Southern Maryland Hospital Center

SOUTHERN MARYLAND HOSPITAL 1209 Southern Maryland Hospital Center and Office and Professional Employees International Union, Local 2, AFL-CIO. Cases 5-CA-16186 and 5- CA-16315 May 22, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBER JOHANSEN AND CRACRAFT On June 20, 1985, Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed limited cross-excep- tions 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 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Southern Maryland Hospital Center, Clinton, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 2 We agree with the judge's determination that off-duty employees were unlawfully barred from distributing union organizing literature at the main entrance to the Respondent 's hospital Moreover, we find the judge's analysis to be in accord with the Board 's standards for evaluating the validity of employer no-access rules affecting off-duty employees set forth in Tn-County Medical Center, 222 NLRB 1089 (1976), see also Ohio Masonic Home, 290 NLRB 1011 ( 1988). . Charles L. Posner, Esq., of the General Counsel. Warren M. Davison, Esq. and Leslie R. Stellman, Esq., of Baltimore, Maryland, for the Respondent. Ms. Kathleen E. Moore, of Washington, D.C., for the Charging Party. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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. In its exceptions, the Respondent alleged bias and prejudice on the part of the judge in deciding this case We have carefully considered the record as a whole and his decision in light of the Respondent's exceptions and find no basis for finding bias on the part of the judge We further deny the Respondent's motion to dismiss or to remand for a hearing de novo, in which the Respodent argues that Judge Roth im- properly relied on Administrative Law Judge Arlene Pacht's decision in Southern Maryland Hospital Center, 276 NLRB 1349 (1985), in making findings of fact and conclusions of law at a time when exceptions to Judge Pacht's decision were pending before the Board The findings in Judge Pacht's decision that were relied on by Judge Roth as background evidence specifically concerned prior restrictions to union access to the hospital's cafeteria and antiunion animus on the part of Hospital Chief Executive Officer Dr Francis Chiaramonte Although the Board re- versed and dismissed one of Judge Pacht's recommended findings in its decision of September 30, 1985, and the U.S Court of Appeals for the Fourth Circuit denied enforcement to certain portions of the Board's Order in Southern Maryland Hospital Center Y. NLRB, 801 F.2d 666 (4th Cir 1986), both decisions left undisturbed Judge Pacht's findings regard- ing restricted access to the cafeteria and Dr Chiaramonte's hostility to the Union The latter finding was grounded on Dr Chiaramonte's per- sonal participation in unfair labor practices also found in that proceeding undisturbed on review by the Board and the circuit court, including the solicitation and remedying of employee grievances on multiple occasions and on a threat of bodily injury directed at an employee supporting the Union described therein as "reckless conduct" for a representative of the medical profession of Dr Chiaramonte's rank 276 NLRB at 1353 In any event, each of the unfair labor practice findings by Judge Roth that we adopt is supported by independent evidence on the record of this case In making his findings, the judge declined to draw adverse inferences from the Respondent's failure to produce certain witnesses regarding alle- gations of surveillance in the cafeteria In doing so, he asserted that he was relying on "current Board policy " Although we find no need to draw the adverse inferences in order to sustain the findings of violations, we do not rely on the judge's characterization of Board policy respecting adverse inferences See International Automated Machines, 285 NLRB 1122 (1987), enfd mem 861 F 2d 720 (6th Cir 1988) DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consolidated cases were heard at Washington, D.C., on 7, 8 and 11 February 1985. The charge and amended charge in Case 5-CA-16186 were filed respectively on 16 February and 19 March 1984, and the charge and amended charge in Case 5-CA-16315 were filed respec- tively on 12 and 20 April 1984, by Office and Profession- al Employees International Union, Local 2, AFL-CIO (the Union).' The consolidated complaint, which issued on 11 October and was amended on 22 January 1985 and at the hearing, alleges that Southern Maryland Hospital Center (the Company or Respondent) violated Section 8(a)(1) of the National Labor Relations Act.' The grava- men of the complaint is that the Company allegedly (1) engaged in surveillance of employees' union activities, (2) promulgated and maintained revisions in its discipli- nary policy that were overly broad and tended to re- strain or coerce employees in the exercise of their Sec- tion 7 rights, (3) maintained and enforced its no-solicita- tion and no-distribution rule in an unlawful manner by instructing employees that they could not distribute union literature during nonworktime in nonpatient care areas, and (4) discriminatorily maintaining and enforcing the rule by denying nonemployee union organizers access to the cafeteria at its facility. All parties were af- forded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel and the Company each filed a brief. i All dates are for 1984 unless otherwise indicated. 2 The complaint was amended, inter alia to delete certain allegations of 8(a)(1) and (3) conduct, which were the subject of an informal settlement agreement 293 NLRB No. 136 1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record in the case,3 and from my obser- vation of the demeanor of the witnesses and of the Com- pany's premises,4 and having considered the briefs and arguments of the parties, I make the following FINDINGS OF FACT The Company, a Maryland corporation with an office and place of business in Clinton, Maryland, is engaged as a health-care institution in the operation of a full-service general hospital providing inpatient and outpatient medi- cal and professional care services for the general public. In the conduct of its operations the Company annually derives gross revenues in excess of $250,000, and annual- ly purchases and receives at its Hospital goods and mate- rials valued in excess of $50,000 directly from points out- side Maryland. I find, as the Company admits, that it 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. I. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND: THE COMPANY'S OPERATIONS, AND THE PRIOR ORGANIZATIONAL AND ELECTION CAMPAIGN AND UNFAIR LABOR PRACTICE PROCEEDING The Company's hospital employs some 1300 personnel, including about 1200 nonsupervisory employees. Dr. Francis Chiaramonte is chief executive officer and the principal owner. Sebastian Suriani, his immediate subor- dinate, is executive vice president and was previously ad- ministrator of the Hospital. Since August 1981 Margaret Greenway has been administrator for public relations, community and government affairs. From 1 October 1983 to 22 June 1984, when she left the Company's employ, Audrey DiFlorio was director of personnel. John Butschky is and was at all times material director of security. Since late February 1984, Marjorie O'Don- nell has been director of central supply and linen service. She was previously director of nurses in the operating room. It is undisputed that these personnel, who are in- volved at least to some extent in the present allegations, were at all times material and still are (except for Di- Florio) supervisors and agents of the Company within the meaning of the Act. In the spring of 1981 the Union commenced an organi- zational campaign among the Company's employees. Other labor organizations also engaged in organizing ef- forts, but the Union was foremost and most active in these efforts. Union Staff Representative Kathleen Kocan Moore was in charge of the Union's campaign. These various organizational efforts culminated in Board-con- ducted elections in five separate units (registered nurses 3 On 22 May 1985 I issued an order correcting the official transcript of proceedings in several respects 4 With the consent of the parties and in the presence of representatives of each of the parties, I examined portions of the Hospital premises and adjacent areas on February 9, 1985 and other professionals, service and maintenance, techni- cal, office clericals, and engineering and maintenance), on 11 June 1982. None of the unions won, no exceptions were filed, and the results were certified. However, as an outgrowth of the campaign, the Union filed unfair labor practice charges against the Company (Cases 5-CA- 14016 and 5-CA-14017), alleging violations of Section 8(a)(1) and (3) of the Act. The Regional Director issued a complaint and the matter was heard before Administra- tive Law Judge Arline Pacht over a 6-day period from 15 to 22 November 1982. On 22 April 1983 Judge Pacht issued her Decision and recommended Order in the case [276 NLRB 1349.] She found and concluded in sum that the Company violated Section 8(a)(1) of the Act by con- fiscating union literature from its employees; instituting an Employee of the Month program; soliciting griev- ances from employees and granting benefits to them in order to discourage their support for the Union, interfer- ing with Board processes by telling an employee she could not be released from work to comply with a sub- poena; informing employees they did not receive a 1981 bonus because they sought union representation; restrict- ing the access of employees to union organizers during nonworking hours; threatening employees with discharge because of their union adherence, threatening an employ- ee with bodily harm while he was distributing union lit- erature, and threatening to sue employees as a means of intimidating them in the exercise of Section 7 rights. Judge Pacht further found and concluded that the Com- pany violated Section 8(a)(3) and (1) of the Act by issu- ing a verbal counseling report and reprimand to employ- ee Patricia Vass for discriminatory reasons; and by with- holding from its full-time and regular part-time employ- ees a bonus at year's end 1981 Judge Pacht recommend- ed among other relief, a broad prohibitive order. The Company filed exceptions, and the matter is presently pending before the Board. The General Counsel has requested that I consider Judge Pacht's decision as background evidence in the present case. The Company does not object to such con- sideration of findings concerning undisputed matters, but does object to consideration of findings to which the Company has filed exceptions. I could resolve this con- flict by withholding my decision in the present case until the Board issues its decision in Judge Pacht's case. In such event the Board's decision would be binding for purposes of the present case, as to all matters decided therein. See Laborers Local 282 (Millstone Construction), 236 NLRB 621, 623 (1978) However, this course of in- action would be inconsistent with my obligation under this Act and the Administrative Procedure Act to pro- ceed with reasonable dispatch in processing the matter before me. Moreover, an open-ended delay might impede my ability to resolve questions of credibility, particularly insofar as they entail consideration of the demeanor of the witnesses. In this situation, the appropriate procedure would be to accord at least a presumption of validity to Judge Pacht's credibility resolutions and findings of op- erative fact. See Universal Camera Corp. v. NLRB, 340 NLRB U.S 474, 494 (1951). I have done so. I have con- sidered Judge Pacht's decision, and I find that her find- SOUTHERN MARYLAND HOSPITAL 1211 ings may properly be considered as evidence of the Company's animus toward the Union, its organizers, and its principal employee adherents. As will be discussed, I have further determined that Judge Pacht's findings in connection with restricting the access of employees to union organizers during nonworking hours (under the heading "Restricted Access to the Cafeteria"), are par- ticularly relevant to the present allegation that the Com- pany discriminatorily denied nonemployee organizers access to the cafeteria. