Providence Hospital

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Providence Hospital and Massachusetts Nurses As- sociation. Case 1-CA-17255 18 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS - On 28 July 1981 Administrative Law Judge George F. Mclnerny issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed limited ex- ceptions and a supporting 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 briefs and has decided to affirm the judge's rulings, findings, i and conclusions2 only to the extent consistent with this decision and to adopt the recommended Order as modified. The judge found the Respondent violated Sec- tion 8(a)(1) by promulgating a rule that prohibited off-duty employees from distributing handbills at its main entrance, and by requesting two off-duty, em- ployees who were distributing such handbills at the main entrance to leave the Respondent's property. The judge also found that the Respondent had not violated Section 8(a)(1) by promulgating a rule that prohibited informational picketing on its property and by preventing off-duty employees and others from picketing on its property. We agree, but only for the following reasons. i In sec III,A, par 1, the judge erroneously stated the parties' collec- tive-bargaining agreement expired 3 December 1979 The correct date is 31 December 1979 In sec III,B, par 9, the judge erroneously stated that the Respondent prohibited handbillmg in a paragraph of its 10 March 1980 notice to the Union "separate" from and "independent" of the para- graph in which it prohibited picketing In fact, both prohibitions were contained in the same paragraph We correct these inadvertent errors 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) by asking employees if they would cross the Union's picket line in the event the Union struck, we emphasize that a health care employer may properly ask if employees intend to participate in a strike after the union serves a strike notice pursuant to Sec 8(g) Preterm, Inc., 240 NLRB 654 (1979) The employer must, however, explain fully the pur- pose of its question, assure employees that it will not take reprisals against them as a result of their response, and otherwise refrain from cre- ating a coercive atmosphere Id at 656 Although the evidence shows that Supervisor Mary Tarbell told one of the several employees ques- tioned that she was concerned about staffing levels, the Respondent con- cedes that it did not otherwise take the precautions that Preterm required We therefore find it unnecessary to determine whether the Union's notice, which stated only that it intended to picket the Respondent's hos- pital, was sufficient to satisfy the threshold requirement for permitting such questions about strike intentions pursuant to Preterm In the absence of any evidence of threats or intimidation accompanying the Respondent's inquiries, Chairman Dotson would not find a violation here 285 NLRB No. 52 1. BACKGROUND3 The Respondent operates a hospital in Holyoke, Massachusetts. Massachusetts Nurses Association (the Union) had represented the Respondent's nurses for approximately 10 years when, in Sep- tember 1979, the parties began negotiations for a successor to their contract, which was to expire 31 December 1979. By February 19804 the parties had yet to reach agreement, and some of the Union's nurses con- cluded that negotiations were proceeding more slowly than they wished. An "Action Committee," composed of union members, thus decided it would picket the Respondent's hospital to inform the public where the Union stood on contractual issues. On 27 February the Union notified the Respond- ent that it intended to picket the hospital on 10 March. In a meeting with Holyoke police, the Union told the Respondent that it intended to picket on sidewalks leading from the hospital build- ing's main entrance to the driveway. This area is on property the Respondent owns. The Union also indicated at this meeting that it intended-to distrib- ute handbills. The Respondent's hospital is located on U.S. Route 5. The speed limit on Route 5 in front of the hospital is 45 miles per hour. The hospital's main entrance is located about 250 feet from the high- way and is served by a semioval one-way driveway with an entrance at the north end and an exit at the south. There are traffic lights at both ends of the driveway, where the driveway intersects with Route 5. Traffic coming from the north may enter the driveway directly from Route 5. From the south, traffic must enter through a jughandle that diverts traffic from the northbound lane and directs it into the driveway through the north traffic light. Ninety-nine percent of the traffic that enters the hospital enters through the north entrance. Speed is limited to 15 miles per hour in the hospital drive- way. A public bus system maintains a bus stop at an island in front of the hospital's main entrance, on the Respondent's property. The Respondent owns all of the property be- tween the main