Canton-Potsdam Hospital

National Labor Relations Board - Administrative Judge Opinions

May 1, 2014

03-CA-114181 (N.L.R.B. May. 1, 2014)

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Potsdam, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CANTON-POTSDAM HOSPITAL
and Case No. 03-CA-114181
1199 SEIU UNITED HEALTHCARE WORKERS EAST
John Grunert and Greg Lehmann, Esqs.,
for the General Counsel.
Ronald J. Andrykovitch, Esq. (Cohen & Grigsby, P.C.)
Pittsburgh, PA., for the Respondent.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge, a first amended
charge, and a second amended charge filed by 1199 SEIU United Healthcare Workers East
(Union) on September 26, 30, and October 22, 2013, respectively, a complaint was issued
against Canton-Potsdam Hospital (Respondent, Employer or Hospital), on November 26, 2013.
The complaint alleges that since about September, 2013, the Respondent has unlawfully
maintained a rule prohibiting employees from wearing certain union insignia. The Respondent’s
answers denied the material allegations of the complaint. An affirmative defense, and a Motion
to Dismiss asserted that the matter must be deferred to arbitration.1
On January 27, 28, and February 4, 2014, a hearing was held before me in Albany, New
York. Upon the evidence presented in this proceeding, and my observation of the demeanor of
the witnesses, and after consideration of the briefs filed by the General Counsel and the
Respondent, I make the following:
Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent, a not-for-profit corporation having its office and place of business at 50
Leroy Street, Potsdam, New York, has been engaged in the operation of an acute care hospital.
During the past twelve months, the Respondent, in the conduct of its business operations, has
derived gross revenues in excess of $250,000 and purchased and received at its Potsdam, NY
location goods and materials valued in excess of $5,000 directly from points located outside
New York State. The Respondent admits and I find that it has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act and has been a health care
institution within the meaning of Section 2(14) of the Act.

1 Counsel for the General Counsel filed an Opposition to the Motion and I reserved ruling
thereon until this Decision.
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The Respondent also admits, and I find that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. The Facts
A. Background
The Respondent, a 94 bed acute care facility located in a rural part of upstate New York,
employs about 985 employees. There are about 430 service, maintenance, clerical and LPN
Technical employees in bargaining units represented by the Union. The Union has a current
collective-bargaining agreement with the Employer, and has represented the Hospital’s
employees for at least nine years.
The collective-bargaining agreements were scheduled to expire on September 30,
2012. 2 Prior to their expiration, the parties negotiated toward a successor agreement. During
negotiations, the Employer proposed new health insurance plans in which employees would
have to pay a portion of their health care cost. Under the expiring contract, the employees did
not contribute toward their health insurance for individual coverage, and the Union opposed the
Employer’s proposal.
B. The “Health Insurance” Stickers
In response to the Employer’s proposal that employees contribute to their health
insurance premiums, Mary Wilsie, the Union’s administrative organizer, created a sticker for
union members to wear. The two inch by four inch rectangular sticker bears an outline of two
hands and the message “Hands Off Our Health Insurance.”
At about the same time, Wilsie distributed purple bracelets with the Union insignia and
purple ribbons without an insignia. Purple is the Union’s dedicated color. Employees began
wearing them immediately.
On September 24, Wilsie gave the stickers to the Union’s delegates and bargaining
committee members who distributed them to their co-workers. Employees began wearing them
immediately. Wilsie instructed that the stickers be worn on the days when negotiations were
held. A negotiation session was scheduled for the following day.
Gloria Shea, a salad maker in the dietary (nutritional service) department wore the
sticker at work on September 24. She testified that her supervisor, Steven Gadapee,
approached her in the kitchen and said “I don’t know what the stickers are all about, Gloria, but I
want you to know that I’ve called the human resources department and I’m waiting to hear back
about them.” Shortly thereafter, Gadapee told her “I don’t have a problem with you wearing it,
but anyone who had direct patient care is not allowed to wear them. That’s what I was told.”
Housekeeper Tina Clark also wore the “Hands Off” sticker on September 24. As she was
leaving work that day, admitted supervisors Benjamin Gratto and Nicholas Pomainville, spoke to
her in the housekeeping hallway, which is not a patient care area. Clark testified that they told
her to remove the sticker. Clark refused, and went home.

2 The contract has been extended to February 28, 2014.
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The following day, September 25, housekeeping employees reported to a “huddle”
meeting at 7 a.m. Such meetings are held each morning for a few minutes during which the
supervisors advise the workers as to any changes in their assignments or any complaints that
were received.
Clark testified that during the meeting Gratto told the 10 workers that “[you] are not
allowed to wear the stickers in patient areas” adding that “patient areas” are the “whole
hospital.” She quoted Gratto as saying that his “bosses told us that we are not allowed to wear
those stickers in patient areas.” Another supervisor, Sean Clough, told them to “take it off,
altogether.” Housekeeper Darlene Emlaw gave similar testimony, stating that Gratto told the
workers that they were not allowed to wear the “Hands Off” stickers until further notice.
