Beth Israel Hospital

National Labor Relations Board - Board Decisions

Apr 30, 1976

223 N.L.R.B. 1193 (N.L.R.B. 1976)

BETH ISRAEL HOSPITAL
Beth Israel Hospital and Massachusetts Hospital
Workers Union , Local 880, Service Employees In-
ternational Union , AFL-CIO. Case 1-CA-10200
April 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On July 25, 1975, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceeding. Thereafter, counsel for Respondent filed ex-
ceptions and a supporting 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 2 of the Administrative Law Judge and
to adopt his recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Beth Is-
rael Hospital, Boston, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied.
1. In paragraph 1(a) substitute "in any other man-
ner" for "in any like or related manner."
2. Substitute the following for paragraph 2(d):
"(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with."
' In sec . II, D, Discussion and Conclusions, of the attached Decision, the
Administrative Law Judge erred in stating that in Summit Nursing and Con-
valescent Home, Inc., 196 NLRB 769 (1972), the Board found lawful a rule
which prohibited union solicitation on company property even though it
was on employees ' nonworking time and in nonworking areas. This was the
Administrative Law Judge 's recommendation , and the Board reversed him.
2 Subsequent to the Administrative Law Judge' s Decision in this case, the
Board in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150
(1976), held that restrictions on solicitation and distribution in patient ac-
cess areas such as cafeterias violates Sec. 8(a)(1) of the Act. Accordingly, the
Respondent also violated Sec. 8(a)(1) by maintaining an overly broad no-
solicitation , no-distribution rule that prohibited all solicitation and distribu-
tion in all areas to which patients and visitors have access and employees
have access during nonworking time other than immediate patient care ar-
eas.
DECISION
STATEMENT OF THE CASE
1193
IVAR H. PETERSON , Administrative Law Judge : This case
was tried before me in Boston , Massachusetts , on April 24
and 25 based upon the complaint issued by the Regional
Director for Region 1 on February 21, later amended, and
the answer of Beth Israel Hospital , herein called the Re-
spondent or the Hospital , dated February 26. The com-
plaint was based upon the charges filed by Massachusetts
Hospital Workers' Union , Local 880, Service Employees'
International Union , AFL-CIO, herein called the Union,
dated October 29, 1974. In its answer , the Respondent ad-
mitted certain jurisdictional allegations but denied that it
had engaged in any conduct violative of the Act. Briefly
stated , the complaint alleged that the Respondent had en-
gaged in conduct violative of Section 8(a)(1) and (3) of the
Act, by initiating , promulgating , and maintaining a written
rule prohibiting (a) distribution of union literature in the
cafeteria and coffeeshop of the hospital, (b) solicitation ex-
cept on a "one-to-one" basis in the cafeteria and coffee-
shop . In addition, the complaint alleged that on or about
October 25 , by its agents, Dr. Mitchell T. Rabkin and Dr.
Stephen Robinson , the Respondent issued oral and written
warnings to an employee , Ann Schunior , threatening her
with dismissal if she continued to distribute literature in
the hospital's cafeteria . These warnings , according to the
complaint , included an oral warning by Dr. Rabkin on Oc-
tober 25 , and a written warning dated the same date, and
signed on October 28, by Dr. Rabkin and Dr . Robinson,
which threatened Schunior with discharge because she
joined or assisted the Union or engaged in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection . These acts, it is alleged , as carried
out by the Respondent, discriminated with regard to hire
or tenure or terms or conditions of employment of Schun-
ior, thereby discouraging membership in the Union and
constituting unfair labor practices within the meaning of
Sections 8(a)(3) and ( 1) and 2(6) and (7) of the Act. In its
answer , as subsequently amended , the Respondent admit-
ted certain jurisdictional allegations but denied that it had
engaged in any unfair labor practices.
Upon the entire record in the case ,' including my obser-
vation of the witnesses as they testified , and careful consid-
eration of the briefs filed with me on or about June 10, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Massachusetts corporation, is a non-
proprietary hospital in Boston and employs approximately
2,200 employees excluding house staff, attending physi-
1 The unopposed motion of counsel for the General Counsel to correct
the transcript of record is hereby granted.
