Bellaire General Hospital, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1973

203 N.L.R.B. 1105 (N.L.R.B. 1973)

BELLAIRE GENERAL HOSPITAL
Monterey Life Systems, Inc. d /b/a Bellaire General
Hospital, Inc. and Service Employees International
Union Local 670 , AFL-CIO. Case 23-CA-4310
June 4, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On October 25, 1972, Administrative Law Judge
Lloyd Buchanan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief to Respondent's exceptions and
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
The Administrative Law Judge found that Marshall
would not have been discharged but for the fact that
he had been soliciting for the Union. Our dissenting
colleague does not dispute this finding. Nor can he,
for Marshall was told that this was the reason for his
discharge. Nonetheless, our dissenting colleague is of
the view that Marshall should be denied reinstate-
ment. We do not agree. There is nothing in Board law
that requires that an employee be barred from rein-
statement merely because his work performance ex-
hibited some laxity with respect to the Employer's
rules and regulations, particularly where, as here,
there is no showing that the Employer enforced any
rules with respect to employee laxity. The record
shows that employee Marshall was discharged for
talking about the Union and not because he left his
work station. Accordingly, we think an order of rein-
statement is proper under the circumstances and in
accord with Board precedent. We do not think that
our colleague's assumption regarding an employee
who beats up a foreman is analagous to the present
situation. Nor do we agree with our colleague's sug-
gestion that the General Counsel has the burden of
showing that employees engaged in similar conduct
have traditionally received no discipline or lighter dis-
cipline. The General Counsel, by proving that the
Employer told Marshall he was discharged for assist-
ing the Union, has established his prima facie case. In
such circumstances, the disparate treatment of Mar-
1105
shall (or lack of it) becomes a matter for the Employer
to establish if he deems it relevant and material which
we hardly think it would be in the face of the
Employer's statement of the reasons for the discharge.
The General Counsel's burden is only to establish his
case by a preponderance of the evidence; here it is
overwhelming.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Monterey Life Systems,
Inc. d/b/a Bellaire General Hospital, Inc., Houston,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as modified below:
1. Delete the present paragraph 1(b) and substitute
therefor the following:
"(b) Interfering by rules, warnings, or threats with
the rights of its employees to solicit on behalf of Ser-
vice Employees International Union Local 670, AFL-
CIO, or any other labor organization, during their
nonworking time, or to distribute union literature dur-
ing their nonworking time in nonwork areas."'
2. In paragraph 2(b) insert a period after the word
"literature," and delete the rest of the sentence.
3. In paragraph 2(c) of the Administrative Law
Judge's recommended Order insert a period after the
work "time" and delete the words "except to the
extent that such activities violate published rules justi-
fied by considerations of production, discipline, or
security."
4. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
CHAIRMAN MILLER , dissenting:
I disagree with my colleagues on only one issue. I
agree with them on the issue of the impropriety of the
no-solicitation rule and of the initial warning to em-
ployee Marshall.
I would not order an employee reinstated who, as
the Administrative Law Judge specifically found,
"played fast and loose with a valid requirement con-
cerning notice of break; this at a time of stress in order
to satisfy his own purposes and in disregard of hospi-
tal rules."
That is a serious offense, and even if Respondent
may have unlawfully relied on the fact that while the
employee was committing this offense he was also
1 See Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d 177
(C.A 5, 1961), Stoddard-Quirk Manufacturing Co, 138 NLRB 615.
203 NLRB No. 151
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in union activity which would ordinarily be
protected from employer interference, I do not think
this alters the result. Assume, for example, that an
employee were to beat up a foreman while at the same
time verbally berating the foreman for his criticizing
a union. Assume, then, that the employer discharges
the employee , giving as its reason that the employee
was violating a rule prohibiting engaging in union-
supportive activity on the plant premises. Whether or
not the unlawful statement of the reason for discharge
might legally be found improper, I would not join in
an order reinstating the employee.
