Brockton Hospital

National Labor Relations Board - Board Decisions

May 11, 2001

333 N.L.R.B. 1367 (N.L.R.B. 2001)

BROCKTON HOSPITAL 1367
Brockton Hospital and Massachusetts Nurses Asso-
ciation. Cases 1–CA–35136 and 1–CA–35875
May 11, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On March 25, 1999, Administrative Law Judge Martin
J. Linsky issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, answering briefs, and reply briefs.1
The National Labor Relations Board has delegated 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,2 and conclusions3 as
modified and to adopt the recommended Order as modi-
fied.4
1. For the reasons stated by the judge, we agree that
the Respondent violated Section 8(a)(1) by prohibiting
the distribution of union literature in the vestibule adja-
cent to its front lobby.5 The General Counsel has ex-
cepted to the judge’s failure to address a separate com-
plaint allegation that the Respondent prohibited such
distributions anywhere on its premises. In support of this
exception, the General Counsel cites testimony by em-
ployees Terry Corcoran, Rinette Nadeau-Bates, Barbara
Cooke, and Carolyn Anderson that they were told, by
supervisors and agents of the Respondent, that they could
not distribute their literature on hospital property. This
testimony was disputed by the Respondent’s witnesses,
who testified that they only directed employees to stop
distributing the disputed literature in the vestibule.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The General Counsel has excepted to some of the judge's credibil-
ity findings. The Board's established policy is not to overrule an admin-
istrative law judge's credibility resolutions unless the clear preponder-
ance 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.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by maintaining an overly broad confidentiality policy, which is
cited at sec. III,D, par. 1, of his decision, we do not pass on the judge’s
suggested revisions to that policy.
In adopting the judge’s recommended dismissal of the complaint al-
legation that the Respondent violated Sec. 8(a)(3) and (1) by its 1997
performance appraisal of employee Terry Corcoran, in sec. III,G of his
decision, we rely additionally on the undisputed testimony by Nurse
Manager Mary Christian that Corcoran’s overall evaluation of “meets
expectations” was not affected by the fact that she was rated “needs
improvement” in the two areas of “may perform work of a higher level
in preparation for increased responsibilities” and “may be assigned
additional responsibility in absence of Nurse Manager,” out of 41 sepa-
rate evaluation elements.
4 We have modified the judge’s recommended Order to more closely
reflect the violations found and have issued a new notice to employees.
5 The judge also found, and we agree, that the Respondent violated
Sec. 8(a)(1) by prohibiting the distribution of union literature outside of
the BKB and outpatient/emergency entrance.
The judge did not explicitly address this complaint al-
legation in his decision. However, the judge did note that
there was a question in this case whether the nurses had
“been told that they could not distribute the literature on
Hospital premises.” After noting the existence of this
issue, the judge proceeded to find that Nurse Manager
McArthur told Corcoran and Nadeau-Bates to “cease and
desist’ from handing out literature in the front vestibule.”
(Emphasis added.) Likewise, the judge found that the
Respondent’s president, Norman Goodman, told Barbara
Cooke and Anderson “that they could not distribute lit-
erature in the vestibule” without a court order. (Emphasis
added.) In these circumstances, we find that the judge
implicitly credited the testimony of the Respondent’s
witnesses over that of the General Counsel’s witnesses
with respect to this issue.6 Accordingly, in the absence of
any credited testimony that the Respondent banned all
distribution of the disputed literature on its premises, we
shall dismiss this complaint allegation.
2. The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(1) by maintaining an overly broad no-
solicitation/no-distribution policy in its 1994 Associate
Handbook. That policy, in full, provides that

Associates shall not canvass, solicit, or distribute
literature for any purpose during an associate’s
working time or the working time of the associate at
whom such activity is directed.
Working time is defined as those periods in
which an associate is scheduled or assigned for duty.
It does not include authorized lunch time.
Canvassing, soliciting or distributing literature
may not occur at any time in patient rooms, halls and
corridors used by patients, treatment areas, patient
lounges and other areas where patients receive
treatment.
Canvassing, soliciting or distributing literature on
hospital premises by non-associates is prohibited.

In his decision, the judge addressed only the first two para-
graphs of this policy. The judge found that this language
was overly broad because it does not specifically exclude
6 Further supporting the judge’s implicit credibility determinations,
the Respondent’s May 7, 1997 memorandum to the Union concerning
the literature distributions states that “[w]e have asked you not to dis-
tribute literature where patients access the building.” (Emphasis
added.)
333 NLRB No. 165
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
breaktimes from the definition of working time. We do not
agree with this finding.
In Our Way, Inc.,7 the Board held that a rule against
solicitation or distribution of literature during “working
time” is presumptively lawful, and will not be con-
demned as ambiguous merely because the term “working
time” is not expressly defined for employees. Thus, the
term “working time” “connotes periods when employees
are performing actual job duties, periods which do not
include employees’ own time such as lunch and break
periods.”8 In Jay Metals,9 the Board found that the em-
ployer’s rule prohibiting solicitation and distribution of
literature during “working time” was lawful even though
the employees took short breaks as their work schedule
permitted and were paid for their lunch and breaktime.
The Board recognized that,

[t]o the extent, however, that the Respondent releases
employees from their duties for lunch or other breaks, it
would be inconsistent with Our Way to infer that the
Respondent’s no solicitation/no distribution rule would
apply to such periods—or that employees might rea-
sonably think that it did—merely because employees
are paid for such periods or because the breaks are in-
formally scheduled and may not overlap with the
breaks of other employees.10

Consistent with these principles, we find that, under
the circumstances of this case, the Respondent’s employ-
ees likewise would not reasonably believe that the prohi-
bition against solicitation or distribution of literature dur-
ing “working time” would apply to break periods merely
because the policy specifically excludes “authorized
lunch time” but does not also specifically mention
“breaktimes.”
As noted above, the judge addressed only the first two
paragraphs of this policy in his decision. In agreement
with the General Counsel’s exceptions, we hold that the
third paragraph of the policy is overly broad insofar as it
prohibits any solicitation or distribution of literature in
“halls and corridors used by patients.” The judge found
that substantially identical language, in the Respondent’s
administrative policy manual, violated Section 8(a)(1)
because its blanket prohibition extends beyond immedi-
ate patient care areas.11 We adopt this finding, for the

7 268 NLRB 394 (1983).
8 Id. at 395.
9 308 NLRB 167 (1992), enfd. 12 F.3d 213 (6th Cir. 1993) (per cu-
riam).
10 Id. at 168.
11 The judge stated, at sec. III,C, par. 7, of his decision, that the pol-
icy, as set forth in the administrative policy manual, is overly broad
because “If the hallway, corridor or area used by patients, families or
visitors is not deemed an ‘immediate patient care area,’ then solicitation
reasons stated by the judge, and we find the similar pro-
hibition, in the associate handbook, against solicitation or
distribution of literature in “halls and corridors used by
patients” likewise violates Section 8(a)(1).
Our dissenting colleague acknowledges that the Re-
spondent’s no-solicitation/no-distribution policies are
unlawful under well-established precedent. The dissent
argues that the Board should overrule that precedent and
allow hospitals to prohibit solicitation and distribution
“in areas where patients, their families, and visitors
spend a substantial amount of time.” In the dissent’s
view, such prohibitions—including the Respondent’s
policies set forth above—are presumptively lawful be-
cause solicitation or distribution of literature in those
areas could interfere with a hospital’s ability to care for
its patients.12
We adhere to the Board’s established precedent. Under
that precedent, a hospital’s prohibition of solicitation or
distribution of literature in immediate patient care areas,
even during employees’ nonworking time, is presump-
tively lawful.13 Restrictions on solicitation, during non-
working time, or distribution of literature, during non-
working time and in nonworking areas, however, are
presumptively unlawful even with respect to areas that
may be accessible to patients.14 The Supreme Court has
upheld these presumptions as consistent with the Act,15
and we find no support in the record of this case for de-
parting from these well-settled principles.
We stress that what is at issue is the facial validity of
the Respondent’s policies. As set forth above, the associ-
ate handbook and the revised administrative policy man-
ual ban any solicitation or distribution of literature in
areas beyond those which the Board has found to be im-
mediate patient care areas. On its face, the revised
administrative policy manual would even place off limits
all areas of the hospital used by patients, however infre-
quently, including the Respondent’s gift shop and cafete-