223 NLRB No. 188
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cians , students , and employees of Harvard University, who
work on the premises . It is admitted , and I find, that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. It is further admitted, and
I find, that the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
Only five witnesses were called in this proceeding. All of
them , except Schunior, the alleged discriminatee , and the
director of personnel services , Anne Cronin , testified for
relatively short periods . The parties cooperated in formu-
lating a substantial number of stipulations which , together
with attached material , were introduced into evidence as
joint exhibits , thereby facilitating and shortening the hear-
ing considerably.
In May 1970 the Respondent issued a handbook to em-
ployees , which was revised in subsequent years , entitled
"Working Together ." This booklet contained information
concerning the hospital and its buildings, information re-
garding job qualifications , working hours and paydays,
and unemployment compensation ; it outlined details with
respect to salaries , overtime , merit increases , promotions
and transfers ; in addition , it set forth health and other ben-
efits available to employees , such as vacations , holidays,
sick leave, retirement plan, accident insurance , payroll sav-
ings plan , lunch and relief period, parking facilities, and
information concerning the cafeteria and coffeeshop. It
also contained hospital rules and the responsibilities of em-
ployees to the hospital with respect to appearance and con-
duct , confidential information , attendance and punctuali-
ty, and the like . A violation of a rule could either result in
immediate dismissal or, depending upon the nature of the
violation , be considered good and sufficient cause for dis-
missal . The handbook further stated that it was the general
policy of the hospital to give warning prior to dismissal.
The rules with which we are primarily concerned are as
follows : (a) rule 12, which forbade the "collecting money
or soliciting for any purpose on Hospital work time with-
out prior official approval of a Division Director"; (b) rule
13, which forbade "posting notices or distributing literature
on Hospital property without prior authorization of a Divi-
sion Director"; and (c) rule 17, which forbade "loitering on
the premises before and after working hours ." On July 23,
1970, Dr. Rabkin issued a newsletter to employees which,
among other things , provided that "petitions, discussions,
etc., amongst Hospital personnel should be carried out
only on a person to person basis at coffee breaks, meal-
times or after the working hours of all those involved." The
statement went on to provide that it "should not be inter-
preted as forbidding ordinary conversations , discussions,
etc., which do not interfere with work or the rights of
others . Direct confrontation and solicitation of the public,
staff and employees through leaflets , etc., must not be done
on Hospital property."
According to a decision of the Massachusetts Labor Re-
lations Commission, which was issued October 5, 1973,
and will be referred to subsequently , this clarification or
modification was necessary "because of anti-war and relat-
ed protests at that point in time `which could have caused
disruption and upset patients ."' The same newsletter went
on to state that "our experience has shown that many pa-
tients do become upset when those caring for them display
political emblems . Consideration of patients , therefore, in-
dicates that armbands , pins , etc., should not be displayed
on patient units ." In a newsletter dated March 22, 1973,
Dr. Rabkin issued "a simplified restatement of Hospital
rules with reference to employees ' activities on Hospital
premises," which provided that, among other things, "With
the exception of the United Fund and Combined Jewish
Philanthropies drives, no one may hand out literature or
solicit any employee, staff member or member of the
public for any purpose on Hospital work time, nor may
they do so in patient, visitor or other public areas"; and
that employees "are not to loiter on the Hospital premises
before or after working hours." According to the newslet-
ter, this "clarification of existing rules is necessary because
of the activities of a very few employees who apparently
have not been aware of Hospital policy."
B. Interference, Restraint, and Coercion
On March 26, 1973, an unfair labor practice charge was
filed by the Union with the Massachusetts Labor Relations
Commission , and, following the October 5 decision and
order handed down by the Commission, a special newslet-
ter was issued by Dr. Rabkin, on October 18, containing
the following new rules : (a) "Employees may distribute or-
ganization literature during non-working hours, such as
lunch periods or coffee breaks, in areas which are only for
employees , such as locker rooms and employee lounges";
(b) in conformance with past policy, "employees may con-
tinue to discuss any matter, including unions , during speci-
fied non-work times and may engage in such discussions
with fellow employees also not at work to enlist support of
their particular views in employee-only areas or in areas
where patients , visitors and employees not on duty are per-
mitted to congregate and intermingle , such as the cafeteria
and coffee shop"; and finally, the Hospital reaffirmed its
position "that our employees have the right to engage in or
refrain from organizational activities as they see fit within
the general Hospital guidelines, and we reemphasize once
again that the Hospital will not interfere in any way with
its employees ' self-organizational rights."
