Long Island Jewish Hillside Medical Center

LONG ISLAND JEWISH MEDICAL CENTER Long Island Jewish Hillside Medical Center and Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO. Case 29-CA-12735 August 10, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On April 18, 1988, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and a supporting briefs . The Respondent filed cross-exceptions and a brief in opposition to the General Counsel 's and the Charging Party's ex- ceptions and in support of its cross -exceptions. The Charging Party filed a brief in answer to the Re- spondent's cross-exceptions. 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,' and conclusions2 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Long Island Jewish Hillside Medical Center , New Hyde Park, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. ' The General Counsel , the Respondent , and the Charging Party have excepted to some of the ,fudge's credibility findings The Board's estab- lished 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. 2 Although we adopt the judge's dismissal of the complaint's allegation that the Respondent violated Sec . 8(a)(1) by taking union leaflets from an employee and returning them to union organizer Nordenberg on October 9, 1986, we do not agree with his rationale Rather , we find that the Re- spondent was entitled to take this action because Nordenberg had not ob- tained permission , as required under the parties' contractual practice, to enter the Respondent's admitting department, and department employees were contractually precluded from distributing the union leaflets during working time or in work areas In the absence of exceptions, we adopt pro forma the judge's finding that the Respondent did not violate Sec 8(a)(1) by informing Nordenberg in a November 4, 1986 letter that it would address the issue of discipline for his activities as a union organizer if he sought to return from a leave of absence to active duty. Elias Feuer, Esq., for the General Counsel. David H. Diamond, Esq. and Cathy A. Pohl, Esq. (Summit, Rovins & Feldesman), for the Respondent. 51 Amy Gladstein, Esq. (Gladstein, Reif & Meginnis), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on 13 hearing days between the dates of 26 May and 29 October 1987 in Brooklyn, New York. The complaint, which issued on 30 January 1987, and was based on an unfair labor practice charge, and a first amended charge, filed on 19 November 19861 and 22 December by Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO (the Union), alleges that Long Island Jewish Hillside Medical Center (Respondent) failed to honor contractual provi- sions in its contract with the Union and unilaterally changed that provision, thereby violating Section 8(a)(1) and (5) of the Act by engaging in the following conduct: (a) On or about 8 and 9 October, Respondent, by Wendy Camel, its director of admitting, at the admitting office at Respondent's New Hyde Park facility (unless otherwise indicated the facility shall refer to Respond- ent's New Hyde Park facility), denied the Union' s orga- nizers, Gerard Nordenberg and Clifton Durham, access to the admitting office at the facility. (b) Since about 9 October, Respondent has totally banned Nordenberg from acting as the designated repre- sentative of the Union at the facility, and has denied him access to the facility. (c) On or about 29 August, Respondent, by Ardie Epranian, its director of labor and employee relations, by letter to Nordenberg, promulgated (and has since main- tained) the following rule: "any Union representative [seeking access to confer with employees] must request and obtain supervisory permission before conferring with any employee during their working hours." It is alleged that Respondent promulgated and maintained this rule in order to discourage its employees from joining or assist- ing the Union. (d) Respondent unilaterally changed the provisions of article V, section 1, of its contract by implementing the rule set forth in the above paragraph, without prior notice to the Union and without having afforded it an opportunity to negotiate and bargain regarding the change. It is also alleged that Respondent violated Section 8(a)(1) of the Act in the following manner: (a) On or about 16 July, by Paul Davin, its labor rela- tions supervisor, at the Levitt building at the facility, interfered with a union meeting conducted by Norden- berg. (b) On or about 9 October, by Camel, confiscated union literature from employees in the admitting office at the facility. (c) On or about 9 October, caused Nordenberg to be arrested by the Police Department of the City of New York, on unlawful trespass charges, in the cafeteria at the facility in the presence of Respondent's employees. ' Unless indicated otherwise , all dates refer to 1986. 296 NLRB No. 11 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) By letter dated 4 November of Epranian threat- ened its employee Nordenberg with unspecified reprisals because of his activities as an organizer for the Union. On the entire record , including my observation of the witnesses, and the briefs received, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. INTRODUCTORY FACTS On 20 October the Union and the League of Volun- tary Hospitals and Homes of New York (the League) en- tered into a collective -bargaining agreement, effective 1 July through 30 June 1989 (the Agreement ). The Agree- ment states that it is entered into by the League as agent for, and on behalf of, its members, which includes Re- spondent. The parties stipulated that the bargaining units of Respondent covered by this Agreement are service and maintenance, clerical, social workers, social work as- sistants, technical and licensed practical nurses. Article V of the Agreement (which the parties stipu- lated has not changed since 1974) states: Union Activity, Visitation and Bulletin Boards 1. No employee shall engage in any Union activi- ty, including the distribution of literature which could interfere with the performance of work during his/her working time or in working areas of the Employer at any time, except as provided in Article XXXI grievance procedure. 2. A representative of the Union shall have rea- sonable access to the Employer for the purpose of conferring with the Employer, delegates of the Union and/or Employees, and for the purpose of administering this Agreement. Where the Union representative finds it necessary to enter a depart- ment of the Employer for this purpose, he/she shall first advise the personnel office or the head of the department or his/her designee in person, as the Employer shall state. A delegate intending to go to a department other than the one he/she represents shall follow the above procedure. Such visits shall not interfere with the operation of the Employer. 3. The Employer shall provide Bulletin Board(s) which shall be used for the purpose of posting proper Union notices . Such Bulletin Board(s) shall be placed conspicuously and at places readily acces- sible to workers in the course of employment. 4. The work schedules of Employees selected as Union Delegates shall be adjusted to permit attend- ance at regular delegate assembly meetings provid- ing Employer operations shall not be impaired. There were two principal subjects litigated: the allega- tion that Respondent barred Nordenberg from its prem- ises on 9 October and had him arrested when he refused to leave the facility; Respondent admits that it did so, but alleges that it did so because of Nordenberg 's violent and otherwise inappropriate conduct at the facility from 1 July to 9 October . To prove that this action was not un- lawful, Respondent points out that the other agents of the Union continue to use the facility as before. The other principal allegation is that in July and August Re- spondent changed "the rules of the game," i.e., that pre- viously its organizers were allowed practically unlimited access to the unit employees at the facility (after notify- ing the personnel department of their presence) and that in mid-to-late 1986 Respondent changed this policy to re- quire prior permission from the supervisor prior to enter- ing the department. Respondent alleges that the Union's organizers and representatives always needed prior ap- proval of the supervisor prior to entering the depart- ment. III. NORDENBERG AND HIS EVENTUAL OUSTER A. Background Nordenberg began his employment with Respondent in 1981; shortly thereafter he became a psyche aid, a po- sition he maintained with Respondent through June. He testified that he became a union delegate in February 1982 and remained one until January; Epranian testified that the first time Respondent was notified by the Union that Nordenberg was a delegate was on 17 July 1984, and a letter of that date stating that Nordenberg, and others, had been elected as delegates, was received into evidence. Also received in evidence was a letter, dated 15 April 1985 from the Union to Respondent , stating that George Thompson was elected delegate and that he would replace Nordenberg . Upon obtaining the position of organizer with the Union, he applied for and received a 6-month leave of absence from his employment with Respondent. Effective about 1 July he became an orga- nizer for the Union . Sometime prior to 4 November the Union requested an additional 6-month leave of absence for Nordenberg. By letter dated 4 November, Epranian informed the Union that the extension was approved through 30 June 1987, but that was the final extension as the contract limits such leaves to 1-year maximums. The letter also stated that because of the "recent misconduct" at the facility (to be discussed fully below ) if Nordenberg did apply to return to Respondent 's employ he would have to notify Respondent a month earlier to give Re- spondent time to address "the question of disciplinary remedy for his recent misconduct ." This became unnec- essary as 30 June 1987 passed without Nordenberg reap- plying for employment with Respondent . At the time of the hearing, his employment as organizer for the Union continued. B. I July Incident with Anzel Mary Jo Anzel began her employ with Respondent on 16 June as laboratory administrator, a unit containing ap- proximately 200 laboratory employees . About a week later she had a meeting with Epranian , Davin, and Sheila Buthe, of Respondent's Labor Relations office; they in- structed her that whenever she wanted to speak to, or LONG ISLAND JEWISH MEDICAL CENTER 53 discipline, an employee, the employee had the right to have a representative present-"I took that to mean one." A few days prior to 1 July, Anzel had scheduled an investigatory meeting for that day with Martha McDermott, a unit employee in the department, who, al- legedly, refused to work mandatory overtime. Anzel wanted to learn what occurred . The meeting took place at or about 2:15 p.m. The first person to arrive at her office was Ernie Geiger, a supervisor . A few minutes later, there was a knock at the door and McDermott walked into Anzel's office with Sandra Messina, who had previously been a delegate, Richard Tjaden, who Anzel did not know, but later learned was the mainte- nance delegate for the Union, and Nordenberg, who in- troduced himself as the union organizer and said that he would be present at the meeting . (This was the first time Anzel had met Nordenberg , who became an organizer only a day or two earlier.) She testified that she told Nordenberg that McDermott could have one representa- tive from the Union with her, and as far as she knew it was to be Messina . Nordenberg said that he would be there as well, and Anzel said that she would only allow one representative for the Union ; if Messina wanted to withdraw in favor of Nordenberg that was fine with her. (By this time, Geiger, McDermott, and Messina were seated in Anzel's office, Tjaden was standing by the door where he remained throughout the incident .) At this point, Nordenberg became "abusive and very loud." He called Anzel an "asshole" and said that she did not know what she was doing and did not understand union rules; he said that he was going to be present . She asked him to leave; he refused and said that he was going to use her phone. She said : "This is my office, I am going to use my phone." He said that he wanted to call Epranian and she said that she would call labor relations. She went to the telephone on her desk (there is a narrow pas- sageway between her desk and the bookcases behind her desk) and a she began dialing the phone . Nordenberg (who was right behind her) said that she had pushed him; she denied it and he insisted that it was so. He then hit her right shoulder with his right hand and she fell against the bookcase behind her desk . As Nordenberg was blocking the only exit of the passageway from behind her desk she could not leave. She called labor re- lations and told Buthe what occurred . Buthe said that she would call security and that Anzel should do the same, which she did. They said that they would send someone to the office. After she completed the call she had to remain behind the desk because Nordenberg con- tinued to block her egress. She asked them to leave; Nor- denberg called her an "asshole" again and the others said that she was a "little shit who didn 't know what she was doing." Nordenberg then said that he was going to call Epranian and went to Anzel's secretary's connecting office to make the call. During this period she, again, called Buthe. When he returned, he again blocked her egress. Anzel asked them to leave and -•Nordenberg said that it was a simple procedure , but that Anzel had made it difficult. At this point, Nordenberg walked from behind Anzel's desk to near one of the doors of the office. (There are two doors from the office; one a main door exiting the office and the other a side door into Anzel's secretary's office-the office Nordenberg made his call from.) Anzel then walked from behind her desk and attempted to leave her office. Nordenberg put his body in front of her and blocked her exit. She then at- tempted to exit the side door, but he moved and blocked that exit as well. Messina then said that they had better leave since security was coming . At that point they all left; prior to leaving, Nordenberg again called Anzel an "asshole." During this entire incident, Geiger remained in the office. He was originally seated (like McDermott and Messina), but stood up when Nordenberg pushed her. Geiger testified that the meeting was for the purpose of obtaining information to determine whether McDer- mott should be disciplined for refusing mandatory over- time. He notified McDermott of the meeting the prior day and told her that she could bring a representative with her-"anyone she chooses." On the day in question, Geiger was in Anzel's office when McDermott knocked on her door. Anzel opened the door and McDermott and Messina walked in first and sat down beside Geiger; there were only three chairs in the room beside Anzel's desk chair. Nordenberg was in the threshold of the door- way (While Tjaden was still behind him) and said that he was the new union organizer and would be sitting in; Anzel said that McDermott had the right to representa- tion and it could be anyone, but only one; Nordenberg said that he was going to remain and Anzel said that he was not-"one person , that's it." Nordenberg said that she was mistaken, that he would call the personnel office; Anzel said that she would call personnel. They both went to get the telephone that is on Anzel's desk, but Anzel got to the phone first; as she was dialing the phone Nordenberg said : "You pushed me." Anzel said that she did not push him. Nordenberg then hit her right shoulder with his right hand and she fell backwards. He again repeated that Anzel had pushed him and called her an "asshole." He said : "I wanted to do this nice, but this is the union, you're not going to get away with this." Anzel then spoke on the phone to personnel and when she finished the call she said that Buthe said that he had to leave and she should call security to escort him out. She then called security and asked them to come to the office. During this period there were also a running con- versation between McDermott and Messina critical of Anzel. Anzel then called personnel again while Norden- berg went into the outer office to make a telephone call. Anzel got through to Epranian and Nordenberg returned to her office and said that he wanted to talk to Epranian; Anzel gave him the phone. At the conclusion of this phone call Anzel again asked them to leave, but they re- fused. Anzel attempted to get out from behind her desk, but Nordenberg blocked her from leaving. Shortly there- after (before security arrived) they left. Geiger testified that when Nordenberg hit Anzel's right shoulder, he stood up; he did not say anything or proceed to Norden- berg because he felt that the worst was over. Jeanne Feller began her employ with Respondent on 16 June as a medical secretary-Anzel's. She occupies the outer office-the one Nordenberg used to make a telephone call. She was in that office during this inci- 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dent, which she heard, rather than saw. She testified that after they entered Anzel's office Nordenberg twice said that Anzel had pushed him; she denied it. On more than one occasion Nordenberg called Anzel an "asshole." Nordenberg then came into her office to use the phone. When he returned, he again called Anzel an asshole and she asked him to leave . They eventually left, but not through her office. Epranian testified that on that afternoon he had a brief telephone conversation with