cannot be banned. If the hallway, corridor or area used by patients,
families or visitors is not a work area, then distribution cannot be
banned.”
12 Our colleague cites to testimony in this case tending to show that
the nature of health care is changing, and that patients’ health and
medical treatment may be adversely affected by increased levels of
stress and by a lack of trust between patients and medical professionals.
The dissent asserts, in essence, that patients, their families, and visitors,
must be broadly shielded from “union organizational campaigns,”
which often involve “controversy, heated debate, and talk of strikes and
industrial strife,” all of which could affect patients’ stress levels and
diminish their trust in their caregivers.
13 See St. John’s Hospital, 222 NLRB 1150–1151 (1976), enfd. in
part 557 F.2d 1368 (10th Cir. 1977); Eastern Maine Medical Center,
253 NLRB 224, 225–226 (1980), enfd. 658 F.2d 1 (1st Cir. 1981).
14 Id.
15 Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).
BROCKTON HOSPITAL 1369
ria and its vestibule area. The Board has, with court ap-
proval, consistently found that such sweeping limitations
on employees’ Section 7 rights are facially unlawful.16
Our colleague appears to concede that the Respondent’s
policies would be presumptively unlawful under his ap-
proach as well.17
We of course agree with our colleague that an “atmos-
phere of serenity” is a desirable goal in the hospital set-
ting. The Board’s presumptions regarding restrictions on
solicitation and literature distributions by hospital em-
ployees reflect a careful consideration of the interests of
patients, as balanced against the interest of employees to
exercise their Section 7 right “effectively to communi-
cate with one another regarding self-organization at the
jobsite.”18 As the Supreme Court has recognized,

16 See NLRB v. Baptist Hospital, 442 U.S. 773, 786–787 (1979) (af-
firming Board’s order insofar as it found that ban on solicitation and
literature distribution in “any area of the hospital which is accessible to
or utilized by the public” was unlawful with respect to the hospital’s
first floor cafeteria, gift shop and lobbies); Beth Israel Hospital v.
NLRB, supra (rule banning solicitation or distribution of literature in all
public areas violated Sec. 8(a)(1)); Eastern Maine Medical Center,
supra (rule banning solicitation except during breaktime in nonwork
areas was facially invalid and violated Sec. 8(a)(1)); and St. John’s
Hospital, supra (rule banning solicitation in all areas to which patients
and visitors have access was facially invalid and violated Sec. 8(a)(1)).
Intercommunity Hospital, 255 NLRB 468, 470–474 (1981), cited by
the dissent, is fully consistent with the principles articulated above. In
that case, the employer maintained a no-solicitation policy, which pro-
vided that
Employees may not solicit or distribute literature, for any purpose,
during working time. Employees may not solicit or distribute litera-
ture, at any time, for any purpose, in immediate patient care areas.
The Board found that the policy was facially lawful, and that, in the
particular circumstances of that case, the employer had lawfully applied
the policy to its halls and corridors and to its lobby and waiting room.
The Board was not faced with a sweeping ban on solicitation and litera-
ture distribution of the character present in this case. Likewise, the
Board is not presented, in this case, with the question of whether the
Respondent could lawfully have applied a facially lawful policy to
prohibit solicitation or distribution of literature in its hallways and
corridors. Cf. Intercommunity Hospital, supra at 472 (halls and corri-
dors adjacent to patient rooms, operating rooms, x-ray rooms, and other
immediate patient care areas are extensions of immediate patient care
areas in which solicitation presumptively may be prohibited).
17 In NLRB v. Baptist Hospital,supra, the Supreme Court declined to
enforce the Board’s order insofar as it prohibited the Respondent from
maintaining rules restricting solicitation and literature distribution in its
corridors and sitting rooms on patients’ floors. The Board’s Order in
this case does not contain any of the provisions found objectionable by
the Supreme Court in NLRB v. Baptist Hospital. Accordingly, the Su-
preme Court’s criticism of that aspect of the Board’s approach to solici-
tation and distribution of literature in hospitals, cited by the dissent, has
no bearing on the issues presented in this case.
18 Beth Israel Hospital v. NLRB, supra, 437 U.S. at 491. See also St.
John’s Hospital, supra, 222 NLRB at 1151 (“[o]n balance, the interests
of patients well enough to frequent such areas do not outweigh those of
the employees to discuss or solicit union representation”).
Here, as in many other contexts of labor policy, “[t]he
ultimate problem is the balancing of the conflicting le-
gitimate interests. The function of striking that balance
to effectuate national labor policy is often a difficult
and delicate responsibility, which the Congress com-
mitted primarily to the National Labor Relations Board,
subject to limited judicial review.”19

The balance struck by the Board has stood the test of time,
and we are not persuaded that there is any need to reexam-
ine that balance for the purpose of deciding this case.
3. For the reasons stated by the judge, we agree that
the Respondent violated Section 8(a)(1) by removing a
handwritten notice posted by employee Wendy Baron on
her locker concerning an upcoming union meeting at
Baron’s home.20 The judge additionally found that the
Respondent violated Section 8(a)(1) when Supervisor
Carla McRae told Baron that the handwritten notice was
“unprofessional.” Contrary to the judge, we find no evi-
dence to support a finding that this comment reasonably
tends to interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights. Baron testified that
McRae told her that she should have had the notice pro-
fessionally prepared and then submitted it to McRae, or
Supervisor Sue Davis, who would determine whether,
and where, it could be posted. Viewed in context, we
find that this comment refers only to the fact that the
notice was handwritten, rather than professionally pre-
pared, and cannot reasonably be construed as a charac-
19 Beth Israel Hospital v. NLRB, supra at 501 (quoting NLRB v.
Teamster Local 449, 353 U.S. 87, 96 (1957)).
20 We do not, however, adopt the judge’s statement that all of the
parties conceded that the practice at the hospital was that union meeting
notices could be posted in the locker room but that the person posting it
needed permission from management. The Respondent’s administrative
policy manual provides that employees must obtain approval from the
Respondent’s management before posting information on department
bulletin boards or common area bulletin boards. However, and consis-
tent with the position of the General Counsel and the Union, the testi-
mony credited by the judge clearly establishes that, in practice, “all
sorts of material was posted on lockers without prior permission and
were not removed by management.”
As discussed in the judge’s decision, art. VI of the 1994–1997 col-
lective-bargaining agreement between the Respondent and the Union
provided that the Respondent “will provide space on a bulletin board
for posting notices of Association meetings for nurses covered by the
Agreement. Copies of such notices shall be submitted to Vice President
of Human Resources or his designee prior to their being posted.” Pur-
suant to this clause, the Respondent provided the Union with access to
a bulletin board in its cafeteria. The judge found, and we agree, that
neither the plain language of this clause nor the record evidence con-
cerning the parties’ practice under the clause supports the Respondent’s
contention that the clause has any applicability to the posting of union
meeting notices, by individual employees, on an employee’s locker in
employee locker rooms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
terization of Baron’s union activities as unprofessional.21
While McRae’s opinion concerning the appearance of
Baron’s notice may have been gratuitous, as the judge
found, there is no basis, under the circumstances of this
case, for concluding that it thereby violated Section
8(a)(1).22
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3(d).
“(d) When it discriminatorily enforced a policy of re-
moving union notices from a nurse’s locker while per-
mitting other material to be posted on nurses’ lockers.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Brock-
ton Hospital, Brockton, Massachusetts, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
“(d) Discriminatorily enforcing a policy of removing
union meeting notices from nurses’ lockers while permit-
ting other material to be posted on nurses’ lockers.”
2. Substitute the following for paragraphs 2(a) and (b),
respectively.
“(a) Rescind the unlawful portions of its administrative
policy manual, its associate’s handbook, the May 7, 1997
memorandum of Cheryl Barrows, and any other written
directives which prohibit solicitation during non-working
time in nonpatient care areas of the hospital and/or which
prohibit distribution during nonworking time in non-
working, nonpatient care areas of the hospital.
“(b) Rescind the unlawful portions of the confidential-
ity clause in its associate handbook.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
My colleagues conclude that the Respondent violated
Section 8(a)(1) of the Act by prohibiting solicitation or
distribution of literature in any halls, corridors, or other
areas used or accessed by patients, families, or visitors. I
disagree in substantial part.