If the record contained evidence that the miscon-
duct here was not normally regarded as serious in this
hospital-such as might be shown by evidence that
other employees engaging in similar conduct had tra-
ditionally recieved no discipline or lighter discipline,
then one might question the true seriousness of his
misconduct-as well as, perhaps, the hospital
management 's seriousness of concern for the care of
its patients.
But there is no such evidence here.
In its absence, I think both sound statutory admin-
istration and good commonsense militate against my
colleagues ' order of reinstatement.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Ser-
vice Employees International Union Local 670,
AFL-CIO, or in any other labor organization, by
discharging employees because they engaged in
protected concerted activities or by discriminat-
ing in any other manner in respect to their hire
or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT interfere by rules, warnings, or
threats with the rights of our employees to solicit
on behalf of Service Employees International
Union Local 670, AFL-CIO, or any other labor
organization, during their nonworking time, or to
distribute union literature in nonwork areas dur-
ing nonworking time.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist Service
Employees International Union Local 670,
AFL-CIO, or any other labor organization, and
to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all
such activities.
WE WILL offer to Raymond John Marshall, Jr.,
immediate and full reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position , without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered
as a result of the discrimination against him.
WE WILL revoke and withdraw our existing no-
distribution and no-solicitation rules to the ex-
tent that they infringe upon employee rights with
respect to union solicitation or distribution of
union literature.
All our employees are free to engage in the distribu-
tion of union literature in nonwork areas of our prem-
ises, during nonworking time, and to engage in union
solicitation on our premises during nonworking time.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Ser-
vice Employees International Union Local 670, AFL-
CIO, or any other labor organization.
MONTEREY LIFE SYSTEMS,
INC. D/B/A BELLAIRE GEN-
ERAL HOSPITAL, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Froces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone 713-226-
4296.
DECISION
LLOYD BUCHANAN, Administrative Law Judge: The com-
plaint herein (issued May 9, 1972, charge filed April 10,
1972) alleges that the Company has violated Section 8(a)(3)
of the National Labor Relations Act, as amended, 73 Stat.
BELLAIRE GENERAL HOSPITAL
519, by discharging Raymond John Marshall , Jr., on April
7, 1972, because he engaged in protected concerted activi-
ties; and Section 8(a)(1) of the Act by such action and by
promulgating and maintaining an unlawful exclusionary
rule and unlawful no-solicitation , no-distribution rules, and
by warning of trouble and threatening discharge if such
rules were violated . The answer , as amended , denies the
allegations of violation.
The case was tried before me at Houston , Texas, on June
27, 1972. Briefs have been filed by the General Counsel and
the Respondent.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
AND CONCLUSIONS OF LAW
1. THE RESPONDENT 'S BUSINESS AND THE
LABOR ORGANIZATION INVOLVED
The facts concerning the Respondent's status involving
existence as a Delaware corporation and a subsidiary Texas
corporation , the nature and extent of its business as a pro-
prietary hospital , and its engagement in commerce within
the meaning of the Act are admitted; I find and conclude
accordingly . I also find and conclude that , as admitted, the
Union is a labor organization within the meaning of the Act.
11 THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of
Section 8(a)(1)
Aside from the question of employee rights to remain on
the premises after working hours , decision with respect to
almost all of the instances of alleged violation as itemized
in this case depends on the validity of the no-solicitation,
no-distribution rules and their enforcement.
It may be stated as a general proposition that, except for
those circumstances which the cases recognize as warrant-
ing restrictions on the employer's use of its own premises,
such restrictions being imposed because of employee rights
to engage in protected activities as during nonworking time,
and beyond that in those unusual situations where the right
of access to employees because of their organizational rights
warrants limitations on the employer 's rights to restrict (as
by no-solicitation and no-distribution rules) both use of its
property and also extension of rights to engage in organiza-
tional activity-except for such circumstances and situa-
tions, the employer may regulate the use of working time for
which he pays and the employment site which he provides.
