Mesa Vista Hospital

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vista Hill Foundation d/b/a Mesa Vista Hospital and Office & Professional Employees Interna- tional Union, Local 30, AFL-CIO, CLC. Cases 21-CA-20284 and 21-CA-20358 11 June 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 16 September 1982 Administrative Law Judge David G. Heilbrun issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. The Respondent operates a hospital where it is engaged in providing acute psychiatric care, pri- marily to patients suffering from psychoses. On 19 May 1981,1 after the onset of union activity by its employees, the Respondent promulgated a rule which read in pertinent part: It has come to my attention that a number of employees of the hospital are wearing badges or insignia bearing the words "Local 30." I understand these badges or insignia to have reference to the organizational efforts of Local 30 of the Office & Professional Employ- ees International (AFL-CIO). It is neither the intent nor the purpose of hospital management to infringe upon the rights of employees to engage in organizational activity. However, the wearing of these or any badges or insignia (other than name badges) in patient care areas is contrary to hospital policy regarding solici- tation as set forth in the Employee Handbook and must, of necessity, be restricted. Accord- ingly, all employees are reminded that they are absolutely prohibited from wearing any badges, buttons or other insignia (other than name badges) during working time or in work- ing or patient care areas. The terms "working or patient care areas" are defined as including all areas of the hospital except employee lounges, parking areas, and cafeteria during scheduled employee meal hours and when no patients [are] present. i Unless otherwise specified, all dates herein refer to 1981 Although the rule on its face prohibits insignia of all types, the Respondent concedes that the rule was directed only against employees who wore "contentious," "divisive," or "inflammatory" insig- nia. Dr. Robert Moore, the Respondent 's medical director and chief executive officer , testified that the Respondent enforced the rule in this manner because the wearing of contentious insignia by em- ployees would disrupt the Respondent's approach to patient care.2 On 15 June, pursuant to the 19 May rule, the Respondent suspended employees who wore a yellow badge reading , "Local 30 Union Organizing Committee." 1. The judge concluded that the Respondent's 19 May rule was unlawfully broad. In doing so, he ac- corded little weight to Dr . Moore's medical testi- mony and found that it did not establish a business justification for the rule. Although we agree that the rule is unlawful, we do so only for the reasons set forth below, and we do not rely on the judge's analysis of Dr. Moore's testimony.s In health care facilities, rules that contain restric- tions of nonworking time solicitation outside imme- diate patient care areas are presumptively invalid. NLRB v. Baptist Hospital, 422 U.S. 773, 781 (1979). The presumption is also applicable to rules restrict- ing the wearing of insignia outside immediate pa- tient care areas. George J. London Memorial Hospi- tal, 238 NLRB 704, 708 (1978). See also Saint Vin- cent's Hospital, 265 NLRB 38 (1982). An employer may rebut the presumption by demonstrating that the rule is "necessary to avoid disruption of health- care operations or disturbance of patients."4 The Supreme Court has observed that the Board's pre- sumption "does no more than place on the hospital the burden of proving, with respect to areas to which it applies, that union solicitation may ad- versely affect patients."5 We find that Respondent has not met its burden in this proceeding. 2 Dr Moore testified that the Respondent utilizes a "treatment team" concept, in which psychiatrists and other staff members work together to develop a treatment program for each patient The entire treatment team works within the program and avoids any indication that it is divided as to the proper course of treatment According to Dr Moore, this "coher- ent" approach is necessary to allay the fears of psychotic patients and to create an atmosphere of trust between patients and staff. Dr Moore testi- fied that the wearing of contentious insignia by employees would demon- strate to patients that there is a lack of cohesion within the staff, and would undermine the patients ' trust and confidence in the treatment team In Dr Moore's opinion, the yellow union badge herein is conten- tious, while other buttons permitted by the Respondent are not. Dr. Moore testified that buttons stating, inter alia, "Save the Whales," "Save the Atlanta Children," and "Happy St Patrick's Day," which the Re- spondent permitted, would not indicate to patients that a clear division exists within the staff 8 We find it particularly inappropriate that, in justifying his rejection of Dr Moore's expert testimony, the judge disparaged Dr. Moore's approv- al of the occasional use of electroshock therapy on psychotic patients. Beth Israel Hospital Y NLRB, 437 U S 483, 507 (1978). NLRB v. Baptist Hospital, supra at 781 280 NLRB No. 27 MESA VISTA HOSPITAL As noted above, the 19 May rule prohibits the wearing of insignia in "working or patient care areas," which the rule defines as "all areas of the hospital except employee lounges, parking areas, and cafeteria during scheduled employee meal hours and when no patients [are] present." The rule thus permits employees to wear insignia in only three locations within the hospital. In