21 Baron testified that she understood McRae’s comment as a refer-
ence to the fact that the notice was handwritten.
22 In light of our finding that this complaint allegation should be
dismissed on the merits, we do not pass on the judge’s finding that the
allegation, which was not contained in any timely charge, was not
untimely under Sec. 10(b) of the Act because it was closely related to a
timely charge under the principles set forth in Redd-I, Inc., 290 NLRB
1115 (1988).
The judge aptly summarized the current state of Board
law regarding the places of solicitation and distribution
in hospitals:1

In summary, therefore, an employer may ban so-
licitation in “immediate patient care areas” but not
working areas. However, in the case of distribution,
the employer’s rights broaden to permit a ban in
both working areas and “immediate patient care ar-
eas.” If an employer bans distribution or solicitation
in a non-work, non-immediate patient care area, it
bears the burden of proving that such prohibition is
necessary to avoid patient disruption.

In my view, these principles are premised on an overly
narrow concept of how hospitals provide treatment and
care to their patients. I would revise the Board’s princi-
ples to allow prohibitions of solicitation and distribution
in areas where patients, their families, and visitors spend
a substantial amount of time.
In Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978),
the Supreme Court upheld the Board’s presumption that
a hospital may lawfully prohibit solicitation and distribu-
tion in immediate patient care areas and in areas where it
can show that such a ban is necessary to avoid disrupting
care or disturbing patients. In doing so, the Court stated:

[The] Board [bears] a heavy continuing responsi-
bility to review its policies concerning organiza-
tional activities in various parts of hospitals. Hospi-
tals carry on a public function of the utmost serious-
ness and importance. They give rise to unique con-
siderations that do not apply in the industrial settings
with which the Board is more familiar. The Board
should stand ready to revise its rulings if future ex-
perience demonstrates that the well-being of patients
is in fact in jeopardy.

Id. at 508.
In NLRB v. Baptist Hospital, 442 U.S. 773 (1979), the
Court specifically questioned the Board’s presumption
that a ban on solicitation in corridors and sitting rooms is
unlawful. The Court did not resolve the issue because it
found that the presumption was rebutted in that case.
However, the Court’s language is instructive. The Court
said:

Because the evidence presented by the Hospital
in this case is sufficient to rebut the Board’s pre-
sumption as applied to corridors and sitting rooms
on patients’ floors, we need not here decide the ra-
tionality of this portion of the Board’s presumption,
1 This case does not involve the separate issue as to the times for so-
licitation and distribution.
BROCKTON HOSPITAL 1371
nor undertake the task of framing the limits of an
appropriate presumption regarding the permissibility
of union solicitation in a modern hospital. Indeed,
the development of such presumptions is normally
the function of the Board. It must be said however,
that the experience to date raises serious doubts as to
whether the Board's interpretation of its present pre-
sumption adequately takes into account the medical
practices and methods of treatment incident to the
delivery of patient-care services in a modern hospi-
tal.

Id. at 789.
The Court also said:

The Board, in reviewing the scope and application of
its presumption, should take into account that a modern
hospital houses a complex array of facilities and tech-
niques for patient care and therapy that defy simple
classification. Patients not undergoing treatment at the
moment are cared for in a variety of settings—recovery
rooms, intensive-care units, patients’ rooms, wards, sit-
ting rooms, and even corridors, where patients are often
encouraged to walk, or to visit with their families.

In terms of result reached, the Baptist Hospital Court
found a ban lawful in areas where patients visit with
families and friends and where the patients’ families and
friends confer with doctors. Id. at 784. See also Inter-
community Hospital, 255 NLRB 468 (1981) (solicitation
ban lawful in lobby used by staff for conferring with
family and friends of patients).
Consistent with the Court’s pronouncements and in
light of current concepts of medical care, I have reviewed
current NLRB principles. As set forth below, I am per-
suaded that hospital patients benefit from an atmosphere
of serenity and well being, and their friends and loved
ones can help the healing process if they are secure in the
knowledge that the hospital offers such an atmosphere.
The record evidence shows the changing nature of
health care, a change that is attributable in part to the
prominent role now played by health maintenance or-
ganizations and managed care facilities. As the Respon-
dent points out, there is a heightened awareness on the
part of medical professionals that: the level of trust be-
tween a patient and a medical professional is an impor-
tant element in the success (or failure) of treatment; in-
creased levels of stress and anxiety in patients are linked
to deteriorations in their health; and, the overall emo-
tional and psychological state of a patient can greatly
affect the patient’s ability to recover from illness.
I believe that union organizational campaigns often in-
volve controversy, heated debate, and talk of strikes and
industrial strife. Indeed, it is for this reason that hospitals
can ban union activity in areas of immediate patient care.
My difference with my colleagues is that I would permit
a ban in other areas as well. In this regard, the Board
should take into account, and give due weight to, the fact
that hospitals provide care to patients in more locations
than those circumscribed by what the Board calls “im-
mediate patient care areas.” The Board should also rec-
ognize that conduct affecting families and visitors of
patients can affect the state of mind, and therefore the
well being, of patients. In light of its unique setting, and
the extremely high stakes involved (often literally a mat-
ter of life or death), I would presumptively allow a hospi-
tal to enforce most of the prohibitions at issue here. I
also note that, in the instant case, the material distributed
was replete with hospital “horror stories” likely to prove
extremely upsetting to any patients, families, or visitors
who encounter them.
My colleagues state that the balance struck by the
Board in this area of the law has stood the test of time.
This is certainly true in the sense that the Board has de-
clined to abandon or modify the presumptions at issue.
However, the question is whether the times have changed
so that the Board should reevaluate its policies, just as
the Supreme Court has suggested it should. As explained
above, I believe that the Board should do so.
I wish to stress that my position does not unreasonably
restrict Section 7 communications among employees.
There are myriad opportunities for such communications.
For example, employee break areas, cafeterias, and ves-
tibules offer ample opportunities for such activity. In
addition, employees can, of course, converse away from
the hospital, as well as in parking areas as they come to
and from work. Given these alternative means of com-
munication, I believe that, on balance, the extremely im-
portant interest of patient welfare outweighs the interest
of granting additional areas for employee communica-
tion.
Consistent with my views set forth above, I would find
presumptively unlawful a prohibition of solicitation and
distribution in the vestibule and in the cafeteria. As set
forth above, I would presumptively permit a prohibition
on solicitation and distribution “in areas where patients,
their families and visitors spend a substantial amount of
time.” The vestibule is not such a place. It is essentially
a place where people pass through from one place to an-
other. Similarly, a hospital cafeteria is ordinarily a place
that is used on a transient basis, i.e., a place to which
families and other visitors can go briefly while at the
hospital visiting patients. In addition, the cafeteria is
generally open to the general public, just as any eating
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372
establishment would be. Accordingly, I would presump-
tively permit solicitation and distribution to occur there.
In view of the above, some of Respondent’s policies
may be presumptively unlawful. For example, the re-
vised Administrative Policy Manual bars solicitation and
distribution in “areas used by patients, families or visi-
tors.” To the extent that this covers the cafeteria and
vestibule, the policy would be presumptively unlawful.2

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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT promulgate or maintain overly broad
no- solicitation or no-distribution rules.
WE WILL NOT promulgate or maintain overly broad
confidentiality rules.
WE WILL NOT refuse to permit employees to distrib-
ute literature concerning terms and conditions of em-
ployment to other employees in nonworking, nonpatient
care areas of the hospital during the nonworking time of
the employees involved.
WE WILL NOT enforce rules regarding solicitation,
distribution, and the posting of materials within the facil-
ity in a discriminatory manner.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful portions of our admin-
istrative policy manual, our associate handbook, the May
7, 1997 memorandum of Cheryl Barrows, and any other
written directives which prohibit solicitation during
nonworking time in nonpatient care areas of the hospital
and/or which prohibit distribution during nonworking
time in nonworking, nonpatient care areas of the hospital.