Under date of May 6, 1974, the Boston Hospital Work-
ers Organizing Committee, Service Employees Internation-
al Union, AFL-CIO, filed another unfair labor practice
charge before the Massachusetts Commission, in which it
was alleged that some employees were threatened with ar-
rest for distributing union literature in locker rooms. On
September 11, a settlement agreement was signed , which,
among other things, provided that the hospital would not
interfere with the right of employees "to distribute union
organizational literature in employee-only areas," or pre-
vent the distribution of union literature "by employees dur-
ing non-working time in employee-only areas of the hospi-
tal" or threaten "to arrest employees who persist in their
attempts to distribute union literature on non-working time
in employee-only areas of the hospital" or otherwise disci-
BETH ISRAEL HOSPITAL 1195
pline them for so doing. In a newsletter dated September
19, Dr. Rabkin admitted that on at least one occasion a
security guard did violate the hospital's rules in a situation
where literature distribution was permitted and, in conse-
quence, the Respondent undertook to reinstruct all of the
guards. In newsletters issued early in July, Dr. Rabkin set
forth the solicitation rule which continued in effect until
the issuance of the complaint in this proceeding. It provid-
ed as follows:
Hospital employees who want to solicit other em-
ployees for the Union or other causes may do so when
they are not on their own working times, but only in
two well-defined locations of the Hospital:
1) Employee-only areas-employee locker rooms
and certain adjacent rest rooms; and
2) Cafeteria and coffee shop.
In the locker areas literature may be offered. In the
cafeteria and coffee shop, conversations may take
place on a one-to-one basis but there is to be no set-
ting up of special tables, public distribution of litera-
ture nor any form of coercion. Elsewhere within the
Hospital, including patient-care and other work areas,
the lobbies, corridors, elevators, libraries, meeting
rooms, etc., there is to be no solicitation nor distribu-
tion of literature. Soliciting of patients and visitors is
expressly prohibited at all times and places.
On October 25, Schunior, the alleged discriminatee, dis-
tributed the union newsletter, "As We See It," while on her
lunch hour in the cafeteria. Dr. Rabkin gave her a verbal
warning and subsequently a final written warning. It recit-
ed that he had observed Schunior "carrying a pile of `As
We See It... and "walking around from one table to the
next offering the newsletter to people sitting at luncheon"
and that she "was not engaging in specific one-to-one con-
versation with any particular individual and then handing
over a copy of the newsletter" but, instead, "was table-
hopping and offering the newsletter generally to anyone in
her immediate vicinity." According to Dr. Rabkin, Schun-
ior, in response to his statement that she was violating
hospital regulations, replied with the inquiry whether he
was aware of the fact that NLRB regulations "were differ-
ent from those of the Massachusetts Labor Relations Com-
mission and that what she was doing was consistent" with
Board regulations. An unfair labor practice charge was
filed by the Union with the Board, in view of the fact that
the Board had recently asserted jurisdiction. Under date of
March 5, 1975, the solicitation rule was changed to provide
as follows:
There is to be no soliciting of the general public
(patients, visitors) on Hospital property. Soliciting and
the distribution of literature to BI employees may be
done by other BI employees, when neither individual
is on his or her working time, in employee-only ar-
eas-employee locker rooms and certain adjacent rest
rooms. Elsewhere within the Hospital, including pa-
tient-care and all other work areas, and areas open to
the public such as the lobbies, cafeteria and coffee
shop, corridors, elevators, gift shop, etc., there is to be
no solicitation nor distribution of literature.
Solicitation or distribution of literature on Hospital
property by non-employees is expressly prohibited at
all times.
Consistent with our long-standing practices, the an-
nual appeal campaigns of the United Fund and of the
Combined Jewish Philanthropies for voluntary chari-
table gifts will continue to be carried out by the Hos-
pital.