view of this broad restriction with respect to location, the Respondent must demonstrate an adverse impact on patient care in those areas of the hospital where the ban applies. To meet this burden, the Respond- ent must establish that employees and patients have contact in such areas, since the Respondent does not contend that the wearing of insignia by em- ployees in locations inaccessible to patients presents any risk of an adverse impact on patient care.6 However, the Respondent introduced virtually no evidence concerning the other areas of the hospital, outside immediate patient care areas, in which the ban is applicable. The record contains little evi- dence describing such areas and little evidence of the frequency with which patients use those areas.? Absent such evidence, we are unwilling to assume that patients have contact with employees in every part of the hospital except the three areas set forth in the rule. Our analysis comports with NLRB v. Baptist Hospital, supra, in which the Supreme Court upheld the Board's finding that a hospital unlawfully banned solicitation in the cafeteria, gift shop, and first-floor lobbies, where the hospital had presented no clear evidence of the frequency with which patients used those areas." s In NLRB v. Baptist Hospital, supra at 781 fn 11, the Supreme Court observed that a hospital may overcome the presumption by showing that solicita- tion is likely either to disrupt patient care or disturb patients. The distinction is an important one. Solicitation may disrupt patient care if it interferes 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 [Emphasis added ] Here, the Respondent contends only that patients may be harmed by ex- posure to contentious insignia. It does not argue, and the record does not reflect, that contentious insignia displayed outside the presence of patients would interfere with the health care activities of doctors, nurses, and staff. r Porfirio Trillas, a senior janitor who was suspended for wearing the union badge, testified that he was not involved in patient care, but that he did have contact with patients. However, the record does not disclose the locations within the hospital where this contact occurs Cynthia Mongan, another of the suspended employees, was an insurance clerk in the business office on 15 June She testified that she was not involved in patient care, but that she did have contact with patients who sought to place personal property in the Respondent 's safe Joanne Fox, who was also suspended, worked in the business office as an insurance and billing clerk. She indicated that she discharges patients who are ready to leave the hospital, and that patients sometimes come to the business office to sign insurance forms. We cannot find that the Respondent has met its burden of justifying its broad ban by adducing this limited evidence of patient-employee contact in and around the business office 8 NLRB v. Baptist Hospital, supra at 786-787. We also note that in Presbyterian/St Luke 's Medical Center, 258 NLRB 93, 98-99 (1981), enfd. 299 In view of the foregoing, we fmd that the Re- spondent has not demonstrated that the wearing of insignia would have an adverse impact on patient care in all those areas of the hospital where the ban is applicable. Consequently, we find that the 19 May rule is overly broad with respect to location and violates Section 8(a)(1).9 2. In addition to restricting the locations in which employees may wear insignia, the Respond- ent's rule also prohibits the wearing of insignia "during working time." We fmd that the rule's re- striction in terms of time is also unlawfully broad. In contrast to the presumptive validity of rules proscribing verbal solicitation of working employ- ees, the Board and the courts have long recognized that employees have the right to wear union insig- nia even while at work. 10 A hospital's prohibition of the wearing of insignia, however, on working and even on nonworking time in immediate patient care areas is presumptively valid." Outside imme- diate patient care areas, and outside other areas where the hospital establishes an adverse effect on patient care,12 employees retain the right to wear union insignia while working. An employer may further restrict the right by demonstrating "special circumstances."' 3 The Respondent argues that such circumstances have been established by Dr. Moore's testimony that contentious insignia would adversely affect patient care. For the reasons below, we reject the Respondent's argument. Even if we again assume that the wearing of union insignia poses a threat to patient care, the Respondent cannot rely on this alone as a "special circumstance" to restrict the wearing of union in- signia at all times when employees are working. We note that in United Parcel Service, 195 NLRB 441 (1972), upon which the Respondent relies, the Board upheld a rule which was tailored to restrict insignia only at those times when "special circum- 723 F.2d 1468 (10th Cir. 1983), the Board found that the hospital's solici- tation ban encompassed a wide variety of areas, including some not de- scribed in the record, which were generally used by patients , employees, and the public The Board observed that, while some of these areas may have been involved in patient care or may have been utilized by patients, the hospital had not introduced sufficient evidence to justify the applica- tion of the ban to those areas. 9 We shall modify the judge's recommended Order to require that the Respondent rescind the 19 May rule. See Presbyterian/St. Luke 's Medical Center, supra at 112; A. T. & SF Memorial Hospitals, 234 NLRB 436, 437 (1978). 