2 My colleagues suggest that I concede that the Respondent’s poli-
cies would be presumptively unlawful under my approach. However, as
explained above, I do so only to the extent that those policies would bar
solicitation and distribution in the cafeteria and vestibule.
WE WILL rescind the unlawful portions of the “con-
fidentiality policy” in our associate handbook, which
prohibit our employees from discussing wages, hours, or
other terms and conditions of employment with each
other or with their collective-bargaining representative.

BROCKTON HOSPITAL

A. Susan Lawson, Esq., for the General Counsel.
Arthur Murphy, Robert H. Morsilli, and David Powilatis, Esqs.
(Murphy, Hesse, Toomey & Lehane), of Boston, Massachu-
setts, for the Respondent.
Jack J. Canzoneri, Esq., of Newton, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On April
10 and December 3, 1997, a charge and first amended charge
were filed in Case 1–CA–35136 and on December 12, 1997, a
charge was filed in Case 1–CA–35875. The Charging Party in
each case was the Massachusetts Nurses Association (Union)
and the Charged Party was Brockton Hospital (Respondent).
On April 14 and May 20, 1998, the National Labor Relations
Board, by the Regional Director for Region 1, issued a consoli-
dated amended complaint and amendment, respectively, alleg-
ing that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) when since October 11,
1996, it maintained an overly broad no-solicitation/no-
distribution policy and an overly broad policy regarding confi-
dentiality, when on March 20 and 27, 1997, it prohibited em-
ployees from distributing union literature at the hospital, when
on May 7, 1997, it published an overly broad no-solicitation
policy, when it enforced its no-posting rule in a discriminatory
fashion, and when it gave its employee, Terry Corcoran, a per-
formance evaluation with unfavorable comments in it and a
reduced score in some rated areas.
Respondent filed an answer in which it denied it violated the
Act in any way.
Trial was held before me over 8 days between November 2
and 20, 1998.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel, Respondent, and the
Charging Party and, on my observation of the witnesses and
their demeanor, I made the following
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation with an of-
fice and place of business in Brockton, Massachusetts, has been
engaged in the operation of an acute care hospital.
Respondent admits, and I find, that Respondent meets the
Board’s jurisdictional standards and that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and is a health care institution within the
meaning of Section 2(14) of the Act.
BROCKTON HOSPITAL 1373
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Overview
Brockton Hospital, the Respondent, is an acute care hospital.
The Massachusetts Nurses Association, the Union, is a Union,
which represents close to 400 registered nurses who work at
Brockton Hospital. When I refer in this decision to nurses I
mean registered nurses in the unit and not supervisory nurses,
licensed practical nurses, or nurse aides. Respondent has rec-
ognized the Union as the collective-bargaining representative of
its nurses since approximately 1980.
There are a number of unfair labor practices alleged in this
case and for the most part they concern the issue of communi-
cation between the nurses and their Union and communications
between nurses. In other words a good deal of this case deals
with issues of solicitation and distribution.
A collective-bargaining agreement between Respondent and
the Union was in effect from October 19, 1994, to October 18,
1997.
B. Distribution of Union Literature by Nurse Employees to
Other Nurse Employees
In the early part of 1997 the Union began what it called its
“safe care campaign.”
On March 5, 1997, the Union held a meeting at the union
hall. All nurses in the unit were invited to attend. The princi-
pal subject matters to be discussed were the “safe care cam-
paign” and the upcoming negotiations for a new contract.
Approximately 100 of the close to 400 nurses in the unit at-
tended the meeting and 40 of them volunteered to help in the
“safe care campaign.”
The union official most connected with the “safe care cam-
paign” and negotiations for a new contract at Respondent’s
facility was Stephanie Craig Francis. A former nurse, Francis
is a full-time employee of the Union.
Francis credibly testified that because of managed care,
which is an approach to health care delivery which places
heavy emphasis on efforts to contain costs, changes were taking
place in the nursing profession and in the health care area gen-
erally which heavily impacted on nurses. Among the trends in
the delivery of health care were the use of nonprofessional staff
to do what traditionally had been done by nurses and the fact
that managed care had the result of getting patients out of the
hospital sooner and that hospital stays for patients were shorter
than they had been heretofore. Francis testified, and was cor-
roborated by Respondent’s president and chief executive offi-
cer, Norman Goodman, that patients in an acute care hospital as
a result of managed care had shorter stays in the hospital and
were sicker. As a result nurses had to work harder.
Respondent back in 1996 wanted to reduce costs and there
was an agreement reached between Respondent and the Union
for nurses to voluntarily cut their hours. A number of nurses
did. However, the number of patients did not reduce in number
as expected and patients in the hospital were sicker and in more
need of care and as a result the Union perceived that there
would be staffing shortages and more mandatory overtime.
The Union perceived that these issues would be brought up at
upcoming bargaining sessions for a new collective-bargaining
agreement at Brockton Hospital.
The Union wanted to educate the nurses in the unit about
trends in the nursing field and also to prepare the nurses for the
upcoming negotiations for a new contract later in the year.
These trends were nationwide trends and not peculiar to Brock-
ton Hospital or even New England.
Beginning on Thursday, March 20, 1997, and continuing for
the following nine Thursdays nurses handed out literature at the
hospital. The distribution was done on Thursdays, which was
payday. The distributions were to be done at the three shift
changes, i.e., around 7 a.m., 3 p.m., and 11 p.m. For a period
of 15 minutes or so before and for 15 minutes or so after the
three shift changes the nurse volunteers would hand out litera-
ture to incoming and outgoing nurses. The nurses passing out
the literature and those receiving the literature would all be off
duty at the time of the distribution.
The literature was to be offered only to members of the unit
and not to doctors, nurse supervisors, or other hospital staff.
The literature was not to be offered to patients, family members
of patients, friends of patients, vendors doing business at the
hospital, or visitors. If the nurse distributing the literature knew
the person as a nurse in the unit the nurse could be given the
literature. If the nurse distributing the literature did not know
the person they were to make sure it was a nurse in the unit
before they were to distribute the literature to that person. The
nurses handing out the literature and those receiving it were all
employees of Respondent.
The dates of distribution were:

(1) March 20, 1997 (6) April 24, 1997
(2) March 27, 1997 (7) May 1, 1997
(3) April 3, 1997 (8) May 8, 1997
(4) APRIL 10, 1997 (9) DECISIONS OF
THE NATIONAL LABOR RELATIONS BOARD
May 15, 1997
(5) April 17, 1997 (10) May 22, 1997