Nordenberg while he was in Anzel's office. But he was originally on the phone with Anzel and transferred the call to Epranian, telling him, at the same time, that there was an altercation at the time in Anzel's office. Nordenberg complained to Epran- ian that he was having a problem at Anzel's office. Epranian told Nordenberg that he understood that Anzel had asked him to leave and he should do so, and they could discuss the matter at a subsequent time: At that point he lost his control and started scream- ing, ranting and raving at me, telling me I didn't know what the fuck I was doing and I didn't know the contract and, as I recall , he hung up on me. After learning more of the incident, Epranian reported it to I. S. Forman, Respondent's vice president for human resources, and Epranian's superior, and they decided that "a very strong protest should be formulated and issued." The result was the following letter dated 1 July2 from Forman to the Union's president and vice president, Georgianna Johnson and Carlton Yearwood, as well as Nordenberg: It is with great regret that so soon after your in- stallation as an Officer of Local 1199 it is necessary that this letter must be written. I thought that when you came to my office this morning and introduced yourself and the two organizers that your interest was to establish a meaningful , cooperative working relationship with the management of this Medical Center. Further encouragement was gleaned from your expressions of such desire. Much to my dismay and disappointment , within a couple of hours after leaving our offices, Mr. Nor- denberg (whom you had just introduced as a new organizer) intruded into the Laboratory Administra- tor's office where he had no right to be, both refus- ing to leave when requested to do so and resorting to verbal and physical abuse of unpardonable di- mension. Clearly this kind of conduct and behavior not only demonstrates a total lack of any kind of profes- sionalism, but completely contravenes your pro- fessed intent and desire to establish a responsible working relationship with us. Therefore, this will serve as a formal admonition that any behavior of this nature is completely unac- ceptable and repugnant to this office and the man- agement of this institution , and will be met with stern countermeasures if ever repeated by any 2 Although the letter is dated I July, Epraman testified that it was ini- tially drafted that day, but was not mailed until 2 or 3 July Union representative . Further, this incident bodes poorly for any expectation of reasonableness in our future relations unless this remains an isolated inci- dent. After this letter was sent, Epranian attempted to have a ..one on one meeting" with Nordenberg to "see if we could 'find some understandings and reach some recon- ciliations to avoid further problems ." In this regard Epranian placed a number of telephone calls to Norden- berg, which were not returned. Nordenberg testified that this incident was the first time he met Anzel . Earlier that day he was informed by McDermott and Messina that a warning notice was going to be issued to McDermott for refusing mandatory overtime-"they asked me to participate." He testified that he felt the problem could be settled rather easily and for that reason, as well as to introduce himself to Anzel, he decided to attend, although, "technically" an employ- ee does not have the right to invite him to such a meet- ing. When they walked into Anzel's office he told Anzel that he was there to introduce himself and sit in on the grievance. She told him that he could not be there; when he refused to leave she said that she would call security. He said that she was making a big thing out of nothing and that he wanted to sit in because he was new on the job, although he probably would have nothing to con- tribute. She again asked him to leave and he told her that he would call personnel and settle the matter; she told him that he could not use her phone . They both began walking toward the telephone on Anzel's desk and he picked up the telephone and began to dial. Anzel "grabbed" the phone and pushed him away from the desk. He then "disengaged" from her by turning around and removing her hand from his arm ; he did not push her and did not see her fall against the desk. Anzel said that she was going to call security, and, at that point, Nordenberg and the others left. While in the office, he and Anzel "argued back and forth," but he never pre- vented her from getting out from behind her desk nor did he call her an "asshole." Later that day he spoke to Epranian, who told him that he agreed with Anzel and he should not have been there. McDermott testified that while her normal shift on 1 July was 4 p.m. to midnight, she was asked to come to work earlier on 1 July to be given a warning notice. It was originally scheduled to take place on 28 June, but because McDermott could not obtain a union representa- tive, it was rescheduled for 1 July . She, Messina, Tjaden, and Nordenberg together walked into Anzel's office. She had asked Messina and Tjaden to accompany her to Anzel's office; she was first introduced to Nordenberg shortly before entering Anzel's office. She did not specif- ically ask him to represent her at the meeting; she "pre- sumes" Messina did. "Seconds before" entering Anzel's office, McDermott told Nordenberg about her warning notice. When they entered the office Anzel was behind her desk and when they appeared she said that Norden- berg could not be there ("something about organizers not coming into things like this or something"). Norden- berg said that he had a right to be there and she again said that he would have to leave. Nordenberg then said LONG ISLAND JEWISH MEDICAL CENTER 55 that he wanted to use her phone to call personnel and Anzel said that he could not use her phone . He walked toward the phone and Anzel said "you're not using this telephone," stood up and pushed him hard in his shoul- der area ("[s]he was getting hysterical . She acted crazy."). Nordenberg then said, "don't push me" and Anzel said that she did not push him. He then said: "you did this to me," and "barely touched her with one finger" on her shoulder. Nordenberg then went to the outer office to call personnel ; at the same time, Anzel used the phone in her office to first call personnel and then security . Shortly thereafter Nordenberg returned to Anzel's office; Anzel handed the written warning to McDermott and Tjaden took it and they all walked out of the office. She testified that during the entire period while they were in Anzel 's office she made "snide" re- marks to Messina, loud enough to be heard by, and di- rected at, Anzel ("she wasn't exactly my most favorite person at that point and I resented the whole thing very much"). The only words she could specifically remem- ber were "tramp" and "slut ." Neither Tjaden nor Nor- denberg used any profane words and Nordenberg (who was very calm during this episode) did not use the word "asshole." Epranian wrote the following letter, dated 14 July to Nordenberg: I had hoped to speak to you personally about this matter, but since you refuse to meet with me with- out an audience, I am left with no choice but to de- liver this message by letter. Back on July 1st, an incident occurred that re- quired our writing a letter to Mr. Yearwood about your conduct in dealing with management. At the time, it was hoped this was an isolated incident and would not reoccur. However, since then, 3 separate and distinct further incidents have occurred plus your own comments that leave us little reason to conclude that this type of conduct will not be your continuing modus operandi or to expect a change in your ways. Therefore, this is to serve clear notice that if there is one more incident of your intruding on management without appointment, interrupting or interfering employees in the pursuit of their duties without prior supervisory permission, or any abu- sive and/or non-business like behavior and conduct, you will be barred and declared persona non grata from Medical Center premises thereafter. We sincerely hope this final word of caution will serve its purpose and it will not be necessary for us to resort to such measures, but want to make it clear and leave no room for any misunderstanding on your part as to what the consequences will be if you are involved in one more incident of this matter. He testified that the three incidents referred to in this letter was an 8 July incident with Glenn Oehl, a 9 July incident with Camel in the admitting office, and a 10 July incident involving Rick Sager. C. 8 July Incident Oehl, at the time, assistant director of housekeeping at the Schneider Children's Hospital (a part of Respondent, and connected to the main facility ) testified that on or about 8 July, at or about 7:30 p.m., he and the depart- ment's director, Donald Healy, were in his office issuing a suspension notice to an employee. They told the em- ployee to get a delegate to represent him regarding the warning. The employee returned with Messina and Nor- denberg. Healy told Nordenberg that it was not neces- sary for him to be present and Nordenberg said that he was in the building and wished to be present; Healy said that he could stay. Nordenberg then introduced himself to Oehl and Healy as the new organizer (they had not previously met him). Healy and Oehl introduced them- selves to Nordenberg, who pointed to Oehl and said to him: "I've heard about you, we're going to deal with you" (Oehl did not understand this statement , nor did Nordenberg elaborate). Healy then explained that the employee's suspension would be effective the following week. Nordenberg said : "The employee is such a bad employee you're going to suspend her, but she's good enough to work the rest of the week . I'll be able to use that against you." Later that evening, while Oehl was giving an assignment to an employee, Nordenberg and Messina walked by; Nordenberg said: "This schmuck is gone." Oehl followed them into the laboratory area and said: "If you wish to conduct yourself in a businesslike manner I'd be more than happy to accommodate you; you're starting off on the wrong foot ." Nordenberg said: "You're into that business stuff, you're an asshole." Oehl walked away. Oehl informed Healy of this incident, who filed a report with Respondent's labor relations depart- ment. D. 9 July Incident Rosemary Rochford , Respondent's assistant director of admitting (Camel's assistant), testified that the first time she met Nordenberg was at the beginning of July; at that time she and Camel saw all the admitting clerks and one man gathered around the front desk in the admitting office. Camel asked who he was and he said he was Nordenberg. Camel asked why he was there and he said that he had permission from personnel . She said that he did not ask her permission; he said that he did not need her permission and he left-"there was no confronta- tion." Camel reported the incident to the human re- sources department . Camel testified that in the afternoon on 9 July (while she was with Rochford) she noticed that her "entire staff' was in the front of the office, near the reception desk. With them was a man whom she did not know (her employment with Respondent began on 17 March). Camel approached him and asked what he was doing. He said that he was Nordenberg, the union organizer, and he had the personnel department's permis- sion to be there . She said that she did not give him au- thorization to be there and he said that he did not need her permission as he had permission from personnel. Camel then called Buthe and informed her of the situa- tion. Buthe told her to tell the employees to return to work, that the meeting was unauthorized , and union 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD access to her department required her approval. She told the employees to return to work, which they did, and Nordenberg left the department. She also informed the employees that they were not to leave their work assign- ments without her permission. E. 10 July Incident This incident involved Rick Sager, a night supervisor for Respondent at the Schneider Children's facility. Sager was not employed by Respondent at the time of the hearing and the testimony supporting this incident was hearsay testimony of Epranian, accepted, but not for the truth of the statements. At or about 6 p.m. on that day Sager was, in his office, aware that Nordenberg and Yearwood were in the area investigating a holiday pay grievance of an employee who worked under Sager's su- pervision. Nordenberg and Yearwood were pounding on Sager's office door (which was locked) and screaming threats at him. He did not see them , but knowing that they were in the area, and hearing the screaming he knew it was them . Sager did not answer in order to "avoid the confrontation "; they ultimately left and Sager reported the incident to Buthe. F. 25 July Incident The testimony regarding this incident is supplied solely by Camel; she testified that on the morning of 25 July she informed employee Rhonda Mazzas that she would be giving her a written warning at 2 p.m. that day, and she suggested that she seek a union representative to be with her. At 2 p.m. Mazzas told Camel that Tjaden was to appear with her, but she could not locate him. Camel put the meeting off until 4 p.m. that day; at that time Mazzas came to her office with Tjaden and Nordenberg. Camel said that she could have only one representative; however, Mazzas could choose one of the two as her representative and she would allow the other to remain as a witness; Mazzas chose Tjaden as her representative. She testified that during this discussion Nordenberg was "very loud, rather nasty, obnoxious and rude"; he joined with Tjaden in representing Mazzas by participating in the conversation and asking questions. Camel could not be more specific about this incident regarding what he said or did that caused her to classify his actions as such. G. 8 October Incident This incident, and the one the following day, involve the admitting department. This department (as the name implies) is where the patients arrive, are interviewed and processed in a cubicle where they give the clerk all the required information (including their medical coverage, if any), and, in turn, are given an armband and assigned a room where they are subsequently taken by either an employee of Respondent or a volunteer. Upon entering the department there is a waiting area on the left con- taining chairs and tables. To the right of the entrance (across from the waiting area) is the reception desk. There are two chairs on the other side of the reception desk; the receptionists sit in these chairs-Lyla Karnbad on the right (closest to the entrance) and Hedy McKen- na on the left side, as you face them . Behind these chairs are three chairs, usually occupied by volunteers . Walking between the waiting area and the reception desk brings you to a hallway with small cubicles (containing two or three chairs and a desk with a computer ), on both sides, offices, and a storage area. This hallway is 3 to 4 feet wide and about 30 feet in length. Numerous witnesses testified to the incidents of 8 and 9 October in the admitting office; there are some minor differences in these versions (which is to be expected) and some major differences, as well , necessitating some credibility determinations. Durham, an organizer with the Union since August, testified that he entered the admitting office on 8 Octo- ber, late in the morning, by himself. His purpose was to speak to a particular employee in the department (whom he never did locate) and to publicize the meeting sched- uled for the next day. After walking into the department, he spoke briefly with the receptionist and proceeded to the hallway in the back. At that time, Camel approached him and said : "Here comes another one." He asked what she meant by that, but she did not answer; instead she told him that he did not belong there and should leave. He told her that he wanted to speak to one of the em- ployees on union business ; Camel said that he had no right to do so, and unless he left she would call securi- ty.3 He said that she should do what she had to do, but he had a contractual right to see members on union busi- ness, when necessary. Durham then attempted to locate the employee and observed Camel on the phone in her office. As he was leaving he saw Camel behind him; when he got to the reception area, a security guard met him and told him that he should not give the department head any trouble . Durham responded that she was trying to give him a hard time. At that point he left the depart- ment. McKenna, a receptionist employed by Respondent since September (and a union delegate in October), testi- fied that she remembers very little of what occurred on 8 October; she saw Nordenberg and Durham enter the de- partment and leave with a security officer of Respond- ent; however, she did not speak to them, nor did she overhear any interaction between Nordenberg , Durham, and the security officer. Nordenberg testified that on 8 October he and Durham began the day together distrib- uting notices of the following day's chapter meetings. Sometime in the morning they split up. At or about 11 a.m. Nordenberg entered the admitting department. He stopped at the reception desk, told Karnbad and McKen- na that they should not forget the following day's meet- ing, and gave each a leaflet in that regard . He then pro- ceeded to the rear of the department; some cubicles had employees with patients (he did not speak to, or give leaflets to, these employees), some contained employees (he gave leaflets to