entrance to the hospital and Route 5 except for two areas at each end of the driveway where public property extends for 80 feet or so from the highway onto the driveway, encompass- ing that part of the driveway and narrow strips next to it. There is no sidewalk next to this part of 3 We have added certain uncontroverted facts not set out in the judge's decision 4 All dates are in 1980 unless otherwise indicated PROVIDENCE HOSPITAL 321 the driveway. There is instead a grassy area which, at some points, is steep. Next to Route 5's southbound lane, adjacent to hospital property, is a public breakdown lane. Along the jughandle next to the northbound lane is a public sidewalk. Shortly before picketing was to begin on 10 March, the Respondent's administrator, Owen Con- nolly, gave the Union the following notice: Allowable Areas for Picketing and Handbilling The purpose of this notice is to inform you of Providence Hospital's position regarding al- lowable sites for picketing and handbilling pur- suant to your 8(g) notice dated February 27, 1980. Of primary concern to the Hospital is the prevention of interference with our patient care responsibilities. As a result, picketing will not be allowed to occur on Providence Hospi- tal property or buildings. Any picketing which does occur in the envi- rons of the Hospital will be restricted to public property. Available areas of public property include: (1) the land adjacent to Route 5 along the access and exit roads leading to and from the Hospital for approximately 100 feet; (2) the sidewalk along the east side of Route 5 and; (3) the traffic island in the left turn lane on the east side of Route 5. These areas provide suffi- cient means by which you can communicate with your intended audience and also do not violate the property rights of the Hospital. Further, be advised that any handbilling done in conjunction with your picketing should also be restricted to public property areas. About 1:30 that afternoon, Respondent Director of Security Everett Booth discussed the notice with union members Patricia Cody and James Vail- lancourt, and Booth walked the hospital boundries with them. The judge found that Booth indicated that picketing was to take place only on public property. About 2 p.m., off-duty employees, their spouses and children, and a nonemployee union representa- tive began informational picketing on public prop- erty at the hospital driveway entrance and exit, on the sidewalk adjacent to the jughandle, and in the breakdown lane along Route 5. Their picket signs carried various slogans such as, "Angels of Mercy, treated like hell," "professional pay for professional nurses," and "Be a nurse; starve with dignity." They also distributed handbills, which discussed the parties' bargaining status and the nurses' con- cerns in detail. The handbills asked the recipients to write the Respondent's board of directors, whose namec and addresses were printed on the other side. After a short time, the Union abandoned picket- ing and handbilling at the driveway exit and in the breakdown lane along Route 5. The Union felt that the exit was too isolated, and police warned that picketing in the breakdown lane was dangerous. About 2:45 p.m. nurse Vaillancourt and an em- ployee, identified only as Terry, put down their picket signs, walked to the hospital' s main en- trance, and began handbilling. After about 10 min- utes, Security Director Booth approached, read to the employees from the Respondent's notice to the Union, and asked them to leave. They complied. Also on 10 March, and at other times, off-duty employees distributed leaflets at the main entrance of the hospital advocating representation of the technical, service, and maintenance employees by the United Food and Commercial Workers Union. The Respondent acknowledged permitting this ac- tivity. The Respondent's personnel policy handbook, dated "12-1-73" proscribes "Soliciting during working time or distributing literature in working areas for any purpose except the United Fund without the express written approval of the Person- nel Department." A 12 March memo from the Re- spondent's administrator to all department heads reiterated the foregoing rule but deleted the provi- sion for approved exceptions. Discussion A. Picketing In Fairmont Hotel, 282 NLRB 139 (1986), issued subsequent to the judge's decision here, the Board held that in cases involving conflicts between prop- erty rights and Section 7 rights, the Board's task is "first to weigh the relative strength of each party's claim." The Board states in Fairmont Hotel, supra 142: If the property owner's claim is a strong one, while the Section 7 rights at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compel- ling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alter- native means of communication become deter- minative. [Fn. omitted.] Factors that may affect the relative strength or weakness of an asserted property right include the following: the use to which the