Copies of the literature distributed was received in evidence
as General Counsel’s Exhibits 10(a–k).
Stephanie Craig Francis credibly testified that the literature
was to be distributed just to nurses in the unit by the unit em-
ployee nurses in order to educate the nurses about trends in the
nursing profession and to prepare the nurses for upcoming ne-
gotiations for a new contract. Nurses Tina Russell, Barbara
Cooke, Carolyn Anderson, Rinette Nadeau-Bates, Terry Cor-
coran, and Linda Guild, all of whom distributed literature,
credibly corroborate Francis as to the reasons for the distribu-
tion.
On March 20 and 27, 1997, the nurses distributing literature
in the front vestibule of the main entrance to the hospital were
told they could not distribute literature at that location. Indeed
they may have been told that they could not distribute the litera-
ture on Hospital property.
On March 20, 1997, it was Nurse Manager Michelle
McArthur who told nurses Terry Corcoran and Rinette Nadeau-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
Bates that they must “cease and desist” from handing out litera-
ture in the front vestibule.
On March 27, 1997, it was Respondent’s president and chief
executive officer, Norman Goodman, who told nurses Barbara
Cooke and Carolyn Anderson that they could not distribute
literature in the vestibule and he added “without a court order.”
Both Cooke and Anderson testified that Goodman said the lit-
erature couldn’t be distributed without a court order and
Goodman couldn’t recall if he said that or not but admits that
he said they could not distribute the literature.
Distribution in the vestibule was permitted by Respondent
for the remainder of the 10-week campaign but Respondent
persisted in its position that nurses can not distribute literature
in the vestibule.
The literature consisted of compilations of articles from
nursing journals, newspapers, and magazines. The articles
address the issues of the adverse effect on patients caused by
downsizing and restructuring of nursing staff and the use of
nonprofessional employees giving the care and treatment that
used to be the sole province of nurses.
The literature distributed contained selected articles from
newspapers with headlines such as “A shortcut that killed a
patient,” “A feeding tube in wrong hands leads to death,” “A
castrophe waiting to happen,” “Tale of 2 hospitals, Children’s
undertakes reorganization similar to a plan that failed in Dal-
las,” “Hospitals are replacing nurses with lesser-trained, lower-
paid aides. Will patients pay the price?” “Who’s watching?
Hospitals are left on their own in setting standards for aides,”
“A mistake leads to baby’s death,” “Nurses take to the courts in
fight with hospital’s cost-cutting,” and “Protecting Patients,
curing the ills that cost cuts cause.” None of the articles men-
tioned Brockton Hospital by name and it is agreed by all the
parties to this litigation that the articles did not refer to Brock-
ton Hospital as being the hospital where any of the mishaps in
the articles happened.
Respondent called three witnesses who credibly testified that
if patients or their families saw these articles they could be-
come upset and anxious and it could undermine the trust that
should exist between a patient and the medical staff treating the
patient and could impact adversely on the patient. The three
witnesses were Dr. David Leiman and Dr. Burton Polansky,
who are on staff at Brockton Hospital, and nurse consultant and
former nurse Anne Cavanaugh who does not work at Brockton
Hospital but is a consultant. All three reviewed the literature
that was distributed and said it could impact adversely on pa-
tients and family and Dr. Leiman went on to say it could upset
even the staff at the hospital.
The articles in the literature that was distributed came from
nursing journals available to the nurses and from newspapers or
magazines available to the general public.
The record reflects that Respondent does not censor the TV
watched in the hospital by patients and visitors nor does it cen-
sor newspapers which contain articles such as the ones con-
tained in the literature distributed by the nurses nor does it cen-
sor the nurses bringing into the hospital professional nursing
journals which contain articles similar to the ones in the litera-
ture distributed by the nurses at Brockton Hospital. Indeed the
hospital gift shop itself sells newspapers and magazines con-
taining articles similar to those distributed and a cart is pushed
through the hospital and patients and visitors can buy newspa-
pers and magazines from the cart that sometimes carry the same
types of articles distributed by the nurses.
Respondent suggested that the Union mail the literature to
the nurses and Respondent would furnish free mailing labels.
The Union wanted to hand deliver the literature rather than mail
it to the nurses because handing it to the nurses would involve
interpersonal contact and there would be a greater chance that
the nurse would read the material handed him or her than read
material received in the mail at home.
Although witnesses for Respondent testified that they would
not want this literature to fall into the hands of patients or their
families there was not a shred of evidence that any patient or
family member saw any of this literature. Robert Nolet, Re-
spondent’s director of environmental services, testified that one
of his staff, Donna O’Connor, who did not testify, gave him
some of the literature which, according to Nolet, O’Connor
claimed to have picked up in the lobby. The lobby contains
couches and chairs and is used by patients and family and visi-
tors. However, there was evidence from Nolet that the lobby
was frequently policed by the cleaning staff and there was no
evidence any patient or family or visitors ever picked up and
read or even saw the literature. The nurses did not distribute
literature in the lobby but did in the vestibule, which leads into
the lobby.
The hospital received no complaints about the literature from
any patient or family member of a patient or any visitor to the
hospital.
Cheryl Barrows, Respondent’s director of human resources,
credibly testified she was given copies of the distributed litera-
ture gathered by nurse managers in the nurses’ locker rooms
and lounge areas which were off limits to patients, family
members, and visitors.
There was no evidence that any patient was ever disturbed or
inconvenienced by the distribution of this literature.
The literature was handed out at three locations, i.e., at the
front entrance of the hospital and inside the vestibule, outside
the rear entrance of the hospital also called the BKB entrance,
or Barbara Keith Building entrance, and the emer-
gency/outpatient entrance. All distribution was done outside
the hospital except the distribution in the front vestibule. The
front vestibule is a self-contained area between the lobby and
the outside entry at the front of the hospital. There are a pair of
automatic doors heading into the vestibule from the outside and
another pair leading into the lobby of the hospital.
Respondent argues that the vestibule is a work and/or patient
care area. A security guard is posted in the lobby and can look
into the vestibule. The guard on occasion will walk through the
vestibule or stand in it but he will also patrol areas outside the
hospital such as the parking lots. The vestibule contains two
benches on which patients, family, visitors or staff are permit-
ted to sit. Outside the vestibule are some more benches where
patients, family, visitors or staff can sit. When a person is dis-
charged from the hospital a member of the transportation de-
partment will take the patient by wheelchair through the vesti-
bule and to the curb outside the hospital and help the patient
into the car taking the patient home. Discharges are fairly
BROCKTON HOSPITAL 1375
common but not constant. There are virtually no discharges at
the time of the first and third shift changes, i.e., 7 a.m. and 11
p.m.
Respondent also claims that doctors sometimes chat with a
patient’s family member in or just outside the vestibule.
There is also a fire alarm in the vestibule, which is periodi-
cally serviced.
None of these activities could be called patient care activi-
ties. The vestibule and the other areas where the literature was
distributed are not operating rooms or patient rooms. They are
simply not patient care areas and not even work areas as that
phase would be commonly understood as further discussed
below. Interestingly enough Respondent was unaware that
nurses distributed literature outside the BKB or rear entrance or
outside the emergency/outpatient entrance. The nurses did not
distribute literature by the ambulance bay to the emergency
entrance.
The subject matter of the literature that was distributed
clearly involved issue of terms and conditions of employment
and even if some of the literature touched on political issues it
was appropriate and lawful material to be distributed by the
Union to the employees it represents. See, e.g., Eastex Inc. v.
NLRB, 437 U.S. 556 (1978), where the Supreme Court agreed
with the Board that a company violated Section 8(a)(1) of the
Act by prohibiting distribution of a newsletter which urged
employees to write their legislators to oppose incorporation of
the state “right-to-work” statute into a revised state constitution,
criticized a presidential veto of an increase in the federal mini-
mum wage, and urged employees to register to vote and “defeat
our enemies and elect our friends.” Clearly the literature dis-
tributed at Brockton Hospital concerned terms and conditions
of employment. Section 7 rights encompass “mutual aid or
protection” and reducing the number of nurses by using non
professionals to do their work and the whole issue of sicker
patients and its impact on nurses are matters of working condi-
tions critical in importance to nurses.
Board precedent establishes the scope of an employer’s right
to promulgate rules limiting the rights of employees in solicit-
ing and distributing materials at the workplace. The Board’s
rules in that regard may be summarized as having three key
aspects, as follows.
First, an employer is permitted to restrict employees from so-
liciting or distributing while working (on worktime) to the ex-
tent that the employer enforces such prohibition on an even-
handed basis for all types of distribution and solicitation. Thus,
absent discriminatory enforcement, an employer is within its
rights under the Act to require that all solicitation and distribu-
tion occur while an employee is not on worktime. St. John’s
Hospital, 222 NLRB 1150 (1976); Beth Israel Hospital, 223
NLRB 1193 (1976), enfd. 554 F.2d 477 (1st Cir. 1977), affd.
437 U.S. 483 (1978) (applying and upholding the Board’s rule
as established in St. John’s Hospital); NLRB v. Baptist Hospi-
tal, 442 U.S. 773, 778 fn. 8 (1979) (same).
Second, in the context of hospitals, an employer is presump-
tively allowed to ban solicitation and distribution in—what the
Board and Courts refer to as—immediate patient care areas,
“such as patients’ rooms, operating rooms, and treatment rooms
as areas of immediate patient care.” Baptist Hospital, 442 U.S.
at 780 (quoting St. John’s Hospital, 222 NLRB at 1150). An
upshot of this is that if a union in a hospital setting wishes to
engage in solicitation or distribution in “immediate patient care
areas” it bears the burden of proving that such access should
reasonably be granted to its members or that the rule at issue is
enforced discriminatorily against union activity. St. John’s
Hospital, 223 NLRB 1193.
Third, the Board has established different rules with respect
to solicitation and distribution in so-called “working areas.”
On the one hand, an employer is presumptively permitted to
ban distribution (but not solicitation) in “working areas,” and a
union may establish the right to distribute in a working area
only if it proves that such access should reasonably be granted
or that the distribution ban is enforced discriminatorily against
union activity. On the other hand, an employer is presump-
tively prohibited from banning solicitation in working areas,
and an employer who imposes such a restraint does so unlaw-
fully unless it proves that its banning of solicitation in working
areas was necessary to avoid patient disruption.
In summary, therefore, an employer may ban solicitation in
“immediate patient care areas” but not working areas. How-
ever, in the case of distribution, the employer’s rights broaden
to permit a ban in both working areas and “immediate patient
care areas.” If an employer bans distribution or solicitation in a
nonwork, nonimmediate patient care area, it bears the burden of
proving that such prohibition is necessary to avoid patient dis-
ruption.
The front vestibule and the area outside the front entrance
are not “immediate patient care areas.” Again, the distribution
was by members of the unit all of whom were employees of
Respondent to other unit employees only. Near the BKB or
rear entrance was a gazebo where patients and staff could
smoke since the interior of the hospital itself was a smoke free
zone. Needless to say, the area where patients and staff smoked
is not an “immediate patient care area.”
Board precedent has long held that merely because a work
function or functions occur in a given space does not render
that space a “work area” within the meaning of the Board’s
rules regarding distribution. Rather, the Board has looked at
the quality and quantity of work, which occurs in the area at
issue, and examines whether the work is more than de minimus
and whether it involves production. Thus, for example, in
United States Steel Corp., 223 NLRB 1246 (1976), the Board
considered whether an entire facility and grounds could be
considered a work area and found that it could not.1 Also, in