Carla Snell, the Respondent’s employee relations manager, stated that she was advised
by certain Hospital managers that they saw employees wearing the “Hands Off” sticker and
asked if they could permissibly be worn. Snell conferred with Dr. Darlene Lewis, the vice
president of human resources, and with the Hospital’s attorney, John Lycheski, and reviewed
the collective-bargaining contract. On September 25 at 10:43 a.m. Snell sent an email to the
Employer’s leadership team as follows:
As the 1199 negotiations continue you will undoubtedly see
employees wearing stickers in opposition to the Hospital’s position
on health insurance. These stickers should not be worn in those
immediate patient care areas where patients and their families are
present in the normal course of care and treatment.
If you notice an employee wearing this sticker in the patient care
areas mentioned above please advise the employee of the
Hospital’s position and request the employee to remove the
sticker.
Nurse manager Holly Cole testified that immediately after she received the email from
Snell she observed a clerk in her unit wearing the “Hands Off” sticker at her seat at the nurses’
station which Cole considered a patient care area. She asked the clerk to remove the sticker
and she did.
Gratto contradicted Clark’s testimony about the meeting that day. He stated that it took
place at about 3 p.m., after he received Snell’s email. He did not have that email in hand when
he told the assembled workers that “the stickers they were wearing couldn’t be worn in patient
care areas.” He stated that he referred specifically to the “Hands Off” and “I Support EJ Noble
Workers” stickers. He had seen employees wearing both stickers prior to the meeting. The
workers asked why they could not wear those stickers and Gratto replied that they were
“inflammatory.” He told them that “if they had them on their uniform, they had to remove them.”
He did not tell them that they could wear the stickers in non patient care areas.3
Gratto further testified that he referred to the EJ Noble sticker because between the time
he received Snell’s email and the meeting that afternoon, Pomainville told him that those were
the stickers at issue. He noted that he had seen employees wearing the “EJ Noble” sticker
before the meeting. Employee Emlaw asked whether they could wear the purple wrist bands
and ribbons. He replied that he would find out.

3 In this regard, two employees in Gratto’s department work exclusively in waste removal
jobs, spending about 30% of their time in non patient care areas.
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Apparently, Shea and Clark told Union agent Wilsie of their supervisors’ instructions to
remove the stickers. Wilsie told Employer attorney John Lycheski at a bargaining session later
that day that Shea and Clark were instructed to remove their stickers. Wilsie said that it was the
members’ right to wear stickers. Lycheski responded that “at the time they did not want anything
worn. They didn’t want the stickers worn in the facility.” Wilsie also quoted Lycheski as saying
that he “did not want to get the patients involved in what was going on and that was the reason
for the restriction.”
Lycheski left the bargaining table and returned shortly thereafter and said that the
Employer “would agree to allow the stickers to be worn as long as they are worn in non patient
care areas.” Wilsie asked him to clarify what he meant by that term, and he said that a “patient
care area … is an area on the medical floor where a patient was in a bed, was incapacitated
and in a bed on the medical floor.” Wilsie’s pre-trial affidavit stated that Lycheski said that a
patient care area was anywhere where the employees were taking care of patients or words to
that effect.”Lycheski did not testify at the hearing. Wilsie responded that union members have a
right to wear the stickers and would wear them, and if they were not permitted to do so, the
Union would file a charge.
At the end of the meeting, it was agreed that employees would be permitted to wear the
stickers in non patient care areas. It was also agreed that employees could continue to wear the
purple bracelets and purple ribbons that they had been wearing. The Employer agreed to send
an email outlining the parties’ agreement.
The following day, September 26, Carla Snell sent the following email to her leadership
team and to Wilsie:4
To follow up regarding my email yesterday regarding 1199
members wearing stickers. You may see employees wearing
purple wrist bands or purple ribbons, we have no opposition to
employees wearing these, we are only addressing the stickers
that have offensive or inflammatory messages, such as the ones
being worn now addressing opposition to the Hospital’s position
on health insurance. Again we are requesting that stickers only
not be worn in those immediate patient care areas where patients
and their families are present in the normal course of care and
treatment.
Snell testified that her emails of September 25 and 26 related only to the “Hands Off”
sticker.
C. The “EJ Noble” Stickers
On October 14, employees began wearing a sticker that said “I Support EJ Noble
Workers.”Carla Snell testified that certain managers asked her whether the stickers could be
worn since they had nothing to do with the current contract negotiations. The sticker is round
and 2½” in diameter.
EJ Noble is a hospital located about 10 miles from the Employer. Certain bargaining

4 The Employer did not send the email to its employees.
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units there are represented by the Union. The Respondent bought the assets of EJ Noble and
opened a new hospital on January 14, 2014, renaming it Gouverneur Hospital. Apparently there
was some dispute concerning the employees at the former EJ Noble hospital. Wilsie testified
that she sought to have the Respondent’s employees show support for the EJ Noble workers by
wearing that sticker.
Snell conferred with Lewis and Lycheski and determined that the sticker could not be
worn because it “did not deal with the current issues [being negotiated] with the Union and
because there had been so much publicity in the papers about what was going on at the time
and the fact that we felt that it could be very controversial. And these prompting, perhaps,
discussion that would take away from the care of the patients at the hospital.”