property in ques- tion is put, any restrictions placed on public access 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the property or to the facility located on the property, and the size and location of the private facility. By way of example, the Board noted that "a single store surrounded by its own parking lot provided exclusively for the convenience of cus- tomers will have significantly more compelling property right claim" than "the owner of a large shopping mall who allows the general public to uti- lize his property without substantial limitation." Id. at 141, Concerning the Section 7 right, factors that may affect the relative strength or weakness of such a right include the following: the nature of the' right asserted, the purpose for which it is being asserted, the employer that is the target of the ac- tivity, the situs of the activity, the relationship of the situs to the target, the intended audience of the activity, and, possibly, the manner in which the right is being asserted. Id., slip op. at 9-10. By way of example, the Board noted that "organizational rights and the right to engage in primary economic activity at the situs of a dispute may be viewed as more compelling than handbilling and other infor- mational activity at locations other than the pri- mary situs." Id. at 142. Applying the Fairmont test in this case, we find that the Section 7 right and the property right as- serted here are both strong rights that are relative- ly equal. The picketers here included employees engaged in an economic protest against their own employer to publicize their bargaining position in a contract negotiation dispute. This kind of primary economic activity involves a core Section 7 right. On the other, hand, the property right asserted by the Respondent in its hospital and surrounding grounds, which it does not share with any other enterprise, is at least as strong as that of a luxury hotel or a single retail store surrounded by its own parking lot. There is no evidence that the public visits the hospital and its property for reasons unre- lated to the provision of medical services. There likewise is no evidence that the Respondent has ever permitted anyone to picket on its property. The presence of picketers on hospital property could well tend to disturb patients entering and leaving the hospital.5 As the strong Section 7 right and strong proper- ty right asserted here are relatively equal, we must determine whether the General Counsel met the burden of showing that the Union, in the absence of access to the Respondent's property, had no' rea- sonable alternative means for communicating with 5 Even where neither picketing nor nonemployees are involved, the significance of specialized health care concerns has been recognized to the extent of permitting greater restrictions on exclusively employee Sec 7 solicitation and distribution within a hospital See Beth Israel Hospital V. NLRB, 437 U.S 483 (1978), NLRB P Baptist Hospital, 442 U.S. 773 (1979). its intended audience. We find that the General Counsel has failed to meet this burden. It appears that picketing on public property adjacent to the main driveway entrance from Route 5 enabled the Union to convey its protests to 99 percent of the public using the Respondent's hospital. There is no evidence of safety hazards or other factors frustrat- ing effective communication with the public at this point. Accordingly, we find that the Respondent's pri- vate property interests were not required to yield to picketing in the furtherance of the Union's Sec- tion 7 claim. The Respondent therefore did not violate Section 8(a)(1) of the Act by prohibiting such activity.6 B. Handbilling With respect to the Respondent's 10 March pro- hibition of handbilling in furtherance of the Union's protest by two off-duty employees at the hospital's main entrance, we do not rely either on Fairmont' or Tri-County Medical Center, 222 NLRB 1089 (1976).8 We agree with the General Counsel's ar- gument in exceptions that the conduct at issue con- stituted unlawful disparate treatment of protected union activity.9 Initially, we note our agreement with the judge's rejection of the Respondent's argument that the handbilling at the main entrance to the hospital was conjoined with the Union's picketing and handbill- 6 Member Stephens agrees with the result pursuant to his concurring opinion in Fairmont. 9 The Supreme Court in Sears, Roebuck & Co. v. San Diego County Dis- trict Council of Carpenters, 436 U.S. 180, 205 (1978), reiterating the test set forth in NLRB P. Babcock & Wilcox Co., 351 U S 105 (1956), stated. "To gain access, the union has the burden of showing that no other rea- sonable means of communicating its organizational message to the em- ployees exists or that the employer's access rules discriminate against union solicitation " Our decision in Fairmont addressed only the "reason- able alternative means" prong of this disjunctive text. See Husky Oil, N.P.R. Operations v. NLRB, 669 F.2d 643, 648 (10th Cir 1982) (alterna- tive grounds for access). 