This is recognized in the law and indeed in any orderly
economy.
It is in determining special circumstances and the need
for limitation or extension of rights that various problems
arise , the facts need to be weighed , and ad hoc decisions are
necessary as accommodation is sought between organiza-
tion rights and property rights.
With respect to the other principal question here, the right
to limit employees ' presence on the premises , it is not for us
to determine for employees the relative advantages of the
1107
home, which they have left earlier than the job requires or
to which they return later, over their place of employment;
or the preference to be accorded the marital bed and other
associations over talk with their peers, whether in the lunch-
room, on the parking lot, or in a bar. Employee interests,
preferences, and personal relationships will dictate such de-
cisions except (this is the converse of the employer's right
noted above to limit employees' activities) where an
employer's property rights require limitations on employee
efforts to organize and particularly to remain on the prem-
ises outside their working time.
With this said, it is for employees to determine how much
earlier than their work hours require they want to leave
home, how much later they want to return, and where they
want to stop on the way. But, except by invitation, the place
of employment is not a stopping place on the way to work
beyond the needs of access and the normal amenities. As in
any other case, the invitation, if any, is by the owner or
lawful occupant of the property. Normally an employee's
right to dispose of his own time at a place of his choice is
limited by lawful demands on his time and by the rights of
the owner of the place.
Thus an employee arriving at or leaving his place of em-
ployment has, must be accorded, and may be limited to a
reasonable amount of time to prepare for work and depar-
ture , whether that time be paid for or not. Here again are
problems, facts to be considered, and decisions to be made.
Here too it is not surprising that differences will arise con-
cerning what is reasonable and necessary under certain con-
ditions; and dissents will be noted. Accepting the concept
of conflicting rights and the need to reconcile them, what
decisions are indicated in the instant case?
The Respondent apparently regards such distribution
and solicitation to be unwarranted inquilinism and in disre-
gard of its property rights. The Union and the General
Counsel on the other hand charge the Respondent with
attempt at luxation of reasonable organizational efforts.
Prior to March 2, 1972, the Respondent maintained in its
distributed employee handbook, as earlier approved and
revised in July 1971, the following rule:
NON-SOLICITATION POLICY
The hospital will not permit any type of selling or
solicitation, business or otherwise, within the hospital,
or on its property, without written consent of the ad-
ministrator or his delegate. This includes, but is not
limited to, the distribution of commericial or other lit-
erature, the soliciation of funds, or the selling of any
product, subscription, or service, by any employee, vis-
itor, or other person, either before, during, or after
working hours. The provision does not apply to activi-
ties of the Women's Auxiliary or the United Fund, nor
does it apply to those firms or individuals supplying the
needs of the hospital itself.
A rest period (coffee break) of 15 minutes shall be
provided twice daily as scheduled by the department
head.
A superseding rule was posted on March 2, 1972, as fol-
lows:
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NO SOLICITATION POLICY
The hospital will not permit any type of selling or
solicitation within the hospital or on its property with-
out written consent of the Administrator or his dele-
gate , by any third person on any occasion or by
employees while off duty or during working hours, or
under any circumstances where it will interfere with the
work of others.
This provision does not apply to activity of the
Women's Auxiliary or to any firm or individual sup-
plying the needs of the hospital itself . No person shall
remain on the premises of the hospital at any time
when not on duty , for any purpose.
While we bear in mind that, because of the nature of the
business, solicitation in certain areas might be prohibited,
these rules make no distinction with respect to location,
whether in patients' rooms , at nurses' stations , in the cafete-
ria, on parking lots, etc .; nor with respect to time , whether
on lunchtime , breaktime , or immediately before or after
work . Here it must be noted that the prohibition in the latter
rule referred to working hours, and was not limited to work-
ing time . Aside from the fact that any ambiguity must be
charged to the Respondent ,' the all-inclusive reference to
working hours in the earlier rule indicates that that phrase
does not in this case allow for nonworking time during
working hours . The Respondent 's brief recognizes the dis-
tinction and the fault in the rule as counsel , correctly refers
to "solicitation on working time, during working hours." I
shall deny myself the pleasure of frolicking among the deci-
sions concerning limitations , as here, on free time activity
during working hours . Such decisions have been many times
reviewed , explicated , and learnedly distinguished.