Snell explained that the impact of the newspaper articles concerning the Respondent’s
agreement with EJ Noble was great because one or two local newspapers reported on the
matter to the small rural area which encompassed the Hospital, and that one article quoted
Kathy Tucker, the International Union’s representative, as saying something to the effect that
the Respondent was attempting to “bust” the union at EJ Noble.5
On October 15, Snell sent an email to her leadership team which stated:
Yesterday, Mary Wilsie from 1199 SEIU distributed stickers to
CPH employees that read “I Support EJ Noble Workers.” We are
taking the same position on these stickers as we did with the
previous stickers that read “Hands Off Our Health Insurance.” We
have opposition to employees wearing these stickers in immediate
patient care areas where patients and their families are present in
the normal course of care and treatment. Our position is that this
message creates the perception of divisiveness and invites a
negative response from patients and/or family members.
If you see employees wearing the stickers with either “I Support
EJ Noble Workers” or “Hands Off Our Health Insurance” in patient
care areas, please advise them to remove the sticker and that
they should only be worn in areas where patients and families are
not present.
Also as a reminder, purple ribbons and purple wristbands are
acceptable to wear, this only applies to the stickers mentioned
above.
Supervisor Gratto testified that in mid January, he saw employees Tina Clark and Diane
Vincent wear the “EJ Noble” sticker at a huddle meeting in the service hallway, which he
conceded is not a patient care area. He asked them to remove the stickers because they were

5 The article entitled “Feedback: EJ Noble Hospital Union-Busting,” states that “a leader of a
union representing many employees at EJ Noble Hospital says the reorganization of the
hospital into Gouverneur Hospital will, in effect, break the union. That’s despite assurances …
that the reorganization is not an attempt at union-busting. ‘We’ve already been told that there
will be no contract and, essentially there will be no union,’ said Kathy Tucker.” The article also
quoted Tucker as saying that “we’re not going to just sit back and take it, I guarantee that. We
hope that the community comes out and joins us in support of the workers.”
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about to enter a patient care area after the meeting. Clark was unable to remove the sticker
because it was stuck to another sticker on the reverse side. He had her cover the sticker with
yellow paper and tape. Vincent removed her sticker.
D. The January 17 Email
On January 17, 2014, Carla Snell sent the following email to her leadership team:
Recently it has been brought to my attention that employees are
adhering 1199 stickers to either the backside of their name badge
or the red emergency cards. Our position is that these name
badges and emergency cards should not be covered with any type
of stickers, pins, etc. unless specifically authorized by HR, as is
the case with the round Flu sticker. If employees are adhering
stickers to their badges please advise them they must be
removed.
Our position remains unchanged from my previous memo on
October 15, 2013:
[The email then repeats the email dated October 15, above]
Peter Snell, the director of nutritional services at the Employer and an admitted
supervisor, upon receiving the above email, copied and pasted the first paragraph of the
January 17 email, above, and added the following, which essentially repeats Carla Snell’s email
of October 15.
Canton Potsdam Hospital is taking a position on employees that
are wearing stickers that read “I Support EJ Noble Workers” and
“Hands Off Our Health Insurance.” We have opposition to
employees wearing these stickers in immediate patient care areas
where patients and their families are present in the normal course
of care and treatment. Our position is that this message creates
the perception of divisiveness and invites a negative response
from patients and/or family members.
Also as a reminder, purple ribbons and purple wristbands are
acceptable to wear, this only applies to the stickers mentioned
above.
However, Peter Snell added the following paragraph to his email:
Every NS [Nutritional Service] employee will be in an area where
patients and families are, so the 2 stickers outlined in this
message are not allowed to be worn at any time while you are
working.
He posted this memo on the kitchen employees’ bulletin board on January 17, the same
day he received Carla’s email. Peter prepared the memo on his own, and testified that he
sincerely believed that every area of the hospital is a patient care area. He testified that at the
huddle meeting the following week he told the workers that there was information about the two
stickers that were in question, asked the employees to read his memo, and said “if you have
these two stickers on your person at any point please remove them.”
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On about January 30, when Carla Snell learned of Peter’s notice, she informed him that
his understanding of the term “patient care area” contradicted that of the Hospital. She directed
him to change his memo to delete the newly added paragraph. He did so and posted the new
memo that day. He met with his employees and informed them that the memo had been
amended. Peter was not disciplined for preparing and posting the January 17 memo.
Carla Snell testified that employees have not been wearing the “Hands Off” or “EJ
Noble” stickers in patient care areas following their being advised, on October 15, that they were
not permitted to do so. However, Gratto testified that since the email from Carla Snell, he has
seen employees occasionally wearing the “EJ Noble” sticker, adding that if he saw a worker
wearing it, he would ask her to remove it.
Regarding the placement of the stickers on the back of the employee’s identification card
or emergency card, Debra Marques-Seaman, the director of the third floor med-surg unit,
testified that the employee’s name and photograph should not be obscured by any other
material because patients and visitors should be able to identify the employee, and such a
practice is unprofessional. Further, covering the red emergency card may lead to the employee
not being able to determine whether and how to respond to an emergency.