1O Ohio Masonic Home, 205 NLRB 357 (1973), enfd. 511 F 2d 527 (6th Cir 1975). See Republic Aviation Corp. v NLRB, 324 U.S. 802 fn 7 (1945). 11 See George J. London Memorial Hospital, supra, Saint Vincent's Hos- pital, supra. 12 As we have found, the Respondent has not met its burden of estab lishing that the wearing of insignia would adversely affect patient care in those areas, outside immediate patient care areas, where the rule applies 13 Ohio Masonic Home, supra; Floridian Hotel of Tampa, 137 NLRB 1484 (1962) 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances" warranted the restriction. In that case the employer, in order to preserve its public image, prohibited its employees from wearing intraunion campaign buttons. The Board emphasized that the restrictions applied only to the employer's drivers, and only when they were in uniform, making deliv- eries to customers, and otherwise meeting the gen- eral public. The Board found no evidence that the employer's notice restricted the display of insignia when drivers were out of uniform and working in the terminal, away from customers and the public. Thus, the employer in United Parcel Service did not forbid all working-time display of insignia. When out of uniform and away from the public, drivers were permitted to wear insignia on working time. In contrast, the Respondent has forbidden all working-time display of insignia even for employ- ees who do not have contact with patients during much of their working time. In view of the forego- ing, we find that the Respondent has not estab- lished "special circumstances" to justify the broad applicability of the 19 May rule.14 3. In addition to alleging that the 19 May rule is unlawful on its face, the complaint alleges that the Respondent further violated Section 8(a)(1) when it enforced that rule 15 June by suspending employ- ees who wore union insignia. The Board has consistently found that an overly broad rule governing solicitation and distribution is invalid for all purposes, and that consequently any discipline pursuant to such a rule is unlawful. y s This principle is also applicable to rules governing the wearing of insignia.16 We have found above that the Respondent's 19 May rule is unlawfully broad, and consequently we find that the 15 June suspensions, which were based on that rule, violat- ed Section 8(a)(1).17 4. The complaint also alleges that, apart from the 19 May rule prohibiting the wearing of insignia, the Respondent maintained another rule governing solicitation and distribution. The General Counsel 14 We also find that this case is distinguishable from Evergreen Nursing Home, 198 NLRB 775 (1972), where the Board upheld a strict dress code which required licensed practical nurses and nurses aides to wear all- white uniforms with no adornments. The Board found, inter alia, that the dress code contributed to the nurses' neat and professional appearance, which was an important part of the hospital's image to both the patients and the public. The Board specifically observed that the union buttons detracted from the dignity of the nurses ' all-white uniforms. Here, the Respondent's public image is not at issue , and there is no evidence that the Respondent required the suspended employees, who were not nurses, to wear uniforms. To the contrary, employee Dodd testified that he wore his own clothes to work . In view of the differing circumstances, Ever- green is not controlling herein 15 Presbyterutn/St Luke 's Medical Center, supra at 99; A. T. & SF. Me- morial Hospitals, supra; Times Publishing Co., 231 NLRB 207, 208 (1977). George J. London Memorial Hospital, supra at 708. 's As we did in Presbyterian/St Luke's Medical Center, supra at 99, we find it unnecessary to make a separate finding that the rule was "discn- minatonly" applied. We note that the make-whole remedy for the sus- pended employees will be the same in any event does not contend that the rule is unlawful on its face, but does contend that it was selectively and disparately enforced by the Respondent's supervi- sor, Fomaris. The rule provides, inter alia, that employees may distribute materials in the Respondent's cafeterias during scheduled employee meal hours. In agree- ment with the judge, we fmd that on 19 May em- ployee Michele Busch distributed union literature inside the cafeteria during the employees' lunch hour.18 Supervisor Fomaris approached Busch and told her that she was not allowed to distribute the literature, and that she would have to leave the cafeteria. The judge found that the Respondent enforced the rule unlawfully, inasmuch as employees were permitted to engage in nonunion solicitation and distribution in the cafeteria during nonworking time. The record discloses two such incidents of nonunion solicitation and distribution, but there is no evidence that the Respondent was aware of those incidents. Therefore, we do not fmd that the Respondent enforced the rule disparately. Nonetheless, we find that Fomaris' instruction to Busch was unlawful. Busch's right to distribute union literature in the cafeteria during nonworking time, which activity the Respondent's rule does not even purport to restrict, is protected by Section 7. Thus, Fomaris' instruction to the contrary violated Section 8(a)(1). CONCLUSIONS OF LAW 1. Vista Hill Foundation d/b/a Mesa Vista Hos- pital is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Office & Professional Employees International Union, Local 30, AFL-CIO, CLC