9 Contrary to the judge's analysis, Tri-County Medical Center is inappo- site, as the case concerned whether off-duty employees may have access to private property in order to communicate with other employees. In the present case, access was sought by off-duty employees in order to communicate with the public. ' 9 The General Counsel's complaint in this case included allegations that on 10 March the Respondent promulgated and enforced an unlawful no-solicitation, no-distribution rule and unlawfully prohibited off-duty employees from engaging in handbilling in front of the main entrance to the hospital . The General Counsel's brief to the judge argued that the Respondent's 10 March notice to the Union constituted a discriminatory no-distribution rule. The General Counsel filed several exceptions to the judge's decision related to this contention , including an exception to the judge's failure to find that the Respondent's regular solicitation and distri- bution rule restricted only soliciting during working time and distributing literature in working areas The General Counsel's brief to the judge was resubmitted in support of the exceptions Thus, contrary to the Respond- ent's assertion, it is clear that the General Counsel alleged the Respond- ent's exclusion from its main entrance of employees engaged in handbill- ing on 10 March constituted discriminatory treatment and the General Counsel preserved this argument in the exceptions. 6 PROVIDENCE HOSPITAL ing on public property. The handbilling at the main entrance was a functionally and geographically dis- tinct activity, and we decline to view it as an ex- tension of the picketing onto private property. There is no evidence of any general rule restrict- ing the solicitation and handbill distribution activi- ties of the Respondent's employees at the hospital's main entrance during nonworking time. To the contrary, the applicable rule in the Respondent's personnel policy handbook permits such activities, as it bars solicitation only during working time and bars distribution of literature only in working areas. Additionally, there is no evidence of any general rule prohibiting off-duty employees from entering or remaining on the Respondent's property. Under these circumstances, we find the Respondent's ad hoc adoption of a special rule to prohibit handbill- ing on its property by employees engaged in the protest concerning contract negotiations constitutes disparate treatment of union activities in violation of Section 8(a)(1) of the Act. We further find the Respondent's exclusion, pursuant to this rule, of two off-duty employees handbilling at the main en- trance is similarly violative of Section 8(a)(1) of the Act.10 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Providence Hospital, Holyoke, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(a). "(a) Discriminatorily prohibiting handbilling in support of the Massachusetts Nurses Association by off-duty employees in front of the main hospital entrance." 2. Delete paragraphs 1(b) and 2(a), relettering subsequent paragraphs accordingly. 3. Substitute the attached 'notice for that of the administrative law judge. 10 See Knogo Corp, 262 NLRB 1346, 1360-1362 ( 1982), enfd in perti- nent part 727 F 2d 55 (2d Cir 1984), Chrysler Corp, 232 NLRB 466, 476- 478 (1977) In support of the disparate treatment theory, the General Counsel ex- cepted to the judge's failure to find that employees have leafletted in the hospital lobby in support of the "right to life" movement and have leafletted at hospital entrances in support of and in opposition to an orga- nizing effort by another union There was conflicting evidence about the "right to life" leafletting that the judge failed to resolve In any event, we need not pass on either exception in light of our conclusion that the Respondent's adoption and enforcement of a rule prohibiting handbilling on the Respondent's property by off-duty employees concerning the con- tract negotiations constituted unlawful disparate treatment of union ac- tivities APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 323 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 discriminatorily prohibit handbill- ing in support of the Massachusetts Nurses Asso- ciation by off-duty employees in front of the main hospital entrance. WE WILL NOT interrogate our employees about whether or not they will cross picket lines. 