Employee Emlaw attached an “EJ Noble” sticker and the “Purple Strong” stickers to the
back of her name badge when she received them. She wore them during her work in patient
care areas and non-patient care areas. In mid-October, supervisor Pomainville asked her to
remove them and she did. Emlaw testified that, at that time, she was not informed that she
could not place the stickers on her badge.6
E. The Practice of Wearing Insignia
Union agent Wilsie stated that during contract negotiations for the current agreement, in
2010 or 2011, employees wore a 2” x 2” sticker bearing the image of two hands which stated
“Hands Off My Benefits.” Wilsie testified that she saw employees wearing that sticker in all
areas of the hospital, including patient care areas, and that the Hospital did not object to
employees wearing that sticker. Housekeeping employee Tina Clark testified that she wore that
sticker in patient care areas and non patient care areas of the hospital. She was not told to
remove it by any Employer representative. Emlaw identified the image as a button and not a
sticker and she, too, wore it in all areas of the hospital.
After September 26, the Union produced and distributed to employees various stickers in
addition to the two stickers at issue here. They included “United for A Fair Contract”, “Happy
New Year”, “Our Skin Your Game”, “Purple Strong”, and “I Don’t Want to be Screwged!”7 Union
agent Wilsie testified that the stickers were produced to correspond with events occurring during
contract negotiations, and to promote cohesiveness and solidarity among the unit employees.

6 I reject the General Counsel’s argument that the request that Emlaw remove the stickers
violated the Act. The stickers were attached to her name badge. The Respondent had a
legitimate interest that the badge should not be covered by any material. Although Emlaw
testified that she was not told that she could not adhere the stickers to her badge, the
Respondent’s rule, set forth above, properly prohibits such a practice.
7 Each of the stickers except the last is round and 2½” in diameter. The last sticker is 2” x 4”
and bears an image of the character Ebenezer Scrooge, the miser portrayed in Charles
Dickens’ novel, A Christmas Carol.
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Typically, employees began wearing stickers distributed by the Union on their uniforms
but found that after a day’s wear the adhesive lost its grip and fell off the garment. They then
laminated the stickers to each other and attached them to a lanyard which also had their
hospital identification card and red emergency card. The stickers hung separately from the
Hospital cards on the lanyard.
Supervisor Pomainville testified that he saw a group of about 24 employees including
catering associates who bring food to the patients, wearing stickers in patient care areas and
non patient care areas.
Catering associate Sandra Mallory stated that she wore the two stickers at issue in
patient care areas and non patient care areas, and saw other employees wearing the two
stickers at issue and all the stickers, above, in all areas of the hospital in patient care and non
patient care areas.
Housekeeping employee Tina Clark gave similar testimony, stating that when she
cleaned patient rooms she wore all the stickers set forth above, from October, 2013 to the time
of the hearing. She also testified that she saw employee Cindy in the Cardiac Care Unit and
Melissa, the third floor ward clerk who sits behind the nurses’ station, wearing the “Unite for a
Fair Contract”, “Happy New Year”, “Our Skin Your Game”, and “Purple Strong” stickers.
Housekeeping employee Emlaw gave similar testimony, further stating that nursing
supervisor Debra Seaman saw her wearing union stickers. Seaman testified that she has seen
her ward clerk wearing the Purple Strong sticker and a purple bracelet.
In addition to Union related stickers, employees wore personal pins including holiday
pins, cancer awareness pins, and years of service pins issued by the Employer. Clark testified
that she wore such pins in patient care and non patient care areas and was not told to remove
them. Employee Shea stated that she did not see a supervisor advise employees to remove
those pins.
Carla Snell testified that after September, 2013 she has occasionally seen employees
wear the “Purple Strong” and “Scrooged” sticker, and a purple ribbon in non patient care areas.
However, prior to September, 2013, she has not seen employees wear union related or non-
union related stickers. She stated that she saw employees wear holiday pins, and has seen
them wear breast cancer awareness pins in patient care areas and non patient care areas.
Snell further testified that the Respondent does not object to employees wearing
personal or holiday pins, the purple ribbon and bracelet, 1199 pins, or any of the following Union
stickers in patient care areas or non patient care areas: “United for a Fair Contract”, “Happy
New Year”, “Our Skin Your Game”, “Purple Strong” and “I Don’t’ Want to be Scrooged.” The
Hospital’s only objection relates to the two stickers at issue here, “Hands Off Our Health
Insurance” and “I Support EJ Noble Workers.”
F. Lack of Patient Complaints Concerning the Stickers
The General Counsel subpoenaed all documents from September 13, 2013 to the
present relating to any disturbance or disruption of health care operations caused by employees
wearing stickers. The Respondent answered that no such documents exist. In addition, Wilsie
testified that she asked Employer counsel Ronald Andrykovitch and human resources vice
president Lewis whether there were any patient complaints about the stickers, and they said
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there were none.
G. The Reason for Prohibiting the Wearing of the Two Stickers
Carla Snell testified that in deciding whether employees could wear the two stickers at
issue, she consulted the collective-bargaining agreement, using it as a “reference or resource.”