C. The Discipline of Schunior
Schunior, a research technician in the department of
medicine, had worked at the hospital a little over a year.
On her lunch hour on October 25 she distributed union
literature. She testified that prior to the election in April,
she had never been in the locker room area but since then
she had been in there probably once a week or once very 2
weeks because, as she testified, that was "the only place we
can legally distribute As We See It, and talk to employees
about the Union, and that is what I do there." She testified
that she had been in two women's locker rooms and that
she had seen nothing posted on the bulletin board in either
locker room. Schunior eats lunch in the cafeteria 3 or 4
days a week and, in addition, has coffee there one or two
mornings a week before going to work. In the course of her
duties she goes through the cafeteria as often as a dozen
times a day. She testified that there were many differences
between employees and nonemployees, and mentioned
that many of the employees wear uniforms and most wear
name tags. In addition, she added that after working a
period, one begins to recognize faces of people one sees
daily. On the other hand, visitors do not wear name tags or
uniforms and they generally appear unfamiliar with things
associated with the cafeteria line. With respect to patients,
which are of two kinds, in-patients and out-patients, the
former, so she stated, "generally look like patients" and, on
occasion, they come into the cafeteria in bedclothes and
wear wrist bands. On the other hand, she stated that there
was generally no way of distinguishing out-patients from
visitors.
On the day that she distributed literature she was in the
cafeteria going from table to table handing out the pam-
phlets. She stated that as a general rule she asked people
that she thought were employees if they would like a copy
of "As We See It," the union pamphlet. If she thought that
the individuals might be visitors, she first asked if they
were employees and explained that she was passing out
literature for employees. Schunior testified that there was a
table in front of the nonofficial bulletin board which had
been there since she began working, and that on one occa-
sion she saw someone, whom she thought to be an employ-
ee, place some literature on the table. As she recalled, this
was either at lunchtime or perhaps at breakfast time. She
observed employees take the literature that had been
placed on the table.
The Respondent distributes its newsletter, as well as
other literature on occasion, with employee paychecks.
Robert Hess, a respiratory therapist who had worked at the
hospital over 6 years, testified that travel advertisements
were occasionally included with the paychecks and that he
"found it somewhat irritating to get a paycheck . . . and
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then get travel ads for more than the paycheck totaled. In
one case there were six of them distributed with the pay-
check ." Cronin testified that she eats in the cafeteria about
20 percent of the time and that on occasion she is able to
distinguish employees from nonemployees , but she said
that as to a large number she cannot distinguish whether
they are Beth Israel employees or employees from other
hospitals , students , or volunteers . With respect to whether
all employees wear hospital name tags , Cronin stated that a
large number of employees on occasion forget to wear the
tags which , according to her , "is a constant source of con-
cern of many of our department heads, who certainly urge
it."
As stated above, Dr. Rabkin orally warned Schunior on
October 25, the day she distributed the union pamphlet
during her lunch hour, and subsequently she was given a
final written warning, which stated that she "continued to
violate" the rule "despite several verbal warnings" that she
was "in flagrant violation of such rule and admission on
your part of your knowledge of the existence of such rule."
The notice stated that further violation would result in dis-
missal.
D. Discussion and Conclusions
The record shows that solicitation and distribution rules
affecting the cafeteria have been relaxed in certain situa-
tions. Thus, during March posters publicizing the hospital's
"buck a day" program, a cost reduction effort , were dis-
played in the cafeteria . A travel brochure rack is situated
adjacent to the nonofficial bulletin board , a car pool board
is posted in the same area , and during National Nutrition
Week a table was set up in the cafeteria on which was
placed literature concerning nutritional ideas for the infor-
mation of employees , patients , and visitors . Moreover,
from time to time certain commercial literature has ap-
peared on a table underneath the nonofficial bulletin
board , relating to tennis camps , film processing, magazine
subscriptions, and insurance applications. As previously
noted , since at least 1966 , the hospital has permitted solici-
tation for the United Fund and for the Combined Jewish
Philanthropies. These drives are publicized through news-
letters accompanying paychecks, and tables have also been
set up in the cafeteria for the distribution of pledge cards.