1 The Board held:
Respondent contends first that all property at the South
Works and Gary Works constitutes a work area from which dis-
tribution of literature may be properly prohibited. The General
Counsel counters that this contention is wrong based on the fact
that the property consists of thousands of acres, which include
large parking areas, roadways, walkways, and open spaces be-
tween the various structures on the land. The buildings them-
selves contain lockerrooms, restrooms, lunchrooms, and vending
machine areas. Such places have been found by the Board to be
nonwork areas. See Plant-City Steel Corporation, [138 NLRB
839 (1962), enfd. 331 F.2d 1231 (6th Cir. 1964)] (parking lots,
street passageways, and sidewalks on plant premises very similar
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
United States Steel Corp. the Board considered whether an area
was a “work area” within the meaning of the Act by virtue of,
inter alia, the presence of guards patrolling the area, and other
nonproduction workers such as janitors performing work in
such area and held that these duties, performed in such area, did
not render it a “work area” within the meaning of the Act, rea-
soning as follows:

The Respondent raises the additional point that be-
cause nonproduction employees, such as janitors and secu-
rity workers, perform some tasks in nonwork areas; these
locations are converted into working areas for the purpose
of banning distributions. In National Steel Corporation,
[173 NLRB 401 (1968), enfd. 415 F.2d 1231 (C.A. 6,
1969)], under a similar statement of facts, the existence of
security guards did not convert the parking lot, streets,
passageways, and sidewalks into working areas as Re-
spondent contends. In primarily nonworking areas the
element of protecting the production process is not pre-
sent. Whether employees are distributing literature or do-
ing other nonwork functions like washing up, loitering, or
eating, on their own time in areas designated for these
purposes makes no difference to production or the tasks
performed by employees in these nonwork areas. Respon-
dent’s contention that all its property is a work area is a
contention that can be asserted by every company, thus ef-
fectively destroying the right of employees to distribute lit-
erature. Some work tasks, whether it be cleaning up,
maintenance, or other incidental work, are performed at
some time in almost every area of every company. [Em-
phasis added.]

Board precedent in the context of hospitals establish a simi-
lar stance, rejecting the notion that a space is an “immediate
patient care area” or even a “work area” merely because there is
the limited activity of transporting patients through a doorway,
upon discharge. See Medical Center Hospitals, 244 NLRB 742
(1979).
The Board has not given a comprehensive definition as to
what constitutes an “immediate patient care area,” Baptist Hos-
pital, 442 U.S. at 780, but in St. John’s Hospital, 222 NLRB
1150 (1976), enfd. granted in part and denied in part 557 F.2d
1368 (10th Cir. 1977), the Board held that immediate patient
care areas are not just anywhere in the Hospital where a patient
happens to appear but rather, more narrowly, areas “such as the
patients’ rooms, operating rooms, and places where patients
received treatment, such as x-ray and therapy areas.” 222
NLRB at 1150.
Other Board precedent has found that the front entrance and
lobby areas of hospitals are not immediate patient care areas or
work areas. NLRB v. Harper Grace, Inc., 737 F.2d 576 (6th
Cir. 1984) (front entrance); NLRB v. Southern Maryland Hospi-
tal Center, 293 NLRB 1209 (1989), enfd. in relevant part 916
F.2d 932 (4th Cir. 1990) (front entrance); Eastern Maine Medi-

to Respondent’s found to be nonworking areas); and Rockingham
Sleep Wear, Inc., [188 NLRB 698] (1971)] (production area used
as a lunchroom found to be a nonwork area during lunch break).
supra at 1247.
cal Center, 658 F.2d 1 (1st Cir. 1984) (lobby); and Albert Ein-
stein Medical Center, 245 NLRB 140 (1979) (vestibule near
cafeteria).
Applying the foregoing to the instant case, it may easily be
concluded that neither the front vestibule nor the area outside
the admitting/outpatient entrance nor the area outside the rear
or BKB entrance are work areas or immediate patient care areas
and distribution of literature can not be prohibited.
C. Overly Broad No-Solicitation and No-Distribution Policy
Contained in Respondent’s “Associate Handbook” and “Admin-
istrative Policy Manual”
It is alleged in the complaint that Respondent maintained an
overly broad no-solicitation/no-distribution policy in both its
“Associate Handbook” and its “Administrative Policy Manual.”
The “Associate Handbook” was adopted in September 1994
and continues in effect through the trial in this case.
The nurses in the unit are called “Associates” and on page 17
of the associates handbook, in evidence as General Counsel’s
Exhibit 12, is the following language:

Associates shall not canvass, solicit or distribute litera-
ture for any purpose during an associate’s working time or
the working time of the associate at whom such activity is
directed.
Working time is defined as those periods in which an
associate is scheduled or assigned for duty. It does not in-
clude authorized lunch time.

This language is overly broad because it does not specifically
exclude from the definition of working time “break times.”
Accordingly, maintaining such a rule was a violation of Section
8(a)(1) of the Act.
Respondent maintained since September 1995 an “Adminis-
trative Policy Manual” which contained, in pertinent part, the
following language:

Associates
Associates are prohibited from canvassing, soliciting,
or distributing literature to other associate [sic].”