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. PROVIDENCE HOSPITAL Kathleen F. McCarthy, Esq, for the General Counsel Jay M. Presser, Esq and John H. Glenn, Esq. (Skoler, Abbott & Hayes, PC), of Springfield, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on March 10, 1980, by the Mas- sachusetts Nurses Association (the Association), the Acting Regional Director for Region 1 of the National Labor Relations Board (the Board) issued a complaint on November 26, 1980, alleging that Providence Hospital (Respondent or the Hospital) had violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C § 151 et seq. Respondent filed an answer on December 2, 1980, denying the commission of any unfair labor practices. Pursuant to notice contained in the complaint, a hear- ing was held before me in Holyoke, Massachusetts, on December 8, 1980, at which all parties had the opportu- nity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. After the close of the hearing,' the General Counsel and Respondent submitted briefs, which have been carefully considered.2 Based on the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing 1 The General Counsel has moved to correct the transcript in a number of instances That motion is allowed 2 Both counsel for the General Counsel and counsel for the Respond- ent are to be complimented on the superior quality of their briefs submit- ted 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Providence Hospital is an unincorporated part of the Sisters of Providence. It maintains its principal office and place of business in Holyoke, Massachusetts, where it is engaged in the business of operating a hospital providing medical services. Annually, Respondent receives gross revenues in excess of $250,000, and annually purchases and receives at its Holyoke location supplies, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. The com- plaint alleges, the answer admits, and I find that the Hos- pital is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) 'of the Act, and a health care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Massachusetts Nurses Association is a labor or- ganization within the meaning of Section 2{5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The facts in this case are relatively simple and largely uncontroverted. The Association has represented nurses at Providence Hospital for approximately 10 years. Prior to the actions that constitute the facts in this case, the parties had a collective-bargaining agreement that ex- pired on December 3, 1979. Negotiations for a replace- ment to that contract had begun in September 1979 and were proceeding more slowly than some of the nurses wished, so sometime around the beginning of February the Association, or rather an action committee composed of members of the Association, decided that they would picket the Hospital in order to inform the public where the Association stood on the issues. Notice of their inten- tion to picket was sent to the Hospital originally on Feb- ruary 21,3 but due to the requirements of Section 8(g) of the Act this notice was considered defective, and a new notice, dated February 27, was sent, informing the Hos- pital that picketing would begin at 2 p.m. on March 10. The Association also contacted the Holyoke police to determine the effect of local ordinances on the picketing. As a result, a meeting was held at the police station at which the Association representatives made known their intention to picket on two sidewalks leading from the front, or main, entrance of the Hospital to the main driveway. The Hospital is situated on a rise overlooking U.S. Route 5, a busy highway that runs from New Haven, Connecticut, to Newport, Vermont, for much of its length through the valley of the Connecticut River. The front or main entrance is located about 250 feet from the surface of the highway. A long curving one- way driveway serves as the access to the Hospital from the highway, with the entrance at the north end of the property and the exit at the south end. At both points 3 All dates are in 1980 unless otherwise specified there are traffic lights to permit access and egress onto Route 5, which has a speed limit of 45 miles per hour. Traffic coming from the north may enter directly at the northern traffic lights, and from the south by means of a jughandle that diverts northbound traffic off the traveled portion of the highway and then permits crossing con- trolled by the traffic lights. This eliminates the need for left turns by northbound traffic. The driveway comes by the main entrance with a loop to permit cars to drive up directly to the entrance, and with access to a large parking lot situated between the driveway and the highway. There are sidewalks extend- ing for about 100 feet on either side of the loop that comes up to the main entrance, and it is here that the Association planned to picket. There are no sidewalks down the remainder of the driveway, nor on Route 5, but there is a sidewalk adjacent to the jughandle access, At the meeting in the police station, the management representatives made no response to the Association's an- nounced intention to picket on the sidewalks next to the main entrance. It was also indicated at that meeting that there would be 50 to 100 people involved in the picket- ing. Shortly before the picketing was scheduled to begin at 2 p.m. on March 10, Owen Connolly, the Hospital's ad- ministrator, sent the Association a memorandum in the form of a notice. This informed