Also, there is evidence of similar distribution of newsletters
giving information concerning the establishment of a credit
union for employees, inviting volunteers to provide medi-
cal assistance to Israel to contact a certain organization,
and patient information booklets ; on occasion , there have
been collections within departments for employee gifts on
such occasions as weddings , births and so forth.
Counsel for the hospital , in his brief, lists "a sampling of
the content of the union monthly leaflet ," including,
among other things , a complaint that there was so little
linen that patients had to do without, allegations that the
chest physical therapy department was understaffed during
Sundays and evenings , that patients went without adequate
nursing care for several months early in 1974, an article in
the July edition alleging that an employee claimed she was
totally ignored during her stay at the hospital as a patient
giving birth , an item in the September issue commenting
favorably upon an employee work stoppage in the main
kitchen which included an inquiry as to whether the hospi-
tal administration really cared about patients and, if so,
why were not good signs provided to direct patients out of
the hospital and containing also the statement that "when
weekend comes as far as dietary bosses are concerned, the
patients can go to hell." Counsel for the hospital argues
that the distribution of such literature "containing contro-
versial, unsubstantiated statements that compromised the
reputation of the hospital as a quality provider of patient
care cannot be tolerated by the hospital nor should it be
condoned or authorized by the board." Furthermore, he
argues that the Board "should not permit a hospital envi-
ronment to be infected with the virulent vitriolic vitupera-
tion which is self-evident in the propaganda" of the Union
and maintains that the distribution of such literature would
indeed upset patients and visitors whereas the literature,
previously referred to, that has been allowed to be distrib-
uted, is "clearly noncontroversial innocuous and would not
upset patients or patients ' visitors."
In her brief, counsel for the General Counsel observes
that it is "a delicate task" to weigh and balance conflicting
rights such as are here involved where the right of employ-
ees to receive information about union organization guar-
anteed under Section 7 of the Act, and the right of an
employer to use his property, are involved. She notes that
the present case "is made even more complex by the rights
of a third party, the rights of the patient," and that the
"herculean task of weighing and measuring" must be ap-
proached with a view to arriving at a solution that "causes
the least amount of harm to the greatest number of inter-
ests." It is the position of counsel for the General Counsel
that the rules of the Respondent "are restrictive because
they are overbroad, that they are selectively enforced and
that the reasons given for their enforcement are fallacious
and deceptive." She then reviews the principal Board and
court decisions in this area. In one of the early leading
cases, Peyton Packing Company, Inc., 49 NLRB 828 (1943),
the Board made the following observations:
The Act, of course, does not prevent an employer
from making and enforcing reasonable rules covering
the conduct of employees on company time. Working
time is for work. It is therefore within the province of
an employer to promulgate and enforce a rule prohib-
iting union solicitation during working hours. Such a
rule must be presumed to be valid in the absence of
evidence that it was adopted for a discriminatory pur-
pose. It is no less true that time outside working hours,
whether before or after work, or during luncheon or
rest periods, is an employee's time to use as he wishes
without unreasonable restraint, although the employee
is on company property. It is therefore not within the
province of an employer to promulgate and enforce a
rule prohibiting union solicitation by an employee
outside of working hours, although on company prop-
erty. Such a rule must be presumed to be an unreason-
able impediment to self-organization and therefore
discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to
maintain production or discipline.
BETH ISRAEL HOSPITAL
Subsequent decisions have applied and refined the Pey-
ton Packing rule, and the present Board policy may be
summarized as follows:
(1) A rule forbidding distribution of union literature
by employees in working areas is presumptively valid
even when applied to working and non-working time.
(2) A rule forbidding distribution in non-working ar-
eas during non-working time is presumptively invalid.
(3) A rule forbidding union solicitation by employees
during their non-working time, even though limited to
working areas, is presumptively invalid.
(4) A rule forbidding union solicitation during work-
ing time in any plant area is presumptively valid.
(5) A presumption of validity may be overcome if it
can be shown that the rule is discriminatory rather
than attributable to the right of the employer to pro-
tect his legitimate property interests.