is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By promulgating, maintaining, and enforcing a rule prohibiting the wearing of union insignia, while employees are at work, outside immediate patient care areas, and outside other specifically identified areas where the wearing of union insignia would adversely affect patient care, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By suspending employees, pursuant to the above-described rule, for wearing union insignia while at work, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 1 8 There is no evidence that patients were present in the cafeteria at the time that Busch distributed the literature. MESA VISTA HOSPITAL 5. By instructing an employee to cease distribut- ing union literature in the cafeteria during the em- ployee's lunch hour, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 6. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist therefrom and to take certain af- firmative action designed to effectuate the policies of the Act. Accordingly, we shall order the Re- spondent to make whole the employees suspended 15 June for any loss of earnings they may have suf- fered as a result of their unlawful suspensions, with interest to be computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977).19 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Vista Hill Foundation d/b/a Mesa Vista Hospital, San Diego, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, or enforcing any rule, regulation, or other prohibition which forbids the wearing of union insignia while employees are at work, outside immediate patient care areas, or outside other specifically identified areas where the wearing of union insignia would adversely affect patient care. (b) Suspending employees pursuant to an overly broad rule governing the wearing of insignia. (c) Instructing employees to cease distributing union literature in the cafeteria during employees' lunch hour. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- 19 The judge did not include employees Pam Holy and Michele Bar- anek in his recommended Order, since he found that the evidence did not establish that they were among the employees suspended 15 June In- stead, he left the matter to be determined at the compliance stage of this proceeding We note, however, that par 9 of the complaint specifically includes Holy and Baranek in the list of suspended employees. In its answer, the Respondent admits that on 15 June it sent home all of the named employees "for an asserted violation of a hospital rule or policy and for failing to obey the instruction of a supervisor " The Respondent otherwise denies the allegations Thus, although it demes that its conduct was unlawful, the Respondent admits as a factual matter that it suspended the named employees, including Holy and Baranek, pursuant to the 19 May rule We shall therefore modify the recommended Order to provide a make-whole remedy for Holy and Baranek 301 ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind its 19 May rule governing the wear- ing of insignia to the extent that it prohibits em- ployees from wearing union insignia while at work, outside immediate patient care areas, or outside other specifically identified areas where the wear- ing of union insignia would adversely affect patient care. (b) Make whole employees Henry Dodd, Cyn- thia Mongan, Joanne Fox, Wallace Kearns, Rich- ard Quintero, Porfirio Trillas, Pam Holy, and Mi- chele Baranek for any loss of earnings they may have suffered as a result of their unlawful suspen- sions, plus interest, in the manner set forth in the section of this decision entitled "The Remedy." (c) Remove from its files any reference to the unlawful suspensions of Henry Dodd, Cynthia Mongan, Joanne Fox, Wallace Kearns, Richard Quintero, Porfirio Trillas, Pam Holy, and Michele Baranek, and notify them, in writing, that this has been done and that evidence of the unlawful sus- pensions will not be used as a basis for future per- sonnel actions concerning them. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its San Diego, California facility copies of the attached notice marked "Appen- dix."20 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 20 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ordered us to post and abide by this notice. WE WILL NOT promulgate, maintain, or enforce any rule, regulation, or other prohibition which forbids the wearing of union insignia while employ- ees are at work, outside immediate patient care areas, or outside other specifically identified areas where the wearing of union insignia would ad- versely affect patient care. WE WILL NOT suspend employees pursuant to an overly broad rule governing the wearing of insig- nia. WE WILL NOT instruct employees to cease dis- tributing union literature in the cafeteria during employees' lunch hour. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind our rule, issued on 19 May 1981 , governing the wearing of insignia, to the extent that it prohibits employees from wearing union insignia while at work , outside immediate pa- tient care areas, or outside other specifically identi- fied areas where the wearing of insignia would ad- versely affect patient care. WE WILL make whole employees Henry Dodd, Cynthia Mongan, Joanne Fox, Wallace Kearns, Richard Quintero, Porfirio Trillas, Pam Holy, and Michele Baranek for any loss of earnings they may have suffered as a result of their unlawful suspen- sions, plus interest. WE WILL remove from our files any reference to the unlawful suspensions of Henry Dodd, Cynthia Mongan, Joanne Fox , Wallace Kearns, Richard Quintero, Porfirio Trillas, Pam Holy, and Michele Baranek, and WE WILL notify them, in writing, that this has been done and that evidence of the unlaw- ful suspensions will not be used as a basis for future personnel actions concerning them. VISTA HILL FOUNDATION D/B/A MESA VISTA HOSPITAL DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was heard at San Diego, California , on May 6, 1982, based on a consolidated amended complaint alleging that Vista Hill Foundation d/b/a Mesa Vista Hospital (Re- spondent) violated Section 8(a)(1) of the Act by discri- minatorily prohibiting union-related solicitations and dis- tributions as well as promulgating, maintaining, and dis- criminatorily enforcing a rule prohibiting employees from wearing certain insignia of Office & Professional Employees International Union, Local 30, AFL-CIO, CLC (the Union) and on this basis unlawfully dismissing certain employees from a work shift. On the entire record, my observation of witnesses, and consideration of posthearing briefs, I make the following FINDINGS OF FACT AND RESULTANT CONCLUSIONS OF LAW On May 19, 1981 , this Employer posted the following notice: It has come to my attention that a number of em- ployees of the hospital are wearing badges or insig- nia bearing the words "Local 30." I understand these badges or insignia to have reference to the or- ganizational efforts of Local 30 of the Office & Pro- fessional Employees International (AFL-CIO). It is neither the intent nor the purpose of hospital management to infringe upon the rights of employ- ees to engage in organizational activity. However, the wearing of these or any badges or insignia (other than name badges) in patient care areas is contrary to hospital policy regarding solicitation as set forth in the Employee Handbook and must, of necessity, be restricted. Accordingly, all employees are re- minded that they are absolutely prohibited from wearing any badges, buttons or other insignia (other than name badges) during working time or in work- ing or patient care areas . The terms "working or patient care areas" are defined as including all areas of the hospital except employee lounges, parking areas, and cafeteria during scheduled employee meal hours and when no patients [are] present. At that point in time an organizational effort was under- way, concerning which the Union supplied 1-inch diame- ter buttons and, for key adherents, a yellow blouse or lapel badge approximately 2 by 3 inches in size with three lines of black lettering reading, "LOCAL 30 [larger caps]-UNION ORGANIZING-COMMIT- TEE."' The small button was worn openly and uncon- troversially, while the badge saw use only by committee persons, until June 15, either during duty status in nonpa- tient care areas only or as a constant, open, unchallenged wearing. Theodore R. Scott, for the General Counsel. Richard R. Pace, of Los Angeles, California, for the Re- spondent. ' All dates and named months hereafter are m 1981 unless shown oth- erwise MESA VISTA HOSPITAL This mental health care facility is one in which ap- proximately 400 persons overall are employed, and its patient census was predominately those undergoing treat- ment for psychotic illness.2 Medical Director Robert A. Moore, Respondent's chief executive officer and a diplo- mate of the American Board of Psychiatry and Neurolo- gy, testified that the hospital relied on a "treatment team" approach to care, believing that an appropriately balanced array of psychotherapeutic techniques, group therapies, drugs, and clinical and general supportive services would greatly enhance a course of treatment to hoped-for recovery. In this context matters of general patient awarenesses during their waking hours were a matter of alert con- cern. David Grey, Respondent's administrator, testified that the above-described rule had not, in fact, been en- forced as an "absolute prohibition," but in conjunction with Dr. Moore a consensus had been reached that the Union's yellow badge was a deleteriously "contentious" type of insignia tending to manifest as "inflamatory" or "divisive" to an individual having delusional, untrusting, or disoriented symptoms of the, psychotically afflicted. Dr. Moore's considered professional opinion was that the badges would be destructive of a patient's "sense of co- hesion and unity . . . within the treatment team." Matters peaked on Monday, June 15, when an abnor- mally high number of employees displayed one or both types of insignia after hospital management had prepared itself for this eventuality. In the business office Joannne Campbell, its manager, spoke to accounts payable clerk Cynthia Mongan and insurance and billing clerk Joanne Fox, each of whom testified that ostensibly as wearers of the Union's badge Campbell prevailed on them to leave work for the day. Hurriedly completed notices of sus- pension, effectuating a partial nonpay status for the day, were delivered before actual employee departure. These read: HOSPITAL RULES PROHIBIT SOLICITATION OF YOUR FELLOW EMPLOYEES ON WORKING TIME, WHETHER BY LITERATURE OR BY THE WEARING OF A BADGE ON THE HOSPITAL PREMISES. THE ONLY EXCEPTION TO THIS PROHIBITION IS THAT SOLICITATIONS MAY BE MADE ON NON-WORKING TIME IN THE EMPLOYEE LOUNGES, PARKING LOTS, AND IN THE CAFETERIA (EXCEPT DURING PATIENT MEAL HOURS). YOU HAWE BEEN EXPRESSLY ASKED BY YOUR SUPERVISOR TO REMOVE SUCH BADGE OR TO CEASE DISTRIBU- TION OF LITERATURE IN VIOLATION OF THE ABOVE RULES. YOU ARE, THEREFORE, HEREBY NOTIFIED THAT UNLESS YOU IMMEDIATELY COMPLY WITH THESE RULES YOUR SUSPENSION IS TO TAKE EFFECT IMME- DIATELY AND WILL CONTINUE UNTIL COMPLIANCE; 9 Respondent operates a hospital facility in San Diego, California, where acute psychiatric care is provided, annually deriving in the course and conduct of such business operations gross revenues in excess of $250,000 and annually purchasing and receiving goods and products valued in excess of $5000 directly from suppliers located outside Califor- nia. On these admitted facts I find that Respondent is an employer en- gaged in commerce within the meaning of Sec 2(6) and (7) of the Act, and otherwise that the Union is a labor organization within the meaning of Sec 2(5). 