the Association of the Hospital's "primary concern" to prevent interference with patient care responsibilities, and pursuant to that concern restricted picketing to the land adjacent to Route 5 along the access roads leading to and from the Hospital for approximately 100 feet, and on the east side of Route 5 around the jughandle.4 This, according to Connolly's memorandum, would "provide sufficient means by which you can communicate with your intend- ed audience and also do not violate the property rights of the Hospital." The memorandum concluded by advis- ing that handbilling done in conjunction with the picket- ing-was also restricted to public property areas. B. The No-Solicitation Rule The General Counsel alleges that this notice violated the law in its prohibition against picketing on the Hospi- tal's property and, insofar as it purported to restrict handbilling on the property of the Hospital, constituted an unlawful no-solicitation rule. Following the receipt of this notice from the Hospital, the Association decided that it would not test the no- picketing ban on the Hospital 's- property. About 1:30 p.m. on March 10, the Hospital's director of security, Everett Booth, spoke to Association members Patricia Cody and James Vaillancourt. They discussed the boundaries and limitations imposed by the Hospital, and actually viewed the boundaries at the entrances where the picketing was to be permitted . Those boundaries were at the north entrance driveway at the traffic light, at the south end, or exit, driveway, and on the sidewalks adjacent to the jughandle on Route 5. It is difficult to de- 4' This latter location was, of course, public property, on the other side of the highway from the Hospital. PROVIDENCE HOSPITAL termine from the testimony of Patricia Cody just where the picketing would be allowed. If, for example, Cody's statement that Everett indicated that picketing could extend for 100 yards up the driveway then this would allow picketing for more than 200 feet onto the Hospi- tal's property. It is clear from the notice described above, as well as from Everett Booth's testimony, that the picketing was not to take place on Hospital property at all. A plan submitted in evidence as a joint exhibit shows two indentations at each end of the Hospital driveway where the boundaries of the highway enter and included the driveway itself together with narrow strips on either side, where the picketing was to take place. Cody must, therefore, have been in error in her es- timate of the extent of the permitted area, and I find that, in fact, picketing was confined to these indicated public areas. The picketing began about 2 p.m on March 10 and took place in the areas indicated by the Hospital at the north and south terminals of the driveway, on the side- walk adjacent to the jughandle and, for a time, along the breakdown lane of Route 5. The picketing in the break- down lane was discontinued after a warning from the police that this was dangerous, and was abandoned at the south driveway exit shortly after it began because the Association felt the location was too isolated and that they should concentrate their efforts on one or two loca- tions. About 45 minutes after the picketing began, a nurse named James Vaillancourt, who was a member of the Association's negotiating committee, together with an- other nurse identified in the record only as "Terry," left the picket line, taking with them copies of the one-sheet leaflet that was being handed out by the pickets. Vaillan- court and Terry went up to the main entrance to the Hospital and began handing out the leaflets to people en- tering and leaving by the front door Within minutes after their arrival and the commence- ment of the handbilling, Everett Booth came up to Vail- lancourt and Terry and, after they had identified them- selves as employees, Booth went back inside the Hospital building. He returned about 10 minutes later with a copy of the Hospital's notice regarding the picketing and handbilling, and read them those sections specifying the locations where picketing and handbilling were permit- ted. Vaillancourt stated that they were not picketing at that moment, but only handbilling, to which Booth re- plied that the handbilling was being done in conjunction with the picketing and that he would have to ask them to leave. At that point Vaillancourt and Terry returned to the picket line and resumed picketing. In evaluating the legal effect of the Hospital's notice, I am urged by the General Counsel to use the test adopted by the United States Supreme Court in Republic Aviation Corp. v. NLRB, 324 U S 793 (1945), in which the rights of employees to engage in solicitation and distribution are balanced not against the employer's property rights5 S Because the employees involved were lawfully on the employer's property 325 but against the employer's right to maintain productive safety and/or discipline. The Respondent, on the other hand, argues that this situation