Snell relied on the management rights clause which states that the Employer has an
exclusive right to “promulgate reasonable rules and regulations not in conflict with this
Agreement as it may from time to time deem best for the purpose of maintaining order, safety
and/or effective operation of the Hospital….”
Snell also relied on Article 33 – No Strike No Lockout, which states, in part, that “no
employee shall engage in … any interference with the operations of the Hospital.”
Snell conceded that the Hospital had no rules prohibiting the wearing of union insignia,
or non-employer insignia. She further stated that prior to September, 2013, there was no rule,
other than the dress code policy, regarding the wearing of insignia. That policy states that
“professional association pins and other hospital distributed buttons, slogans, emblems, etc. are
appropriate to wear at the hospital.”
She investigated the question, whether in the past, the Hospital prohibited stickers or
buttons deemed to be “controversial and disruptive to patient care” and discovered a memo
issued in October, 2008. That memo advised all employees that “with election season upon us,
this is a reminder that … the Hospital does not allow political advertising to be displayed in the
Hospital. This restriction includes posters, campaign buttons, flyers, or any other promotion of
political candidates. Collateral pieces urging citizens to vote are allowed, as long as no
candidate is promoted.”
Analysis and Discussion
I. Deferral to the Grievance-Arbitration Process
The Board has consistently held that while a deferral defense and the merits of the
matter may be addressed in the same hearing and the same decision, “[w]hether deferral is
appropriate is a threshold question which must be decided in the negative before the merits of
the unfair labor practice allegations can be considered.” Sheet Metal Workers Intl. Assn Local
18 (Everbrite), 359 NLRB No. 121, slip op. at 2 (2013), citing L.E. Myers Co., 270 NLRB 1010,
1010, fn. 2 (1984).
The Respondent moved to dismiss the complaint arguing that the instant matter must be
deferred to the grievance process set forth in its collective-bargaining contract. It repeated that
argument in its post-hearing brief.
The contract’s grievance-arbitration provision broadly defines a grievance as a “dispute
or complaint … concerning the interpretation, application, or any alleged breach of a specific
provision of this Agreement.” The first step of the grievance procedure must be invoked within
five days from the time the grievance occurred. However, according to the contract, that time
limit may be mutually extended by the parties. The Respondent has agreed to waive any time
limitations in the grievance-arbitration provisions.
The question before me is whether the Respondent properly prohibited the two stickers
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under those provisions of the contract permitting management to promulgate a rule for the
purpose of maintaining order, safety and/or effective operation of the Hospital and its rule
prohibiting interference with the operations of the Hospital, as set forth above.
The Employer thus generally argues that its actions in forbidding the wearing of the two
stickers in patient care areas is a contractual issue which must be deferred to the grievance-
arbitration provisions of the parties’ agreement. It states that the dispute centers around the
interpretation and application of the contractual provisions to the actions it took in prohibiting the
wearing of the two stickers in patient care areas.
It specifically argues that the question whether the Union waived its statutory right to
strike in Article 33 [the No Strike No Lockout clause prohibiting interference with the Hospital’s
operations] must be deferred to arbitration.
The Employer argues that since the issue involved herein arises from the contractual
terms of the parties’ agreement, their preferred method of resolving disputes, the grievance-
arbitration process, must be utilized.
The General Counsel argues that the matter may not be deferred to arbitration because
no contractual provision addresses the wearing of union insignia or Section 7 rights. The
General Counsel also states that deferral is inappropriate because the arbitrator would not
reach the issue of the employees’ protected activity. He cites Stevens Graphics, Inc., 337 NLRB
457 (2003), where the Board held that deferral was inappropriate where the violation consisted
of the employer’s restriction of postings on a bulletin board and the parties’ contract did not
address that issue. The Board stated that “there is no assurance that the alleged Section 7
rights of the employees are covered in the contract.” 337 NLRB at 460. See Chapin Hill at Red
Bank, 359 NLRB No. 125, slip op. at fn. 5 (2013).
The Employer, on the other hand, argues that in United Technologies Corp., 274 NLRB
504 (1985), the Board deferred to arbitration the issue of the employer’s supervisors instructing
employees to remove buttons they wore in protest of a shop steward’s suspension. The
Employer thus urges that deferral take place here because the issues are essentially the same.
However, in that case, the Board held that deferral was appropriate because the issue was
encompassed by the discrimination language of the parties’ contract, and thus amenable to the
applicable grievance mechanism. Here, the claim is that by wearing the stickers the employees
interfered with the Hospital’s operations.
It is well-settled that the Board has “considerable discretion to defer to the arbitration
process when doing so will serve the fundamental aims of the Act.” Wonder Bread, 343 NLRB
55, 55 (2004).
Deferral is appropriate when the following factors are present: The dispute arose within
the confines of a long and productive collective-bargaining relationship; there was no claim of
employer animosity to the employees’ exercise of protected rights; the parties’ contract provided
for arbitration in a very broad range of disputes; the arbitration clause clearly encompassed the
dispute at issue; the employer had asserted its willingness to utilize arbitration; and the dispute
was eminently swell suited to resolution by arbitration. United Technologies Corp., 268 NLRB
555, 558 (1984).