these employees and said "don't forget the chapter meeting"), and some cubicles were a On direct examination, he testified "She told me to get out , I didn't belong there . . . that I must leave the department right away Fail- ure to leave the department, she was going to call security to have me put out." On cross-examination he testified - "She then started yelling, 'You have to get out , you don't belong in here, you have no right in here and I'm-I'm going to call security to have you put out."' LONG ISLAND JEWISH MEDICAL CENTER 57 empty. As he was near the rear of the department, Roch- ford said, "there he is again." He did not respond, but Camel came out and told him that he could not be there; unless he left she would call security . Nordenberg said, "Go ahead." Nordenberg then began walking toward the front of the department, gave out a few more leaflets, and left. Rochford testified that about 1:30 p.m. on 8 October she saw Nordenberg in the corridor of the admitting office; this was "an extremely busy day. We were down two clerks sick, one clerk on vacation , people were out to lunch." She first asked him: "Can I help you." He said no and she then asked him : "Why are you here giving out pamphlets? Have you permission from Wendy?" He said that he did not need permission . She went to Camel and told her: "Something has to be done . It's very busy. I need the staff and he's here." Camel then went to Nor- denberg and told him that he did not have her permis- sion to be in the department; Nordenberg said : "Bullshit. I don't need your permission. Screw you. You don't know the contract." Camel called security and a security officer arrived as Nordenberg was leaving ; as he was leaving, he again said : "Screw you." The security officer walked out with him . As he was leaving, Durham was entering the department . Camel testified that at approxi- mately 1:30 p.m. that day Rochford told her that Nor- denberg was handing out literature and speaking to em- ployees in the office and it was a very bad time for her because the office was full of people; that she told Nor- denberg that it was a bad time, but he said that he was giving out leaflets and did not need her permission. Camel left her office and told him that it was very busy, ,.now is not the time-it's really busy . . . and you don't have my permission, please leave." Nordenberg immedi- ately began yelling : "Tough shit, I don't need your per- mission, I'm going to do what I want to do . . . screw you-you don't know the contract." She said: "I do know the contract; now is not the time to be here." Camel then called security, and told them that she needed a security officer because she had a problem in the admitting department. She then walked out of her office and saw that Nordenberg was walking toward the front of the office . Just as he was about to leave a securi- ty officer walked into the office and Nordenberg left the office. About 5 minutes later, while she and Rochford were in an office in the rear of the department , she ob- served someone whom she did not know walking toward the rear of the corridor . She asked him who he was and what he was doing there. He said that he did not have to explain anything to her. She said that she had the right to know what was occurring in her department and to question his presence. He then identified himself as Durham and that he was there to notify the members of a chapter meeting. She told him that it was a bad time because it was very busy, but he ignored her and walked toward the rear of the department. Camel called security and when she left her office Durham was walking toward the front . When he reached the front, Norden- berg was in the corridor yelling : "You don't know the contract-screw you, you're an asshole." At this point a security officer arrived and Durham left the department and he and Nordenberg left the area. H. 9 October Incident This was the final incident, "the straw that broke the camel's back" in the view of Respondent , that caused it to bar Nordenberg from its premises. Nordenberg testified that on this day he entered the admitting department with Durham about 11 a.m.; at the time, two or three people were sitting in the waiting area. Their purpose was, again, to distribute leaflets to remind the employees of the chapter meetings beginning that day at noon; both were carrying leaflets . They said hello to Karnbad and McKenna ; McKenna asked if he had permission to be there and Nordenberg said that he had notified the personnel department when he entered the facility. He told them not to forget the day's chapter meetings and they said that they would be there. Nor- denberg then began to walk down the corridor toward the rear of the department . As he walked down the cor- ridor he handed leaflets to those employees who were in cubicles without patients, and told them not to forget that day's chapter meetings. When he got to the very rear of the department, Rochford said : "There he is again." He did not respond and Rochford went into Car- nel's office. Camel then came out of her office and told him: "You can't be here and if you don't leave immedi- ately I am going to call security." He told her: "Go ahead . That's what you always say to me anyway." Nor- denberg then began walking toward the reception area, again giving leaflets to employees he saw along the way. He then went to the reception desk (followed by Camel) and told Karnbad and McKenna that he was going to leave them leaflets to give to employees whom he had missed. He had the leaflets in a box in his right hand; he removed some leaflets from the box with his left hand and went to hand them to McKenna . Before McKenna had an opportunity to put the leaflets away, Camel "grabbed" the leaflets with her left hand and with her right hand "grabbed" Nordenberg's left arm, by the bicep area : "She was nudging me more than holding me. Pushing me." She was squeezing his arm-"very light- ly." At the same time, she "nudged" him toward the door. He took her hand and removed it from his arm and said : "Don't touch me." She did not respond, and he left the department. He believes that after Camel took the leaflets from McKenna (who never actually had control of them) they dropped to the desk . He testified that as he was leaving the department one of Respondent 's security officers was coming into the department. Later, when the officer came into the hallway he told Nordenberg that he should keep his hands to himself. Nordenberg also testified that between the time he went to the rear of the department , and the time he left, he was not cer- tain where Durham was. During this period he did not use any foul language nor did he raise his voice ; when he "disengaged" Camel's hand from his arm she did not fall to the ground, or fall against the reception desk. Durham testified that after he and Nordenberg entered the admitting office they said hello to Karnbad and McKenna and told them that they would speak to them on the way out . They then proceeded to the rear of the department; there were two or three employees in the reservation room and Durham began to tell them of the 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chapter meeting, but was interrupted by Camel, who said : "Get out, you don't belong here. You have no right here. I don't want you in my department ." Nordenberg said that they were notifying employees of a chapter meeting and had a right to be there. (He testified that he did not know Rochford, so he does not know if she par- ticipated in the incident.) Camel said that she was going to call security to have them removed. Nordenberg said, "That's what you generally do anyway." They handed leaflets to a few more employees and began walking toward the front of the department, Nordenberg, fol- lowed by Camel, followed by Durham.4 As they got to the reception area he saw a security guard preparing to enter the department . While next to the reception desk, but facing the door, Nordenberg said to McKenna: "Give these to the workers we might have missed," and attempted to place six or seven leaflets on the desk. Camel, who was behind Nordenberg , "scooped" up the leaflets5 with one hand and "grabbed him by the upper part of his left arm, to push him out, to escort him out" with the other arm, saying: "You can't leave these things here." Nordenberg said , "Please don't put your hands on me." Nordenberg moved his arm and shoulder and her hand dropped to her side . They then left the department with the security officer. During this incident, Camel did not fall against the desk or onto the floor. He also testi- fied that he did not hear Nordenberg use any profane or vulgar language in the department. Esta Fuchsberg, who has been a volunteer for Re- spondent in the admitting department for 6 years, I day a week (Thursdays), testified that she arrived in the de- partment about 10:50 a.m. on 9 October. She sat in one of the three chairs behind Karnbad and McKenna, but could not remember which one. At the time , two people were seated in the waiting area. The first time she saw Nordenberg (either that day or anytime) was about 5 minutes later when she observed him and Camel walking toward the reception desk from the corridor in the rear of the department. She heard loud voices belonging to Nordenberg and Camel (although she did not hear what they were saying). When Nordenberg got to the recep- tion desk he leaned over the counter to give leaflets to McKenna, saying: "Leila, would you hand these out for me?" Camel then reached over the reception desk, pulled the leaflets out of McKenna's hand, and "shoved" them back to Nordenberg . As to what happened to the leaflets, she testified : "They were not on the floor, so I imagine he took them ." Nordenberg then said : "Don't push me" or "don't shove me" and he and Durham left. She did not see Nordenberg push Camel , nor did she see Camel fall to the floor or make contact with any object. Karnbad, who has been employed by Respondent as a receptionist in the admitting office for 16 years (and is a member of the Union), testified that the incident in ques- tion occurred shortly before 11 :30 a.m. At the time, 4 With Carpel , almost immediately, following Nordenberg, the question arises who called security' Durham testified "Her supervisor, Rose- mary, I think her name is, called security ." However, as stated , supra, his testimony is that he did not know who Rochford was 5 Durham originally testified that he did not see where Carpel placed the leaflets, but "I know that the leaflets didn't go on the floor " He then testified that she shoved them under Nordenberg's arm. McKenna was sitting beside her and one volunteer, Fuchsberg, was behind them. At that moment there were two patients sitting in the waiting area . At that time, while she was on the phone, she looked up and Norden- berg came up to the reception desk (a little to her right) with Durham to his right and Camel to his left. He handed her "many" leaflets and asked her to distribute them in order for the people to learn of the meetings. Camel pulled the leaflets out of Karnbad 's hand with her left hand saying : "Do not distribute this in my office"; some of the leaflets remained in her hand while others fell to the floor. Camel handed the ones that remained in her hand to Nordenberg, and "shoved" his shoulder with her right hand, saying : "Get out of my office." He told her not to touch him. He then shoved her-"exactly the way she shoved him," but no part of her body moved, and she did not fall as a result. Nordenberg and Durham then left. She did not observe any security officer in the department at the conclusion of this incident . McKenna testified that Nordenberg and Durham came into the office about 11 a.m. that day and came over to the re- ception desk. There were one or two patients sitting in the waiting area at the time . She asked Nordenberg if he had permission to be there ("Because I knew they were escorted out on October 8, because Wendy didn't want them there") and he said that he had gotten authoriza- tion from personnel to be there . Nordenberg and Durham then walked to the back of the department; the next time she either saw or heard them was a few min- utes later when she looked up and saw Nordenberg in front of the desk, on Karnbad's side of the desk; Camel was beside Nordenberg (to his left, i .e., closer to McKen- na) but not as close to the desk ; Durham was by the door. Nordenberg asked Kambad if she could distribute the leaflets and handed the leaflets to her. Camel "grabbed them out of Lyla's hand"; most of the leaflets dropped to the floor, while some remained in Camel's hand. Camel then "pushed," "nudged," or "shoved" Nordenberg's shoulder ("it wasn't a hard push") and told him to get out of the office . Nordenberg said , "Don't ever push me" and "he nudged her back" ("it was also a light push"). Camel did not make contact with the re- ception desk or fall to the ground after this contact. Nor- denberg and Durham then left the department . She did not hear Nordenberg use any profane or vulgar lan- guage, nor did she see a security officer in the depart- ment during the incident. Caryll Batterman, who has been employed as an ad- mitting clerk by Respondent for 8 years, testified that on the morning in question she was sitting at her desk in one of the cubicles off the corridor . Sometime during the "middle of the Morning" Nordenberg and Durham walked by her office (heading toward the rear of the de- partment) and said "hello, remember, there's a meeting tonight" and handed her a leaflet. Rochford then walked out of her office (which is across from Batterman's) and (apparently) followed Nordenberg and Durham to the rear of the corridor. She did not hear any discussion be- tween Nordenberg and Rochford ; the first thing she heard was Camel (in a "rapid and loud" voice) tell them that they were not supposed to be in the office without LONG ISLAND JEWISH MEDICAL CENTER 59 her permission and they were disrupting the employees and patients. Nordenberg said that he had a right to be there ("He was very calm and very polite"). Within a minute she saw Nordenberg and Camel walking past her office toward the front of the department with Durham behind them. Camel "continued to talk at him" in a loud manner while Nordenberg "had a very casual gait and walked very calmly." She never heard the word "ass- hole" or any profanity used. After they passed her office she did not hear or see anything further of what oc- curred other than Camel repeating that they had to leave the department. Rochford testified that at about 11 a.m. on 9 October she saw Nordenberg walking down the corridor speak- ing to the employees. She said, "Gerry, here we go again. Don't start." He said, "I am distributing leaflets. I don't need permission from anyone." She said, " Please, it's busy. Just leave the pamphlets at the front desk and go. Don't start again." Camel then came out of her office and said: "You don't have permission, why are you here?" Nordenberg said, "Screw you, bullshit, tough shit. I do what I want. Whenever I'm in this hospital I will make it a point to come into this office." Rochford then walked away to continue assigning beds "and Gerry and Wendy were having this heated discussion." The only thing she subsequently overheard was Nordenberg calling Camel an "asshole." Camel testified that about 11 a.m. on that day while she was at her desk she heard Rochford ask Nordenberg to leave his leaflets at the reception desk; Nordenberg answered that he was not disrupting the office. Camel then called security and asked them to send an officer to assist with an occurrence in the department. Camel then walked out of her office and said : "Please, Gerry, just leave, now is not the time, it's busy now" and he said: "Bullshit, I don't need your permission ." He also said that he would make a point of coming to the admitting department whenever he was at the facility. "I was trying to sort of walk to the front to lead him out of the door because security had not arrived," and as they were walking Nordenberg stuck his head into each cubicle containing an employee and spoke to the employees. When they got to the reception desk (she testified that, at the time, 8 to 10 people were seated in the waiting area) she asked him to leave the leaflets on the desk and he said to Karnbad: "Please hand out the pamphlets." Camel understood this to mean that Karnbad would im- mediately begin distributing the leaflets and because it was very busy in the department and the phones were ringing, Camel decided to take the leaflets. Nordenberg went to hand them to Karnbad, but when Camel reached for the leaflets he lifted up his arm high so that Camel could not reach them (he is taller than she). While she was attempting to take the leaflets out of his right hand, he was using his left hand "sort of like block- ing me" and she "brushed" into his left arm.e At this 6In her report concerning this incident filed with Respondent she wrote, "I reached over the front desk to take them from him and in so doing brushed his arm." time he opened his right hand and the leaflets fell to the floor ("he like deliberately opened his hand"). Norden- berg then said : "Don't push me" and "with that he turns around and puts his right arm on my right shoulder and pushes me and when he pushed me I fell into the recep- tion desk." Her left rib cage hit the reception desk. The security guard, who was in the area during this immedi- ate incident, then stepped in and spoke to Nordenberg and Camel walked away. She then reported this incident to the personnel and security departments and went to Respondent's employee health