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Unlawful Surveillance and Exclusion of Union Organizers from the Hospital Cafeteria The allegations under this hearing are legally distinct from one another, but involve overlapping evidence. Both involve the hospital cafeteria (the surveillance al- legedly took place in the cafeteria, shortly before exclu- sion of the organizers). Additionally, from the outset of this proceeding the General Counsel made clear that its position on denial of access was not based on any con- tention that the Union lacked other means of communi- cating with the hospital employees. Rather the General Counsel contends that the Company maintained and en- forced its no-solicitation and no-distribution rule "selec- tively and disparately" by denying the organizers access to the cafeteria.-' Therefore I shall consider these two al- legations together. Since at least 14 December 1981, the Company has maintained a written no-solicitation and no-distribution "policy" which provides as follows: In order to avoid disruption of patient care, em- ployees will not solicit for any purpose during working time, nor may they distribute literature for any purpose during working time or in patient areas. Non-work time is defined as scheduled lunch pe- riods, authorized break times and other times when the employee is properly not engaged in the per- formance of their duties. Persons not employed by the Hospital may not solic- it or distribute literature on Hospital property for any purpose at any time. [Emphasis added.] Notwithstanding the above italicized portion of the rule, it is undisputed that until March 20, 1984, the Company did not generally prohibit union organizers from entering or remaining in the hospital cafeteria for the purpose of communicating with employees in connection with an ongoing organizational or election campaign, although it was aware of such activity. Organizer Moore testified in sum that in the fall of 1981, when the Union went public with its organizational campaign, she began going to the cafeteria about once a week. Thereafter she went 2 or 3 times a week, alternating with International Representa- 6 As will be discussed, the Company, but not General Counsel, con- tends that the availability of other means of access should be considered in connection with the allegation that the Company unlawfully prohibited employees from distributing union literature in "nonpatient care areas," specifically, at the main entrance to the hospital building tive Alger, who had been assigned to assist in the cam- paign. During the last 6 weeks of the campaign, she was present on a daily basis, and during the last 2 weeks she would be accompanied by one or more other union rep- resentatives. Moore would remain in the cafeteria during lunch hours, which were from 11:30 a.m. to 2 p.m. She would always order a food or beverage item. However, her principal purpose in going to the cafeteria was to communicate with employees concerning the campaign. Toward the end of the campaign she wore a badge that identified her as a union official. As indicated, the Com- pany never excluded the organizers from the cafeteria. However, Judge Pacht found that on one occasion Dr. Chiaramonte restricted access by employees to organiz- ers in the cafeteria. As her findings are significant in sev- eral respects to the present case, I shall quote in full her pertinent findings. Judge Pacht found as follows [276 NLRB at 1359-1360]: The allegation in paragraph 5(q) of the complaint concerns Dr. Chiaramonte's separate confrontations with employees Douglas Souris and Thomas Mahaf- fey in the cafeteria. Souris testified that on February 25, while he was having lunch in the cafeteria with three union agents, Dr. Chiaramonte approached with Security Supervisor Barry Powers, and asked him if the Union officials were rightfully there. Powers an- swered that as long as the organizers had a Hospital employee with them they could remain. The doctor then told the union officials that there was not enough room in the cafeteria for the employees and that if they were just going to sit there, he would appreciate their leaving. He then suggested that Souris finish his lunch and leave too. Souris ex- plained that at that time, the tables immediately sur- rounding him were empty although other employ- ees were in the cafeteria. After Dr. Chiaramonte made his request, Souris finished his lunch and de- parted, leaving the union officials in the cafeteria. Mahaffey, presently employed as a physical ther- apist at the Hospital, also related that after distribut- ing the Solid Rock, he entered the cafeteria and joined the three union organizers at a table. After chatting for a bit, he entered the food line where- upon Dr. Chiaramonte grabbed his arm and told him there was ". . . no room in the cafeteria for your damn union meetings" and instructed him to tell the Union that "this is not their meeting place " These statements were made loudly within earshot of at least six other persons. Immediately after this encounter, Mahaffey (went) to his department and committed to writing precisely what the doctor had said. Dr. Chfaramonte does not deny these incidents but put them into a less hostile context. He ex- plained that his purpose was to prevent crowding of the cafeteria and, therefore, he advised both Souris and Mahaffey that they and the union representa- tives should not take up space that was badly needed. He further maintained that he has on other 1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD occasions asked nonunion visitors and guests to leave the cafeteria in order to lessen overcrowding. While the Union's right to confer with employees in areas of the Hospital which are strictly dedicated to patient care are properly circumscribed, the Su- preme Court has made it clear that no such restraint exists on union solicitation in other areas such as a cafeteria, which is essentially operated for employ- ees, exists as their primary gathering place, and is almost wholly unrelated to patient care. See Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). Of course, special circumstances may arise which justi- fy the curtailment of the Union's protected activities even in nonpatient care areas. Here, however, the Hospital failed to meet its burden of showing any special circumstances. There was no evidence that the employees' conferences with the union agents caused any disruption to patient care or even in- fringed upon other employees' use of the cafeteria. Dr. Chiaramonte suggested that he was not denying the Union access to the cafeteria, so much as impos- ing some brief limitations upon it because of conges- tion in the dining area. His testimony was contradict- ed by the much more specific recollection of Souris, that there were empty tables surrounding the one which he and the union officials occupied. Further, Dr. Chiaramonte's assertion that he urged other visitors to quit the cafeteria was offered gratuitously and was not corroborated. The ample evidence in this record of the doctor's animus toward the Union leaves no doubt that he pressed for the Union's quick depar- ture not from a genuine desire to cure congestion in the cafeteria, but out of a more fundamental desire to get rid of their loathed presence. Since the Respond- ent failed to provide any satisfactory explanation for its unwillingness to countenance the continued pres- ence of the Union in the cafeteria, I find that even these brief intrusions on the employees' and the Union's access to the cafeteria violated Section 8(a)(1) [Emphasis added.] The foregoing findings are significant to the present alle- gation concerning exclusion of organizers because they indicate that (1) company policy, as understood by the security supervisor who was responsible for enforcing such policies, permitted guests of or persons accompa- nied by an employee to enter and remain in the cafeteria, (2) the cafeteria was not invariably crowded during lunchtime and at least sometimes there were empty tables, and (3) Dr. Chiaramonte was hostile to contact between employees and organizers in the cafeteria, and used the false and pretextual excuse of overcrowding to inhibit such contacts. About a month after the June 1982 election, the Union commenced a second organizational campaign. Kathleen Moore was again in charge of the campaign. The Union initially conducted an "underground" campaign, but went public in November 1983, announcing in its cam- paign newsletter, known as Solid Rock (referred to in Judge Pacht's decision) that "we're back." The Union did no initially limit its organizing efforts to any particu- lar group or group of employees. However the Union eventually filed petitions for elections in two separate units namely, a unit of registered nurses and other pro- fessionals, and a unit of technical employees, and the Re- gional Director ordered elections in such units. The Op- erating Engineers petitioned for an election in a unit of engineering and maintenance employees, but withdrew its petition shortly before the scheduled elections on De- cember 7, 1984, and no election was held in that unit. No other labor organizations were involved in this cam- paign. The Company contested the appropriateness of a technical unit, contending that only a unit of all nonpro- fessional employees would be appropriate. The Union lost the election in the professional unit, no objections were filed, and the results of that election were certified. The ballots cast in the technical unit were impounded, pending Board review of the Regional Director's unit determination. On 29 March 1985, after the hearing in the present matter, the Board issued its Decision in the representation proceeding (Case 5-RC-12207, reported at 274 NLRB 1470), affirming the Regional Director's determination that a technical unit was appropriate. In the meantime, in early 1984, the Union again sought to use the cafeteria as a location to further its organiza- tional campaign. This time the Union, anticipating the possibility that the Company might invoke its no-solicita- tion and no-distribution rule to exclude organizers from the cafeteria, decided to test the waters by determining the extent, if any to which the Company excluded non- employees from the cafeteria. The cafeteria was located on the ground floor of the hospital, one flight below the main entrance Normally a nonemployee coming from the outside and seeking to go directly to the cafeteria would enter through the main (front) doors of the hospi- tal and proceed ahead through the main corridor about 60 feet