Cooper Health System

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1159 (N.L.R.B. 1999)

COOPER HEALTH SYSTEM 1159
The Cooper Health System and JNESO, District 1,
International Union of Operating Engineers,
AFL–CIO. Case 4–CA–25918
March 31, 1999
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
DECISION AND ORDER
On June 11, 1998, Administrative Law Judge Leonard
M. Wagman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the Act-
ing General Counsel filed an answering brief.
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,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Cooper Health System,
Camden, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Richard Wainstein and Patricia Garber, Esqs., for the General
Counsel.
Steven W. Suflas and Meredith S. Francis, Esqs. (Meredith &
Greiner), of Haddonfield, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Philadelphia, Pennsylvania, on January 8 and
February 18, 1998. Upon a charge filed on April 3, 1997,1 by
the Union, JNESO, District 1, International Union of Operating
Engineers, AFL–CIO, the Regional Director for Region 4 is-
sued a complaint on June 13, alleging that Respondent, The
Cooper Health System,2 had violated Section 8(a)(1) and (3) of
the National Labor Relations Act, referred to below as the Act,
by selectively and disparately enforcing a no-distribution rule
against an employee, who was distributing union literature in
Respondent’s parking garage, and by disciplining the em-
ployee. Thereafter, on November 3, the Union filed an
amended charge, and on December 12, the Regional Director
issued amendments to the complaint alleging that Respondent
had violated Section 8(a)(1) and (3) of the Act by maintaining
an excessively broad rule prohibiting union solicitation, prohib-
iting the distribution of union literature in its parking garage,
confiscating union literature from an employee, discriminato-
rily and selectively enforcing its no-solicitation/no-distribution
rule against union activity, prohibiting an employee from dis-
tributing union literature on Respondent’s premises during the
employee’s work shift or while wearing work clothes, and by
issuing a verbal warning to an employee because she distrib-
uted union literature in Respondent’s parking facility. Respon-
dent, by its answers to the complaint and the amendments to the
complaint, denied committing the alleged unfair labor practices.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Boards established policy is not to overrule an adminis-
trative law judges credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
1 All dates are in 1997 unless otherwise indicated.
2 The name of the Respondent appears as corrected at the hearing.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs3 filed
by the General Counsel and the Respondent, Cooper, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Cooper, a New Jersey corporation operates a tertiary care,
teaching hospital at its facility in Camden, New Jersey, where it
annually derives gross revenues in excess of $250,000 in the
operation of its hospital and annually purchases and receives
goods valued in excess of $50,000 directly from points outside
the State of New Jersey. Cooper admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Cooper Hospital is a large tertiary care institution licensed
for 554 beds. It has the most sophisticated services of any hos-
pital in Southern New Jersey. As a tertiary care institution,
Cooper Hospital offers higher level services including trauma,
high-risk obstetrics, children’s care, and open heart surgery.
The sickest patients in Southern New Jersey come to Cooper. I
find from the testimony of Leslie D. Hirsch, Cooper’s executive
vice president and chief operating officer, that Cooper Hospital
is “unique among the other hospitals in Southern New Jersey”
and is comparable to “the large medical institutions in Philadel-
phia.”
Cooper has approximately 4500 employees, including 300
physicians, 175 residents and house staff, and 865 nurses.
There is no collective-bargaining history for any of Cooper’s
employees. However, in March, the Union began an organiz-
ing effort among Cooper’s employees.
On March 30, at approximately 6:20 a.m., Donna Conrey, a
registered nurse employed by Cooper, began distributing leaf-
lets for the Union in a parking facility adjacent to the Cooper
Hospital, where she has worked for the past 6 years. Through-
out her employment at Cooper, Conrey has worked in its
Trauma Intensive Care Unit, on the night shift, from 7 p.m.
until 7 a.m. On this occasion, Conrey was on a break and was
dressed in hospital scrubs. She had signed off her patients to
another nurse. The Union’s leaflet, which she was inserting
under auto windshield wipers, invited registered nurses and
technicians to a union meeting scheduled for April 10.
3 Cooper’s motion to correct the transcript is granted. Accordingly,
certain errors in the transcript have been corrected.
327 NLRB No. 189
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
The parking facility where Conrey was situated on the morn-
ing of March 30, is known as the “Riebal Parkade” or the
“Parkade.” The Parkade is a mixed use facility where patients,
Cooper employees, and visitors may park their vehicles. Coo-
per’s survey of those parking in the Parkade for the period of
March through August 1997 shows that between 55 and 60
percent of them were not Cooper employees. Conrey has
parked her car in the Parkade on every workday for the duration
of her tenure at Cooper. I find from Conrey’s testimony that all
night-shift employees park their cars in the Parkade.
The Parkade is a cylindrical shaped structure with six levels,
designated A through F in ascending order. The entrance and
exit to the structure are on Level A. A heliport is located on the
top level. An elevator runs from the Parkade’s top floor to a
level below Level A, where the hospital lobby is located. The
elevator empties into the hospital lobby. Camden Renewal
Partners, a subsidiary of The Cooper Health System, operates
the Parkade. Although Camden Renewal Partners operates the
Parkade, I find from the testimony of William A. Zullo, director
of security, that Cooper maintains the security for the Parkade,