service because her ribs felt sore; after leaving health service, she returned to work. Harry Siegel, who has been employed by Respondent as a security officer for 7 years, testified that shortly before 11 a.m. on 9 October his sargeant told him to in- vestigate a disturbance in the admitting department. He immediately proceeded to the admitting department, which is about 25 yards from where he was then sta- tioned-the security office. When he entered the office he observed about six people seated in the waiting area; Nordenberg and Camel were in the corridor in the rear of the department walking toward the front. There was loud talking-"predominantly Mr. Nordenberg," who said that he wanted to distribute leaflets; Camel replied that he should give them to her and she would see to it that they were distributed. He said that he had permis- sion and could come into the department any time he wanted and said : "You're full of shit and I can do what I please." Siegel walked toward the rear of the department and met up with Nordenberg and Camel about three- quarters of the way into the corridor (they were walking slowly). He stayed in front of them, walking backwards and observing them as they walked toward the front. On the way, Nordenberg handed leaflets to employees in two of the cubicles. When they got to the reception desk Nordenberg and Camel were facing each other, Camel to his right and Nordenberg to her right facing the desk. Camel again asked him to give her the leaflets and she would have them distributed. Nordenberg then raised his hand with the leaflets and attempted to give them to Karnbad or McKenna, saying: "Please distribute these leaflets." Camel (who, like Nordenberg, was inches away from the reception desk) reached over to get the leaflets, again telling him that she would have them dis- tributed. Nordenberg then opened his hand and the leaf- lets fell-some in front of the desk, some behind, and some on the desk. Nordenberg then said to Camel: "Don't push me [or touch me] you dumb asshole," placed his hand on her shoulder, and "lightly pushed her," causing her to fall down, against the reception desk. He immediately ushered Nordenberg and Durham out of the office; as they were leaving he said to Norden- berg: "You never put your hands on anybody, you schmuck." H. The Decision to Bar Nordenberg from the Premises By letter dated 22 July, Paul Davin, Respondent's labor relations supervisor , wrote to Nordenberg: 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When I approached you in the cafeteria in the Levitt Building (400 Lakeville Rd.), on Thursday, July 16, 1986, I was seeking to clarify why it had become necessary for you to hold a Chapter Meet- ing in the cafeteria when room accommodations had been provided (room 240) for this same purpose from 12:00 noon-1:00 PM. You initially refused to speak with me and direct- ed me to leave! Rather than responding in a courte- ous manner by explaining the situation , which had occurred due to an oversight on your part, you pro- ceeded to act in a totally unprofessional mariner. Your manner of responding to my request for clari- fication was totally inappropriate and uncalled-for. It has also been reported to me that on Thursday, July 17, 1986, you entered the work area of several dietary employees without prior notice or permis- sion and had to be reminded of your obligation to obtain such permission. This situation, as well as other recent reports from management, and including your own state- ments, reflect a total misunderstanding of your rights and obligations regarding access to employ- ees. On the belief that your newness in office and your unfamiliarity with our procedures may have contributed to your misunderstanding, we will over- look the more recent minor situation noted above. However, I must urge you to deport yourself in a professional manner and comply with the visitation provision of the Collective Bargaining Agreement (Article V, section 2) [sic] since further forbearance will not be given. I truly hope that there will be no further prob- lems in this regard (as noted in paragraph #3 of Mr. Epranian's letter dated July 14, 1986, attached), be- cause we will have no alternative but to bar you from Medical Center premises thereafter. By letter dated 29 August,' Epranian wrote to Norden- berg: In light of the numerous incidents and prior com- munications that have taken place in the past few weeks, we want to clearly set forth our position re- garding Union access to employees on our premises so that there is no room for any future misunder- standing on the Union's part in this regard. We recognize that the Union has the right to confer with employees on premises and to carry on normal Union business, which will not be unreason- ably denied or withheld. However, it is essential that this right is exercised by organizers and dele- gates alike in a businesslike and orderly manner at all times so as to not interfere with the operations of the Medical Center, which is exclusively a supervi- sory determination. ° This letter is more relevant to, and will be discussed, infra, in the al- legations regarding unilateral changes in Respondent's visitorial policy The events leading to the beginnng portion of Davin's 22 July letter will be discussed separately, infra Toward that end, we require that any Union rep- resentative must request and obtain supervisory per- mission before conferring with any employee during their working hours, and expect this simple proce- dure to be honored out of common courtesy alone let alone the obligation to respect our managerial rights. This is a long standing and well established procedure, and nothing new. We are notifying our management of this com- munication and reminding them of their rights and steps to take in the event you or any Union repre- sentative fails to cooperate in this manner. We truly hope that such will not be the case and we will not experience further difficulties in this regard in the future so that Union communications with employees regarding legitimate Union business matters can be continued without disruption in the work place. [Emphasis supplied.] Epranian testified that between 1 and 14 July there were numerous discussions among himself, Forman, Schoenholz, Respondent's senior vice president, and Dr. R. K. Match, Respondent's president, regarding the inci- dents involving Nordenberg: ". . . all the parties .. . were very much aware of the ongoing problems and concerns that-starting in the beginning of July." Epran- ian testified: There were discussions prior to my letter of July 14th. I didn't initiate and put that out on my-total- ly on my own authority. Clearly, on the basis of what happened on the 1st and then what appeared to be a continuing set of circumstances, we felt that we'd better get it on the record that this could be a consequence , that we- frankly, it's like anything else. It was important, technically, to get it on the record and secondly, we hoped it might bring it to an end. As to why, Respondent finally determined on 9 October to bar Nordenberg from the premises, Epranian testified: Well, I think in essence it was-there had been a long string of incidents, rather obvious and apparent pursuit of unwillingness to cooperate , comply, try to work out any kind of reasonable arrangement, but more important than anything else, there had now been two personal physical encounters and when the second one occurred on the 9th, it was deemed and viewed as the straw that broke the camel's back and we were left with really no alter- native. As some of the documents have shown , an earlier letter had said one more incident . Well, there had been one more incident. We were loathe to take that step . We were in a very difficult time , with re- newal negotiations going on. Sensitivities were heightened. It was a difficult time for both sides and to take a step like this was bound to be a major cause celebre. We didn't want to do it but we could just no longer ignore a second incident of physical and verbal abuse and the deci- sion was he brought it on himself, there's nothing LONG ISLAND JEWISH MEDICAL CENTER 61 further we can do and we can't overlook this one, which is two of them now. And that's the basis on which it was decided that he personally could no longer abide with his presence on the premises.8 1. Nordenberg's Arrest Nordenberg was arrested by two New York City po- licemen in Respondent's cafeteria (while sitting with some delegates and employees of Respondent ) about 4:30 p.m. on 9 October. He testified that after leaving the ad- mitting department he continued distributing leaflets for that day's meetings . About 12:15 p.m., on the way to a meeting, he met Eugene Biegel and Micahel Giovanello, Respondent's director and assistant director of security. Giovanello told him that they were informed by person- nel that he was persona non grata, and unless he left the building he would be arrested. Nordenberg said that he did not understand what the problem was and Giovan- ello told him that it was the incident that morning with Camel. After some telephone calls (to personnel and the Union) Nordenberg left the building, escorted by Gio- vanello and Biegel . Later that afternoon, at or about 3:30, Nordenberg re-entered Respondent's cafeteria with Yearwood. Shortly thereafter, they were met by Biegel and Giovanello who accompanied them to the main lobby, where Yearwood met with Biegel. At the conclu- sion of this meeting, Yearwood told Nordenberg to leave the facility, which he did. However, after leaving the lobby, he walked directly into the Respondent's cafete- ria, again, speaking with four or five of Respondent's employees. Shortly thereafter, upon a complaint filed by Respondent, Nordenberg was arrested and escorted out of the building.9 Since that date he has not acted in a union capacity at Respondent's facility. Biegel and Giovanello also testified to events preced- ing Nordenberg's arrest. Briefly, they were informed of the incident involving Camel and were told to locate him, and if he was still on the premises to have him re- moved. They located him shortly before noon, told him of their orders, and that if he had any questions he should call Epranian later in the day. Biegel let him use the phone in his office and, at the conclusion of these calls, he left the building. At or about 3:30 p.m. that day, Biegel was informed that Nordenberg and Yearwood were in the building; he and Giovanello located them and told that them that Nordenberg had to leave the building; refusal to do so could lead to his arrest for tres- passing. Yearwood said that if they arrested Nordenberg they would have to arrest him as well. Nordenberg and Yearwood then walked to the main lobby of Respond- ent's facility, followed by Biegel and Giovanello. After a commotion and, a threatened walkout by Yearwood, the police officers arrived, but by this time Nordenberg was no longer in the lobby . A few minutes later Biegel re- ceived a call that Nordenberg was in the cafeteria. At his request, the police officers accompanied him to the cafe- teria where they observed Nordenberg sitting at a table a There is no allegation that Respondent similarly barred any other agent of the Union 9 This arrest was pursuant to a trespass charge filed by Respondent Nordenberg was acquitted of these charges on 5 January 1988 with Tjaden and two or three other delegates . Biegel asked the officer to place Nordenberg under arrest for criminal trespass and disorderly conduct which , eventu- ally, he did. By letter to Johnson, dated 10 October, Forman wrote: This is to formally confirm that Mr. Nordenberg has been barred and declared persona non grata from Medical Center premises indefinitely. When Mr. Nordenberg refused to leave and remain off our premises, it became necessary to have him removed under police arrest. Charges have been filed against Mr. Nordenberg for criminal trespass and disorderly conduct. This step became necessary as a result of Mr. Nordenberg once again resorting to reprehensi- ble personal misconduct and unprofessional behav- ior in his dealings with members of our manage- ment staff. To be more specific , his actions tran- scended just violating proper procedure in the con- duct of his duties, but reached the proportions of physical harassment and verbal abuse of one of our managers in the presence of patients and visitors. Appropriate criminal charges are being pursued against Mr. Nordenberg in this regard also. As you are well aware from our numerous past communications over prior problems of this kind with Mr. Nordenberg, we repeatedly made it clear what the consequences would be if such misconduct were to reoccur, leaving us no alternative but to take these measures when it did. Mr. Nordenberg is no longer permitted or wel- come anywhere on Medical Center premises and will not be recognized nor dealt with as a Union representative in any capacity . Accordingly, we shall await formal notice of any replacement ar- rangements the Union may desire to make. By memorandum of the same date, Epranian wrote (inter alia) to the staff (from administrative staff to super- visors): Yesterday, Mr. Gerard Nordenberg, Local 1199 Organizer, was banned and escorted from our premise for a major repetition of reprehensible per- sonal and physical misconduct and behavior in his dealings with one of our management staff. A simi- lar incident with another manager occurred a couple of months ago that we believed had been ad- dressed without need for direct action , and would not happen again. Mr. Nordenberg and the Union were clearly put on notice at the time what the con- sequence would be if it were to reoccur. Unfortu- nately, our confidence was misplaced , and it did re- occur yesterday. To make matters even worse, Mr. Nordenberg reappeared on our premises later in the day yester- day with the presence and support of a Union Offi- cer, and repeatedly refused to leave, ultimately re- quiring police arrest to remove him. Appropriate criminal charges have been filed and are being pur- sued. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD So it is clear to all management personnel, Mr. Nordenberg is barred and not permitted anywhere on Medical Center property, and is not to be recog- nized or dealt with as a Union representative in any capacity effective as of yesterday ! If he attempts to do so, he should be directed to leave, and Security and this office notified immediately. The Union has been officially notified in this regard. It is unfortunate such extreme measures became necessary. However, it is even more important that all employees fully understand that proper and ap- propriate standards of personal conduct and behav- ior are observed and followed by all persons in the pursuit of their business on our premises, and any- thing short of that is not acceptable and will not be tolerated . We hope this quick report will dispel and quiet any rumors or misinformation that may have already reach you. [sic] IV. THE ALLEGED UNILATERAL CHANGE This allegation refers to Epranian's 29 August letter to Nordenberg, Durham, Yearwood, and Messina (quoted, supra) and its subsequent enforcement . The critical por- tion of this letter states: "we require that any union rep- resentative must request and obtain supervisory permission before conferring with any employee during their work- ing hours." (Emphasis added.) The General Counsel and Charging Party allege that this represents a change (not bargained about) from the contract and pastpractice. Re- spondent's position, as stated in this letter: "This is a longstanding and well-established procedure, and nothing new." General Counsel's principal witness regarding this alle- gation was Phylis Mushkin, who was an administrator organizer for the Union from 1974 until January 1984. As part of this position, she was responsible for the facil- ity from 1974 through mid- 1982; she remained at the fa- cility for a few more months to train her successor. In addition, received into evidence was an exchange of let- ters between Respondent and the Union. By letter dated 13 April 1982, Forman wrote (inter alia) to Union Vice Presidents Arlene Ezratty and Edward Kay (with a copy to Mushkin and other organizers): Since the middle of last week, I have made re- peated attempts to speak with you concerning cer- tain issues regarding the rights of delegates and union organizers in addressing legitimate union busi- ness interests and in effectively utilizing the griev- ance procedure. In view of the absence of any re- sponse, I have, therefore, no alternative but to out- line our concerns in writing and advise you of the adherence to the contract provisions that we hence- forth will require of all employees in the bargaining unit and all union officials . These provisions will be expected to be met at any and all facilities of the Long Island Jewish-Hillside Medical Center. 1. Employees, be they a delegate or not, will be permitted to engage in Union activity during normal working hours only with the prior approval of the employee's immediate supervisor. Should an employee absent himself/herself from his/her work without first obtaining permission he/she will not be paid for such time and will be subject to discipli- nary action. This provision is necessary in order for management to properly operate the hospital and is provided for in the contract in Article V, Para- graphs 1 and 2. 