to a point where a hospital volunteer was sta- tioned at a reception desk A security guard was usually in the vicinity, and sometimes, but not always stationed near the reception desk. The visitor would then turn left, proceed down a hallway to an elevator, take the elevator to the ground level, and proceed down another hallway to the cafeteria. On February 1, International representa- tive Kathy Burton went to the hospital. Burton assumed her position with the Union in December 1983, and she was not involved in the first campaign. However, she was a native of the area and knew some of the hospital personnel. Burton entered about noon, and did not wear any union identification She proceeded past the recep- tion desk where a volunteer was seated, but the volun- teer said nothing. The volunteer did not offer Burton a visitor's pass, although such passes were at least available to be worn on the visitor's person, and Vice President Suriani and then Personnel Director DiFlorio testified that all persons entering the hospital were required to obtain such passes. Burton proceeded directly to the caf- eteria, where she purchased a cup of coffee and sat down at an empty table. She remained for about 45 minutes. Nurse Supervisor Heide Chaney and two employees came over to her table. Chaney introduced Burton to the head of volunteer services, who asked Burton if she would like to apply as a volunteer. Burton testified that there was heavy activity, but empty tables in the cafete- SOUTHERN MARYLAND HOSPITAL 1213 ria, and that she saw 10 to 12 persons having lunch to- gether, who by their clothing and dirty appearance were obviously construction workers. There was construction work going on at the hospital throughout the second campaign, and the construction workers were employed by outside contractors. Burton picked up a volunteer ap- plication on her way out of the hospital, and on Febru- ary 6 she returned the application. She again went to the cafeteria, and again she was not asked the purpose of her visit or offered a pass. On March 14, the Union made an- other test. At the request of organizer Moore, two union members who were not hospital employees (Cheryl Gannon and Mary Feely), went to the hospital about 6 p.m. The cafeteria is normally open for dinner from 4 to 7 p.m. Gannon asked the volunteer at the reception desk for directions to the cafeteria, saying that they wanted to "visit someone" in the cafeteria. A security guard stood next to the volunteer. Patients seldom use the cafeteria, and when they do, they are usually, accompanied by their own family members or other visitors. Therefore, it would be evident to the volunteer and the guard that Gannon and Feely probably intended to visit someone other than a patient. Nevertheless the volunteer simply gave directions, and did not offer them passes, the guard said nothing, and the two visitors proceeded to the cafe- teria, where by prearrangement they met with staff nurse Carolyn Almassy. They remained for 15 to 20 minutes. At the time the cafeteria was about one-third full. (It is undisputed that the cafeteria was less crowded at dinner- time than at lunchtime because there are fewer employ- ees on duty during the evening). Dr. Chiaramonte, Ad- ministrator Greenway, and two other administrative per- sonnel were present at one of the tables. If hospital policy was as testified by Suriani and DiFlorio, then ev- eryone in the cafeteria would be wearing some form of identification. Specifically, employees would be wearing identification badges, patients would be wearing a robe with a wrist band, and visitors would have a pass pasted on their clothing. The cafeteria dining area measures 56 by 38 feet, has a seating capacity of 116, and contains 41 tables, which are usually pushed together in pairs If as indicated by Gannon, there were only about 40 persons in the cafeteria at that time, then Gannon and Feely would have been conspicuous by their absence of visible identification. Nevertheless they were not questioned or challenged. The next day, 15 March, Organizer Moore, accompa- nied by Organizer Burton and Union president Jim Sheridan, came to the hospital. The complaint alleges that on this day, by Butschky and Greenway, and on the following day by Butschky and O'Donnell, the Company engaged in unlawful surveillance of employees' union and concerted activities in the cafeteria. With regard to 15 March, Moore and Burton testified in sum as follows: The three union representatives entered the hospital about 12:05 p.m. and went by the reception desk. A se- curity guard and volunteer were stationed there, and other persons were waiting at the desk. The union repre- sentatives went past them without stopping, but the vol- unteer and the guard said nothing. They went on to the cafeteria, purchased food and beverage items, and found an empty table in the middle of the cafeteria, i.e. two tables pushed together, and capable of accommodating six to eight persons. There was much movement in the cafeteria, but the dining area was about one-half full, and remained that way. Operating room and other employees who were at lunch began coming over to their table. Then Preston Potter, Dr. Chiaramonte's personal physi- cian assistant, came over to the table. Before sitting down, he nodded to Security Director Butschky, who had arrived on the scene and was standing near the door- way to the cafeteria with his walkie-talkie. Moore said hello to Potter and asked if he remembered her from the first campaign. Potter denied knowing her and avoided talking to her (Moore testified without contradiction that nurse Carol Kline introduced them during the first unfair labor practice proceeding.) Next Administrator Green- way, accompanied by a volunteer firefighter, came to the table and sat down. Burton commented that she thought the man with Greenway was a policeman, whereupon Greenway said: "Well, we thought things were going to get hot here so we brought a fireman along." Next Butschky and DiFlorio came over and sat at an adjacent table. They did not have lunch, but Butschky watched the organizers. No more employees came to the table. The union representatives remained for about 30 minutes, and the management personnel remained until they left. The next day (16 March) Moore and Burton returned to the hospital at about noontime. They testified in sum as follows: They went to the reception desk and Moore asked if they should sign in, as they were going to the cafeteria. The volunteer said they should. They signed, and the volunteer gave them passes, which they pasted on their clothing. They went to the cafeteria, obtained their orders, and went to a side table. Again, the cafete- ria was busy, but about one-half of the tables were empty. Again employees came over to their table, in- cluding employees from dietary and central supply. They were also joined by Union Staff Representative John Hazel. Two more employees came to the table and were about to sit down when Butschky came over, whereupon the employees went to another table Butschky said: "Hello Kathy." Moore said that he was making the em- ployees leave. Butschky answered that he was not trying to do that, but just wanted to make sure they followed procedure and signed in. Moore said they had, and point- ed to their passes. Burton asked Butschky whether there had been a problem about passes the previous day, whereupon Butschky shrugged his shoulders and smiled quizzically. (If Butschky were concerned about this, he could have observed their passes without coming to the table.) Butschky remained at the table for a few minutes, and then went to a nearby table where he remained until the organizers left the cafeteria (between 1 and 1:30 p.m.) In the meantime, Director O'Donnell, accompanied by her predecessor, Larry Stansbury, came to the orga- nizers' table. Burton went to another table to talk to other employees. As she was getting around O'Donnell, the latter commented: "Oh, you are a very busy lady today." Butschky was not presented as a witness in this pro- ceeding. However Former Personnel Director DiFlorio testified in sum as follows: One day in mid-March she 1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was at lunch in the cafeteria. She saw Moore, Burton, and a male organizer seated at a table about 2 or 3 tables away from her. Employees went over to the table, as did Supervisors Greenway and Noreen Briley. Security di- rector Butschky was having lunch at a table about three or four tables away from DiFlorio. She asked Butschky to check the organizers' passes because she did not see any. Butschky went over to the organizers' table and re- turned after a few minutes, telling DiFlorio that they had visitor's passes. Nothing more was said about the matter, and Butschky left the cafeteria. Administrator Greenway testified that she knew there were organizers in the cafe- teria during the first campaign, but she did not know who they were, and to her knowledge she never met Moore until the night of the second election, when Moore introduced herself at a restaurant. Greenway tes- tified that in March 1984, she went to lunch several times with a member of the volunteer fire department be- cause both the hospital and the department were con- cerned about pending legislation before the county gov- ernment on the matter of charges for ambulance service. She .further testified that she did not know whether she and the firefighter ever sat at the same table with union organizers, but that if she had serious business to discuss, she would not have knowingly done so. Director O'Donnell testified that she did not recall seeing union organizers in the cafeteria. She testified that in March she usually had lunch with Larry Stansbury because she had just taken over his position and was learning the op- eration. She further testified that she did not recall re- marking to Moore or any other organizer that she was a busy lady, but that she might have said something if someone kept getting up and disturbing her or if employ- ees were coming and going to and from her table. O'Donnell also testified that, as of the end of February, she did not anticipate that her departments (central supply and linen service) would be involved in the union organizational campaign. Organizer Moore, in her testimony, sharply contradict- ed Greenway's testimony that she did not know Moore. Moore testified in sum that she saw Greenway in the hospital many times during the first campaign, that during that campaign they were involved in a conversa- tion in the cafeteria concerning Dr. Chiaramonte's broth- er, in which Moore mentioned her status as an organizer, that they greeted each other at the first unfair labor practice proceeding, that on the night of the second elec- tion, Greenway, on behalf of a group of management personnel, offered to buy a round of drinks for a group of union representatives and adherents, including Moore, and that Moore did not then introduce herself because they already knew each other. This brings me to the sub- ject matter of the Company's motion to strike portions of the General Counsel's brief. In its brief, the General Counsel argued in sum that company counsel admitted at the present hearing that Moore was well known at the hospital, and that this admission tended to impeach Greenway's testimony. The Company contended in its motion that the alleged admission was "made in a jocular manner" and was in no way intended as a stipulation of fact. The statement in question was made in connection with the Company's objection to a line of inquiry by the General Counsel, who was questioning Moore concern- ing union activity in the cafeteria during the first cam- paign. At this point the Company objected, the General Counsel responded, the Company replied, and I ruled as follows (Tr. 185-186): Q. Let me ask you this,- MR. DAVIDSON: Your honor, please, I hope you don't think I don't have any objection to some of the prior testimony which I consider to be quite ir- relevant. What occurred during the first campaign is unre- lated to what occurred during the second campaign because the rules changed. MR. POSNER: Your honor, that is not the conten- tion, I am resenting this particular evidence for other reasons. As to the front entrance, I think it will go to the issue which Respondent has raised which is whether or not this intervened with patient care and as to the cafeteria I think it shows that Ms. Moore was well known to employees and to manage- ment personnel as a union representative. MR. DAVIDSON: Well, we're willing to stipulate that most of the people in the hospital got to know and love Kathy Moore. We know that they- JUDGE ROTH: I will permit testimony along these lines. I would agree in any event it would appear to be relevant to the first question. [Emphasis added ] It is settled law that the admissions of an attorney in the management of litigation are admissible against the client. Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969); Pacif- ic Intermountain Express Co., 110 NLRB 96, 104 (1954), enfd. 228 F.2d 170, 175 (8th Cir. 1955), cert. denied 351 U.S. 952 (1956). An attorney may express himself in a colorful or colloquial manner and still mean what he says. I find it unlikely that Davison, a competent and ex- perienced attorney, would propose to "stipulate" facts without meaning to do, while arguing in support of his objection to a line of questioning. If Davison was only joking, then he could have or did seriously mislead the General Counsel and the administrative law judge. (As indicated by the record, I accepted counsel's representa- tion as an indication that there was no issue concerning company knowledge of Moore's identity, and ruled that the testimony was "in any event" potentially relevant to the issue of employee handbilling at the front entrance.) It is also significant that company counsel did not cross- examine Moore concerning the matter of whether she was known to management personnel. I find that compa- ny counsel's proferred stipulation may properly be con- sidered as an admission by the Company which tends to impeach the testimony of Greenway and O'Donnell to the effect that they did not know organizer Moore.6 In 6 The cases principally relied on by the Company in its motion are not in point In Duncan Foundry & Machine Works, 222 NLRB 768 (1976), the Board found that a stipulation was not inconsistent with certain un- controverted testimony In Penn Traffic Co. v. NLRB, 546 F 2d 677 (6th Cir 1976), the court determined that the stipulation in question was inter- nally inconsistent and supplemented by evidence adduced at the hearing Continued SOUTHERN MARYLAND HOSPITAL k these circumstances, it is evident that the testimony of the company witnesses was contrived over the weekend following the General Counsel's direct case, after those witnesses had an opportunity to hear or learn of the tes- timony of Moore. (The present hearing, unlike the first proceeding, was not conducted under a rule of exclusion of witnesses.) There is additional evidence that tends to corroborate the testimony of Moore. Vice president Sur- iani testified that Moore became familiar to him as a result of her activity in the first campaign. Greenway, by her own admission, was at least emotionally involved in the first campaign. She resented a statement in Solid Rock to the effect that she was hired as a "union buster," and she went to the trouble of writing a letter about the matter. In these circumstances, coupled with the fact that both Moore and Greenway were regularly present in the cafeteria at lunchtime during the first campaign, it is unlikely that Greenway would have failed to make some effort to identify her principal accuser. As for O'Donnell, I do not credit her asserted belief that em- ployees in her departments would not be involved in the second campaign. On 16 March, when she came to the organizers' table, Moore and Burton were accompanied by employees from dietary and central supply who came to that table. (As discussed, the Union did not initially limit its campaign to any particular group or groups of employees.) Additionally, as discussed, until February 1984 O'Donnell served as a supervisor of nursing, which was a principal area of union activity during both cam- paigns . Therefore if the Company were intent on engag- ing in surveillance of union activity, O'Donnell would have been an appropriate person to perform this func- tion. Greenway's testimony contains admissions that are sig- nificant both to the allegation of surveillance and to the question of the Company's policy concerning access to the cafeteria. Vice President Suriani testified in sum that since shortly after the first election, company policy re- stricted use of the cafeteria to "employees, patients, pa- tients' visitors and medical staff only," and that a sign to that effect was posted at the entrance to the cafeteria since in or about August 1982. If so, then Greenway's practice of inviting the firefighter to lunch would consti- tute a repeated violation of that policy by a high man- agement official, because the purported policy made no exception for guests of hospital personnel, whether they were present on hospital or related business Additionally as indicated, Greenway testified that if she had serious business to discuss with the firefighter (which she did) she would not knowingly share the same table with union organizers . In light of the credited evidence that Greenway knew that Moore was a union organizer, it is evident that Greenway had some other purpose in going to Moore's table The same would also be true of O'Donnell, who had serious business to discuss with Larry Stansbury. As for Butschky, DiFlorio's testimony, when matched against that of Moore and Burton, sug- In the present case, there is conflicting testimony concerning the extent to which Moore was known among managerial and supervisory person- nel at the hospital Therefore, counsel's representation may properly be considered as evidence on this issue See Precision Carpet, 223 NLRB 329, 338 (1976) 1215 gests a composite of the incidents on 15 and 16 March as described by the organizers. DiFlorio described only one incident, and she did not claim to overhear the conversa- tion between Butschky and the organizers. In the ab- sence of any testimony by Butschky, DiFlorio's testimo- ny constitutes only a partial refutation of the organizer's testimony, and fails to explain or contradict other aspects of their testimony.' In light of these factors, and the de- monstrably false testimony by Greenway and O'Donnell relative to the events described by Moore and Burton, I credit the organizers, and I find from Butschky's words and actions that he was present in the cafeteria on 15 and 16 March for the purpose of surveillance of union activi- ty. I agree with General Counsel's contention (Br. 24) that Moore's entrance and presence in the cafeteria on 15 March "set off alarm bells at the hospital," and "also tipped off the hospital about Burton's identity." The Company thereby learned that the Union again intended to use the cafeteria as a locus to communicate with em- ployees concerning the campaign. This time, instead of personally intervening, Dr. Chiaramonte delegated the Company's response to his subordinates. And this time the Company was prepared with a carefully calculated and coordinated response, beginning with intimidating surveillance, coupled with contrived situations that could be used to suggest that the organizers were causing over- crowding in the cafeteria, and culminating with their ex- clusion from the cafeteria. On 20 March at noontime Organizer Burton returned alone to the hospital for a prearranged appointment in the cafeteria with employee Carol Kline. She went to the reception desk where a volunteer and security guard were stationed. The guard asked who she was visiting. She answered Carol Kline. The guard asked if Kline was a patient. Burton answered that she was an employee, whereupon the guard said, "then I can't let you go to the cafeteria." Burton asked why, and the guard an- swered that there was a hospital rule that only patients, patients' visitors and employees could visit the cafeteria. Burton disagreed, saying that she had been there before, and asked to speak to the guard's supervisor. The guard was initially unwilling but eventually paged Butschky, who arrived and stated the same asserted policy to Burton. She asked Butschky to reconsider, whereupon Butschky left to make a call, returned, and again denied access to the cafeteria. Burton asked to see Butschky's supervisor, and he summoned Peg Miller, an administra- tive official, who said that Burton was denied access to the cafeteria because the hospital had a no-solicitation policy. Burton insisted that this was a change from prior practice, and that she would return until she got a re- sponse from the hospital administration. Burton left after meeting in the lobby with Kline and another employee. The next day Burton returned to the Hospital at noon- time for a prearranged appointment with employee La- tinzar Everett. This time Burton wore a union badge. ' In accordance with current Board policy, I have not drawn any ad- verse inference from the Company 's failure to present Butschky or any other person as a witness My findings are based on the inadequacy of DiFlono's testimony 1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD They met in the lobby and attempted to go to lunch to- gether. The same guard denied her access to the cafete- ria, giving the same reason that he did the previous day. Burton asserted that his reason was different from that given by Peg Miller, and she left the hospital. Vice President Sunani, the Company's principal wit- ness, testified that during the first campaign the union or- ganizers "set up their offices" in the cafeteria, and that they were present "in great numbers" on a "continual daily basis," but that on the advice of counsel the Com- pany took no action dunng the campaign. However, after the first election the Company established a policy that permitted only employees, patients, patients' visitors, and medical staff to use the cafeteria, and posted a sign to that effect at the entrance.8 Suriani inferred, but never directly testified that Burton was excluded pursuant to this policy. According to Sunani, this policy was institut- ed because the cafeteria did not have much space, the hospital had a large number of employees, and the orga- nizers "abused" this access to the cafeteria. The Compa- ny, through Sunani, presented statistics concerning the average number of persons who went through the serv- ing line during the lunch period, which purported to in- dicate that the cafeteria was full or nearly full dunng most of that period. With regard to the testimony of wit- nesses that indicated that the cafeteria was extensively used by persons not