In Diamond Shamrock 2 the Board found to be "presump-
tively invalid" rules which barred employees who, as here,
returned at the end of the shift following their own . It would
appear that the Board modified its position in the more
recent McDonnell Douglas Corporation case,3 where it held
invalid a rule barring employees from company premises
during "a reasonable period before and after [their working]
hours." Arguing against the attack on vague reasonability,
the dissent in McDonnell Douglas points out that the em-
ployees were at the plant not more than one-half hour be-
fore and after their shift . We do not in the instant case reach
the question of reasonableness . Employees are here forbid-
den to remain on the premises "at any time when not on
duty," without any allowance of a reasonable period. Fur-
i Farah Manufacturing Company, 187 NLRB 601. Interestingly, the finding
and conclusion in the instant case can be reconciled with the several opinions
in Daylin, Inc., Discount Division d/b/a Miller 's Discount Dept. Stores, 198
NLRB No. 40.
Z Diamond Shamrock Co., 181 NLRB 261, enforcement denied 443 F 2d 52
(C.A. 3, 1971).
3 McDonnell Douglas Corporation , 194 NLRB 514. My own thinking in this
was indicated some years ago, the Board deeming it "unnecessary" to pass
upon the point : The status of an employee who returns to the premises after
his shift is "little if at all more than that of an outsider although he had
reentered the plant because he was an employee."
ther and going well beyond McDonnell. Stevenson, the hos-
pital administrator, interpreting this rule, told us that em-
ployees were not to "show up fifteen minutes or thirty min-
utes or forty-five minutes early." I find and conclude that
the two no-solicitation rules and the rule against remaining
on the premises are violative.
Attempting to defend the latter rule, the Respondent tes-
tified that a representative of the wage and hour division
had dceclared that an unwilling employer must pay for time
spent on organizational activity by employees beyond their
working hours. The answer to this is that no such regulation
or interpretation can directly or indirectly deprive employ-
ees of their statutory rights to engage in protected concerted
activities (not assuming the correctness of the report of such
interpretation).
Marshall, who worked from 7 a.m. to 3 p.m., testified that
he returned to the plant at approximately 10:40 in the eve-
ning of February 7. After he had distributed a few union
leaflets near the timeclock as the shifts were changing, Kin-
gan, the director of nursing services, told him that he was
not to pass out literature on hospital property, whether at
the timeclock or on the parking lot; and when he replied
that he was permitted to under Federal regulations, she told
him to leave and that she did not want him to get into
trouble.
The rule prohibiting return to the property has been
found to be unlawful. Kingan testified that she referred to
both the time and the location and repeated the objection
to distributing literature in that area.
More might be said with respect to the time of Marshall's
appearance at the timeclock to distribute literature 8 hours
after his shift ended (or 8 hours before his next began) in
the light of the concept of reasonability recognized in Mc-
Donnell Douglas.4 But if the Respondent had any right to
exclude Marshall at that time under a concept of reason-
ableness (the existence of a rule invalid because of an unrea-
sonable area limitation gave Marshall no greater rights un-
der a valid time rule than he would have had there been no
invalid rule), the joinder of the invalid time element with the
location of his activities on the Respondent's property made
his exclusion and the warning given him in that connection
unlawful; and I so find and conclude.
This incident reported to him by Kingan, Stevenson
about a week later repeated the offenses by pointing out to
Marshall that it was not permitted to solicit or distribute
material on behalf of the Union on the premises, and threat-
ened him with discharge in connection with such rules.