including the provision, on request, of escorts for Cooper em-
ployees on weekends and after hours during the week. From
Zullo’s testimony I also find that Cooper treats the Parkade as
part of the hospital’s facilities.
Cooper’s employees are authorized to park on levels C
through F. Visitors and patients may park in spaces designated
for visitor parking. On several occasions over the 18 months
preceding the hearing in this case, Cooper’s security office has
sent a stretcher or a wheelchair to the Parkade to move an in-
coming patient, who needed immediate attention, from a park-
ing space to the hospital. On at least two occasions, Cooper’s
security has contacted either the nursing unit or the trauma unit
to seek help for an arriving patient in the Parkade.
The helipad on the top level of the Parkade receives patients
who are airlifted in by helicopter. Adjacent to the pad is an
emergency treatment facility known as the Helipad Resuscita-
tion Area, which is fully equipped to provide immediate care
for incoming patients. Patients arriving on the helipad in need
of immediate care, receive it in the Helipad Resuscitation Area.
If the patient is stable, hospital staff members use the Parkade’s
elevator to transfer the patient to the lobby floor and then to the
trauma area.
On the morning of March 30, Conrey began placing the Un-
ion’s flyers on automobile windshields on Level F and worked
her way down to Level C, where she encountered a security
guard. The guard was running toward Conrey with flyers in his
hand as he spoke into a radio. Conrey heard him say “I have
her in sight. She’s on level C.” The guard ran past Conrey and
stopped approximately 20 or 25 feet beyond her.
Conrey approached the guard and asked him what he
wanted. The guard said she “shouldn’t be doing that.” The
guard asked for Conrey’s name and asked where she worked.
She questioned his need for that information. He gave no rea-
son but insisted on answers to his questions. Conrey complied.
Another hospital guard, Dwayne Craig, approached and
asked what was going on. The first guard explained that Con-
rey was putting union flyers on the parked cars. Craig said that
she was not allowed to do that. Conrey asked to know on
whose authority was she prohibited from placing flyers under
the windshield wipers of cars in the Parkade. Craig said he
could not tell her. Craig took down Conrey’s name and and the
name of her department. Craig saw a manila envelope in Con-
rey’s hand and said that if the envelope contained the same
flyers, he would have to confiscate them. Conrey asked who
authorized Craig to confiscate the flyers. Craig declined to tell
her and again insisted upon confiscating the Union flyers. Dur-
ing a further exchange, Craig conceded that a hospital vice-
president told him to confiscate the flyers, and then once again
demanded the flyers. Conrey removed the flyers from the en-
velope, handed them to Craig, and returned to work.
Soon after Conrey returned to the trauma unit, Craig ap-
peared. He asked for a copy of Conrey’s ID badge for his di-
rector.
On the following day, the director of Trauma Patient Care
Services, Catherine Leipold, left a message on Conrey’s an-
swering machine asking her to return the call. Approximately
30 minutes after hearing the message, Conrey returned the call.
Leipold began the conversation by saying that everything was
okay and asking if Conrey was okay. Continuing, Leipold said
she knew about the incident and had met with Executive Vice-
President and Chief Operating Officer Leslie Hirsch, and Vice
President, Patient Care Services, and Chief Nurse Executive
Carole Dubocq to discuss the incident. Leipold said that the
two executives were concerned about two issues arising from
Conrey’s activity in the Parkade on March 30. First, the execu-
tives were concerned about the time Conrey took her break.
Second, they were concerned about Conrey’s “solicitation.”
Leipold said that the first issue had been resolved. She had
explained how the trauma unit functioned and had convinced
Hirsch and Dubocq that Conrey’s break time was proper. Lei-
pold had spoken to the trauma charge nurse and had learned
that Conrey had signed her patients off properly.
Conrey’s “solicitation,” though, presented a problem. Lei-
pold said she had to act on the solicitation and would issue a
verbal warning to Conrey. Leipold explained that she realized
employees in the trauma unit sold Avon products, cookies,
cakes, and other things. In her view, “people got a little excited
because it was Union literature.” She stated that when a secu-
rity report is filed, four hospital officials receive copies. The
four included Leslie Hirsch, Carol Dubocq, and the heads of
Security and Human Resources, respectively. Leipold said that
as these four officials knew about the incident, she had to do
something about it. Leipold then sought a meeting with Con-
rey.
Conrey met with Leipold on April 5, in the manager’s office,
behind the trauma unit. Also present was the charge nurse who
had been on duty when Conrey took her break on the morning
of March 30. Leipold began by asking if Conrey was okay.
Leipold also said that she had to give a verbal warning to Con-
rey and that she realized that other employees frequently sell
products in the trauma unit, including Avon, cookies, and other
things. However, Leipold noted, “people got a little excited
because [Conrey] was distributing Union literature.” She again
stated that because Hirsch, Dubocq, the head of Human Re-
sources, and the head of Security knew about the incident, she
had to issue a verbal warning to Conrey.
Before issuing the warning, Leipold advised Conrey that the
next time she punched out to distribute union literature, she
should take off her scrubs and go across the street. During this
conversation, Leipold handed a verbal warning notice to Con-
rey. The warning notice stated that the date of the “Oral Warn-
ing” was “4/5/97.” At the bottom of the notice, Conrey signed
a written acknowledgment that her supervisor had given her a
copy of “this warning and reviewed it with me.” Conrey also
COOPER HEALTH SYSTEM 1161
checked a box showing that she agreed with “this warning.”
The warning contained the following explanation and com-
ments by Leipold:

Donna was discovered in the Riebel Parkade distributing leaf-
lets onto cars at approximately 06:24 on 3/30/97. Donna was
on duty in uniform at the time, but was on her break. Donna
did effectively complete her patient care responsibilities and
appropriately reported off to a fellow staff nurse and to the
charge nurse.

In the portion of the warning form dedicated to reporting
“what action is being taken to help employee improve,” Lei-
pold wrote: “I reviewed the solicitation policy and professional
concerns with Donna.” Leipoid signed the warning both as
supervisor and department head. Leipold told Conrey that the
warning would go into a file cabinet in Leipold’s desk. Leipold
also assured Conrey that the verbal warning would not affect
her annual evaluation. In her testimony before me, though,
Leipold admitted that she kept the verbal warning for a year.
She also explained that Cooper’s policy is to keep these warn-
ings for 1 year and “then use them to formulate evaluations.”
Leipold offered to return the confiscated union leaflets to Con-
rey.4
An employee handbook entitled “Summary of Employment
Policies and Practices” which Cooper prepared and issued to its
hospital employees in 1996 included the following:

No Solicitation/No Distribution Policy

No unauthorized solicitation of any kind, including solicita-
tion for membership, subscriptions, raffles, tickets or collec-
tions, will be permitted by employees during working time, or
at any time in working areas. No distribution of any kind, in-
cluding circulars or other printed materials, shall be permitted
during working time, or any time in the working areas. Any
solicitation or distribution interfering with other employees’
work is prohibited. Read Human Resource Policy #1.050.

In July 1997, Cooper issued a similar handbook, with the
same title, and the same no solicitation/no distribution policy to
its employees. In a companion letter dated July 17, Cooper’s
Vice President, Human Resources, Alvin D. Johnson advised
Cooper staff members:

This “Summary of Employment Policies and Practices” has
been prepared for you.