within the posted categories, Suriani could offer no explanation other than: "We just haven't attained a full total control the way we should have. We blew it." Suriani testified that he told Butschky, but not the volunteers, about this policy However, he admitted that on learning in March that organizers came to the cafeteria, he carefully instructed both security and the personnel office to "keep an eye out for these particular individuals." In fact, the alleged change in policy was simply a pre- text, and the Company never excluded anyone but known union organizers from the cafeteria. I have previ- ously discussed testimony that indicated that the Hospital repeatedly and knowingly permitted employees' visitors and nonhospital employees to use the cafeteria. There was additional testimony along this line. Thus, former employee Margaret Watson and present employee Jill Stahl testified about numerous instances in 1983 and 1984 in which family and friends of employees, including their own, would visit the cafeteria at lunchtime or dinner- time.9 Moreover, Suriani's testimony concerning alleged a Sunani testified that prior to the first election there was a posted sign which restricted the cafeteria to employees , visitors, medical staff, and "if my memory serves me correctly," to "community members " However, Organizer Moore and Carolyn Almassy, who was employed as a staff nurse at the hospital from January 1980 to 24 December 1984, testified that there was no sign during the first campaign If there were such a sign, then it is probable that there would have been testimony and find- ings concerning the sign in the first unfair labor practice proceeding in connection with alleged restricted access to the cafeteria However, Judge Pacht's decision makes no reference to a sign I credit Moore and Almassy e One such instance is particularly significant Stahl testified that in the summer of 1984, after the organizers were excluded from the cafeteria, a security guard was reluctant to let her friend past the reception desk be- cause he was dressed in shorts, which violated the dress code However when Stahl identified him as a friend who was joining her in the cafete- ria, the guard let him through excessive use of the cafeteria during the first campaign, and alleged overcrowding in the cafeteria was demon- strably exaggerated. r ° As with Dr. Chiaramonte in the first hearing, Suriani's generalized assertions concerning crowded conditions in the cafeteria were contradicted by the specific recollection of other witnesses that there were empty tables even at the peak of the lunch period. Even Audrey DiFlono testified that in mid-March be- tween 12:30 and 1 p.m. "There were not a lot of empty chairs," i.e., that there were at least some empty chairs even at this time. Suriani testified that he was sometimes inclined not to wait in the service line. However, al- though there might be a line at the food service counter during the noon hour, neither Sunani nor any other wit- ness indicated that once through the service line, they or other persons had to wait to find a table. Moreover, the presence of one or two organizers, even for an extended period of time, would hardly equate for accommodation purposes with the presence of as many as 10 to 12 con- struction workers (nearly 10 percent of seating capacity) having their lunch in the cafeteria. i i In sum, the evidence demonstrates that at all times the cafeteria was generally open to the public, and specifical- ly open to guests and visitors of hospital personnel, that since 20 March the Company has singled out union orga- nizers for exclusion from the cafeteria, and that there were no nondiscriminatory circumstances that warranted such exclusion.12 The organizers always purchased a food or beverage item before seating themselves in the cafeteria. They behaved in a proper and appropriate manner, and their presence was consistent with the pre- vailing and approved practice of the Hospital to permit hospital personnel to meet and talk with their guests, family, friends, visitors or business acquaintances in the cafeteria. They did not engage in table hopping (on the occasion described by the organizers, when Burton went to another table, she found it necessary to do so because supervisors, by their intentional presence at and near the organizers' table, were discouraging employees from coming there). Therefore, the Company violated Section 8(a)(1) of the Act by selectively and disparately denying nonemployee union organizers access to its cafeteria 10 In an effort to exaggerate the number of organizers who used the cafeteria, Sunani twice testified that Kathy Burton was one of the orga- nizers, although she was not involved in the first campaign In response to a leading question by company counsel on redirect examination, Sur- iani testified that he sometimes confused Burton with another woman However, in his earlier testimony Sunani identified both Burton and the other woman as involved in the first campaign Therefore it is evident that Sunani was not confused, but was intent on exaggerating the number of organizers without regard to the truth I I Sunani suggested that the persons in question might be hospital maintenance personnel who wore construction type uniforms However Carolyn Almassy identified such workers as nonhospital employees Out- side construction employees would be conspicuous by their lack of em- ployee identification tags and as described by Burton, by their dirty ap- pearance 12 Company security guard Frank Sanders testified that on one occa- sion shortly before the present hearing he excluded commercial solicitors who were placing literature on cars in the hospital parking lot Apart from the fact that the incident did not involve the cafeteria, the Compa- ny's policy with regard to commercial solicitation is not a factor in deter- mining whether the Company discriminatonly excluded union organizers from the cafeteria Ameron Automotive Centers, 265 NLRB 511, fns 10, 17 (1982) SOUTHERN MARYLAND HOSPITAL 1217 Ameron Automotive Centers, supra; Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115, 1122 (7th Cir. 1982); Montgomery Ward & Co. v. NLRB, 263 NLRB 23_ (1982), enfd. as modified 728 F.2d 389, 391 (6th Cir. 1984).'3 I further find that the Company, by Butschky and Greenway on 15 March and by Butschky and O'Donnell on 16 March, violated Section 8(a)(1) by engaging in co- ercive surveillance of its employees' union activities in the cafeteria, at times when they were properly on their lunchbreak. Montgomery Ward & Co., supra, 256 NLRB at 801; 692 F.2d at 1128. Indeed, the Company's conduct in the present case was substantially similar to the "un- reasonably close observation" which the court deter- mined to be unlawful in Montgomery Ward. The Compa- ny's carefully orchestrated actions were demonstrably designed to inhibit employee contact with the organizers, and to create artificial situations that could be used as an excuse to totally exclude the organizers. (In fact the Company's actions did inhibit employees from talking to the organizers, although this is not a necessary element of a violation.) The credited evidence indicates that Butschky had no legitimate reason for even going to the cafeteria, but was there solely for the purpose of closely observing and thereby intimidating employees who wished to join the organizers at their table. Butschky, in a conspicuous manner, remained and watched the orga- nizers throughout their stay, and came and remained at their table on the false pretext of checking their passes. On the basis of Greenway's own testimony, it is evident that she and O'Donnell would not have come to the or- ganizers' table unless they had an ulterior motive. Even in the absence of such testimony, the presence of such supervisory personnel at the organizer's table on 2 suc- cessive days could hardly be dismissed as coincidental. As a general rule, management officials may observe public union activity, particularly when such activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do something out ,a The above-cited cases differ factually from the present case in that they involve food and beverage service facilities (a restaurant, cafeteria, and snackbar, respectively), which were located on the premises of a retail store, whereas the present case involves a facility that is located on the premises of a hospital However, this factual difference presents no legally cognizable distinction All the facilities were generally open to the public By reason of their location, the facilities in the cited cases would probably be patronized primarily by employees, customers or other per- sons who found themselves in the area of the store In the present case, the cafeteria would be patronized primarily by employees, visitors, or other persons who had some reason to be on the hospital premises Inter- community Hospital, 255 NLRB 468 (1981), principally relied on by the Company (Br 26), is not in point That case involved a breakroom that was not open to the public, but which was available only for the use of employees (the hospital did not have a cafeteria or coffee shop) The Board found that the Hospital did not discnmmatorily exclude nonem- ployee organizers Therefore the organizers would be entitled to use the breakroom only if they lacked other reasonable means of effectively com- municating with the employees, i e , if they met the Babcock & Wilcox standard (NLRB v Babcock & Wilcox Co, 351 U S 105, 112-113 (1956) ) Indeed most of the Company 's argument in its brief on the allegation of exclusion of organizers is addressed to the Babcock & Wilcox test, al- though that is not the basis of the allegation Rather the General Coun- sel's position is based on the legally and factually sound premise that the Company acted unlawfully by discriminatonly excluding union organiz- ers from its cafeteria, although the cafeteria was generally open to em- ployees' visitors and guests of the ordinary. Metal Industries, 251 NLRB 1523 (1980). In the present case, the Company's supervisors plainly did "something out of the ordinary. "They observed the organizers and employees in a sustained , close, and con- spicuous manner, intentionally sat at their table in order to discourage employees from talking to them, and har- assed the organizers by questioning their passes. More- over, the organizers and employees were not engaged in "public union activity," such as distribution of literature, but were engaged in private conversations in a cafeteria area during the employees' free time. See Montgomery Ward & Co. v. NLRB, 692 F.2d 1115, 1122 (7th Cir. 1982). B. Prohibition of Employee Distribution of Union Literature at the Hospital's Main Entrance The Hospital operates on three shifts. The day shift is from 7 a.m. to 3:30 p.m., the evening shift from 3 to 11:30 p.m., and the night shift from 11 p.m. to 7:30 a.m. There are some 11 entrances to the hospital building but only two or three (the exact number being in dispute) are normally used by employees when going to or from work. The main entrance is located at the front of the hospital building. The front entrance has two double glass doors, separated by a vestibule from an inner set of double doors which in turn leads to the front lobby. The emergency room walk-in entrance is located about 37 feet to the right of the main entrance (as one faces the hospital), and the ambulance door is about 59 feet to the