2. Should union officials (who are not employees of the Medical Center) wish to meet or confer with either an employee in the bargaining unit or a member of the management staff during normal working hours or at any time in other than non-pa- tient, non-work areas, it will be necessary to first obtain approval from my office. Article V, Para- graph 2 envisioned this occurrence and clearly pro- vides a framework for its implementaton . It is not disputed that the union has a right to confer with its members as well as with management concerning its members and to carry on normal union business, nor is it our seeking to establish a process that is reasonable and orderly so as not to interfere with the operations of the Center. To that end we will make suitable space available that will be accessible to employees which you and other union officials may use to carry on your normal daily business. We are desirous of re-establishing a meaningful working relationship between the management of the Medical Center and the Union leadership with all the rights and respect to which each party is en- titled. We believe that the contract provisions that I referred to provide the framework within which this can be accomplished. I will be available to discuss the implementation of these provisions at your convenience should you be desirous of doing so. By letter dated 19 April 1982, Ezratty and Kay wrote Forman, inter alia: We were surprised to hear from you that you had been attempting to reach us without success. We were both in LIJ all day Tuesday, April 6, Wednesday, April 7 and Thursday, April 8. On Friday, Saturday and Sunday the Union was closed and on Monday and Tuesday, April 12 and 13 we were out of town and had you actually called you would have known these facts. As to the substance of your letter, your interpre- tation of the Union Activity clause is wrong. Not only does the contract not require prior approval; it doesn't require any approval of supervisors or any other personnel of the Hospital. We have had con- tracts with LIJ for the past 19 years and never have we been faced with an interpretation of our con- tract that flies in the face of all our history here. Dr. Match insisted during the negotiations to settle the strike that "no retribution" shall be one of the terms of the agreement. We view your letter dated April 13, 1982 as an act of retribution and a deliberate attempt on the part of the Hospital to intimidate and punish the Union members for striking at LIJ. Unless you re- LONG ISLAND JEWISH MEDICAL CENTER 63 scind the letter, we will take any and all appropriate action against the hospital. Mushkin testified that for the 8-month period following Forman's letter (her responsibility for Respondent ceased in 1982) she never followed the dictates set forth in his letter. However, the Union never took any legal action (lawsuit, unfair labor practice charge, or . grievance) in this regard, because: We wouldn't stand for it, what he put down in that letter was entirely against the policy at Long Island Jewish as far as the union was concerned, and we wouldn't stand for it. We made it very well known that we wouldn't. She testified that she and the delegates informed the Re- spondent's administrators, including Dr. Match , that this was not the procedure, although she could not testify specifically when and what they were told (considering it occurred 5 years prior to her testimony this is not sur- prising). Mushkin testified, basically, to having complete free- dom of the facility in distributing literature or speaking to employees. When she began working for the Union she was told : "Announce your presence and go see your members to make sure the contract is enforced." Upon entering the facility, she called the personnel department and said : "I'm here." She testified : "Usually, I'd say that, announce my presence." She would then (for the distri- bution of literature) begin at the top floor and distribute literature to employees in each department until she cov- ered all departments represented by the Union . Prior to distributing literature in a particular department (includ- ing the admitting department) she never requested per- mission from the department head , and during this period her access to the departments to distribute literature was never questioned . When she entered departments to speak to employees her procedure was the same. She never asked a department head for permission to speak to the employee; if she saw the supervisor she would say hello (she testified that she sometimes told the supervisor whom she wanted to speak to) and then met with the employee; these meetings usually lasted about 10 min- utes. Mushkin also testified that, in addition to the usual departments, she distributed literature in patients' rooms, in I.C.U. (Intensive Care Unit), C.C.U. (Cardiac Care Unit), and operating rooms . As to the operating rooms, she testified: "Well, actually, I went right up to the door and whoever was walking in and out took them in .. . [I] didn't go right into surgery, but just about though." In patient's rooms she walked in briefly, handed the liter- ature to the employee, and left. In the I.C.U. and C.C.U. she gave the literature to the nurses who were at desks watching patient's monitors. If she had to go into sterile areas she put on a cap, gown, and mask and distributed the literature in that manner . No supervisor in those de- partments ever told her that she was not permitted there or needed a supervisor's prior permission to be there. She testified that she had "total unrestricted access" to anywhere she wanted to go at the facility and that she had the right to take employees out of their work area during working time to discuss union business, all with- out anyone's prior approval . Only on one or two occa- sions did a supervisor ask her to leave a department: One or two may have said it in the course of the years, you can't be here, or you have to ask my permission and I read them the contract and I said I'm telling you I'm here, and I was there, and they didn't say another word after that . I stayed. Mushkin further testified that sometime during her stay at Respondent's facility (she could not be specific about when) she told Forman : "I will call you whenever I'm in the building . . . and he said okay." Finally, Mushkin testified that she followed the leaflet- ing procedure, on occasion, with Nordenberg . She testi- fied that he originally was employed by the Union as an organizer and later, while employed by Respondent, was a delegate. In both classifications , he distributed litera- ture with her. Her testimony is unclear , however, re- garding the period that he assisted her. Nordenberg testified that while he was a delegate during his employment with Respondent he worked with a few organizers, principally Mushkin and Stan Israel be- tween about 1981 and 1986 . Their principal activity was to circulate through the facility to distribute literature; an additional reason for being at the facility was to inter- view grievants. He accompanied Mushkin and Israel throughout the facility ; they distributed literature in every area of the facility except I .C.U., C.C.U., the oper- ating rooms, and the psychiatric areas. The procedure they followed never changed during this period and was the same for all departments , except for those referred to above : they entered the departments , distributed the liter- ature to the employees, and left. For the distribution of literature, they did not speak to the department heads prior to the distribution . However, when their purpose was to interview a grievant, they would initially inform the department head that they would like to interview the employee; when he or she approved they spoke to the employee. Upon becoming an organizer for the Union in 1986, Nordenberg was never formally instructed on how to gain access to Respondent's facilities; the procedure he followed was the same as Mushkin and Israel followed; he entered through the facilities' main entrance; he used the telephone in the lobby to call Respondent's personnel department. "Generally, I spoke to Martha . . . very simply, I would say: 'Hi, Martha' we had a fairly good relationship, 'I'm in the building'; She'd say 'Fine, thanks.' That was it." On occasion, other of Epranian's secretaries would answer, or, on occasion, Buthe, Davin, or Epranian, himself. No matter who answered the phone in the personnel department , Nordenberg said "virtually the same thing," and he was never told that he could not enter the facility or a department . This was the procedure he followed on 9 October as well . He testified that he followed this procedure because it was mandated by article V, section 2 of the Agreement; more particu- larly, where it states: Where the Union representative finds it necessary to enter a department of the Employer for this pur- 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pose, he/she shall first advise the personnel office or the head of the department ... . For the distribution of literature, he entered the depart- ment (with the exception of the departments referred to, supra) distributed the literature to the employees, and left; he did this on about seven occasions between July and 9 October. When he wanted to speak to a grievant or an employee for a specific reason , "I would ask the supervisor if I could see that person . I would tell them that I was taking the person out for a few minutes." He testified that Camel was the only department head who questioned his right to be in the department to distribute literature; he later testified that the director of the die- tary department told him that he had no right to be in her department and he needed her prior permission to be there. On a few occasions , when he asked the depart- ment head for permission to speak to an employee, he or she told him: "It's very busy right now. Could you come back?" And he did return at a subsequent time. Martha Lardner has been employed by Respondent as a clerk in its labor relations department since 1984. Her primary duty is to schedule meeting dates, as well as ar- bitrations and grievances, and answering the phone. Prior to July she never received phone calls from orga- nizers telling her that they were at the facility . In July "Mr. Nordenberg called and said he was on the prem- ises, but I didn't understand why he was calling me." On either this occasion, or the next, she said : "Well, I'm just a clerk, why are you telling me this?" He did not re- spond. She reported this incident to Davin and Epranian, but they also did not understand why he called her. After that he called her many times, saying : "I am on the premises" and she said : "Thank you for calling." Epran- ian testified that about early July Lardner told him that she had received a telephone call from Nordenberg ad- vising her that he was on the premises; she asked what she should do about it . Epranian, who had never previ- ously heard of such a call, said that she should not do anything about it. Lardner asked what she should do if he called again; Epranian said that she should just say: "Thank you for advising us." Within a week or two of this conversation with Lardner, Epranian asked Norden- berg what the call was about, he said : "I'm advising you that I'm on the premises." Epranian said that such a call was not necessary, that he still needed the department head's approval to be in the department. Durham, who has been an organizer for the Union since August, testified that his interpretation of the Agreement is that upon entering the facility the organiz- er can notify the personnel department to tell them where he is going in the facility or notify the supervisor that he's in the department . As to whom he generally no- tified in the personnel department, he testified : "I gener- ally don't." Ezratty became an organizer for the Union responsible for Respondent's facility in 1967; she became a vice president for the Union in 1972 and from that time until mid-1983, with the assistance of an organizer (or or- ganizers) under her supervision she continued her re- sponsibility for the Respondent's facility. She testified that she began distributing notices and leaflets through- out the facility in about 1967; it usually took her a day or more to cover the entire facility . In doing this, she went into all the facility's departments, except the operating rooms (because Respondent's rules required people to wear scrubs when present in the operating room) and rooms where patients were being X-rayed. In addition, beginning in mid-1982 she trained Tom Lapis to be the organizer who was replacing Mushkin . On at least three occasions in the following 6-month period she accompa- nied Lapis through the facility distributing membership meeting notices; they began on the ninth floor of the fa- cility, distributed their way down to the first floor (in- cluding the admitting department), and then went to Re- spondent's physically separated administration building (the Levitt Building). Prior to distributing the literature, neither she nor Lapis requested permission from the su- pervisors or department heads. Batterman, who has been employed by Respondent in the admitting department since 1979 , testified that she has been given union literature in the department by Kay, Ezratty, and Mushkin : "It was really not an unusu- al thing to see her or to see Eddie Kay." In defense of this allegation, Respondent produced nu- merous supervisors and department heads to testify about their experiences with distributions and visits by organiz- ers in their departments . Anzel testified that shortly after she was hired by Respondent in June 1986 she had a meeting with Epranian, Buthe, and Davin regarding labor relations procedures . She was told that when an organizer wanted to speak to an employee he or she had to first obtain the permission of the supervisor; "if at all possible" the employee should be given a few minutes off to confer with the organizer . The rule was the same for distribution of literature. Geiger testified that some- time after he became a supervisor for Respondent (late 1982) he was informed by Anzel 's predecessor that orga- nizers had to request permission before entering the de- partment, but they should not be denied access to their members, and if the employee was available and not en- gaged in "patient care work," he or she should be al- lowed to speak to the organizer . In practice, organizers came to the department about once a month and asked him or one of the other supervisors if he or she could speak to a particular employee. The supervisor then went to see if the employee was available or too busy to meet at that time. "Very infrequently" (perhaps once or twice) he denied an organizer's request to speak to an employee because the employee was performing some task that could not be interrupted. He testified that he never observed an organizer distributing leaflets in the laboratory, although he did see union leaflets on the bul- letin board and a counter in the department. Oehl testi- fied that at a supervisory meeting in December 1983 or January 1984 the director of Respondent's housekeeping department said that if a union organizer or delegate wished to distribute literature, or speak to an employee in the department he or she had to first request permis- sion from the supervisor. From that time until July 1, he never observed an organizer distributing literature in the working areas of the housekeeping department. About late 1985 or early 1986 Union Organizer Colin Copeland asked his permission to speak to an employee ; he granted LONG ISLAND JEWISH MEDICAL CENTER 65 the permission. The first time he was given anything in writing by Respondent regarding this policy was in the fall of 1986-presumably a memorandum dated 2 Sep- tember from Epranian to the administrative staff, depart- ment heads and supervisors of all divisions, entitled: "Union Access to Employees." It states: As emphasized at our recent department manage- ment meetings, we have good reason for serious concern and to expect continued difficulty in the Union's conduct of business with employees in the work place. As such, we have notified the Union organizers of expected procedure to retain our continued coop- eration in this regard. To repeat, the ground rules are simple-the Union does have the right to confer with employees on our premises. However, Union organizers and delegates alike must request and obtain supervisory permission before conferring with employees during their working hours. Such permission and access to employees should not be permitted to disrupt or interfere with orderly operations and must be con- ducted in a businesslike manner at all times, but oth- erwise should not be unreasonably denied or withheld. If at any time the Union fails to abide by the guidelines set forth, the procedure outlined below should be followed as applicable: 1. Deny the request. 2. Direct employees back to work as applicable. 3. Be prepared to advise employees that disci- pline will follow for any lack of compliance. 4. Ask the Union organizer or delegate to leave, and if necessary have them removed by Security. 