303 OR, IF YOU CHOOSE NOT TO COMPLY WITHIN A REA- SONABLE TIME, YOU WILL BE DISCHARGED AS AN EMPLOYEE OF MESA VISTA HOSPITAL. Campbell's testimony was that in keeping with directives from above she had advised those of her jurisdiction how the badges were prohibited, and that Mongan and Fox both quietly left without exercising the offered choice of removing the badges as a condition for remain- ing at work. Each of these employees credibly testified contrarily that no choice was offered them, but instead they were abruptly directed to leave. Mongan and Fox added specifically that prior to seeing the prohibitory notice of May 19 they had been unaware of any rule concerning the wearing of buttons or badges. Two other employees affected by that morning's action were mental health worker Henry Dodd and psy- chiatric technician Wallace Kearns, each of whom work directly for daytime nursing coordinator Jeanne Ferrar. As with business office employees both credibly testified that they were not given the option of removing the "committee" badge, only that Ferrar confronted them, advised they should leave, and caused delivery of the same suspension notice. Dodd stayed only long enough for his function to be covered by a replacement, having acquired "common knowledge" that wearing the badge for the first time from actual start of shift would lead to banishment. Kearns, an 18-year employee, was similarly expectant based on "rumor," and further was not aware of any prior policies on the subject. Ferrar's version is that she offered employees the choice of removing offen- sive publicity, then saw employee Bizjak holding a rank- and-file caucus from which a collective, tacit refusal to comply or elect ensued.3 Still another pair of employees experiencing the direc- tive of June 15 were Richard Quintero, working directly for Director of Plant Operations Harry Hodges, and Por- firio (Pepe) Trillas, a senior custodian immediately super- vised by Director of Environmental Services Mary Cald- well. Quintero, an alert-seeming person of impressive credibility from demeanor standpoints, testified that Hodges dismissed him for balance of that June 15 shift without mention of the union badge being worn. This is contradicted by Hodges, who testified to having express- ly extended Quintero the option of staying at work if of- fending insignia were removed. The same pattern emerged with respect to the conversational exchange be- tween Trillas and Caldwell. The former worked a par- ticularly early shift commencing at 5 a.m., so when Cald- well obtained her ultimate understanding of how to pro- ceed that morning, his workday was more than half done. This episode, as among the several in which direct implementation forms the essence of this case, was rather ethereal for cultural or other reasons. Trillas, a nick- named long-service employee speaking highly accented English, testified to taking his experience with Caldwell as one which at the time had a foregone conclusion. He S Ferrar had mistakenly taken management's position to also include the mere union buttons and, based on this, similarly scooted employee Ann McGuire home for the day. This separate action was promptly rem- edied with an apology to McGuire and refund of pay lost for the day. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was expecting to be sent home and made no protest, nor did he seek clarification, justification, or evan a basic ex- planation. Rather, as testified to by Caldwell, he hugged her, had the demonstrativeness returned, and left. Trillas could not recall losing any pay for the partial shift not worked. Other items previously worn in this setting included St. Patrick's Day buttons (up to 5 inches in diameter), "Save the Whale" buttons, green ribbons as an Atlanta children vigil, nutrition awareness buttons, and those supporting San Diego Charger football. Night-shift em- ployee Pam Holy had on occasion worn a prominent black and white badge reading, "Question Authority," al- though there is no evidence that this fact reached man- agement's attention. Hodges often bedecks himself with lapel ribbons or badges reflecting his patriotic feelings and a prideful military career. Regarding a secondary phase of the case Dodd testi- fied that during the 11 a.m. through noon period of cafe- teria use reserved primarily for employees, rank-and-file person Michele Busch was distributing a union flyer in May and her activities were interdicted by Director of Nurses Carmen Fomaris. Dodd recalled that prior to this he had seen cinema tickets passed in the cafeteria during the same hour, while Mongan added the less significant testimony of catalog merchandise sales being solicited during breaktime in the cafeteria when it would be rare for a patient to appear. On these facts the General Counsel contends that an otherwise lawful rule about no-solicitation and no-distri- bution has been discriminatorily applied, that the