right of the emergency room entrance. Between the main and emergency entrances, but closer to the latter, is a ramp for wheel chairs. Ambulances normally use the am- bulance door. They will rarely pull up at the main en- trance. On the right side of the Hospital there is a door (the side entrance) adjacent to the security office, a re- ceiving area adjacent to the engineer's office, and an- other entrance at the opposite end of the receiving plat- form, which leads to a food storage area. There is a door at the rear of the Hospital (rear entrance) also known as the doctors' entrance. The hospital building also has two fire exits. There is a door in the corridor that connects the Hospital with an adjacent professional building, but this door is normally locked and requires a key for its use. There is also a fire exit in the corridor. The main entrance, which is always open, and the side door, are normally used by employees for ingress and egress. However, since in or about December 1984 the side door has been locked at night and on weekends Vice Presi- dent Suriani testified that this was done for security rea- sons. The rear door is locked at all times and only doc- tors and some nurses have a key to that door. Carolyn Almassy testified that when the construction work began, the rear entrance was restricted only to doctors. Suriani testified that until about January 1985 each nurse was given a key to the rear entrance, but that since that time nurses are given a key only if they so request. The driveway that leads to the rear entrance is marked with a sign "Doctors Only." In addition, the construction work has impeded both access to and parking in the rear area, and the remoteness of this area discourages nurses from using this entrance during hours of darkness. The re- 1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD maining entrances described above are normally not used by employees. Carolyn Almassy estimated that about 40 percent of the nurses and other professional employees used the main entrance, and the remainder used either the back or side entrance. Suriani estimated that about one-third of the employees used the front entrance. In view of the recent changes described by Suriani, it is evi- dent that this percentage would probably increase. Among the three entrances used by employees, only the main entrance is also used by patients. During the first campaign, union organizers and em- ployee members of the organizing committee distributed union literature at the driveway entrance to the hospital premises (which will be described further), and at the main entrance, and employees distributed literature at the entrance to the cafeteria. Suriani testified that he also saw employees distribute literature at the side and rear entrances. On 23 February 1984, when the second cam- paign was underway, Organizers Moore and Burton came to the hospital premises at about 6:15 a.m. They met committee Member Larry Harman, and gave him copies of Solid Rock for distribution. Committee Member Margaret Watson joined Harman, and the two employees (both emergency room technicians) proceeded to the main entrance and began to distribute the literature to ar- riving day shift employees. They did so on their own free time, as neither was yet scheduled to report to work. Watson stood to one side of the double doors and Harman stood between the doors. They would say good morning and offer a copy of Solid Rock to each employ- ee. After about 5 to 10 minutes security guard Frank Sanders approached the employees. Watson and Harman testified in sum that Sanders told them they could not distribute literature there. When they asked why, Sand- ers answered that Dr. Chiaramonte was upset by the handbilling during the first campaign. The employees left and went to work. Organizer Moore testified that she did not thereafter ask employees to distribute at the main en- trance because the employees would be subject to dis- charge under the Company's disciplinary policy, which prohibited "Unauthorized presence on Hospital proper- ty." (This provision is the subject of another allegation of the complaint.) Sanders testified that he told the em- ployees that it was illegal to solicit in the Hospital. When the employees said they had distributed in the cafeteria, Sanders answered that that was "a different situation," and that it was against hospital rules to distribute at the front entrance. As indicated, the only arguably pertinent rule would be the Company's no-solicitation and no-dis- tribution policy, which provided that employees could not distribute literature "in patient areas."14 14 Sanders was an agent of the Company within the meaning of Sec 2(13) of the Act See Coors Container Co, 238 NLRB 1312, 1320 (1978) Nevertheless, the Company suggests (Br 29) that Sanders' action should be viewed as an isolated incident I find this argument without merit Both Sanders and Vice President Sunam confirmed in their testimony that Sanders acted pursuant to company policy The Company asserts that "there is no evidence that any other employees engaged in such so- licitation at this particular location during the rest of the Union 's lengthy campaign " If so, this would simply confirm Moore's testimony that the Union was deterred from distribution at the main entrance In fact, Caro- lyn Almassy distributed literature at the main entrance during the last week of the campaign, although a security guard inferentially warned her Vice president Suriani, in his testimony, confirmed that the security office was instructed to prohibit distribution of literature at the main entrance. However Suriani failed to define the scope of the Company's restriction, and specifically failed to define what in the Company's view constituted "patient areas" under its no-distribution policy. Instead, Suriani attempted to justify prohibition of employee distribution at the main entrance by present- ing statistics regarding the number of inpatients, outpa- tients and prospective patients who entered the hospital through the main entrance over the course of a year. Suriani did not testify about what if any impact such handbilling might have on these persons. Sunani is a hos- pital administrator, and he did not identify himself as a physician or other medical expert. The Company pre- sented no expert medical testimony in this proceeding. The only other company witness who testified concern- ing patient use at the front entrance tended to indicate that the handbilling would have no adverse impact on patients or health care. When asked about what problems might be caused by handbilling at the main entrance, se- curity guard Sanders could suggest only that there might be a problem if a wheelchair was leaving the building and the handbillers were unaware of its presence. How- ever, Sanders admitted that he never saw persons in wheelchairs going in or out of the main entrance at that time of day, i.e., around 6:30 a.m., and that, at the time he stopped the distribution, traffic at the front entrance consisted mainly of incoming nurses. Sanders did not claim that Watson and Harman were impeding traffic. He admitted that he did not even observe whether pa- tients were using the entrance at the time, but simply fo- cused on the distribution. In fact, the main entrance is sufficiently wide that there would be no reason for pa- tient traffic to be disrupted by two employees distribut- ing handbills. In Beth Israel Hospital v. NLRB, 437 U S. 483 (1978), the Supreme Court upheld a Board decision that held that Beth Israel violated the Act by issuing and enforc- ing a rule which prohibited employees from distributing union literature in the hospital cafeteria and coffeeshop, which were used primarily by employees but also used by patients and visitors. In so doing, the Court upheld the Board's general approach of requiring health-care fa- cilities to permit employee solicitation of union support and distribution of union literature during nonworking time and in nonpatient care and other nonworking areas, unless the facility shows that prohibition of such activity is necessary to avoid disruption of health-care operations or disturbance of patients The Court further held that in determining the validity of restrictions outside of patient care or other working areas, "the availability of one part of a health-care facility for organizational activity might be regarded as a factor required to be considered." The Court reasoned that "while outside of the health care context, the availability of alternative means of commu- nication is not, with respect to employee organizational activity, a necessary inquiry . . . it may be that the im- that she was acting improperly The fact that Almassy engaged in such activity and thereby risked severe disciplinary action does not warrant treatment of the present allegation as an isolated incident SOUTHERN MARYLAND HOSPITAL portance of the employer's interest here demands use of a more finely calibrated scale." (437 U.S. at 505).15 One year later, in NLRB v. Baptist Hospital, 442 U.S. 773 (1979), the Supreme Court was presented with the ques- tion of the validity of a Board Decision and Order which prohibited Baptist Hospital from enforcing any rule against solicitation by employees "on behalf of any labor organization during their nonworking time in any area of its hospital other than immediate patient care areas." Ap- plying the Beth Israel standard, the Court held that the Board's prohibition was overly broad insofar as it applied to corridors and sitting rooms on patients' floors because the hospital, through expert testimony, demonstrated the need, from the standpoint of "successful patient care," to maintain a "tranquil hospital atmosphere" in these areas, and that any activity in those areas that suggested dis- traction from patient care would be discouraging to pa- tients and their families. However, the Court approved the Board's Order insofar as it applied to the hospital cafeteria, gift shop, and first floor lobbies. The Court's conclusion with respect to first floor lobbies is particular- ly significant to the present case, because it is obvious that those lobbies, like the main entrance in the present case, were used as a means of ingress and egress by pa- tients and their families. However the Court did not even discuss this obvious fact. Rather the Court indicated its concern with those areas where "patients normally remain," i.e., floors above the first floor of the Hospital. The Board's subsequent decision in Harper-Grace Hospi- tals, 264 NLRB 663 (1982), enfd. 737 F.2d 576 (6th Cir. 1984), is even more to the point because that case, like the present case, involved employer prohibition of em- ployee distribution of union literature at the main en- trance to its hospital. Harper-Grace argued that it could lawfully prohibit such distribution because (1) the hand- billing could have disturbed patients and their relatives in that the content of the pamphlets was inflammatory and they were to be disseminated to employees immediately involved in patient care and would undoubtedly come to the attention of patients and their relatives, and (2) em- ployees wishing to distribute union-related literature had an alternative method of reaching their intended audi- ence, specifically, by posting their pamphlet on the union bulletin board. The administrative law judge, without re- jecting the factual premises advanced by the employer, concluded