For the purposes of this decision, I assume that lunch
periods of persons employed in capacities such as Schun-
ior are paid time .2
The Board has dealt with this problem in several cases
involving hospitals or nursing homes. Thus, in Summit
Nursing and Convalescent Home, 196 NLRB 769 (1972), the
Board prohibited union solicitation on company property
even though it was on the employee's nonworking time and
in nonworking areas . The Board there stated (at 770)
that it was "significant that employees were previously so-
licited, during working hours and in work areas, for gifts
for departing employees, with the Respondent's knowl-
edge," and that one employee engaged in selling dishes
while at work with no apparent adverse effects upon the
institution's operations. In addition, the Board found no
evidence that the distribution of union literature created a
litter problem or in any way interfered with the efficient
operation of the institution.
In another recent case, Bellaire General Hospital, 203
NLRB 1105, 1111 (1973), the Board held invalid a rule
which prohibited solicitation for a labor organization dur-
ing nonworking time and the distribution of union litera-
ture during nonworking time in nonwork areas . In that
case, the Board ordered the employer to inform its employ-
ees "that they are free to engage in distribution of union
literature in nonwork areas of its premises during non-
working time, and to engage in union solicitation on its
premises , during nonworking time ...."
In the third case , Guyan Valley Hospital, Inc., 198 NLRB
2 See the Board 's decision in United Aircraft Corporation (Pratt & Whitney
Division), 180 NLRB 278 (1969 ). In my decision in that case , which was
adopted by the Board , I referred to decisions such as Olin Industries v.
N.L.R.B., 191 F.2d 613 (C.A . 5), enforcing 86 NLRB 203 (1949). where the
Board has held, with court approval , that free time , such as for lunch or rest
periods, even though paid for, was properly to be regarded and treated as
nonworking time , during which union solicitation activities might be under-
taken . In that case , the court observed that the Board has "properly ap-
proached this problem of solicitation on company property on the basis of
the distinction between actual and nonworking time, rather than on the
basis of the immaterial distinction between paid and unpaid time ." Howev-
er, in the United Aircraft case I came to the conclusion that the term "work-
ing hours" appeared to have been equated with "paid time ." Solicitation by
nonemployee organizers is treated differently . See, for example , Babcock &
Wilcox Co., 352 U.S. 909 (1956), and Sabine Towing, 205 NLRB 423 (1973).
1197
107 (1972), the Board affirmed the finding of its Adminis-
trative Law Judge that a rule that prohibited solicitation in
working areas during working hours was valid. In that
case, the Board observed that the rule prohibited solicita-
tion only in the "working area" of the hospital, without
deciding on what precisely constituted working areas ex-
cept that the Administrative Law Judge referred to these as
hallways, elevators, stairs, patients' rooms, gift shops and
so forth.
Counsel for the General Counsel contends that the
Respondent's rule, being overbroad, results in restricting
the organizational rights of employees. In the first place,
the contention is made that employees are limited by rea-
son of the rule to solicitation and distribution in the em-
ployee-only locker rooms. In this connection, it is noted
that lockers are scattered throughout the hospital in some
63 locations, but that it is necessary to distinguish between
lockers and locker rooms. Thus, there are only four large
locker rooms plus two smaller rooms which in total contain
613 lockers available to employee organizers from all de-
partments. In addition, there are locker areas containing
470 lockers, but available only to employees who are as-
signed lockers in those areas. In sum, counsel contends
that this "simply does not give the 2,200 employees ade-
quate opportunity to receive information from their fellow
employees under Section 7." Moreover, some locker areas
are quite small, which means that employees assigned
space in those areas "could not receive literature there un-
less one of their members would distribute or solicit."
Moreover, it is pointed out that these locker areas are in
large part divided into male and female rooms, so that this
further restricts their availability to all employees. Finally,
counsel for the government notes that the Respondent
"does not use the locker rooms to dispense information.
There is no bulletin board in one large female locker room
and the other female locker room has a bulletin board with
nothing posted on it. Publicity concerning the overwhelm-
ing BAD campaign . . . was placed in some locker rooms
while the rest of the hospital was apparently inundated by
publicity."
Counsel for the government argues that the geographical
location of the Respondent's hospital, in a busy urban
area, and with many doors available for entrance or exit,
demonstrates that employees "may come and go without
reaching public property for some distance." Furthermore,
it is observed that hospital employees live in widely scat-
tered areas, and that the Respondent has stated that it will
not make a list of names and addresses of employees avail-
able to the Union unless an election has been ordered.