4 With the exception of one portion of her testimony, Conrey seemed
to be giving her best recollection of her encounters with Leipold on
March 31 and April 5. The one exception was her testimony that she
was told that the verbal warning would go into her personnel file.
Nowhere in her testimony before me did Conrey name a source for that
information. For her part, Leipold explained, in a frank and forthright
manner, how she treated Conrey’s verbal warning after its issuance.
Leipold’s other testimony regarding her remarks to Conrey on March
31 and April 5, corroborates much of Conrey’s testimony. However,
Leipold seemed somewhat reluctant to go into details of her remarks to
Conrey. When asked to testify about her telephone conversation with
Conrey, Leipold’s testimony was sketchy. When asked about the con-
versation of April 5, Leipold, at first, ventured only that “we talked
about the solicitation and the professionalism issues.” Counsel for
Cooper found it necessary to keep pressing her for details. As Conrey
generally impressed me as the more forthright witness, I have, with the
exception noted above, credited her version of her conversations with
Leipold on March 31 and April 5.
The policies referred to in this booklet are available to you
through your department and can be found in the Human Re-
sources Policy Manual. Please read this booklet and address
any questions you may have with your department supervisor.

Please sign the last page of this booklet and return it to Hu-
man Resources.

In their prefaces, the 1996 and 1997 editions of the “Sum-
mary of Employment Policies and Practices” advise employees
to “read this booklet carefully and then keep it in a safe place
for future reference.” Both prefaces are careful to state that:
“The Cooper Health System policies and procedures are dis-
cussed” in the respective booklets.
Cooper Hospital’s Human Resource Policy #1.050, dated
2/94 and approved by Leslie D. Hirsch, provides, in pertinent
part:

POLICY:
Cooper Hospital/University Medical Center has the
following policies regarding employees solicitation and/or
distribution activity:
1. Oral solicitation or distribution of written material
is prohibited at all nursing areas, operating rooms, treat-
ment and therapy areas, patient sitting rooms and corridors
adjoining or used for access to such rooms.
2. Outside of such immediate patient care areas:
(a) oral solicitation and distribution is prohibited dur-
ing working time but is permitted during nonworking time
such as lunch breaks provided that the schedules and work
of other employees who are working is not disrupted.
3. . . . .

APPLICABILITY
This policy includes all employees, Physicians, Resi-
dents, Rotating Residents, Students, Medical Students,
Fellows, and Volunteers.

The second page of Human Resources Policy #1.050, in per-
tinent part, sets forth the following:

PROCEDURE
The Department Manager is responsible for:
1. . . . .
2. Ordering employees who are engaged in solicitation
and/or distribution in work areas and/or during work time
to immediately cease their action.
3. . . . .