This part of the Administrative Policy Manual is in evidence
as General Counsel’s Exhibit 11. Again, the nurses in the unit
are called associates and the above-quoted language is overly
broad since it would purport to prohibit distribution of union
literature one unit employee to another in nonwork areas and
non-patient care areas and purports to prohibit soliciting on
nonworking time such as during lunch or during breaks and the
maintaining of such an overly broad policy is a violation of
Section 8(a)(1) of the Act.
The Respondent attempted to remedy the unlawfulness of the
solicitation and distribution policy contained in its administra-
tive policy manual by revising the policy, which was in force at
the time the complaint issued. However, the revision dated
June 30, 1997, and entitled “Solicitation of Associates” remains
overly broad. Respondent’s Exhibit 27. In this version,
“Associates are prohibited from canvassing, soliciting, or
distributing literature to other associates in any areas as defined
above for any purpose during the associate’s working time or
the working time of the associate at whom such activity is
directed.” Under the Policy section, the following language
BROCKTON HOSPITAL 1377
the Policy section, the following language appears: “Solicita-
tion or distribution of literature may not occur at any time by
associate or outside person in patient rooms, hallways, corri-
dors and areas used by patients, families or visitors, patient
lounges, any areas where patients receive treatment, or any
work areas.” While it is true that a hospital may prohibit all
solicitation in “immediate patient care areas,” even when the
employees involved are not on working time, this policy fails
by prohibiting solicitation in any work areas, rather than just
those, which are “immediate patient care areas.” Employees
who are not on working time may engage in solicitation in
work areas, provided the work area is not an “immediate patient
care area.” Also, to the extent that the policy prohibits solicita-
tion or distribution in “hallways, corridors, and areas used by
patients, families, or visitors,” it is overly broad. If the hall-
way, corridor, or area used by patients, families or visitors is
not deemed an “immediate patient care area,” then solicitation
cannot be banned. If the hallway, corridor, or area used by
patients, families, or visitors is not a work area, then distribu-
tion cannot be banned.
Although there is no evidence that any employee was disci-
plined for violating these policies in the Associate Handbook or
administrative policy manual it is clear that such policies in the
context of the unfair labor practices in this case should be re-
scinded.
The associate handbook is furnished to each new nurse and
the administrative policy manual is maintained at several loca-
tions in the hospital to include nursing stations.
D. Unlawful Confidentiality Clause in Respondent’s
“Associate Handbook”
The Associate Handbook adopted in September 1994 and
continuing in effect contained the following clause at page 17
in General Counsel’s Exhibit 12:

Confidentiality
Associate must respect the patient’s right to privacy
and respect the confidentiality of information regarding
patients, associates, or hospital operations. Information
concerning patients, associates, or hospital operations
should not be discussed either inside or outside the hospi-
tal, except strictly in connection with hospital business.

This confidentiality clause is overly broad since it would
prohibit nurses from discussing hours, wages, and other terms
and conditions of employment with each other or their union
representatives unless they are doing so “strictly in connection
with hospital business.” On its face it is at least ambiguous. Is
a discussion between nurses or with their union representative
on whether or not to pursue a grievance over a policy at work a
discussion “strictly in connection with hospital business” or
not?
The confidentiality clause is ambiguous.
Although there was no evidence that any employee was ever
disciplined for violating this rule it would have a tendency to
cause nurses who read it to believe it restricted his or her right
to discuss hours, wages, and other terms and conditions of em-
ployment.
Obviously Respondent can promulgate a rule which respects
the right of privacy of its patients but should not promulgate a
rule which inhibits employees in the exercise of their rights
under Section 7 of the Act which rights include the right “to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.”
The confidentiality clause could be amended by adding to it
the following language “Nothing in this confidentiality clause
should be interpreted to interfere with the rights of associates
under Section 7 of the National Labor Relations Act” or by
adding language that the confidentiality clause “does not re-
strict employees in their right to discuss hours, wages, and
other terms and conditions of employment.”
The maintaining of the confidentiality clause in its present
form is a violation of Section 8(a)(1) of the Act. See Pontiac
Osteopathic Hospital, 284 NLRB 442, 465–466 (1987), and
Indian Hills Care Center, 321 NLRB 144, 155 (1996), where
language similar to that in the instant case was found unlaw-
fully overbroad because it could be construed to prohibit em-
ployees from discussing hours, wages, and other terms and
conditions of employment.
E. May 7, 1997 Memo Regarding Solicitation
As noted above the distribution of literature by nurses to fel-
low nurses in the unit began on March 20, 1997, and continued
for 10 weeks.
On May 7, 1997, nurse Tina Russell, a member of the unit
who was active in the Union, received a memo from Respon-
dent’s director of human resources, Cheryl Barrows.
Barrows’ memo provided, in pertinent part, as follows:

We have asked you not to distribute literature where patients
access the building, and our position is that such distribution
is prohibited and inappropriate. However, we have not taken
steps to stop your handbilling. This does not change our posi-
tion. Since the activity has continued, we want to reiterate our
position. We do not allow solicitation of any nature in areas
accessed by patients, their families, or visitors. The lobby
functions as a patient waiting area. We restrict any activity
that is disruptive to patients, family members, and visitors.
Any activity that undermines the confidence of the patients
that come to Brockton Hospital is not in the best interest of
our patients or the community. Our concern is for our pa-
tients. They should be able to seek and obtain care in a
friendly environment where the sole concern is for their well
being.

The prohibition of solicitation of any nature “in areas ac-
cessed by patients, their families, or visitors” is overbroad.
Respondent may lawfully prohibit solicitation in immediate
patient care areas or in work areas where it can be demonstrated
that the solicitation will be disruptive to patient care or disturb-
ing to patients. The blanket prohibition of solicitation in areas
merely accessed by patients and their families, or visitors, in-
cluding the lobby, is overly broad and violative of Section
8(a)(1) of the Act. See Beth Israel Hospital v. NLRB, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
F. Incident Involving Posting of Union Literature in
August 1997
The collective-bargaining agreement in effect from October
19, 1994, to October 18, 1997, contained the following lan-
guage in article VI:

The Hospital will provide space on a bulletin board for post-
ing notices of Association meetings for nurses covered by the
Agreement. Copies of such notices shall be submitted to Vice
President of Human Resources or his designee prior to their
being posted.

In or about August 1997 nurse Wendy Baron posted a hand-
written notice of a union meeting on her locker. Her locker is
in one of the nurses’ locker rooms and entry into the locker
room is limited to staff only. The union meeting was to be held
at another nurse’s home and was a meeting just for the 16
nurses in that medical unit and not a union meeting for the
close to 400 nurses who work at the hospital.
It is uncontested that Administrative Coordinator Carla
McRae, an admitted supervisor and agent of Respondent, re-
moved the notice of the union meeting and left the following
note for Baron in her mail slot in the locker room:

Hi Wendy, Union business postings are not to be
posted randomly on lockers. You can with my or Susan’s
permission post notices on the bulletin board.
Susan is another nurse supervisor.