is controlled by the line of cases headed by NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1965), in which the issue concerned the right of nonemployment union organizers to enter the employ- er's premises to communicate. There are distinctions in this case from both Republic Aviation and Babcock & Wilcox The former case in- volved an industrial plant, in which the solicitation or distribution in question would have no impact on third parties, as at Providence Hospital, patients, visitors, and others, unconnected with current labor-management issues. Likewise, Republic Aviation did not consider the question of picketing in establishing a balance between the rights of employees and management.6 Babcock & Wilcox, too is different from the instant case, in that the activities of nonemployees are really not at issue.' How- ever, the employees who participated in the picketing and handbilling here were off-duty, and the Board has held that persons in that category are more analogous to nonemployees, thus requiring the balancing of off-duty employees' statutory rights against the employer's pri- vate property rights GTE Lenkurt, Inc., 204 NLRB 921 (1973). I must then view this case under Babcock & Wilcox standards, rather than those in Republic Aviation. In applying these standards I must balance the Hospi- tal's private property rights against the Section 7 rights of its off-duty employees. In so doing I think there is a distinction between the exercise of those Section 7 rights as manifested in handbilling by off-duty employees, and picketing by those same employees. In respect to the former activity the Board has held, distinguishing GTE Lenkurt, supra," that a no-access rule for off-duty em- ployees is invalid if it restricts access to the outside of the employer's premises. Tri-County Medical Center, 222 NLRB 1089 (1976). In this case, there was no evidence as to legitimate business considerations that would justify any restriction on off-duty employees outside the main entrance of the Hospital. I find, therefore that that part of the Hospital's notice prohibiting handbilling by off- duty employees was invalid and was in violation of Sec- tion 8(a)(1) of the Act. The action of Director of Securi- ty Booth in ordering Vaillancourt and Terry to discon- tinue handbilling on March 10 constituted a separate and independent violation of Section 8(a)(1). I have considered Respondent's argument that the actual handbilling incident on March 10 was an integral part of the picketing; the employees who were engaged in the handbilling at the Hospitals main entrance were, in fact, pickets, and the same standards that apply to the 8 But see Chrysler Corp, 228 NLRB 486 (1977) In that case, again, there was no real or potential third-party impact I do not consider the presence among the pickets of Shirley Astle, an Association employee, and spouses and children of employees as material or significant There is no indication that the Hospital contemplated the presence of nonemployees either as pickets or distributors of handbills when it prepared and sent its notice restricting picketing and handbilling The presence of nonemployees was, then, unforeseen and coincidental to the issue here s But not reversing the GTE Lenkurt standard of review of off-duty employee activities 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picketing should, equally, apply to the handbilling. It is true that Vaillancourt and Terry were engaged in the picketing on March 10; they left the picket line to engage in the handbilling; that the handbills they distrib- uted at the main entrance were the same as those being handed out by the pickets; and after they were forbidden to continue handbilling, Vaillancourt and Terry returned to the picket line and commenced again to picket them- selves. However, the facts also show that the prohibition against handbilling was contained in a separate and inde- pendent paragraph in the Hospital's notice, and thus was applicable as a distinct condition regardless of whether there was any picketing. In the discussion between the director of security and Vaillancourt and Terry at the main entrance it was the notice and its prohibition against handbilling on the Hospital property that was cited by Booth as authority for his request that the hand- billing at that location be discontinued. For these reasons I disagree with Respondent's position that the handbill- ing was so integrated with the picketing that it must, perforce, be governed by the same rules. Turning to the Hospital's prohibition against picketing on its property as expressed in the notice to the Associa- tion, and affirmed on March 10 by Everett Booth who marked off on the site the lines that were not be to crossed, I think a different standard must be applied. The purpose of the picketing was, in the words of the General Counsel's witnesses, to inform the public of the Association's position on the economic issues then exist- ing between it and the