Counsel for the government further contends.that it is an
absurdity to restrict solicitation to the cafeteria area. Thus,
it is pointed out that solicitation on a one-to-one basis has
been underway for some time but, despite this, the Respon-
dent was unable to show any instance of injury to patients.
However, the restriction placed by the Respondent limiting
solicitation or prohibiting solicitation even in the cafeteria
obviously, so the argument .runs, constitutes a violation of
the Act "particularly since no special circumstances have
been shown and no injury has occurred." The cafeteria is
open at various hours from 6:30 a.m. to midnight, or a
total of 8 hours, not counting the morning coffeebreak.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a survey of cafeteria use conducted by the Respon-
dent in conjunction with an anticipated renovation of the
cafeteria the observation was made that the cafeteria "is
used by outsiders at each meal, of which the most heavy
usage is in the evening ." It is, of course , obvious that pa-
tients using the cafeteria are reasonably ambulatory and,
inasmuch as meals are provided on the various floors of the
hospital, the percentage of patients using the cafeteria is
relatively small . Counsel for the govenment states that it is
not contended "that all non-patient non-work areas should
be open to solicitation and distribution" but that, "where,
as here, the cafeteria is obviously planned primarily for
employees and actual employee use is high it is a violation
of Section 7 to prevent employees from soliciting therein."
Pointing out that the Respondent utilizes the cafeteria
area for communication with employees, as detailed previ-
ously , government counsel argues that it is thus clear that
the Respondent "recognizes that the locker rooms are in-
adequate for distributing and gathering information. The
most reasonable way to reach employees is through news-
letters and through direct contact in the cafeteria and cof-
fee shop. The Respondent uses both freely, allowing solici-
tation and distribution of non-commercial and commercial
material."
It is additionally contended that further inconsistencies
are apparent in the policy of the Respondent. Thus, it is
pointed out that newsletters from the general director are
given to employees with their paychecks and that the
checks and newsletters are customarily picked up by an
individual from each department and then distributed in
the department or work area. Attention is called to the fact
that these newsletters have been used for a variety of solici-
tations: for example, a letter dated October 31, 1974, called
attention to the fact that the election ballot would carry a
referendum question asking voters whether they approved
the reorganization of State agencies that regulate health
systems in the Commonwealth , and expressed the opinion
that it seemed advisable to vote for reorganization. The
newsletter of October 17, 1974, described the credit union
and informed employees of a table set up outside the cafe-
teria at which they could register ; the same letter told
about the United Fund and suggested payroll deductions.
In others , a scheduled meeting to answer questions with
respect to the credit union was described and funds were
requested for the Israel Emergency Fund.
I concur in the finding of Administrative Law Judge
Constantine, approved by the Board, that inasmuch as the
Respondent "sanctioned solicitations of various kinds dur-
ing working hours and approved of suppers prepared dur-
ing such hours" the Employer's according of "solicitation
privileges to non -union matters while withholding them
when union activities were involved is disparate treatment
forbidden by the Act." 3
Finally , counsel argues that the contention of the Re-
spondent that it is protecting the rights of patients is a
"sham," and that the Respondent "is picking and choosing
those activities thought to be noteworthy or in its own in-
terest," observing that the only material "kept away from
employees is that calculated to hurt the Respondent." In
this regard, counsel notes that in the special newsletter
from the general director under date of January 16, 1973,
in which it was stated that "union organizers have been
urging employees to have a union to represent them," and
that it was his view that a union "has no place at Beth
Israel Hospital" and that the "disruptive activities of the
union organizers demonstrate their lack of true concern for
both B.I. patients and employees." Additionally, he ob-
served that "the Union's primary concern today is the
thousands of dollars they will gain from employees' dues,
dollars to come directly out of your pocket." Regarding the
Respondent's stated concern for the well being of patients
and visitors, counsel for the General Counsel notes that the
January 1975 issue of Beth Israel News, which is distribut-
ed to visitors, on the first page, had a red headline entitled
"RAPE RAPE" in which it was noted that rape "is the fastest
growing violent crime in the United States." The article
went on to state that as "a response to the increased inci-
dents of the crime and the recognized needs of the victims,
a multi-disciplinary team at the Beth Israel Hospital, ..
has organized a rape crisis intervention program."