As a result of McRae removing the notice and Baron not
knowing she had done so because Baron was off work for sev-
eral days after posting the notice of the union meeting and as a
result knowledge of the meeting did not get circulated among
the nurses and only 4 of 16 nurses attended the meeting and
two of them were Baron and the nurse at whose house the
meeting was to be held.
When Baron spoke with McRae after reading McRae’s note
to her McRae told Baron that with respect to the Union notice
that it was just “slapped together” and that union notices should
be put together more “professionally.”
It is conceded by all parties to the litigation that the practice
at the hospital was that union meeting notices could be posted
in the locker room but the person posting it needed permission
from management. This is consistent with the collective-
bargaining agreement. However, the credible and uncontra-
dicted testimony of numerous nurse witnesses was that all sorts
of material was posted on lockers without prior permission and
were not removed by management, e.g., girl scout cookie sales,
school fund raising notices, pictures, all types of announce-
ments, letters from patients, etc.
It would be unlawful for Respondent to permit all manner of
postings on lockers without management permission and re-
quire management permission only with regard to union post-
ings. That is the case here and hence I find a violation of Sec-
tion 8(a)(1) of the Act. See Lassen Community Hospital, 278
NLRB 370 (1986).
The offense was compounded by management in the person
of McRae telling a union activist that her note was unprofes-
sional. It is none of management’s business how professional
or unprofessional the notice looks and whether it is typed or
handwritten. If the union meeting notice contained obscene
language that would be a different story but it did not.
The allegations in the complaint regarding the removal of the
notice and the demeaning comments of McRae to Baron were
not contained in any charge alleging the conduct as unlawful.
These allegations should be dismissed unless I find that they
are closely related to the charges that were timely filed. It is
my conclusion that, under the rationale of Redd-I, Inc., 290
NLRB 1115 (1988), they are closely related and the allegations
will not be dismissed as untimely within the meaning of Sec-
tion 10(b) of the Act. They are closely related because the
entire case involves the issues of communications between the
Union and the unit members and among unit members and all
of the allegations allegedly occurred in 1997 in the months
preceding negotiations for a new collective-bargaining agree-
ment. I do not find that the Union clearly and unmistakably
waived any right with respect to this matter by agreeing to the
contract language spelled out above because the notice posted
by Baron was not a full association meeting but just for a small
group and the thrust of the contract language was the duty of
Respondent to provide a place for the Union to post union
meeting notices.
G. Unfavorable Comments and Ratings in Performance
Evaluation of Terry Corcoran
In June 1997, Terry Corcoran, a nurse in the bargaining unit
who had handed out literature beginning in March 1997, re-
ceived her annual performance appraisal from her Nurse Man-
ager Mary Christian.
Corcoran had worked at Brockton Hospital for 10 years and
had over the years received an overall rating of “2,” i.e., meet
expectations, and had received a two in all rated categories.
In June 1997, Corcoran again received an overall rating of
two, i.e., meets expectations, but received a three, i.e., needs
improvement, in the categories of “may perform work of a
higher level in preparation for increased responsibilities” and
“may be assigned additional responsibility in absence of Nurse
Manager.” Nurse Manager Mary Christian wrote in the follow-
ing language “has difficulty performing charge duties.”
In addition in the comment section of the performance
evaluation form Christian wrote, “Terry is a 24º/wk RN on A4.
She is motivated and knowledgeable concerning her role. Her
transition from B3 (Resp.) to A4 (a larger unit w ortho/resp.
focus) has moved along well. Terry is committed to her profes-
sion yet does not always display behavior supportive of the
department. Investing time to work within the system, explor-
ing issues from all sides could be of benefit.”
On March 20, 1997, Corcoran was involved in an incident
with management when she was handing out literature in the
vestibule of the hospital. Administrative coordinator Michelle
McArthur told Corcoran to “cease and desist” from handing out
the literature. McArthur’s impression of the encounter in the
vestibule is more benign than Corcoran’s impression. Nurse
Renette Nadeau-Bates supports Corcoran’s version of a some-
what angry confrontation between Corcoran, who was insisting
on the right to distribute the literature, and McArthur’s insis-
tence that she not do so and indeed, “cease and desist” from
doing so. I found all women credible but note that based at
BROCKTON HOSPITAL 1379
least on my observation of Corcoran’s demeanor when she
testified before me that she can became a little emotional. It is
the contention of the General Counsel that Corcoran’s encoun-
ter with management when Corcoran was engaged in the pro-
tected concerted activity of lawful distribution of literature
prompted the lower evaluation but I don’t agree.
A number of other witnesses who were active for the Union
and had encounters with management over the distribution of
literature did not receive lower evaluations from Christian, e.g.,
Tina Russell and Barbara Cooke.
In addition, Mary Christian, who evaluated Corcoran, credi-
bly denied that Corcoran’s union activities had anything to do
with the evaluation.
Christian gave Corcoran two “threes” (needs improvement)
because of Corcoran’s difficulty in performing charge nurse
duties.
It is uncontested that Corcoran told Christian that she (Cor-
coran) did not like being a charge nurse, i.e., a line nurse who is
in charge of the floor during a shift. Christian credibly testified
that registered nurses who worked 40, 32, or 24 hours a week,
Corcoran was a 24-hour-a-week nurse, were all called upon
periodically to be the charge nurse. It is also undisputed that
one day when Corcoran had charge duty it was quite busy and
Corcoran had a breakdown on the floor. Corcoran broke down
in tears and had to see Christian. Corcoran cried again in front
of Christian and Christian counseled Corcoran and told her that
they should look at the problem and fix it. Based on Cor-
coran’s breakdown and all evidence points to the breakdown
occurring in the rated period, it was not unreasonable to write
that she had “difficulty performing charge duties” as Christian
wrote.
The other comments on the evaluation were prompted by
Christian’s belief that Corcoran did not participate on enough
hospital committees and Corcoran agreed she did not partici-
pate on committees because she was going to college. There
was also an incident after Corcoran’s encounter with McArthur
in the hospital vestibule when Corcoran said, “here comes the
Gespato” referring to Nurse Supervisors Kim Walsh and Mi-
chelle McArthur. Corcoran didn’t even remember saying the
words but Walsh and McArthur testified she said it and active
union member Barbara Cooke confirmed that Corcoran said it.
Even Corcoran believes she said it after Cooke corroborated it
for her sometime before the trial in this case.
Based on the testimony of Cooke I believe that Corcoran
said, “here comes the Gestapo” but didn’t intend for Walsh and
McArthur to hear it. However, I credit Walsh and McArthur
when they testified that they heard it and thought it was in-
tended for them to hear it. Suffice it to say Walsh told Chris-
tian about the incident prompting Christian to consider it in her
comments on the evaluation.
Christian also credibly testified that Corcoran complained
about the merger of two units at the hospital (B3 and A4) with-
out, in Christian’s opinion, offering any concrete proposals.
This was also taken into account when Christian prepared the
evaluation. Suffice it to say I credit Christian’s testimony that
Corcoran’s union activity was not a factor in the evaluation she
gave Corcoran.
In 1998 Corcoran received all “2s” (meets expectations). In
addition, this lower evaluation in 1997 did not result in Cor-
coran losing any money or hours and in any way jeopardized
her job security or nursing career with Brockton Hospital.
I find that the Act was not violated when Corcoran received
the evaluation she received.
REMEDY
The remedy in this case should include a cease-and-desist
order, the posting of an appropriate notice, and the revocation
of certain overly broad written policies of Respondent.
CONCLUSIONS OF LAW
1. The Respondent, Brockton Hospital, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Massachusetts Nurses Association, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act:
(a) When it promulgated and maintained overly broad no-
solicitation/no-distribution rules in its “Administrative Policy
Manual” and “Associate Handbook.”
(b) When it promulgated and maintained an overly broad
confidentiality rule in its “Associate Handbook.”
(c) When it refused to permit employees to distribute litera-
ture concerning terms and conditions of employment to other
employees in nonworking, nonpatient care areas of the hospital
during the nonworking time of the employees involved.
(d) When it discriminatorily enforced a policy of removing
union notices from a nurse’s locker while permitting other ma-
terial to be posted on nurses’ lockers and when it told an em-
ployee that a union meeting notice was “unprofessional.”
4. The unfair labor practices committed by Respondent ef-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Brockton Hospital, Brockton, Massachu-
setts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining overly broad no-
solicitation/no-distribution rules in its “Administrative Policy
Manual” and “Associate Handbook.”
(b) Promulgating and maintaining an overly broad confiden-
tiality rule in its “Associate Handbook.”
(c) Refusing to permit employees to distribute literature
concerning terms and conditions of employment to other em-
ployees in nonworking, nonpatient care areas of the hospital
during the nonworking time of the employees involved.
(d) Discriminatorily enforcing a policy of removing union
meeting notices from nurses’ lockers while permitting other

2 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
material to be posted on nurses’ lockers and telling employees
that a union meeting notice was unprofessional.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the unlawful portions of the “Administrative
Policy Manual,” “Associate Handbook,” May 7, 1997 memo-
randum of Cheryl Barrows and any other written directives
which prohibit solicitation or distribution during nonworking
time in nonworking, nonpatient care areas of the hospital.
(b) Modify the confidentiality clause in the “Associate
Handbook” to make it clear that unit employees may discuss
hours, wages, and other terms and conditions of employment
with their fellow employees and representatives of their union.
(c) Within 14 days after service by the Region, post at its
Brockton Hospital facility in Brockton, Massachusetts, copies
of the attached notice marked “Appendix.”3 Copies of the no-

3 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 Na-
tice, on forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 20,
1997.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”