Hospital. In this sense, the intend- ed audience for the picketing was those members of the public who were entering the Hospital's property as pa- tients, visitors, employees, or those engaged in rendering various services or delivering supplies. This being the case, there is no indication in this record that the mes- sage from the pickets to the public would be conveyed any less effectively by the fact that the pickets were pa- trolling at the entrance of the driveway through which 99 percent of all traffic enters the Hospital, instead of the main entrance. We do not have here the existence of intervening property owned by neutral third parties as in Scott Hud- gens, 230 NLRB 414 (1977). The balancing required in that case and similar cases when the Section 7 rights of employees could not be exercised because their employ- er's location was inside the mall or shopping center is not necessary here. In this case the right of the Associa- tion to inform the public, those entering the Hospital grounds as well as those merely passing by on Route 5, is unimpaired. It is unnecessary to interfere with the right of the Hospital to the quiet enjoyment of its own property. Babcock & Wilcox, supra. I find, accordingly, that the Respondent has not violat- ed Section 8(a)(1) of the Act by prohibiting picketing by the Association at the main entrance of the Hospital. C. The Interrogation Sometime in February, the date is not certain, Supervi- sor Mary Tarbell asked an employee, Doris Harris, if she would cross a picket line if there was a strike. Harris re- plied that if there was a strike she would be likely to vote for it, so she would not cross the picket line. In a separate incident, staff nurse Diane Mackler testi- fied that, also on an undetermined date in February, Mary Tarbell asked a group of employees, including Mackler, whether any of them would cross a picket line if there was a strike. Another nurse, Linda Smith, testified that a supervisor named Frances Tallon asked her, sometime in February, if she would cross a picket line in the event of a strike. This testimony was credible and was undenied. There was no evidence of threats or intimidation, but there was also no evidence that the purpose of the questioning was explained by the supervisors, nor any assurances that em- ployees would be free from reprisals if they refused to answer the questions. In these circumstances the Board has held that when conduct tends to interfere with the free exercise of em- ployee rights under the Act, a violation of Section 8(a)(1) will be found. Donald E. Hernley, Inc., 240 NLRB 840 (1979). See also Johnnie's Poultry Co., 146 NLRB 770 (1964); Struksnes Construction Co., 165 NLRB 1062 (1967). I find that Respondent has violated Section 8(a)(1) by these three instances of interrogation. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I will recommend that it cease and desist there- from and I shall further recommend that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent promulgated a prohibi- tion against handbilling on its property by its employees, I shall recommend that it rescind such prohibition. CONCLUSIONS OF LAW 1. Respondent Providence Hospital is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and a health-care institution within the meaning of Section 2(14) of the Act. 2. The Charging Party, Massachusetts Nurses Associa- tion, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By promulgating a rule prohibiting the distribution of literature on its property by employees, Respondent has violated Section 8(a)(1) of the Act. 4. By requesting employees distributing literature on its property to desist, Respondent has violated Section 8(a)(1) of the Act. 5. By coercively interrogating its employees, Respond- ent has violated Section 8(a)(1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 9 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 PROVIDENCE HOSPITAL 327 ORDER The Respondent, Providence Hospital, Holyoke, Mas- sachusetts, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Prohibiting its employees from distributing litera- ture in front of a main entrance to the Hospital, in other areas not devoted to patient care, or in other nonwork areas. (b) Requesting employees to stop distributing literature n such areas. (c) Interrogating its employees about their intentions o cross or not to cross picket lines. (d) In any like or related manner interfering with, re- ;training, or coercing its employees in the exercise of heir rights under Section 7 of the Act 2. Take the following affirmative action necessary to !ffectuate the policies of the Act. (a) Immediately revoke that portion of its notice to the kssociation issued in March 1980 prohibiting employees 'rom distributing literature on its premises. (b) Post at itK Holyoke, Massachusetts facility copies of the attached notice marked "Appendix."i ° Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 10 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 "