May 19 notice is overbroad as pertaining apart from patient care areas, and the requisite special circumstances are not present to permit generally prohibiting the yellow union badge. Overall probative evidence of the case supports these assertions. For an enterprise such as this, a barring of solicitation and distribution in immediate patient care areas is presumptively valid. St. John's Hospital, 222 NLRB 1150 (1976). See also Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). However, disparity of appli- cation is the alleged vice here, and for this reason the narrower question of whether comparable stimulations have been tolerated is to be examined. Pay `N Save Corp., 247 NLRB 1346 (1980), enfd. 641 F.2d 697 (9th Cir. 1981). Regarding the no-solicitation/no-distribution rule itself, this is shown to have been selectively enforced against the Union as credibly described by Dodd, and Respond- ent's defense to barring the Union's badge similarly fails on the showing of disparate application. It was extensive- ly established and tacitly admitted that numerous patriot- ic, seasonal, or cause-related insignia have been worn by employees (and by Supervisor Hodges) during material times and were not challenged. The testimony of Grey about "department head-level discussion" of the Union's badge, taken in conjunction with recollections of Ferrar, Caldwell, and Hodges, indicate that immediately before the purging of June 15 Respondent's top management had formed a belief that such insignia was perilously of- fensive to a point warranting condemnation. This leads directly to Respondent's defense of asserting that an un- settling fear of "divisiveness" would likely emanate throughout much of the patient population were the Union's badge to be tolerated. The contention is argued from United Parcel Service, 195 NLRB 441 (1972), and Evergreen Nursing Home, 198 NLRB 775 (1972), both being cases in which the Board elevated the desirability of circumspect employee attire to the point of constitut- ing "special circumstances" which could justify barring union insignia within the meaning of precedent such as Floridan Hotel of Tampa, 137 NLRB 1484 (1962). Re- spondent anticipated a countering argument based on Davison-Paxon Co., 191 NLRB 58 (1971), but distin- guishes that holding on grounds that it is here the unique characteristics of ill and disoriented mental patients that must be taken into account. In the effort to so distingusih the permissible wearing of a "noticeable" yellow union button in Davison-Paxon, the uncontradicted testimony of Dr. Moore is repeatedly emphasized as the most compel- ling for resolution of the special circumstances issue. I have duly considered the foundationally sound expert opinion of Dr. Moore in this regard,4 yet must hold that on a more generalized and appropriate basis his concerns do not control. To the extent that a mentally ill person benefits from soothing collaboration of staff in the sur- roundings, divisiveness could be seen in any of the per- sonal, value-oriented characteristics that exude from indi- viduals. Here one range of expression was seen in pathos of a small green ribbon deploring the Atlanta children crimes, and contrasting this with the superficially cheery greeting of St. Patrick's Day buttons. The General Counsel raised the spectre in examination of witnesses that certain individuals could reason, notwithstanding a diseased impairment of mental processes, about how any person not wearing a green ribbon during early 1981 was barbarically apathetic to child murders, while an Irish celebrant could conjure up an unsettling association with violence and discord as it reportedly haunts environs of that land. This is but one example of unforseeable specu- lation that can result merely from visual perception, and it becomes infmitely compounded by passage through a mind already disoriented from psychotic disorder. Dr. Moore may be right, partially right, or arguably right; however, the realm of his expert medical opinion is so nebulous that it must be subordinated to the greater need of giving fair sway to policies of the Act and their appli- cation in the diverse work places of such jurisdiction. In Beth Israel Hospital, supra, the Court explicated this very point at 500-501 in saying: It is the Board on which Congress conferred the authority to develop and apply fundamental nation- al labor policy. Because it is to the Board that Con- gress entrusted the task of "applying the Act's gen- eral prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms," Republic Aviation, 324 U.S., at 798, that body, if it is to accomplish the task which Congress set for it, necessarily must have au- thority to formulate rules to fill the interstices of * As claimed, Dr. Moore is Board-certified in psychiatry and has been since 1959. Directory of Medical Specialists, vol 2, 2963 (20th ed. 1981- 1982). MESA VISTA HOSPITAL the broad statutory provisions. It is true that the Board is not expert in the delivery of health-care services, but neither is it in pharmacology, chemical manufacturing, lumbering, shipping, or any of a host of varied and specialized business enterprises over which the Act confers jurisdiction. But the Board is expert in federal national labor relations policy, and it is in the Board, not petitioner, that the 1974 amendments vested responsibility for develop- ing that policy in the health-care industry . It is not surprising or unnatural that petitioner 's assessment of the need for a particular practice might overcom- pensate its goals, and give too little