Here, the parties have had a long, and apparently productive collective-bargaining
relationship; no discriminatory action was taken against employees for wearing the prohibited
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stickers; the arbitration clause is broad; and the Employer is willing to waive the timeliness of
the filing of a grievance.
In U.S. Steel Corp., 223 NLRB 1246, 1247 (1976), it was noted that under Collyer
Insulated Wire, 192 NLRB 837 (1971), deferral of consideration by the Board is dependent on
the express language of the contract. As in U.S. Steel, here there is no provision regarding the
wearing of insignia.8 The Board held that “the authority of the arbitrator is limited to those
matters explicitly contained in the contract. … There is no authority invested in an arbitrator to
hear or decide matters not covered in the contract.”
I find that the contractual provisions relied on by the Respondent cannot be fairly and
reasonably construed to relate to the stickers at issue here. The contract permits the Employer
to make reasonable rules for the purpose of maintaining order, safety and/or effective operation
of the Hospital. I do not believe that any reasonable construction of that provision would permit
a finding that that rule could be applied to the wearing of the stickers at issue here. Similarly, the
no-strike provision which prohibits any interference with the hospital’s operations could not
reasonably be applied to employees wearing these stickers.
In addition, the Employer urges that the Union waived its right to object to the prohibition
of the two stickers because of its agreement to the management rights clause. I do not agree.
“A union’s waiver must be “clear and unmistakable.” United Technologies, 274 NLRB at 507. I
cannot find that the Union waived its right to protest the prohibition of the two stickers or that the
dispute was clearly encompassed in the arbitration clause.
Based on the above, I find and conclude that it is not appropriate that this matter be
deferred to the parties’ grievance-arbitration provisions of their contract.
II. The Merits
The complaint alleges that since about September, 2013, the Respondent has unlawfully
maintained a rule prohibiting employees from wearing certain union insignia.
The Board, in Saint John’s Health Center, 357 NLRB No. 170, slip op at 1-2 (2011),
summarized the law on the issue of wearing union insignia in healthcare facilities:
It is well established that employees have a protected right to
wear union insignia at work in the absence of “special
circumstances.” In healthcare facilities, however, restrictions on
wearing insignia in immediate patient care areas are
presumptively valid, while restrictions on insignia in other areas of
a hospital are presumptively invalid.
The Board, with court approval, has created a presumption that
protects an employer from liability if the employer bans …. the
wearing of insignia in immediate patient care areas. NLRB v.
Baptist Hospital, 442 U.S. 773, 781 (1979). The basis of the
presumption is that such solicitations or insignia “might be
unsettling to patients – particularly those who are seriously ill and
thus need quiet and peace of mind.” St. John’s Hospital, 222

8 The dress code policy permitting the wearing of professional association pins is not a
contractual provision.
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NLRB 1150, 1150 (1972). Although this presumption protects a
healthcare facility’s ban on all nonofficial insignia in immediate
patient care areas, it does not protect a selective ban on only
certain union insignia.
In the latter type of case, the burden is on the hospital to show
that the selective ban is “necessary to avoid disruption of health-
care operations or disturbance of patients.” Beth Israel Hospital v.
NLRB, 437 U.S. 483, 507 (1978). (Certain citations omitted)
As set forth above, Carla Snell’s email instruction of September 25 prohibited the
wearing of the “Hands Off Our Health Insurance” stickers in immediate patient care areas.
Three weeks later, in mid October, Snell similarly prohibited the wearing of “I Support EJ Noble
Workers” stickers in patient care areas.
The Employer’s prohibition against wearing the two stickers in patient care areas enjoys
a presumption of validity if all nonofficial insignia is banned from such areas. However, the
presumption “does not protect a selective ban on only certain union insignia.” Saint John’s
Health Center, above.
The evidence clearly establishes that other types of insignia including Union insignia
have been routinely worn in patient care areas. Thus, the Respondent did not prohibit the
wearing of any other insignia in all areas of the hospital including patient care areas. Sacred
Heart Medical Center, 353 NLRB 147, 149 (2008); Mt. Clemens General Hospital, 335 NLRB
48, 50 (2001). Indeed, employee relations manager Snell conceded that the Respondent does
not object to employees wearing other stickers such as “United for a Fair Contract”, “Our Skin
Your Game”, “Purple Strong” and “I Don’t Want to be Scrooged” in patient care areas. The
Hospital further has no objection to employees wearing the Union’s purple ribbon and bracelet
or Union pins, or personal and holiday pins in patient care areas. The Respondent’s only
objection is to the wearing of the two stickers at issue here, “Hands Off Our Health Insurance”
and “I Support EJ Noble Workers.”
Having allowed other types of insignia to be worn in immediate
patient care areas, the Respondent may not now rely on the
protection of the presumption of validity applicable to an across-
the-board ban to justify its selective ban of only the specific union
insignia at issue. Under the circumstances presented here, we
find that the Respondent’s ban on the Union’s ribbon is not
protected by the presumption of validity. St. John’s Health Center,
above, slip op. at 2.