Stevenson's version is that he told Marshall that because of
the wage and hour division policy, he could not have em-
ployees on the premises at any time other than when they
were working; that they would not be permitted to solicit on
the premises before or after their tour of duty, not in the
work area (this apparently regardless of whether the em-
ployees involved were or were supposed to be at work), nor
while Marshall or the other employees were at work; and
that they would be fired if they violated the rules. I credit
Marshall's detailed testimony in this connection.
Ibid
BELLAIRE GENERAL HOSPITAL
My finding and conclusion that the limitations now im-
posed were violative are supported by Stevenson's testimo-
ny that on March 27 he "more specifically" told Marshall
that the employees were prohibited from soliciting or dis-
tributing literature at the timeclock or on the cafeteria line;
they might do these things while seated at a table, but not
to employees at another table; and they were not to be on
the premises before or after working hours. The violations
of February 14 were in effect repeated on February 23 and
March 27, and I so find and conclude.
On February 2, the Union had by telegram informed the
Respondent that some 20 employees were members of the
organizing committee ; Marshall's name headed the list. The
conversation of February 23 ensued when Marshall handed
to Stevenson the following letter signed by six members of
the organizing committee , Marshall's name again first:
The union organizing committee of Bellaire General
Hospital (whose names have been telegrammed to you)
requests permission to distribute literature and union
cards to hospital employees concerning union member-
ship. This will be done only when both the organizer
and the employee being talked to are on their own time
(i.e. before and after work, on breaks, at meals). We
especially request permission to pass out literature and
cards at the time clock and on the parking lot to em-
ployees coming to or leaving work.
The allegation that on April? Kingan told Marshall that
he was being discharged for talking to another employee
about the Union during working hours is merged in the
allegation and findings with respect to the discharge, which
we shall now consider.
B. The Alleged Violation of Section 8(a)(3)
More complex because of countervailing factors, even if
not more difficult to decide , is the issue whether Marshall's
discharge on April? was discriminatory within the meaning
of the Act.
Marshall fatuously insisted at times on an equivalency
between breaktime and what he called lulls in work. (De-
spite his testimony that his own breaks depended on wheth-
er it was a heavy or a light day, it does not appear that on
so-called heavy days he did not take any breaks.) He recog-
nized the the existence of signout sheets which were to be
signed when an employee went on break ; his lulls, taken
when a nurse or the ward clerk knew where he was and
could readily reach him, did not call for signing out, he
insisted . He told us nevertheless that , before an incident
which we shall now describe, he looked for but could not
find the signout sheet.
At about 8:15 a.m. on April 7, when a morning training
class went on break, Marshall decided that he too would
take a break . He testified that there was now a lull in his
work although it appears more credibly that this was a very
busy time and a very busy day. He testified further that he
1109
waited for Chambers , a night shift employee who was in the
training class , and spoke to her for approximately 5 minutes
about organizing for the Union on the night shift. Admit-
tedly he had not been assigned that breaktime and had not
signed out.
A rule permitting employees where a department head
has not first scheduled breaks to inform a superior or sign
out before going on break is valid . Certainly it is "no way
to run a railroad" or a hospital for employees to take breaks
as they recognize "lulls" and conceivably all at the same
time without prior permission or notice . Marshall admitted
that even lunch periods were staggered among the employ-
ees. He recognized the requirement that he inform or sign
out when he went on breaks. That explains why he did
admittedly sign out "at times ." This latter fact and the fact
that he allegedly looked for but did not see a signout slip
on April 7 (Kingan credibly testified that one had been
posted) give the lie to his testimony that the need to sign out
had never been brought to his attention . He later admitted
that he had at times been told that he had to sign out when
he took a break; the Respondent admittedly wanted some-
one, if only the ward clerk, always to know where he was.
The ward clerk had been away and was away on April 7,
and Marshall had not reported to anyone else. His failure
to sign out or inform at other times and specifically on April
7 provided sufficient and valid reason for discharging him.