5. Report any such incidents immediately to Labor Relations. Obviously, feel free to call on us for assistance at any time. We hope it will not be necessary for you to have to invoke these measures, but want you to be pre- pared in such event, and trust you find them help- ful. Ethel Schwam has been Respondent 's director of di- etetics since about 1971. The department has approxi- mately 166 employees in classifications such as dietary employees, cooks, and cashiers (for the cafeteria), etc. Approximately 148 of these employees are members of the Union. She testified that the policy she always fol- lowed was that if union organizers wanted to come into her department to distribute literature or speak to em- ployees in the department they had to first obtain her permission. Her determination was based on the amount of time requested by the organizers and the immediate needs of the department. In her experience , the organiz- ers followed this procedure about 80 percent of the time. When organizers appeared in her department without previously obtaining her permission she asked them to leave, and they did so. Colin Copeland was the only or- ganizer whom she observed distributing literature in her department; because he had not received her permission to do so, she did not permit him to distribute the litera- ture. The first time she saw Nordenberg (although she did not know who he was at the time) was on 17 July; at that time she saw him talking to two cooks and a utility aide. She approached them and introduced herself, as did he. She asked him if he would accompany her to her office as there was something she wanted to discuss with him; he said he would not. She said that it would only take a few minutes and she would appreciate it; he said that if she wanted to say anything to him she should say it in front of the members. She said: "Well, in that event Mr. Nordenberg, I have to inform you that you do not have the permission to come into my department without seeking the permission of myself or of one of my super- visors." He answered that he did not need permission and that she did not know what was in the contract. She said: "I certainly did know what was in the contract" and he left the department; Nordenberg was polite during this incident and did not raise his voice. She re- ported this incident to Davin. In addition, on one occa- sion she had a situation with Copeland that she reported to personnel; she observed him talking to some of her employees in the department; she reminded him of the hospital policy and he said that it would take only a few minutes. She said that it was a very busy time; he asked if he could meet with the employees after the lunch meal and she said that he could. She reported this incident to Epranian. Rochford testified that when she was promoted from a unit position to her supervisory position in 1982 Carnel's predecessor instructed her on the rules: "I was carefully briefed in the changing of the hat, that now I was man- agement and organizers, delegates had to have permis- sion from the supervisor before they could disturb the office." Prior to 8 October she never saw a union orga- nizer distributing literature in the admitting department. The first written instructions she was given in this regard was Epranian's 2 September memorandum. Pamela Herman has been employed by Respondent since 1977, initially as a unit receptionist, a union posi- tion. Since that time she has worked her way up the ad- ministrative ladder and in January 1984 she became as- sistant manager of the out-patient department at Re- spondent's Children's Hospital; the following year she became manager of the department, also called consulta- tion and diagnostic service. During this entire period she never saw an organizer distributing literature in her units. She testified that at a department head's meeting sometime after October 1985 the facility's administrator told them ("reiterated the policy as I knew it . . . it was just something that we were aware of") that union orga- nizers needed prior permission from the supervisors or department heads before coming into the department. On one occasion Copeland told her (when she was assistant manager) that he had the approval of the manager to see an employee. Because of that she allowed the meeting. In addition, in about January, organizer John Spearman was in her department for a meeting with her staff. She told him that he had not secured or requested permission to meet with the staff during worktime and it was a bad time so he had to leave, and he did so. 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sylvia Otto, who is employed by Respondent as direc- tor of housekeeping at its Hillside Division (physically separate from the facility) testified that at the meeting of the Hillside Division's department heads in about 1983 they were told by a representative of Respondent's human resources department that union organizers needed permission of department heads before entering a department. Otto informed the supervisors in her depart- ment of the policy and told them that if it was violated they should report it to her. To her knowledge, no union organizer has entered her department without permis- sion. Urice Schlesinger was originally employed by Re- spondent as an operating room (OR) technician (assisting in surgery) in 1970; in 1987 she became supervisor of the central sterile area, which sterilizes equipment for all areas of Respondent's operation . The department has 55 employees, 12 of whom she directly supervises on the day shift . While an OR technician she was a member of the Union and a delegate for 4 years (two terms of 2 years each) from the period 1975 through 1982. She testi- fied that when she first became a union delegate in 1975 Ezratty taught her along with other delegates (in a "mini course") how to act as a delegate. She told them that they were not to distribute literature in other depart- ments during working hours. While she was a delegate, her supervisor gave her the union leaflets that had ar- rived in the department via an interoffice envelope. While employed as an or technician she has seen union organizers (principally Mushkin) in a lobby area ("out- side of the actual working area-actual operating rooms") but never in the operating rooms themselves; she does not know whether they had previously obtained permission to be there . During this period she never ob- served an organizer distributing literature or meeting with an employee during his or her working time. Upon becoming a supervisor she has never specifically been in- structed on Respondent's policy regarding organizer's access to departments; since that time no organizer has requested her permission to enter her department. Cath- erine Tully began her employ with Respondent in 1970 as an accounts receivable (AR) clerk, a unit position she held until becoming a supervisor in 1980. She was a union delegate from 1974 through 1978. As a union member she received notices either from a desk or saw them on the cafeteria bulletin board . She never saw an organizer distributing literature in her department. Upon becoming a delegate she was instructed by Mushkin and Ezratty that they were to distribute literature only during breaks and to get a supervisor 's permission before speaking to employees . As a delegate, she distributed union literature at lunch or after working hours in non- working areas. Prior to 1980, she observed union orga- nizers (Mushkin, Ezratty, Copeland, and Lapis) coming into the department and going directly to the manager's office; the manager came out of the office and informed an employee that the organizer wanted to speak to him or her. On some of these occasions Tully overheard the organizer saying-"I need to see somebody" and the manager said yes and called the employee . The employ- ees that Mushkin, Lapis, and Ezratty requested to see were always the delegate (who from 1974 through 1978 was Tully). Upon becoming a supervisor in 1980, the manager of the department told her that organizers and delegates needed a supervisor's permission prior to enter- ing the department to distribute literature or speak to an employee. Since she became a supervisor, the organizers requested permission from her, at times, when the man- ager was not present. On one occasion, Copeland asked Tully's permission to speak to the delegate and an em- ployee in the department who had a pending grievance; Tully gave them permission and they walked outside and spoke. Ezratty testified that she conducted delegate train- ing sessions attended by Schlesinger and Tully; at these sessions she told the delegates that literature was to be distributed on the delegates' breaktime or lunchtime, but could be distributed to members on their working time. Michael Karol began his employ with Respondent in 1980 as a staff therapist; he became a supervisor in 1984 and in April 1986 he became assistant manager of the respiratory therapy department (containing 35 to 40 em- ployees). He testified that while he was a union member (from 1980 through 1984) he received union literature from a table in the department 's office; the delegate put it there. During this period he never saw a union orga- nizer distributing literature in the department , nor did he see a union organizer on patient floors (he performed his duties "all over the hospital"). On one occasion during this period Mushkin gave him some union literature either outside the building or in the cafeteria. In 1984 when he became a supervisor, the manager of the depart- ment told him that a "nondepartment person that came in-union or otherwise would have to have our permis- sion"; Epranian's 2 September memorandum was "just reenforcing the existing policy." The only exception was an "understanding" they had whereby if the organizer wished to speak to the delegate (a very active, long-term delegate) he could do so without prior permission as long as the delegate was doing his work. To his knowl- edge organizers did not speak to other employees with- out first obtaining his permission or that of the manager; as a supervisor he was on the floors every day; as assist- ant manager, once or twice a week. Carol Reilly has been employed by Respondent as manager of central sterile supply since May 1984; the department cleans and sterilizes instruments and equipment as well as ordering supplies for the Respondent . Shortly after she com- menced her employment with Respondent she met with Marty Karris, assistant administrator for Respondent re- garding policies of the department. At this meeting he told her that organizers and delegates had to receive per- mission from the "management office" before coming into the department "to see staff and if we had the time" such permission should be granted . Since 1984 there have been four or five instances where the organizers came into her department and asked to see an employee; on all of these occasions she granted the request. She has never seen organizers speaking to an employee in her de- partment without approval nor has she seen organizers distributing literature in her department. June Jones, who has been employed by Respondent as medical records supervisor since 1977, is directly in charge of 6 employees-32 employees work in the de- LONG ISLAND JEWISH MEDICAL CENTER 67 partment. Previous to that, she was employed by Re- spondent as a medical records clerk from 1970 through 1977, and was a member of the Union. She testified that while she was a union member she was never given any literature by a union organizer in her department; she saw the literature posted on the bulletin board . Upon be- coming a supervisor, the manager and director of medi- cal records told her that organizers needed a supervisor's permission prior to entering the department . From that time through October she never saw a union organizer distribute literature in her department . Joanne Scaturro began her employ with Respondent in 1977 as a staff nurse in the emergency room . In 1979 she became assist- ant nursing care coordinator and in 1981 she became the nursing care coordinator for the emergency room. The department employs approximately 30 unit (nurses aides) employees, 6 of whom are under her direct supervision (the day shift). Upon becoming the nursing care coordi- nator she was informed by her immediate supervisor, the assistant director, that union organizers needed permis- sion prior to entering the department . The first writing she received on this subject was the 2 September memo- randum. Since that time, she has not seen any organizer in the emergency room. Daphne Sleem began her employ with Respondent in 1980 as a staff dietician in the main kitchen , and joined the Union at that time. She became supervising dietician in 1982 and chief supervis- ing dietician in 1983. She supervises the entire main kitchen, including dietary workers, utilities, and patient meal services. The department employs 70 unit people and 5 supervisory employees. She spends about half of her day (9 a.m. to 5:30 p.m.) in her office and the other half on the floor "seeing that everything is done ." Prior to becoming a supervisor, all the union literature she re- ceived was given to her in the cafeteria. Upon becoming a supervisor, the director of the department told her that if an organizer wished to speak to an employee they needed prior permission to do so, but, if possible, they should be accommodated. Between 1982 and October 1986 she never saw a union organizer distribute literature in her department, although there was union literature on a table in the department . She has seen Copeland going to the associate director's office and has seen Norden- berg speaking to employees in the cafeteria. Carpel, who began her employment with Respondent in about March 1986, testified that , about that time Epranian and Davin told her that union organizers needed prior permission from department heads and su- pervisors before entering a department . Between that meeting and 9 July, to her knowledge no union organizer came into the admitting department. The only other oc- casion that she was informed of Respondent 's access policy was Epranian's 2 September memorandum. Donald Rosenfeld, who was employed by Respondent from 1964 through 1979 as director of personnel (and has been employed elsewhere since), testified that the Re- spondent's access policy during the latter part of his employ at the facility was: "We followed a guideline where the union organizer would contact the personnel department, then have to clear through the department head." He testified that the reason for this rule10 (he was one of the people who formulated the policy) was that with "40 or 50 or even 60 departments at LIJ . . . there was no way the personnel department would be able to authorize any union delegate official or whoever to just go into a department." Respondent wanted the depart- ment head, as well as the personnel department , to know when a union representative was entering a department. This policy never changed from 1974 through 1979. Ro- senfeld testified that "occasionally" they had problems with the union organizers (principally Mushkin) violating this policy resulting in meetings with Ezratty and Mush- kin where Rosenfeld told them that they could not enter departments without prior approval from the department head or supervisor. Epranian, who has been employed as director of labor and employer relations since August 1983, testified that within 2 or 3 weeks of beginning his employ with Re- spondent, Forman told him that union visitation rights were subject to approval of department heads, which should not be unreasonably denied. Shortly thereafter Forman gave him a memorandum , dated 6 April 1982 that Forman had prepared (his employment with Re- spondent began in 1982) and distributed to almost every- one from departmental chairmen to supervisors em- ployed by Respondent. The subject was: "Guidelines on Union Activity and Visitation, Discipline and Grievance Procedure" of the contract between Respondent and the Union. At one point, the memorandum quotes from what is now article V, section 2 of the Agreement, set forth, supra, and states: This paragraph provides the Union representative with opportunity to confer with management or union members on a reasonable and orderly basis. The Union representative will be advised that per- mission must be obtained from the Department Head instead of the Personnel Office . Under no cir- cumstances may the representative pull out employ- ees or otherwise interfere with departmental oper- ations. If such actions occur at the behest of an em- ployee of the Medical Center (Union delegates in- cluded), that person is subject to disciplinary action. Any definition of "reasonable" must relate to the nature of the Union representatives' concern and to the operational needs of the department . For in- stance, if a request is made for a discussion and it is genuinely inconvenient to meet at that time, an al- ternate time should be set up as soon as possible. It 10 Respondent maintains a personnel policy manual (written in 1974), which most witnesses testified was either outdated, unused, or totally ig- nored A provision, entitled, "Union Officials-Access to Medical Center," states Representatives of the union shall have reasonable access to the Medical Center for the purpose of conferring with officials of the Medical Center, delegates of the union and/or employees and for the purpose of administrating the collective bargaining agreement Representatives of the union are required to notify the Department Head and the Personnel Department prior to conferring with dele- gates and/or employees during working hours Such visits shall not interfere with the operation of the Medical Center. 