I find from Conrey’s uncontradicted testimony that the hos-
pital has work areas, where it does not provide patient care.
These include laboratories, offices, storage rooms, file rooms,
utility rooms, the telephone operators’ room, the kitchen, the
laundry, and the central processing department. I also find
from the testimony of witnesses Dubocq and Conrey that the
Helipad Resuscitation Area and the helipad itself are patient
care areas. However, the relevant testimony in the record
shows that the remainder of the Parkade is not a patient care
area.
The record shows that Cooper has been less than strict in the
enforcement of its no-solicitation/no-distribution policy. Con-
rey has observed solicitation and distribution in the Trauma
Unit, where she has regularly worked for the length of her ten-
ure at Cooper Hospital. The Trauma Unit occupies a long hall
in which there are 10 beds and nurses’ station from which all
the beds are visible. The unit also has three isolated rooms and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
a breakroom. Early in 1997, an employee approached Conrey
in the Trauma Unit, attempting to sell Tupperware. The em-
ployee presented a catalog and asked if Conrey was interested
in ordering any Tupperware. Conrey noticed the same catalog
at the nurses’ station for approximately 2 weeks. At some
point, Conrey ordered some Tupperware, and the employee
delivered it to Conrey in the Parkade.
At various times during the 3 years preceding the hearing in
this case, Conrey observed an Avon Products catalog at the
Trauma Unit’s nurses’ station. Employees were free to study
the catalog and fill out an order sheet. Candy is sold by leaving
a box of the product at the nurses’ station. Employees take
whatever candy they want and leave the payment in the box.
The box usually remains at the nurses’ station for about 2 days.
In the summer of 1997, Kathy Leipold bought some of the
candy and gave it to the nurses in the Trauma Unit.
During November and December 1997, an employee brought
samples of Christmas holiday decorations to the Trauma Unit
and offered them for sale. Another employee sold gift baskets
during the pre-Christmas period in 1997. The employee solic-
ited sales by proffering a checklist to potential buyers. Em-
ployees checked off what they wanted and the seller brought
the merchandise to the purchaser, at work. In 1997, an em-
ployee solicited sales of operating room caps in the Trauma
Unit. In 1996, an employee offered for sale Christmas gift
wrap and small Christmas gifts to Trauma Unit employees.
The employee brought a catalog with checklists. Employees
checked off what they wanted and gave the order to the em-
ployee. The seller brought the ordered merchandise to work
and gave it to the purchaser.
During the Halloween season of 1997, an employee from the
hospital’s Central Processing Department brought baskets she
had made for candy. She offered them for sale at the Trauma
Unit. In October 1997, an employee approached Conrey in the
Trauma Unit on behalf of a charity.
Over the years she has been in the Trauma Unit, Conrey has
observed the sale of Girl Scout cookies in the unit. Boxes of
cookies are left at the nurses’ station for about one week. Em-
ployees may leave money at the nurses’ station and pick up the
cookies. If the desired cookies are not present, the potential
purchaser may fill out an order form and leave it at the nurses’
station.
Further solicitations in the Trauma Unit have included the
sale of cheesecakes, candles, decorations, and birdhouses.
These solicitations occurred at the nurses’ station or elsewhere
in the unit. In December 1997, an employee stood near the
nurses’ station and offered Christmas banners, decorated pil-
lows and tree ornaments for sale. Advertisements for the sale
of automobiles have been posted on a bulletin board in the
Trauma Unit, near patients’ beds.5
There is no evidence that Cooper issued any warnings—
similar to the kind issued to Conrey, or of any other type—or
otherwise disciplined the employees engaging in the solicita-
tions and sales described above. The General Counsel subpoe-
naed from Cooper all documents showing that employees were
disciplined for distributing written materials on Cooper’s prem-
ises or in the Parkade from January 1, 1992, until September
26. Cooper’s response was that there are no such documents.

5 I based my findings regarding solicitations and distributions in the
Trauma Unit upon Conrey’s uncontradicted testimony.
III. ANALYSIS AND CONCLUSIONS
Cooper contends that Section 10(b) of the Act bars the com-
plaint as amended and that the complaint as amended alleges
violations of the Act beyond the scope of the underlying unfair
labor practice charge. The pertinent portion of Section 10(b) of
the Act provides that: “ No complaint shall issue based upon
any unfair labor practice occurring more than 6 months prior to
the filing of the charge with the Board.”
The original charge filed by the Union on April 3, alleged
that Cooper had violated Section 8(a)(1) of the Act since on or
about March 30, by “discriminatorily prohibiting the distribu-
tion of union literature, confiscating union literature from its
employees and from automobiles in its parking lot, and by
physically intimidating its employees because of their union
activity.” The same charge alleged that on or about April 1,
Cooper disciplined Conrey because of her union activity. The
Regional Director issued a complaint on June 13 alleging that
the policy contained in Cooper’s Human Resource Policy
#1.050 violated Section 8(a)(1) of the Act. The same complaint
also alleged that the enforcement of that policy by Security
Guard Craig on March 30, violated Section 8(a)(1) of the Act.
Finally, the complaint alleged that Cooper violated Section
8(a)(3) and (1) of the Act by issuing a verbal warning and a
written warning to Conrey.
On November 3, the Union filed an amended charge in this
case realleging the violations set forth in the original charge
and adding allegations of further violations of Section 8(a)(1)
growing out of the incident on March 30, and the discussion
between Conrey and Leipold on April 5. These added elements
included Leipold’s telling Conrey that Cooper was applying its
no-distribution/no-solicitation rule to distributions on the Un-
ion’s behalf and that she should not engage in such distribution
on Cooper’s premises or during her workshift. The amended
charge also alleged that Cooper had maintained an unlawfully
broad no–solicitation rule since on or about October 3, 1996.
The amendments to the original complaint substituted the no–
solicitation/no distribution rule in the employee handbook for
the rules set forth in the Human Resources Policy #1.050, and
otherwise reflected the amended charge’s allegations.
In Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989),
the Board held that otherwise untimely 8(a)(1) complaint alle-
gations must be closely related to the alleged unfair labor prac-
tice allegations recited in the underlying timely filed charge.
Nickles, 296 NLRB at 928, recited the following three factors
which comprise the Board’s “closely related” test:

First, the Board will look at whether the otherwise untimely
allegations involve the same legal theory as the allegations in
the pending timely charge. Second, the Board will look at
whether the otherwise untimely allegations arise from the
same factual circumstances or sequence of event as the pend-
ing timely charge. Finally, the Board may look at whether a
respondent would raise similar defenses to both allegations.

The new allegations involve the issue of whether Cooper’s
no-solicitation/no distribution rule exceeds the Board’s limita-
tions on such rules. The same issue arose in the original charge
where the focus was on Human Resource Policy #1.050. The
other additional allegations of unlawful conduct involve re-
marks showing selective enforcement of Cooper’s rule against
union activity. The timely charge and the initial complaint also
alleged such unlawful conduct. Further, the original charge and
the amended charge both alleged that Cooper violated Section
COOPER HEALTH SYSTEM 1163
8(a)(3) and (1) of the Act by disciplining Conrey for violating
Cooper’s no-solicitation/no-distribution rule. Thus, the legal
theories underlying the original complaint and the amended
complaint—that Cooper’s no-solicitation/no-distribution poli-
cies are unlawfully broad, and that Cooper’s enforcement of
those policies against union activity and not against other so-
licitations or distributions constitutes a violation of Section
8(a)(3)—are essentially the same.
Beyond question, the new allegations in the amended charge
and the amended complaint arose from the same factual cir-
cumstances and sequence of events set out in the timely charge.
Cooper‘s rule and the rule’s enforcement against Conrey are
involved in both the amended charge and the timely filed
charge. Finally, Cooper would most probably have raised the
same defense against the original complaint as it has against the
amended complaint.
In sum, I find that Section 10(b) of the Act did not bar the al-
legations in the amended complaint regarding Cooper’s main-
tenance and enforcement of its no-solicitation/no-distribution
rule and its imposition of discipline upon Conrey for distribut-
ing union literature in the Parkade.
Turning to the “No-Solicitation/No-Distribution Policy”
which Cooper has included in its employee handbook, I am
confronted by the suggestion in the testimony of Executive
Vice President and Chief Operating Officer Hirsch that Coo-
per’s policy regarding that topic is found in Human Resource
Policy #1.050. However, I find that Cooper, on the first page
of each copy of the employee handbook, which it distributed to
each employee, asserted that the handbook contained its “poli-
cies and procedures.” On the same page, Cooper instructed the
reader to “read this booklet carefully and then keep it in a safe
place for reference.” There has been no showing that Cooper
made a similar effort to place Human Resource Policy #1.050
in the hands of individual employees.
That Cooper gave its employees the handbook, containing a
“No Solicitation/No Distribution Policy,” and told its employ-
ees that the handbook contained its “policies and procedures,”
and did not give its employees a copy of Human Resource Pol-
icy #1.050 indicated to Cooper employees that the handbook
contained Cooper’s policy regarding solicitation and distribu-
tion. Therefore, I find that the “No Solicitation/No Distribution
Policy” in the employee handbook is Cooper’s policy.
Moreover, accepting Cooper’s argument that Human Re-
source Policy #1.050 represents its policy on the solicita-
tion/distribution issue would have little effect on this case.
Human Resources Policy #1.050 directs department managers
to prohibit solicitation or distribution “in work areas and/or
during work time.” Such a proscription is the equivalent of the
“No Solicitation/No Distribution Policy” contained in the
handbook.
The Board, with Supreme Court approval, has recognized
that a health care facility can prohibit solicitation and distribu-
tion in immediate patient care areas. Doctors Hospital of
Staten Island, 325 NLRB 730 (1998). The Board has also held
that prohibitions of lawful nonworktime solicitation and distri-
bution in areas other than immediate care areas, to which pa-
tients and visitors have access, are invalid, absent a showing by
the hospital that such a ban is necessary to avoid a disruption of
patient care. Eastern Maine Medical Center, 253 NLRB 224,
240 (1980). In NLRB v. Baptist Hospital, 442 U.S. 773, 786
(1979), the Court added sitting rooms and corridors to the
