later she received a call from Ray who asked her to prepare a memorandum about the incident (GC Exh. 28). At the meeting on about August 21, 2000, Ray communi- cated her concerns to Plenus, pointing out that her criticism of management was expressed in the vicinity of a patient room who might have heard discussion, that negative comments cre- ated a morale issue, and that such comments should be made to management. During the meeting, Ray also referred to Fran- ciscan values (Tr. 380): I laid out the expectation that she was to adhere to the Franciscan Values and that this discussion that could lead to corrective action. I think she need to hear that. Plenus’ version of this scenario differs only slightly, but she recalled that Ray also stated that a notation of this meeting would be placed in her personnel file and further that she could leave if she was unhappy with her job. I credit Ray’s version of the conversation and find that the reference to Franciscan val- ues amounted to a warning by management that similar conduct in the future would result in disciplinary or corrective action. In agreement with the General Counsel and the Charging Party, I find that Plenus had a conversation with two other employees about their working conditions at the Hospital. Her critical comments of management was protected by Section 7 of the Act and constituted protected concerted activity, even if her remarks could be interpreted to accuse management of dishon- esty. Her conduct was not so egregious, contumacious, or inju- rious to management so as to render the employee unfit for service. Marietta Corp., 293 NLRB 719, 725 (1989). The Respondent failed to point to any rule or policy in the facility prohibiting employees from speaking with each other or engag- ing in discussions about matters unrelated to their work. The mere fact that DeHaan-Kicmal considered the conversation inappropriate in a patient care area does not show that such conduct interfered with patient care. In Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978), the Court interpreted Section 7 of the Act that employees are protected under the “mutual aid or pro- tection” clause when they seek to improve their lot as employ- ees. While “mere talk is sufficient to put a worker in contact with his fellow employees,” it presumes group action to come within the protection of Section 7. Prill v. NLRB, 755 F.2d 941 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212 (D.C. Cir. 1985), cert. denied mem. 474 U.S. 971 (1985).4 In Meyers Industries, 281 NLRB 882, 887 (1986), the Board reaf- firmed its position that Section 7 of the Act extends to con- certed activity which in its inception involves only a speaker and a listener, for such an activity is the preliminary step to group action. Although the record does not show that Plenus and the two other employees were contemplating group action as they discussed the evaluation process and the “correct raises,” it is obvious that discussions of this kind usually pre- cede group action.5 In NLRB v. Main Steel Terrace Care Cen- ter, 218 F.3d 0531 (6th Cir. 2000), the court upheld a violation of Section 8(a)(1) of the Act when the employer promulgated a rule prohibiting employees from discussing wages with one another. The court stated as follows (Id. at 537): A rule prohibiting employees from communicating with one another regarding wages, a key objective of or- ganizational activity, undoubtedly tends to interfere with the employees’ rights to engage in protected concerted ac- tivity. I accordingly find that the Respondent interfered with the employee’s Section 7 rights, and the right to engage in pro- tected concerted activities, and that the Respondent had vio- lated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, St. Margaret Mercy Healthcare Centers, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Service Employees International Union, Lo- cal 73, AFL–CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By applying the Hospital’s no-solicitation/no-distribution rules to nonpatient care areas, including the nurses’ breakrooms and by removing union literature from the breakrooms, the Respondent violated Section 8(a)(1) of the Act. 4. By enforcing the Hospital’s no-solicitation and distribu- tion rules selectively and disparately by prohibiting union so- licitations and distributions while permitting nonunion solicita- tions and distributions at the South Campus and the North Campus, the Respondent violated Section 8(a)(1) of the Act. 5. By issuing a written counseling to Deborah Plenus for engaging in union solicitations at the nurses’ desk, while per- mitting nonunion discussions and solicitations at the nurses’ desk, the Respondent violated Section 8(a)(1) and (3) of the Act. 6. By threatening an employee with unspecified reprisals in retaliation for her protected concerted activity, the Respondent violated Section (1) of the Act. 7. The unfair labor practices committed by the Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. 4 See Meyers Industries, 268 NLRB 493 (1984). 5 The allegation that the Respondent’s action was a result of the em- ployee’s union activity and the charge filed with the NLRB was not substantiated as the record does not show that Ray was aware of these developments at the time of her discussion with Plenus. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, St. Margaret Mercy Healthcare Centers, Hammond and Dyer, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying the Hospital’s no-solicitation and no- distribution rules to nonpatient care areas, including the nurses’ breakrooms and removing union literature from the break- rooms. (b) Enforcing the Hospital’s no-solicitation and no- distribution rules selectively and disparately and prohibiting union solicitations and distributions while permitting nonunion solicitations and distributions at the South Campus and the North Campus. (c) Issuing written counselings to its employees for engag- ing in union solicitations at the nurses’ desk, while permitting nonunion discussions and solicitations at the nurses’ desk. (d) Threatening its employees with unspecified reprisals in retaliation for their protected concerted activities. (e) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from Respondent’s files any reference to the written verbal warning notice, which it issued to Deborah Plenus and within 3 days thereafter, notify her, in writing, that this has been done and that the warning will not be used against her in any way. (b) Within 14 days after service by the Region, post at its facilities in Hammond and Dyer, Indiana, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the 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 pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 17, 2000. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 7 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.” ST. MARGARET MERCY HEALTHCARE CENTERS 213 (c) Within 21 days after receiving service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.