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is essential that the right of the union to grieve be respected. Forman also showed him the 13 and 19 April 1982 let- ters exchanged by Respondent and the Union . Epranian testified that the reason for this rule is that only the man- agement employee at the site can determine whether the Union's request would interfere with the department's operation. Epranian first met Nordenberg on 1 July; a meeting was arranged that day for the Union's new lead- ership and organizers to meet Respondent 's representa- tives. Yearwood, Nordenberg, and Gus Marin (a union organizer, but only temporarily assigned to Respondent) attended for the Union ; Epranian, Davin, Buthe, and Forman were there for Respondent . At the conclusion of this meeting Epranian suggested a brief meeting with Nordenberg and Marin to familiarize them with Re- spondent's system and to provide them with a list of pending arbitrations. He testified: The basic thing I conveyed to them was two points; that we didn't control their access to the premises. They came and went . And secondly that, however, access to employees or at working time, any access to employees during their duty hours or when they were on duty, required prior supervisory approval, which would not be unreasonably denied. He testified that this was not "an adversarial or argumen- tative meeting, they neither expressed disagreement or agreement." Epranian testified further that between Forman's April 1982 letters to the Union and his July letters to Norden- berg there were no written communications between Re- spondent and the Union regarding its access policy. The purpose of his 29 August letter (and subsequent meetings with department heads) was "to reaffirm and reinform" Respondent's management of their rights, as well as the employees' rights. The prior agreement had expired on 30 June, without a new contract having been entered into, and there were a lot of questions regarding the grievance machinery, employee Weingarten 's rights and the Union's representatives rights . The letter and subse- quent meetings were intended to answer these questions. The policy set forth in this 29 August letter is no differ- ent from the policy he has followed for the entire period of his employment with Respondent . Epranian testified that during his employment with Respondent he has dis- cussed the access policy with Copeland , Lapis, and Spearman, prior to Nordenberg's tenure as organizer. He told them what his 29 August letter and 2 September memorandum stated : that they had "free rein," but they could not interfere with Respondent 's operations, and therefore had to get permission of the department head before entering a department. "Generally speaking" the organizers followed this policy. There was a situation where the organizer claimed that he had permission and the manager claimed that he had not given his permis- sion. Forman, who began his employment with Respondent in March 1982 as director of human resources and later became vice president for human resources (although his duties and responsibilities remained the same), testified that when he began his employment Dr. Match told him that he felt "there was need for clarification of certain provisions of the contract" and he undertook that project. Between the time he was formally hired and his first day of employment at the facility he requested a number of documents (including the manual and the con- tract) and spoke to Buthe on a number of occasions. The result was his 6 April 1982 memorandum which, in his opinion, did not change Respondent's access policy. Forman testified further that his 13 April 1982 letter was sent to Kay and Ezratty because Dr. Match felt that due to the Union's recently unsuccessful month-long strike (nurses at a different division of Respondent ) the Union might react by pressuring the facilities' department heads. By paragraph 2 of this letter Forman wanted to ensure that he would be in the "midst of what was going on" to prevent any undue pressure on the department heads. The following month , Forman met with Kay and Ezratty and reiterated Respondent 's policy and the rea- sons underlying it and they stuck with the position set forth in their letter of 19 April 1982; "Nothing was really resolved." Subsequently, on most occasions, the Union complied with these requirements ; "on rare occa- sion" he received a call "that there was something inap- propriate occurring that warranted my intervention"; on those occasions he spoke to the vice president or the or- ganizer and told them that the Respondent could not accept such actions. Finally, Forman testified that he be- lieved that Respondent "did not permit distribution within the departments under any circumstances , but cer- tainly, that was not true of access" although he could not point to anything in the Agreement to suppport this conclusion. The final allegation is that Davin, on about 16 July, at the cafeteria" in the • Levitt Building (the administration building) interfered with a union meeting conducted by Nordenberg, in violation of Section 8(a)(1) of the Act. In early July, at Nordenberg's request , Respondent ap- proved the use of one of the meeting rooms in the Levitt Building, on 16 July from noon to 1 p.m. for a union chapter meeting. This was for the small (compared to the main facility) number of employees represented by the Union who are employed at the Levitt Building. Nordenberg (the only witness who testified on this sub- ject) testified that during the noon to 1 p.m. meeting, Lee Small, the delegate, told him that the employees at the Levitt Building have two lunch periods and the em- ployees with the later lunch period would not be able to attend the 12 noon to 1 p.m. chapter meeting . He asked Small what to do and Small said that he did not think any other room was available in the Levitt Building, so they decided to meet the remaining employees in the Levitt cafeteria from 1 to 2 p.m., although he knew that he had no right to have a chapter meeting in the Levitt cafeteria without prior approval from Respondent. Nor- denberg testified that he did not know how these em- ployees knew to meet them in the cafeteria at that time '' Whereas the main cafeteria at the facility (also called the Schneider cafeteria) seats approximately 500, the cafeteria in the Levitt Building (about a 10-minute walk from the principal facility ) seats approximately 25 LONG ISLAND JEWISH MEDICAL CENTER 69 (other than that Small "spread the word that, there was going to be a meeting in the cafeteria"). About 10 to 15 employees attended this meeting in the cafeteria from 1 to 2 p.m. They occupied about half the space of this caf- eteria; there were only about two other people in the cafeteria at the time. During this meeting Davin ap- proached Nordenberg and told him that he wanted to speak to him; Nordenberg said that he could not speak to him at that time as he was in the middle of a meeting. "He was very demanding that I speak to him right now. We exchanged some words." Davin then said: "You better make sure that all of these people are on their break." Nordenberg invited Davin to ask the employees and Davin left the area. IV. CREDIBILITY DETERMINATIONS Numerous credibility determinations need be made here, principally regarding the 1 July and 8 and 9 Octo- ber incidents and the Respondent's past practice regard- ing access. I found the leading player in this hearing, Nordenberg, less than believable, but not totally incredi- ble, principally because some of the opposing players were more credible than he; additionally , I found puz- zling his testimony regarding Epranian 's 29 August letter, which was addressed to him at the Union, with copies indicated to Yearwood, Durham, and Messina. He testified that he never received this letter, was never told about the letter, and never discussed the letter with anyone until he was shown the letter on the third day of the instant hearing. Yet, his affidavit prepared by counsel for the Charging Party says that on 29 August Respond- ent sent him a letter, which was attached to his affidavit. In another affidavit, this one taken by the General Coun- sel, Nordenberg states that prior to 8 October Yearwood showed him Epranian's 29 August letter. He testified that he read, initialed, and added a few words to this para- graph of the affidavit, in addition to signing it. In at- tempting to explain this discrepancy , Nordenberg testi- fied : "I'm recalling that there was some discussion of an August 29 Letter that I didn't have a copy of, and that could not be found by me." When asked , again, to ex- plain the discrepancy after testifying that the affidavit says that the letter is attached to the affidavit, he testi- fied: "I recalled some discussion in preparing the case that there was a August 29 letter. I'm now recalling I never saw that letter." However, my principal reason for discrediting Nordenberg in some situations is that I found many of the witnesses more credible than he. As regards the 1 July incident I found Geiger and Feller more credible than Nordenberg. They appeared to be testifying exactly as they best remember the facts (albeit a year later) whereas Nordenberg appeared, at times, to be tailoring his testimony to best serve the Union 's case. On the basis of the credited testimony of Geiger and Feller, I find that during this incident Nordenberg lightly hit Anzel's right shoulder (if it were more than a light hit it would have inspired Geiger to stand up and inter- vene) with his right hand causing her to fall backward, called her an "asshole" on a number of occasions, and blocked Anzel from getting out from behind her desk. As regards the 8 and 9 October incidents, I found Roch- ford, Fuchsberg, McKenna, and Karnbad the most credi- ble witnesses, clearly more credible than Durham, Nor- denberg, Camel, and Siegel. I would not discredit Bat- terman's testimony regarding 9 October (for 8 October I find that she was not at work ); rather due to her inability to directly answer a question , and to limit her answers to be responsive to the questions , her testimony creates more confusion than assistance . Although Siegel ap- peared to be a frank and open witness, I do not credit his testimony regarding the 9 October incident , principally because I found Fuchsberg, McKenna, and Karnbad more credible. In addition , although he testified that Nordenberg lightly pushed Camel causing her to fall, the security officer's incident report he filed on 9 October states simply that Nordenberg "put his hand on Wendy's shoulder and lightly pushed her"-no mention is made of her falling. I therefore find that on 8 October, after Rochford questioned Nordenberg about whether he had Camel's permission to be in the department , Nordenberg said that he did not need her permission and they did not know the contract, in addition to "screw you" and "bullshit." Rochford testified that when she saw Nordenberg at or about 11 a.m. the following day she told him that it was busy and asked him to leave the pamphlets at the front desk. At this point Camel came out of her office and Nordenberg said that he could do as he pleases and "screw you, bullshit, tough shit." He also called Camel an "asshole." When Camel and Nordenberg walked to the front of the office, Rochford remained in the back as- signing beds. She did not witness anything further, except that, as they were walking toward the front, they "were having this heated discussion." From this point to the end of the incident, I credit the testimony of Fuchs- berg, McKenna, and Karnbad . Not only did Fuchsberg appear to be testifying in an honest and truthful manner, as best she could remember, but she had no reason to fal- sify or tailor her testimony . She had been a volunteer in Respondent's admitting department for 6 years . Counsel for Respondent, in his brief, alleges that Fuchsberg's "testimony must be viewed as biased" because of an al- leged "relationship" with Karnbad and McKenna, and that it was "clear from her demeanor , that she was friendly with the admitting employees who she viewed as her co-workers and friends." I reject this argument as being unsupported by the evidence and without merit. McKenna and Karnbad were also credible witnesses; al- though union members (McKenna was a delegate) they appeared to be testifying as honestly and openly as possi- ble in attempting to recollect events that occurred almost 8 months earlier. I therefore find that when Camel and Nordenberg got to the reception desk (arguing loudly), about two or three people were seated in the waiting area. (Respondent's exhibits, attempting to establish that a large number of people were in the waiting area at the time are not conclusive, as argued by counsel for Charg- ing Party in her brief.) Nordenberg leaned over the counter to give leaflets to Karnbad, and asked her to hand them out for him. Camel pulled the leaflets out of Karnbad's hand and told her that she could not distribute them in the office. Camel returned the leaflets to Nor- denberg and she "pushed," "nudged," or "shoved" Nor- 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD denberg's shoulder; a "light push." Nordenberg then said that she should not push him and he "pushed," "nudged," or "shoved" her "exactly the way she shoved him." Carpel never fell to the ground nor did she fall against the reception desk. V. ANALYSIS-ALLEGED UNILATERAL CHANGE The General Counsel and Charging Party allege that Epranian's 29 August letter stating that "any Union rep- resentative must request and obtain supervisory permis- sion before conferring with any employee during their working hours" represented a unilateral change from the procedure previously in effect, in violation of Section 8(a)(1) and (5) of the Act. Respondent alleges that this has always been the procedure followed at the facility, and presented numerous witnesses in support of this ar- gument; the General Counsel and Charging Party's case herein is supported by the testimony of Mushkin, Ez- ratty, and Nordenberg. The law is clear that where a valid bargaining rela- tionship is in effect an employer may not unilaterally change the terms and conditions of employment of its employees without affording the employees ' collective- bargaining representative the opportunity to bargain about such changes until either impasse or agreement is reached. NLRB v. Katz, 369 U.S. 736, 747-748 (1962). The Board has stated: In order to make out a prima facie showing that Re- spondent violated Section 8(a)(5) by [instituting a unilateral change], the General Counsel was re- quired to show that Respondent failed to bargain and reach agreement with the designated bargaining representative before implementing changes in the terms and conditions of the contract ." [Spector Freight System , 260 NLRB 86, 87 (1982); Branch Motor Express Co., 260 NLRB 108 (1982).] As there was no bargaining regarding access at least during 1986, the issue is simply whether the contents of the letter represented a change in Respondent's access policy. The initial inquiry is to the Agreement; article V, section 2 is the principal provision in this regard. The first sentence of this section is of little assistance in this determination because of the different interpretations of the word "reasonable." The following sentence is the one that really governs the instant situation; the difficulty is that it is not exactly a model of clarity when applied to the situation herein . "Where the Union representative finds it necessary to enter a department of the Employer for this purpose [conferring with employees], he/she shall first advise the personnel office or the head of the department or his/her designee in person, as the Em- ployer shall state." The Charging Party's position is that the obligations imposed on the Union by article V was limited to advising, and that although the Agreement provides that such visits do not interfere with Respond- ent's operation, it did not give supervisors the exclusive right to make that determination . Respondent's position is that the requirement for advising Respondent , and the caveat that the visit not interfere with Respondent's op- erations, can only reasonably be read to mean that the superviso • must approve the visit . As stated in Respond- ent's brie "It is simply a preposterous notion that an or- ganizer is 'n a position to determine when a visit might interfere with -Nperations. Obviously, in organizer would have no way o ' knowing the department's workload or whether employees were out sick." I find that the con- tractual language does not clearly spell out the proce- dure to be followed; it is therefore necessary to examine the pa.t practice followed by the parties. Respondent presented numerous credible witnesses be- ginning chronologically with Rosenfeld, who testified that Respondent's access rule as spelled out in the 29 August letter was identical to the rule in effect while he was Respondent's director of personnel from 1971 through 1979 . I also found Forman to be a direct and credible witness and found convincing his testimony that his 6 March 1982 memorandum represented no change from Respondent's access policy and that the procedure in place when he began his employ with Respondent, at that time, was never changed. I also found Epranian to be a fairly credible witness; because his testimony corre- sponded to that of Rosenfeld and Forman (whom I found very credible), I credit his testimony that the policy set forth in his 29 August letter and 2 September memorandum represented no change in Respondent's access rule as he had known it since August 1983, when he began his employment with Respondent. Respondent's defense is further supported by the credi- ble testimony of its supervisors ; without repeating the testimony of these supervisors (whose supervisory expe- rience goes back as far as 1971) they testified, generally, that the 29 August letter and 2 September memorandum represented no change in Respondent's access policy- that was the way they, had always operated. They had problems, on occasion, with organizers entering the de- partment to speak to employees without first receiving their permission, but, when they