as a matter of law that Harper-Grace failed to 15 I do not agree with the Company's argument (Br 31) that the Court thereby suggested a Babcock & Wilcox test, i e , that absent discrimina- tion, "an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the Union through other available channels of communication will enable it to reach the em- ployees with its message " NLRB v Babcock & Wilcox, supra, 351 U S at 112-113 The Court made clear in Beth Israel that the Babcock & Wilcox standard does not apply to restrictions on employee activity, which in- volve management rather than property interests, a distinction "of sub- stance " Rather, the Supreme Court in Beth Israel held that by reason of the unique and sensitive nature of a health-care facility, the availability of other areas is a factor to be considered in determining the validity of re- strictions on employee activity In contrast, Babcock & Wilcox establishes the ultimate standard for determining the validity of employer restrictions on nonemployee access to its premises Moreover, the Babcock & Wilcox test involves consideration of any and all means of union communication with employees, whereas in Beth Israel, the Court referred only to the availability of other areas at the facility 1219 meet its burden of demonstrating that the prohibition was necessary to avoid disruption of health-care oper- ations or disturbance of patients, and his rationale was af- firmed by the board and court of appeals. I find that Harper-Grace is materially indistinguishable from the present case and, specifically, that the Company has failed to demonstrate that its prohibition on handbill- ing was necessary to avoid disruption of health-care op- erations or disturbance of patients. As indicated, the Company sought to justify its prohibition by presenting statistics concerning the number of inpatients outpatients, and prospective patients who enter the hospital through the main entrance over the course of a year. In so doing the Company simply demonstrated the obvious. Any main entrance to a hospital is regularly used by such per- sons and their families. The Company's statistics prove nothing more than that it operates a large hospital. How- ever, Beth Israel and Baptist Hospital do not indicate that there should be one standard for small hospitals and an- other for large ones. It is also significant that in prohibit- ing distribution at the main entrance, the Company went beyond its own no-distribution rule. It is undisputed that the main entrance is not a patient care area. If by "pa- tient areas" the Company meant any areas of the hospital premises where patients might be at any time, even mo- mentarily (and this is not indicated by the language of the rule) then the rule would also apply to the cafeteria and parking lots, although the Company pointedly argues (Br. 35-36) that it did not interfere with distribu- tion in these areas. Moreover, Vice President Suriani did not compile his statistics before imposing the restriction. Rather he did so in preparation for the present hearing. These factors, together with the testimony of security guard Sanders, indicate that the Company imposed the prohibition in order to impede significant employee union activity, and then fished around for a rationale to justify its action. In contrast to Baptist Hospital and Baylor University Medical Center v. NLRB, 662 F.2d 56 (D.C. Cir. 1981), also relied on by the Company, the Company failed to present any expert medical testimony concerning the effect if any, that handbilling at the front entrance might have on patient care. It is also significant that the employees carefully confined their handbilling to a time when employees normally arrived at work and predominated among persons using the main entrance, and distributed their literature only to employees. Com- pare Baylor, in which the court indicated that the times of distribution, and the relative volume of employee presence during such times, is a factor to be considered in evaluating the employer's prohibition. Nevertheless, in deference to the Supreme Court's ad- monition in Beth Israel I have considered the availability of other areas in and around the Hospital for employee distribution of union literature. I find, on balance, that this factor favors the General Counsel's position. First, together with the two other entrances used by employ- ees, it is the only location where employee distributors can reasonably expect to distribute their literature to all or nearly all of their fellow employees, or even all or nearly all the employees in a particular unit or units. There are about 366 employees in the professional unit, 1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and from 200 to 350 employees in the technical unit, de- pending on the effect of the Board's resolution of chal- lenges. Distribution only at the side and rear entrances would not be effective because a substantial number of employees, including many nurses, use the main en- trance. In view of the Employer's actions in discourag- ing use of the side and rear entrances, it may be antici- pated that employee use of the front entrance will in- crease. i 6 The cafeteria alone would not be adequate be- cause not all employees use the cafeteria and many who do, especially the professionals, may use the cafeteria at odd hours that do not coincide with regular lunch and supper service. (The cafeteria has a variety of food and beverage service vending machines and a self-service oven which, together with the seating area, is available for use at all times, except for a cleanup period from 5:30 to 9 a.m.). In light of Baptist Hospital, it is questionable whether the Company would permit distribution any- where near the employees' working areas, particularly the patient care areas that are attended by the nursing staff. Second, as a result of other developments, includ- ing company actions, both lawful and unlawful, areas of possible distribution were either severely compromised or closed to distribution. As indicated, during the first campaign the union distributed literature at the driveway entrance to the hospital premises. That entrance is locat- ed on Surratts Road, and is the only entrance to the hos- pital premises. On 23 February 1984, the same morning that the employees were prohibited from distributing at the main entrance, Organizers Moore and Burton distrib- uted union literature at the driveway entrance. Security guard Sanders came over and told them that they were not supposed to be there because they were on hospital property. Moore disagreed, and suggested that Sanders call the police. A second company guard told them that they would probably get in trouble. The organizers com- pleted their distribution, and Moore and two other orga- nizers returned about 1 to 2 weeks later. This time, after they had been distributing for about 30 minutes, Prince George's County police arrived in four cars. An officer told the organizers that they could not stand there be- cause they were disrupting traffic. The organizers sug- gested other points in the immediate area, but the officer indicated that it would be unlawful to stand at any of those areas, and informed them that they would have to leave. They did. About 2 weeks later the organizers at- tempted to distribute union literature at the intersection of Surratts Road and Maryland Route 5 (Branch Avenue) which is the nearest intersection to the Hospi- tal. This time the state police arrived on the scene, and informed the organizers that they were unlawfully im- peding the flow of traffic. Again the organizers suggest- ed alternative points at the intersection, and again the of- ficer indicated his disapproval. He informed them that they would violate the law by putting even one foot in the roadway, and he advised them to leave and not return. In each instance the county and state police re- I6 Although these actions took place after the events involved in this case, the violation alleged is continuing in nature , in that the Company never rescinded its prohibition on distnbution at the front entrance Therefore developments since February, 1984 may properly be consid- ered in determining the adequacy of other areas for distribution spectively based their action on alleged disruption of traffic, rather than on trespassing. Therefore it is evident that by reason of police action, both the organizers and employee union adherents were effectively precluded from distributing union literature at the driveway en- trance or at any other location near or adjacent to the hospital premises. 17 The employee adherents could wander around the hospital parking lots in search of em- ployees, or place literature on cars parked in the employ- ee parking areas. The first course would not enable the Union to reach all or nearly all the employees on a regu- lar basis, and could create a safety hazard, particularly during hours of darkness. The second course would de- prive the adherents of personal contact, and also might not be effective because employees do not always park in the areas designated for them, and nonemployees may park in those areas. Additionally, the testimony of securi- ty guard Sanders indicates that he would act to prevent placement of literature on cars. Finally, the availability of alternative areas of distribution must be considered in light of the unfair labor practices found in this case and in the preceding case. During both the first and second campaign the Company engaged in conduct that was cal- culated to interfere with and intimidate employees in the exercise of their self-organizational rights, and during both campaigns the hospital cafeteria was a focus for such unlawful action. In these circumstances, the cafete- ria cannot be viewed as an area where employees may engage in union activity in an atmosphere free of em- ployer coercion. As the Company's unlawful conduct in- cluded coercive surveillance by its security director, the circumstances can hardly be viewed as conducive to em- ployee distribution of union literature at an entrance ad- jacent to the security office. In sum, on consideration of alternative areas for employee distribution of union liter- ature, I adhere to my determination that the employees were lawfully entitled to distribute union literature at the main entrance to the hospital, and that the Company vio- lated Section 8(a)(1) of the Act by prohibiting such dis- tribution. C. Alleged Unlawful Revisions in the Company's Disciplinary Policy The Company's personnel policy manual contains a list of violations of hospital rules or other situations, known as "policy 4," which may warrant disciplinary action In January 1984 the Company revised policy 4 effective as of 4 January, and informed its employees of the revi- sions. The revised policy included among 26 listed situa- tions, the following violations and the penalties for such violations: Rule 4. Unauthorized absence from work area: first offense, written reprimand; second offense, one-day suspension, third offense, three-day suspen- sion with intent to terminate. 