To summarize, it appears to me that, upon analysis, the
record shows that there are relatively few places where em-
ployees can congregate or meet on hospital grounds or in
the nearby vicinity for the purpose of discussing nonwork
related matters other than in the cafeteria; secondly, the
area in the neighborhood of the hospital is congested and
provides no ready access to employees; finally, I am not
persuaded that the Respondent has offered any convincing
evidence to demonstrate that the rule is needed, either by
reason of actual or suspected interference with patients,
visitors, or nonemployees. Thus, I am unable to find that
the Respondent has made a sufficient showing of impair-
ment with its principal obligation, namely, the care of pa-
tients, to justify the rule. Accordingly, I conclude and find
that the rule and its application and enforcement as re-
vealed by this record are violative of the Act. In so finding,
I do not mean to suggest that the Respondent is powerless
in this situation. It would appear to me that the Respon-
dent, either unilaterally or in conjunction with the repre-
sentatives of its employees, could devise lawful regulations
governing employee activity in this area.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
3 Imco Container Company. 208 NLRB 874 (1974). within the meaning of Section 2(2), (6), and (7) of the Act.
BETH ISRAEL HOSPITAL 1199
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By initiating, promulgating, and maintaining a writ-
ten rule prohibiting distribution of union literature and
union solicitation except on a "one-to-one" basis in its caf-
eteria and coffeeshop, the Respondent violated Section
8(a)(1) of the Act.
4. By issuing oral and written warnings to its employee,
Ann Schunior, threatening her with discharge if she contin-
ued to distribute literature in the cafeteria, the Respondent
violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
IV. THE REMEDY
union literature and union solicitation in its cafeteria and
coffeeshop.
(c) Post at its place of business in Boston, Massachu-
setts, copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of receipt of this Decision
what steps the Respondent has taken to comply herewith.
Having found that Respondent engaged in and is engag-
ing in certain unfair labor practices it will be recommended
that it cease and desist therefrom and take certain affirma-
tive action deemed necessary to effectuate the policies of
the Act . Having found that Respondent unlawfully initiat-
ed, promulgated , and maintained a written rule prohibiting
distribution of union literature and union solicitation ex-
cept on a "one-to-one" basis, in cafeteria and coffee-
ship , and issued oral and written arnings to an employee,
threatening said employee with discharge in the event she
continued to distribute literature in the cafeteria, it will be
recommended that the Respondent rescind the aforesaid
rule, and expunge the written warning to said employee
from her personnel record.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in these pro-
ceedings and pursuant to Section 10(c) of the Act , I hereby
issue the following recommended:
ORDER4
Respondent, Beth Israel Hospital, Boston, Massachu-
setts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from disciplining employees or
otherwise discriminating against them with regard to the
tenure of their employment or any other term or condition
of employment for engaging in concerted union activities
for their mutual aid or protection, or in any like or related
manner, interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Expunge from the personnel record of Ann Schun-
ior the written warning issued to her concerning distribu-
tion of union literature in the Respondent's cafeteria.
(b) Rescind its written rule prohibiting distribution of
4In 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, recommendations and recommended Order herein shall, as
provided by 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.
5In 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give evi-
dence , the National Labor Relations Board has found that
we violated the National Labor Relations Act and has or-
dered us to post this notice and we intend to carry out the
Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that in with, re-
strains, or coerces employees with respect to these
rights.
WE WILL NOT discourage membership in Massachu-
setts Hospital Workers Union, Local 880, Service Em-
ployees International Union, AFL-CIO, or any other
labor organization by discriminating against any of
our employees because of their support of the Union
and their activities in connection therewith.
WE WILL expunge from the personnel record of Ann
Schunior the written warning given her for distribut-
ing union literature in the cafeteria.
WE WILL rescind our rule prohibiting distribution of
union literature and union solicitation in the cafeteria
and coffeeshop.
BETH ISRAEL HOSPITAL