learned of these situa- tions, they spoke to the organizer in an attempt to pre- vent a recurrence. In particular, as stated supra, I found Rochford to be an extremely credible witness; she testi- fied that upon becoming a supervisor in 1982 she was in- structed on "the changing of the hat" and that organizers and delegates needed a supervisor 's permission prior to coming into a department. Geiger, whom I also previ- ously found to be a highly credible witness, testified to the same instruction upon becoming a supervisor at or about the same time. And finally, Schwan, whom I found to be a precise, articulate, and credible witness, testified to 15 years of experience prior to the 29 August letter. During that period she expected organizers to obtain her permission prior to entering her department. At times, they did not follow this procedure and when she saw them doing so she asked them to leave, which they did. Additional support for Respondent's position comes from Lardner's credible testimony that beginning in July Nordenberg called her to inform her that he was on the premises. Although she had been employed by Respondent for 2 years at the time, that had never previ- ously occurred. That is not to say that the General Counsel and Charging Party's allegation is totally without merit. As LONG ISLAND JEWISH MEDICAL CENTER 71 far back as 1982 the Unon told Respondent that its inter- pretation of the access clause was wrong and that the Union "wouldn't stand for it." In addition, Mushkin and Ezratty (who were more credible than Nordenberg and Durham) testified to almost complete freedom of access at the facility without the need of obtaining supervisory permission prior to entering a department . However, this does not necessarily conflict with the testimony of Re- spondent's witnesses, many of whom testified that some of the Union's organizers violated this policy. In addi- tion, since the facility has approximately 250 depart- ments, 750 beds, and 7000 employees, it is very likely that some organizer's ventures into departments went un- noticed. Finally, Mushkin and Ezratty ceased their ac- tivities at the facility in 1982 and 1983 respectively, the years that Forman and Epranian commenced their em- ployment with Respondent . It may be (as indicated by Forman's testimony) that at that time (with impetus from the Union's strike at the facility in 1982) Respondent de- termined that it would enforce these rules more strictly than it had in the past. For all of these reasons, I find that the General Coun- sel has failed to establish that there was any change in Respondent's access policy about 29 August, or at any time within the 10(b) period, and this allegation is there- fore dismissed. VI. ANALYSIS-BARRING NORDENBERG FROM THE PREMISES Both unions and employers can freely choose their representatives to deal with the other in bargaining and grievance situations . This is not an absolute, however, as an employer can refuse to deal with a union representa- tive whose conduct has crossed over a line of permissible conduct established by the Board and the courts. As the court stated in General Electric Co. Y. NLRB, 412 F.2d 512 at 517 (2d Cir. 1969): There have been exceptions to the general rule that either side can choose its bargaining representa- tives freely, but they have been rare and confined to situations so infected with ill-will, usually personal, or conflict of interest as to make good -faith bargain- ing impractical. In two early cases, Deeco, Inc., 127 NLRB 666 (1960); and Signal Mfg. Co., 150 NLRB 1162 (1962), the employ- ers refused to meet with, or recognize, particular union representatives. In Deeco, after the employer procrasti- nated in complying with the union's legitimate request for the seniority lists, the representative accused the em- ployer of giving him the "run around" and of being a liar. In Signal, when the representative was told that the employees would be given a day off because the employ- er's founder had died, he said: "Good, why didn't he take Bernie Ruskin the employer's director of manufac- turing with him." In each case the Board found a viola- tion, saying that although these statements were ill-ad- vised and not to be condoned, they did not reflect such an underlying hostility to the employer so as to make collective bargaining between the parties a futility. Fitzsimons Mfg. Co., 251 NLRB 375 (1980), is about as close as Board cases come to the instant matter . In that case, during a grievance meeting, believing that the em- ployer's corporate personnel director had disclosed con- fidential material to the union's bargaining committee, the union representative said that he would punch the employer's representative in the mouth and "knock him on his ass" if the subject were brought up again. As the employer's representative began to speak , the union rep- resentative grabbed him by his tie, pulling him upwards until he came to his feet . After they were separated, he then challenged him to step outside to the parking lot; the employer's representative declined this offer. The employer requested that the union remove him as their representative at the plant; because the union refused this request, the employer refused to meet with the union. Stressing the fact that this case involved an unprovoked assault, the Board stated that although parties generally have the right to choose their own representatives, "where the presence of a particular representative in ne- gotiations makes collective bargaining impossible or futile, a party's right to choose its representative is limit- ed, and the other party is relieved of its duty to deal with that particular representative." (251 NLRB at 379.) In dismissing the case, the Board quoted from KDEN :'-oadcasting Co., 225 NLRB 25 at 35 (1976), that there must be "persuasive evidence that the presence of the particular individual would create ill -will and make good faith bargaining impossible." Sahara Datsun, 278 NLRB 1044 (1986), involved an employee whom the Board found was discharged in violation of Section 8(a)(3) of the Act in September 1984. The following month he in- formed the bank that the employer used to obtain financ- ing for its customers that the employer was submitting falsified customer credit applications to the bank. Four months later, in the union's newsletter, he accused the employer of involvement in prostitution and the use and sale of cocaine. The Board (278 NLRB at 1046) found that his actions excused the employer from being obligat- ed to deal with him as a union representative: The circumstances in which we will recognize an employer's right to refuse to deal with a particular union representative are very limited. When an indi- vidual engages in conduct directed at the employer or its representatives which engenders such ill will that it weakens the fabric of the relationship to the extent that good-faith bargaining is impossible, how- ever, we recognize an employer 's right to refuse to meet and bargain with that individual. Nordenberg's actions on 1 July and 8 and 9 October are (as the Board often states in cases such as this) "not to be condoned." His actions were clearly inappropriate, especially for a hospital setting in which they occurred. However, they clearly did not attain the level of activity that occurred in Fitzsimons, and Sahara Datsun , supra. On 1 July, he lightly pushed Anzel (apparently to get to her phone), called her an "asshole" on a number of occa- sions, and blocked her from getting out from behind her desk for a short time. The events of 8 October were lim- ited to obscenities; likewise, Nordenberg's actions on 9 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October prior to arriving at the reception desk also in- volved only obscenities . The events at the reception desk are the crux of this allegation, the "straw that broke the camel's back" in Epranian's words; yet, there really is not that much there and what is, was provoked by Carpel. Nordenberg handed the leaflets to Karnbad (as Rochford had requested him to do) and Carpel took them from Karnbad and handed them to Nordenberg. She then "pushed," "nudged," or "shoved" Nordenberg and he did the same to her. That was the extent of his activities on 9 October . Although his actions at the re- ception desk are not to be condoned they were provoked by Carpel who took the leaflets from Karnbad and pushed him. An employer cannot rely on an employee's indiscretion to justify a discharge when it was provoked by an agent of the employer. E. L du Pont & Co., 263 NLRB 159 (1982); Tom 's Ford, Inc., 253 NLRB 888 (1980). I therefore find that Nordenberg's actions on 1 July, 8 and 9 October and the interim actions referred to by Respondent, although distasteful, did not constitute persuasive evidence that Nordenberg's presence at the fa- cility would create ill-will and make good-faith bargain- ing impossible. I therefore find that by barring Norden- berg from its premises on 9 October, Respondent violat- ed Section 8(a)(1)(5) of the Act. VII. ANALYSIS-REMAINING ALLEGATIONS I have found that Respondent did not unilaterally change its access policy by Epranian 's 29 August letter; therefore on 8 and 9 October Respondent maintained a lawful requirement of requiring prior supervisory permis- sion prior to entering a department to confer with em- ployees. I have also found Rochford to be a (or the most) credible witness. As Nordenberg and Durham had not previously requested permission to be in the depart- ment on 8 and 9 October, and it was busy in the depart- ment when they were there, Respondent was entitled to ask them to leave. I therefore find that Respondent did not unlawfully deny Nordenberg and Durham access to its admitting office on 8 and 9 October. The complaint next alleges that Davin 's conduct on 16 July interfered with a union meeting in violation of Sec- tion 8(a)(1) of the Act. I agree with Respondent's argu- ment about this allegation, as contained in its brief. Re- spondent maintained a procedure of assigning meeting rooms to the Union, on request; in fact the 12 to 1 p.m. meeting was conducted in a room acquired by Norden- berg through this manner. Nordenberg admitted that he did not have the right to have a chapter meeting in the Levitt cafeteria without prior approval from Respondent. He did not obtain this approval , but, instead conducted the meeting in the cafeteria, taking up about half the available space of the cafeteria. In these circumstances, I find Davin's statement ("you better make sure that all of these people are on their break ") does not violate Sec- tion 8(a)(1) of the Act. I next find that Respondent, on 9 October, by Carpel, did not violate Section 8(a)(1) of the Act by confiscating union literature from employees. The credited evidence establishes that Carpel took the leaflets from Karnbad's hand and returned them to Nordenberg . Both Norden- berg and Durham had spoken to, and distributed leaflets to, the admitting department employees that day (prior to the reception desk incident ) and the prior day, even though these visits violated Respondent's access policy. In addition, the departments have bulletin boards where the leaflet was, or could have been, displayed . The ad- mitting department employees were not deprived of the proper notice of the meeting. That Carpel took them from Karnbad's hand and returned them to Nordenberg was improper, but not unlawful. On 9 October, after Nordenberg returned to the facili- ty for the second time, Respondent had him arrested in the cafeteria for criminal trespass after he refused to leave; he was later acquitted of this charge . Article V, section 2 of the Agreement provides that representatives of the Union shall have "reasonable access" to the facili- ty to confer with Respondent , delegates, or employees and in administering the Agreement . At the time of his arrest Nordenberg was in the Schneider (the main) cafe- teria, a nonworking area, speaking with delegates and employees of Respondent. The sole reason for his arrest was his presence at the facility after he had been de- clared persona non grata by Respondent. However, as discussed supra, I found that Respondent 's decision to bar Nordenberg from the premises was not sustained by the facts and violated Section 8 (a)(1) and (5) of the Act. As Nordenberg was in a nonworking area, where he was permitted to be pursuant to the Agreement, and Re- spondent's sole basis for barring him has been found to be invalid, I find that by causing his arrest on 9 October Respondent violated Section 8(a)(1) of the Act. W. T Rawleigh Co., 90 NLRB 1924 ( 1950). Finally, the complaint alleges that Respondent's letter to Nordenberg of 4 November violates Section 8(a)(1) of the Act because it threatened him (while he was still an employee on a leave of absence) with reprisals because of his activities as a union organizer . The letter in ques- tion, while approving the Union's request for an exten- sion of the leave of absence for Nordenberg for an addi- tional 6 months through 30 June 1987, states that in the event Nordenberg should elect to return to Respondent's employ prior to that date (he did not) Respondent ex- pected him to notify them at least 1 month in advance "at which time the question of disciplinary remedy for his recent misconduct for which he was barred from our premises and its impact on his future employment status with the Medical Center will be addressed ." Although the 4 November letter does contain a threat (to investi- gate his recent misconduct should he apply to return to Respondent's employ), not every threat is unlawful. This was a "threat" to "address" a certain issue, whether his misconduct on 1 July and 8 and 9 October should bar his future employment with Respondent. The letter does not threaten him with any action; it states that if he applies to return to Respondent's employ, Respondent will then "address" the issue. 12 I shall therefore dismiss this alle- gation. 12 It should also be noted that although I have found Nordenberg's ac- tions between 1 July and 9 October did not justify Respondent in barring him from the premises , that does not necessarily mean that the same ac- tivities engaged in by an employee would be protected V LONG ISLAND JEWISH MEDICAL CENTER 73 CONCLUSIONS OF LAW 1. The Respondent, Long Island Jewish Hillside Medi- cal Center, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material, the Union has been the collec- tive-bargaining representative of Respondent's employees in the following unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: Service and maintenance, clerical, social workers, social work assistants, technical and licensed practical nurses. 4. Respondent violated Section 8(a)(1) of the Act by causing the New York City Police Department to arrest Gerard Nordenberg on 9 October 1986. 5. Respondent violated Section 8(a)(1) and (5) of the Act by barring Nordenberg from its premises and refus- ing to deal with him as a representative of the Union since 9 October 1986. 6. Respondent did not violate the Act as further al- leged in the complaint and as further amended at the hearing. (a) Recognize Nordenberg as an organizer and repre- sentative of the Union and deal with him as such without limitation. (b) Notify the Union, in writing, within 10 days of this decision that it no longer has any objection to dealing with Nordenberg and that it will do so, on request. (c) Post on each of the bulletin boards at every facility employing employees who are members of the Union, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations not specifically found. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices , it will be rec- ommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. In this regard, Respondent shall immedi- ately notify the Union that it will recognize and deal with Nordenberg as the Union's organizer, without limi- tation. As Nordenberg has been acquitted of the criminal trespass charge initiated by Respondent , which has been found to violate Section 8 (a)(1) of the Act, nothing fur- ther is required of Respondent to remedy this violation. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Long Island Jewish Hillside Medical Center, New Nyde Park, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize or deal with Gerard Norden- berg as an organizer and representative of the Union. (b) Causing the arrest of representatives of the Union while they are engaged in protected activity. (c) In any like or related manner interfering with, re- straining, or coercing its 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. 13 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 14 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO (the Union) as the exclusive bargaining representative of our employees in the appro- priate unit concerning wages and other conditions of em- ployment, by refusing to deal, or meet, with Gerard Nordenberg or any other duly authorized representative of the Union. The following unit of employees is appro- priate for collective bargaining : Service and mainte- nance, clerical, social workers, social work assistants, technical and licensed practical nurses. WE WILL NOT cause the arrest of any representative of the Union who is present at our facility pursuant to, and in accordance with, the terms of the collective-bargain- ing agreement between the Union and League of Volun- tary Hospitals and Homes of New York. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL, on request , meet with, deal with and bar- gain collectively with Gerard Nordenberg and any other duly designated representative of the Union. LONG ISLAND JEWISH HILLSIDE MEDICAL CENTER