17 It is immaterial whether the Company caused the police to take action against the organizers Consideration of alternative locations for distribution is not limited to factors within the employer's control Com- pare Babcock & Wilcox, supra, with respect to the standard for access by nonemployee organizers SOUTHERN MARYLAND HOSPITAL 1221 Rule 24. Unauthorized presence on hospital prop- erty: first offense, three-day suspension with intent to terminate. Rule 25. Malicious gossip or derogatory attacks on fellow employees, patients, physicians or hospital representative: first offense, three-day suspension with intent to terminate. Rules 4 and 24 had no counterpart prior to the Janu- ary revision. Prior to January, then rule 6 of policy 4 listed as a cause for disciplinary action: "Malicious gossip or derogatory attacks on any employee, patient, physi- cian or hospital representative." However, policy 4 did not then provide a system of progressive discipline, but simply stated that the listed offenses "may result in disci- plinary action, which may include suspension and/or job termination." the General Counsel contends that without regard to the motivation for the revision, rules 4, 24 and 25 of the revised Policy 4 are unlawful "on their face" because they "are overly broad in that they contain terms that unduly interfere with employees' Section 7 rights" (Br. 20). For the reasons discussed, I find that rule 4 is valid, but rules 24 and 25 are overly broad and unlawful. The General Counsel contends (Br. 22) that rule 4 is unlawful because it "does not clearly pertain to work time, but is subject to the interpretation that it applies during breaks, lunch periods and other nonwork time," and "its terms suggest that an employee could be disci- plined for engaging in solicitation during nonwork time in a nonwork area if that area was outside the employ- ee's work area." I do not agree. Lunch and break periods constitute periods of authorized absence from the work area, and I fail to see how any employee could reason- ably infer otherwise. Moreover, rule 4 is not comparable to a situation involving an overly broad no-solicitation rule. An employer may for legitimate business reasons re- quire its employees to remain on its premises during their lunch and formal break periods, or even to remain at or near their work stations during some nonwork periods. Such requirements would be particularly understandable in the case of a health-care facility, especially one which had a cafeteria on its premises. However, the employer cannot lawfully prohibit union solicitation during such periods. In sum, a requirement that employees account for their whereabouts during their shift does not equate with a prohibition against solicitation or distribution. Rule 4 must also be considered in light of the Company's admittedly valid (on its face) no-solicitation and no-distri- bution rule. The Company's clear definition of nonwork time would pass muster either under Our Way, Inc., 268 NLRB 394 (1983), or the more stringent standard estab- lished in T.R. W. Bearings, 257 NLRB 447 (1981). Al- though as found the Company went beyond the limita- tion to "patient areas," the evidence fails to indicate that the Company invoked the rule in order to generally re- strict union activity during nonwork time as defined by that rule. Therefore there is no reasonable basis for an employee to infer that rule 4 restricted lawful union or other concerted activity- I agree with the General Counsel that rule 24 of the revised policy 4 is overbroad and, on its face, purports to unlawfully interfere with and limit legitimate union and concerted activity. In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board held as follows with respect to the validity of an employer no-access rule concerning off-duty employ- ees: We conclude, in order to effectuate the policies of the Act, that such a rule is valid only if it ( 1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly dissemi- nated to all employees; and (3) applies to off-duty employees seeking access to the plant for any pur- pose and not just to those employees engaging in union activity. Finally, except where justified by business reasons, a rule which denies off-duty em- ployees entry to parking lots, gates, and other out- side nonworking areas will be found invalid. The Board has made clear that a no-access rule which goes beyond the limitations of Tri-County is unlawful on its face, without regard to whether the rule was motivat- ed by antiunion considerations or invoked to restrict union activity, and that the Tn-County standard is appli- cable to health-care facilities (as in Tri-County itself). See Hudson Oxygen Therapy Sales Co., 264 NLRB 61 (1982); Comet Corp., 261 NLRB 1414, 1427 (1982); Continental Bus System, 229 NLRB 1262 (1977). In the present case, unlike the situation with rule 4, off-duty employees had no assurance that their presence on the parking lots, at entrances or on other exterior portions of the hospital premises would automatically be regarded as authorized. Thus, when Carolyn Almassy asked Personnel Director DiFlorio whether she could return to the Hospital during her off-duty hours in order to attend an informal staff meeting concerning work-related matters, DiFlorio told her that this was all right because she was coming on hospital business. In view of the Company's unlawful prohibition on distribution of union literature at the front entrance, the Company could well have regarded such distribution as "unauthorized presence on hospital prop- erty" and subjected the employees involved to the severe discipline provided in rule 24. Indeed it was the existence of this rule that discouraged the Union from again asking employees to engage in such lawful activity. In her testi- mony, DiFlorio described situations that did or might warrant invocation of rule 24. However, these situations could have been handled by a valid rule that did not un- lawfully restrict the presence of off-duty employees. Thus, DiFlorio described situations in which central supply employees permitted friends and family, including children, to enter the hospital, particularly at night. However, these situations involved the unauthorized presence of nonemployees. DiFlorio also described a sit- uation at a nonhospital facility where she formerly worked when a similar rule was invoked to discipline a driver who brought a stolen truck to the employer's garage in order to dismantle it. However, as the employ- er had reason to believe that the driver was engaged in illegal activity, he could have been lawfully disciplined on that basis 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends, and I agree, that rule 25 of the revised policy 4 is overly broad because it combines a lawful prohibition of "malicious gossip" with an unlawful prohibition of "derogatory attacks" on hos- pital representatives. "Malicious" has been defined as given to or marked by malice, i.e., "intention or desire to harm another usually seriously, through doing something unlawful or otherwise unjustified; wllfullness in the com- mission of a wrong; evil intention." In contrast "deroga- tory" means "expressive of low estimation or reproach . . . disparaging, detracting, degrading, depreciatory." Webster's Third New International Dictionary (1981). Thus for example, an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as "derogatory" toward the employer, but would not, absent unusual circumstances, be "malicious." In Linn v. Plant Guards, Local 114, 383 U.S. 53, 61-63 (1966), the Court held that: . . . although the Board tolerates intemperate, abu- sive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defama- tory or insulting material known to be false. .. . [T]he most repulsive speech enjoys immunity pro vided it falls short of a deliberate or reckless un- truth. Thus the Board with Court approval has consistently held that an employer may lawfully maintain a rule that prohibits "malicious" statements, i.e., statements "deliber- ately and maliciously made, with knowledge of their fal- sity or with reckless disregard of the truth," but may not prohibit "merely false" union propaganda. Radisson Muehlebach Hotel, 273 NLRB 1464 (1985); Stanley Furni- ture Co., 271 NLRB 703, 704 (1984); American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978), enfd. 600 F.2d 132, 136-7 (8th Cir. 1979). In the present case, Rule 25 goes beyond even a prohibition against "merely false" propaganda to prohibit even truthful union propaganda, which may be regarded as "derogatory" because it places the Hospital or its representatives, including Dr. Chiaramonte, in an unfavorable light. Therefore the rule is unlawful. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and a health-care institution within the meaning of Sec- tion 2(14) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in surveillance of employees' union ac- tivities, promulgating and maintaining revisions in its dis- ciplinary policy which are overly broad and tend to re- strain and coerce employees in the exercise of their Sec- tion 7 rights, instructing employees that they cannot dis- tribute union literature at the main entrance to its Hospi- tal during nonworktime, and selectively and disparately denying nonemployee union organizers access to the caf- eteria at its Hospital, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has violated Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist from such conduct and from like or related conduct, post the usual notices, and rescind Rules 24 and 25 of the revised Policy 4 of its personnel policy manual. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed18 ORDER The Respondent, Southern Maryland Hospital Center, Clinton, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Prohibiting employees from engaging in union-re- lated solicitation or distribution of literature during their nonworktime at the main entrance to its Hospital or in other nonwork areas where such activity does not tend to affect directly patient care by disturbing patients or disrupting health services. (b) Denying nonemployee union organizers access to the cafeteria at its Hospital while permitting other visi- tors and guests of hospital personnel to use the cafeteria, or otherwise selectively and disparately denying such or- ganizers access to the cafeteria. (c) Engaging in surveillance of conversations and meetings between employees and union organizers, or of other employee union activity. (d) Maintaining or enforcing any rule, policy, or prac- tice which prohibits off-duty employees from entering or remaining on or at parking lots, entrances, and other out- side nonworking areas of its Hospital for the purpose of engaging in union solicitation or distribution of union lit- erature, or which discriminatorily denies them access to the Hospital while permitting access by off-duty employ- ees for other nonbusiness reasons. (e) Maintaining or enforcing any rule, policy, or prac- tice that prohibits employees from making "derogatory attacks" on hospital representatives or that otherwise prohibits employees from making written or oral state- ments which may constitute permissible union propagan- da. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 18 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 SOUTHERN MARYLAND HOSPITAL (a) Rescind rules 24 and 25 of the revised policy 4 of its personnel policy manual, and notify its employees of such rescission. (b) Post at its Hospital in Clinton, Maryland, copies of the attached notice marked "Appendix." t 9 Copies of said notice, on forms provided by the Regional Director for 19 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 " 1223 Region 5, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said 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.