Were more necessary, it is clear that there was a shortage
of help on April 7. As noted it was a very busy day, and
Marshall had been told not to attend the training class that
morning but to stay on station and attend the afternoon
training class . This change in assignment is a measure of the
work to be done and the need for Marshall on the job that
morning . But he now played fast and loose with a valid
requirement concerning notice of break; this at a time of
stress in order to satisfy his own purposes and in disregard
of hospital needs . He violated a valid regulation and gave
less than that full devotion to the welfare of his patients
which is required by the Respondent , whose concern is
reflected in its operation.
Having said this I must point out that it is not our func-
tion or right to reward good service or to penalize indecency
of disregard of obvious duty. The issues here have to do with
statutory rights and obligations . Obviously the Respondent
did not now proceed with the care or legality which charac-
terized its March 23 letter to the employees , in which it
indicated the reasons for its opposition to unionization.
As we shall further note , Marshall was not discharged on
April 7 for not checking with a nurse or not signing the
signout sheet . Having inquired into the facts in that connec-
tion , Kingan ascertained that he had discussed union activi-
ty with Chambers. He admitted that, although he does not
usually take breaks at the station , he told Kingan that he
had been on break there , waiting for Chambers to emerge
on the training class break.
It could be argued that if rules be violative for limiting the
time or nature of solicitation , discharge for breaking such
rules is also violative even if the employee action cited
would have warranted discharge under a valid rule.' Fur-
5 The J L. Hudson Company, 198 NLRB No 19.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther explication in this connection is offered in the recent
Daylin case :6 "Therefore, if an employee is discharged for
soliciting in violation of an unlawful rule, the discharge also
is unlawful unless the employer can establish that the solici-
tation interfered with the employees' own work or that of
other employees, and that this rather than violation of the
rule was the reason for the discharge ." In the instant case,
Chambers, who was on break from the training class, was
not impeded in her work or other duties. But aside from any
such violative basis for finding the discharge was discrimi-
natory, Kingan made it clear that Marshall 's discharge was
not based on the fact that he entered into a discussion with
Chambers, but on the fact that he had been "discussing
union activities with her." In J. L. Hudson the Board relied
on "the inference that Respondent's concern was with the
nature of [the employee 's] activity rather than the circum-
stances under which it was performed ." We have more than
inference here.
Given an opportunity to explain what might have been a
poor choice of words, Kingan testified that she asked
Chambers what they had discussed, and that Chambers
replied that Marshall asked her to solicit for the Union on
the night shift . Noting again the union aspect of the discus-
sion which she found objectionable , Kingan testified that
Marshall had been told that "he could not solicit members
on duty or in a work area." (Emphasis supplied.) A valid
inference to be drawn from all of this is that Marshall would
not have been discharged had it not been discovered that he
had been soliciting for the Union or had he been talking
about something else.
After his discharge, Marshall spoke with Stevenson, who
testified that he told Marshall he had been discharged for
breaking the rules . We can rely on the testimony by Kingan,
who made the investigation and discharged Marshall, and
on the latter's testimony , both of the latter citing the refer-
ence to discussion of the Union as did Williams, the assis-
tant hospital administrator . Here we must bear in mind that
Kingan's investigation on April? was prompted by a report,
not that Marshall was off station or that he was taking a
break while remaining on station , but that he was engaging
in union activity or discussion . The Respondent is responsi-
ble for the declarations and acts of its supervisors, and
Kingan , as director of nursing services , supervises all of the
nurses, head nurses, and assistants in the various categories;
she ranks just below the hospital administrator and presum-
ably the assistant administrator.
Kingan's inquiry into the subject of Marshall's discussion
and the apparent explanation twice offered that the
Respondent's interest lay in his discussion of the Union and
that the discharge , valid reasons preexistent , was decided
upon only after she was told that it was a union talk, inject-
ed a new or at least an additional reason for the discharge.