The Respondent would, nevertheless, be justified in banning the two stickers from
patient care areas if it can show that the selective ban is “necessary to avoid disruption of
health-care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, above, at 507.
According to Carla Snell, the reason for the prohibition of the “Hands Off” sticker, as set
forth in the September 26 email, was that the sticker was regarded as “offensive or
inflammatory.” The reason for the banning of the “EJ Noble” sticker was that the message
“creates the perception of divisiveness and invites a negative response from patients and/or
family members.” Another reason was that the “EJ Noble” sticker had nothing to do with the
current issues being negotiated with the Union and could be “very controversial” which would
“take away from the care of the patients at the hospital.”
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The contractual provisions relied on by the Hospital which permit it to make rules to
maintain order, safety and/or effective operation of the Hospital, and the No Strike No Lockout
clause which prohibits actions interfering with the Hospital’s operations do not expressly prohibit
the wearing of the stickers in patient care areas.
In addition, the Hospital has not shown that the wearing of the stickers in patient care
areas has resulted in any disturbance or disruption of health care operations. Nor have there
been any patient complaints about the stickers. Sacred Heart Medical Center, above, at 149;
Mt. Clemens General Hospital, above, at 50. Indeed, the sticker “I Don’t Want to be Screwged”
is arguably more offensive than the two stickers at issue here.
The Respondent further argues that its conduct in banning the two allegedly offensive
stickers in patient care areas was permissible inasmuch as it prohibited only those stickers and
permitted the wearing of other union stickers and insignia. The Board addressed this argument
in Holladay Park Hospital, 262 NLRB 278, 279 (1982), in which it noted that it is “irrelevant that
the respondent also permitted the employees to wear another union insignia which it deemed
more ‘professional.’” Here, the prohibition on wearing the two stickers was impermissible
regardless of the number and types of other stickers and insignia not deemed objectionable by
the Employer.
The Respondent also argues that it has not knowingly permitted the wearing of the two
objectionable stickers in patient care areas. Rather, it has identified only those two as being
controversial and disruptive to patient care, while at the same time, permitted those stickers
which it did not deem to be objectionable. This “selective ban of certain union insignia” was
deemed impermissible in Beth Israel Hospital, above.
Nor does the Hospital’s dress code affect the result here. The code permits the wearing
of professional and Hospital-distributed buttons but does not prohibit any other type of insignia.
Indeed, other insignia, aside from the two stickers at issue, have not been prohibited by the
Employer. Similarly, the Hospital’s prohibition of political advertising cannot be construed as a
precedent for a ban on union insignia.
Indeed, the Respondent’s asserted reason for the ban, particularly of the “Hands Off Our
Health Insurance” sticker is weakened by not objecting to its employees wearing a nearly
identical “Hands Off My Benefits” sticker in patient care areas during the 2011/2012
negotiations. St. John’s Health Center, above, at 2-3, and fn. 9.
Although there was no evidence that the Respondent expressly permitted the wearing of
that sticker at that time, unlike the situation in St. John’s, the evidence here establishes that the
Respondent did not prohibit and did not object to the wearing of any insignia prior to its
prohibition of the two stickers at issue here. I reject the Respondent’s argument in its brief that
the Hospital has been “consistent in its approach of banning only stickers of controversy in
immediate patient care areas,” and that therefore it has not engaged in a “selective ban” of
union insignia. The evidence establishes that it has not prohibited or objected to the wearing of
the nearly identical “Hands Off My Benefits” sticker in patient care areas.
The Respondent relies heavily on USC University Hospital, 358 NLRB No. 132, slip op.
at 17-19 (2012). In that case, the employer banned the wearing in patient care areas of a sticker
that said “Respect our “Work Stop Union Busting! We Support William Hooper NUHW.” Hooper
was a discharged shop steward. The reason for the prohibition was that its content was
provocative, inflammatory and was designed to provoke controversy and cause dissension and
a disruption of health care operations leading to the disturbance of the tranquil environment for
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its patients. The hospital’s past practice was that employees wore union insignia throughout the
facility including in patient care areas. The judge noted that the term “union busting:” was a
“sensitive, highly derogatory term which could easily inflame the emotions of people who view
it.” The decision noted that the sticker’s language was so offensive that its prohibition “is a
legitimate exception to the parties’ past practice.”
USC University Hospital is distinguishable. Significantly, the decision noted that the
employer had never allowed its employees to wear insignia bearing such an inflammatory
message. Here, in contrast, the evidence established that the Respondent had not prohibited
the wearing of a virtually identical sticker, “Hands Off Our Benefits” which had been worn in
patient care areas only one or two years earlier. In addition, the two stickers at issue here are
not so “sensitive or highly derogatory” which would be expected to inflame the emotions of
people who viewed them.
The Respondent argues that the insignia that have been permitted to be worn in patient
care areas, including pins and ribbons, do not involve patients in a dispute, and that they are
benign because they signify no conflict between labor and management. However, that is not
the standard. The fact is that other insignia have been worn in patient care areas and the ban at
issue here is an impermissible selective ban of certain union insignia.