weight to employ- ee organizational interests. Here, as in many other contexts of labor policy, "[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed pri- marily to the National Labor Relations Board." [Emphasis added.] It was recently settled that certain major political expres- sions founded on constitutional grounds could not sur- vive under secondary boycott provisions of the Act. Longshoremen ILA v. Allied International, 456 U.S. 212 (1982), and on a less esoteric level, more germane to this actual litigation, the holding in Presbyterian/St. Luke's Medical Center, 258 NLRB 93 (1981 ), bears attention. There expert or near-expert medical testimony was given as to patients in a traditional "acute care" facility being in a "mixed emotional state" involving "fear [and] won- derment," leading the institution to make efforts at achieving a calming, happy aura of "tranquillity [and] quietness." Such testimony was discounted as based on "abstract notions" without observation of an actual "ad- verse effect" from union solicitations . I recognize that Respondent argues here it should not jeopardize the deli- cate recovery processes of its patients by unnecessarily testing their equanimity; however, it is on that very plane that the balancing of interests must occur. As the General Counsel argues should be done, I accept George J. London Memorial Hospital, 238 NLRB 704 (1978), as principal controlling authority on the narrow issue of law that was most vigorously contested . In George J. London Memorial Hospital roundish union buttons 2 or more inches in size were worn, and the claimed "poten- tial adverse effect upon patients" in that psychiatric hos- pital was not deemed to be recognizable "special circum- stances" even within the particular meaning of Evergreen Nursing Home.5 Further, it is both popularly and esoteri- ° In its adopting the London Memorial Hospital decision, the Board ex- pressly skirted any treatment of this type issue when exceptional "nature and seventy of the mental disturbances to be found among the patients" might be involved 305 cally known that the word "solidarity," an antonym of divisiveness, is associated to the labor movement both domestically and in foreign nations. 6 Finally, the field of psychiatry itself is not free of dispute about treatment modes, and Dr. Moore's listing of electroshock therapy as an occasional part of Respondent's collective treat- ment program would leave certain commentators on his own profession aghast.' For these reasons I hold that adequate business justifi- cation has not been shown for singling out this insignia of the Union, and Respondent's actions of June 15 were violative of employee rights of self-organization.8 The corollaries are a showing that Respondent's otherwise presumptively valid rule, associated to traditional union soliciting and distributing, was also disparately applied and the notice of May 19 is facially overbroad in its ref- erence to "working time [and] working areas," thus per- mitting separate findings that the Act has also been vio- lated in those regards.9 Accordingly, I render conclu- sions of law that Respondent, by discriminatorily apply- ing a no-solicitation and no-distribution rule,10 by pro- mulgating a rule which prohibited its employees from wearing any union insignia in other than patient care areas, and by dismissing various employees from their work shifts for wearing union insignia but without the requisite presence of justifying special circumstances, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(2), (6), and (7) of the Act.11 [Recommended Order omitted from publication.] 6 The monthly house journal of International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America is so titled Also see "Solidarity One Year Later (Poland)," Time, Sept 14, 1981 at 53. 7 See Hapgood, "Electroshock- The Unkindest Therapy of All," The Atlantic, Jan. 1980 at 53-59 8 The evidence demonstrates that the smaller button, treated frequently during the course of hearing as G.C Exh. 5, could have been readily dis- cerned as the insignia of a labor organization by any persistent observer. Cf Holladay Park Hospital, 262 NLRB 278 (1982) 9 Here, as in Presbyterian/St Luke's Medical Center, supra, Respondent does not "seriously contend" otherwise, and that holding coupled with its citations to Republic Aviation , supra, St. John's Hospital, supra, and Beth Israel Hospital, supra, amply highlights these separate violations of the Act. 10 I do not rely on evidence of Pam Holy's having worn a "Question Authority" badge, for there is no evidence of management's being aware such was done. 11 Individuals suffering monetary loss as a result of this latter conduct were Henry Dodd, Cynthia Mongan, Joanne Fox, Wallace Kearns, Rich- ard Quintero, and Porfino (Pepe) Trillas The General Counsel initially alleged that Pam Holy and Michele Baranek were similarly dismissed from their work shift on June 15; however, it was neither stipulated that this was the case nor did particular evidence establish the fact Overall implication of the situation would suggest it to be the case though, and there was passing reference to the general group that lost pay on that occasion. For these reasons the remedy to be associated with the recom- mended Order to follow runs definitively only about the named six indi- viduals, yet as a compliance matter should it develop both Holy and Bar- anek are similarly situated , a required course of action would be for Re- spondent to extend them the same monetary remedy as for the six wit- ness-discrumnatees