A significant factor here was not merely that Marshall had
not signed out and was talking to another employee, but
that he was talking about the Union. To hold otherwise
would be to ignore as irrelevant and purposeless Kingan's
admitted desire "to make sure" that Marshall had talked
about the Union, and her inquiry of Chambers before she
6 Daybn, Inc, Discount Division d/b/a Miller 's Discount Dept Stores, 198
NLRB No. 40.
discharged him. Even if this was only a partial reason for
the discharge, and it clearly was at least that, what had been
the Respondent's right or within its power to effectuate
lawfully now created a right in Marshall to maintain a claim
of discrimination. His own shortcomings, not one whit less-
ened, were now covered by the unlawful triggering element
in the Respondent's action. Unlawful disparity was indi-
cated at that very point even if the Respondent could law-
fully have discharged Marshall for violating a valid and
general rule. I find and conclude that he was discriminatori-
ly discharged.
The circumstances here demand further, even repetitive,
explanation and analysis. We could understand and wholly
accept a less patient attitude toward Marshall. Certainly the
Respondent was understanding to the point of generosity in
permitting him to study or read on duty while work was
slack. His action on April 7 in the face of the requirements
of his job and specific orders to the contrary, in seeking to
further his own purposes, fully warranted immediate dis-
charge. Nor does his brazen prevarication as he attempted
to minimize his duties that morning prompt the feeling that
the action against him should have been less drastic.
But the law's proscription of discrimination cannot be
ignored. With every right and reason to discharge Marshall,
such action was not taken on discovery of his violation of
the orders given him, but only after the responsible supervis-
ing authority had inquired into the subject of his discussion
and learned that it was the Union. Here was unlawful discri-
mination which cannot be explained away or ignored. This
is no argument against generosity or leniency; for these an
employer may be commended. But the law is loud and clear,
and the violation is equally so.
Marshall's conduct is relevant only if it prompted the
discharge. But since it appears that the discharge was effect-
ed, not when that conduct was brought to Kingan's atten-
tion, but only after she learned that it had consisted of
organizational activity, the discharge which would other-
wise have been warranted violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
Respondent, Monterey Life Systems, Inc. d /b/a Bellaire
General Hospital, Inc., Houston, Texas, its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Service Employees In-
ternational Union Local 670, AFL-CIO, or in any other
labor organization, by discharging employees because they
engaged in protected concerted activities or discriminating
in any other manner in respect to their hire or tenure of
employment or any term or condition of employment.
(b) Interfering by rules, warnings, or threats with the
7 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes.
BELLAIRE GENERAL HOSPITAL
rights of its employees to distribute literature and to solicit
on behalf of Service Employees International Union Local
670, AFL-CIO, or any other labor organization, in non-
work areas during nonworking time unless the limitations
imposed on such activity can be justified by Respondent as
necessary to maintain production, discipline, or security.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Raymond John Marshall, Jr., immediate and
full reinstatement of his former position or, if that position
no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay sustained by reason
of the discrimination against him, with interest to be com-
puted in the customary manner;I and notify him, if he is
presently serving in the Armed Forces of the United States,
of his right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(b) Revoke and withdraw its existing no-distribution and
no-solicitation rules to the extent that they infringe upon
employee rights with respect to union solicitation or distri-
bution of union literature to any greater extent than Re-
8 F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co,
138 NLRB 716
spondent can establish is required in order to maintain pro-
duction, discipline, or security.
(c) Inform its employees that they are free to engage in
the distribution of union literature in nonwork areas of its
premises during nonworking time, and to engage in union
solicitation on its premises, during nonworking time, except
to the extent that such activities violate published rules justi-
fied by considerations of production, discipline, or security.
(d) Post at its place of business in Houston, Texas, copies
of the attached notice marked "Appendix."9 Copies of said
notice, on forms to be provided by the Regional Director for
Region 23, shall be posted by the Company, after being duly
signed by its representative, immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.1O
9 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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"
10 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read- "Notify
the Regional Director for Region 23, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."