The Respondent also contends that the newspaper article in which Union official Tucker
spoke about the Respondent’s attempt to “break the union” draws the small rural community
into the dispute between the parties. That statement, according to the Employer, timed with the
distribution of the stickers three weeks later on negotiation days, showed that the purpose of the
stickers was to involve patients in the dispute. Therefore, says the Hospital, it was entitled to
ban the stickers as being disruptive of the hospital’s operations.
I cannot agree. The article merely presented Tucker’s view of the dispute in the exercise
of her free speech right. There is no evidence that patients or their families were disturbed by
the article.
I therefore find that the Respondent has not presented evidence sufficient to show that
special circumstances justified the ban on the “Hands Off Our Health Insurance” or the “I
Support EJ Noble Workers” stickers in patient care areas. Accordingly, I find that the General
Counsel’s evidence has overcome the presumption of the validity of banning the stickers in
patient care areas.
Regarding non-patient care areas of the Hospital, restrictions on the wearing of insignia
are presumptively invalid. St. John’s Health Center, above. As set forth above, the “Hands Off
Our Health Insurance” stickers were worn by employees beginning on September 24, 2012.
Employees were instructed to remove those stickers in non-patient care areas on the following
occasions:
1. September 24: I credit the testimony of employee Clark that supervisors Gratto and
Pomainville instructed her to remove that sticker in a non-patient care area. I cannot credit
Gratto. He testified that he spoke to employees at the September 25 meeting about the EJ
Noble sticker. However, that sticker had not been issued until three weeks later, on October 14,
according to Carla Snell’s October 15 email. Further, Snell testified that her September 25 email
related only to the “Hands Off” sticker. I further credit Clark because Pomainville did not testify.
2. September 25: I similarly credit Clark’s testimony that during the “huddle” meeting
Gratto told the assembled workers that they could not wear the stickers in patient care areas,
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explaining that he considered every area of the hospital to be a patient care area. Gratto
conceded that he told employees Clark and Vincent to remove the “EJ Noble” sticker at a
huddle meeting in the service hallway, a non-patient care area.
3. January 17: Peter Snell advised unit employees in a memo that the two stickers “are
not allowed to be worn at any time while you are working.” The memo remained posted for
about two weeks when it was amended to remove that statement.
Clearly, the actions of the Respondent’s supervisors in broadly prohibiting the wearing of
union stickers in any areas of the hospital, which of course included non-patient areas, is
unlawful. “This wide and unspecified geographic area is an overly broad prohibition on Section 7
activity... Respondent’s prohibition of the … button in areas other than those devoted to patient
care obviously runs afoul of Beth Israel Hospital, above, and its progeny, unless respondent’s
prohibition was ‘necessary to avoid disruption of health care operations or disturbance of
patients’ or unless the button is not protected by Section 7 of the Act.” Sacred Heart Medical
Center, above, at 149.
As set forth above, I find that the Respondent has not established that the prohibition
against wearing the two stickers at issue was necessary to avoid disruption of health care
operations or disturbance of patients. Nor has it shown that the stickers were not protected by
Section 7 of the Act.
I accordingly find and conclude, as alleged in the complaint, that since about September,
2013, the Respondent has unlawfully maintained a rule prohibiting employees from wearing
certain union insignia.
Conclusions of Law
1. The Respondent, Canton-Potsdam Hospital, is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and has been a health care institution
within the meaning of Section 2(14) of the Act.
2. The Union, 1199 SEIU United Healthcare Workers East, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By maintaining a rule prohibiting its employees from wearing, in patient care areas
and in non-patient care areas union stickers which state “Hands Off Our Health Insurance” and
“I Support EJ Noble Workers,” the Respondent has violated Section 8(a)(1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physically posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue
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the following recommended9
ORDER
The Respondent, Canton-Potsdam Hospital, Potsdam, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule prohibiting its employees from wearing, in patient care areas and
in non-patient care areas union stickers which state “Hands Off Our Health Insurance” and “I
Support EJ Noble Workers.”
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the rule prohibiting employees from wearing, in patient care areas and in
non-patient care areas, union stickers which state “Hands Off Our Health Insurance” and “I
Support EJ Noble Workers.”
( b) Within 14 days after service by the Region, post at its facility in Potsdam, New York,
copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent 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 employees employed by the Respondent at any time since
September 24, 2013.

9 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 purposes.
10 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 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.”
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(b) 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.
Dated, Washington, D.C. May 1, 2014
____________________
Steven Davis
Administrative Law Judge
JD(NY)–20–14
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 Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain a rule prohibiting you from wearing, in patient care areas and in non-patient care
areas union stickers which state “Hands Off Our Health Insurance” and “I Support EJ Noble Workers.”
WE WILL NOT prohibit you from wearing, in patient care areas and in non-patient care areas union
stickers which state “Hands Off Our Health Insurance” and “I Support EJ Noble Workers.”
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 rule prohibiting you from wearing, in patient care areas and in non-patient care
areas union stickers which state “Hands Off Our Health Insurance” and “I Support EJ Noble Workers.”
CANTON-POTSDAM HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
130 S. Elmwood Avenue, Suite 630, Buffalo, New York 14202
716-551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-114181 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
JD(NY)–20–14
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.