Board’s list of “immediate patient care” areas, which included
patients’ rooms, operating rooms, and places where patients
receive treatment. In so doing, the Court reasoned that in light
of “the increased emphasis in modern hospitals on the mobility
of patients,” hospitals have a valid interest in keeping sitting
rooms and corridors free from employee solicitation and distri-
bution. Id. at 784. A further basis for the Court’s addition of
corridors and sitting rooms to the Board’s list was that these
areas serve “as places for patients to visit with families and
friends as well as for doctors to confer with patients’ families—
often during times of crisis,” and these areas should therefore
be free from employee solicitation and distribution. Id.
Applying the foregoing principles to the policy in Cooper’s
employee handbook, I find that the prohibition against solicita-
tion in all work areas exceeds the limit, which the Board has
imposed on such rules. Contrary to Board policy, Cooper’s
prohibition applies to nonworking time employee solicitations
in working areas other than immediate patient care areas and is
thus presumptively invalid. Health Care & Retirement Corp.,
310 NLRB 1002, 1005 (1993). Furthermore, Cooper has failed
to make the required showing that union solicitation in working
areas, which are not immediate patient care areas “would either
disrupt care or disturb patients.” Heartland of Lansing Nursing
Home, 307 NLRB 152, 159–160 (1992). That a visitor may be
disturbed by such solicitation, as Cooper has attempted to
show, is insufficient to displace the employees’ right to engage
in union activity protected by Section 7 of the Act. See Eastern
Maine Medical Center, 253 NLRB at 227. Accordingly, I find
that Cooper’s “No Solicitation/No Distribution Rule” contained
in its employee handbook is overly broad and violates Section
8(a)(1) of the Act.
I also find that the Human Resources Policy #1.050, dated
February 1994, unlawfully prohibits employees from engaging
in solicitation in work areas, which are not immediate patient
care areas, during nonworking time. This prohibition is con-
tained in the portion of the policy entitled “PROCEDURE.” In
that paragraph, Cooper directs its department managers to order
employees engaged in solicitation in work areas “and/or during
work time to immediately cease their action.” Again, Cooper
has not justified this prohibition by showing the disruption of
patient care or the disturbance of patients. Accordingly, I find
that by maintaining this no-solicitation policy Cooper has vio-
lated Section 8(a)(1) of the Act.6
I also find that Leipold’s instructions to Conrey, that she re-
move her nurses scrubs and leave Cooper’s premises the next
time she punched out to distribute the literature, occurred in the
course of a discussion of Conrey’s distribution of union litera-
ture. Leipold did not provide any business reason for her in-
structions. I find, therefore, that Leipold was attempting to
restrain Conrey from engaging in a right protected by Section 7
of the Act to engage in union activity. Accordingly, I further
find that by Leipold’s instructions Cooper violated Section
8(a)(1) of the Act. Pepsi Cola Bottling Co., 301 NLRB 1008,
1022 (1991).
Cooper has extended its no-solicitation and no-distribution
rules to the Parkade. The General Counsel contends that the

6 In finding the policy expressed in Cooper’s Human Resources
manual to be in violation of Sec. 8(a)(1) of the Act, I noted that the
amended complaint did not include such an allegation. However, as the
facts necessary to this finding were uncontroverted and were fully
litigated, Board policy authorizes me to make this finding and provide
an appropriate remedy for this violation. See, e.g., St. Joseph Hospital
East, Inc., 236 NLRB 1450 fn. 5 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
application of these rules to the Parkade exceeds the limitations
imposed by Board policy. Cooper seeks to justify its applica-
tion of its no–solicitation and no-distribution rules to the
Parkade on the ground that it houses an emergency landing area
and an emergency treatment facility, and because of the impor-
tance of quietude for patients, their families and other visitors.
I agree that the helipad and the Helipad Resuscitation Area are
patient care areas and thus subject to Cooper’s regulation of
employee solicitation and distribution. However, Cooper has
not shown that the remainder of the six-floor facility is any-
thing more than a parking garage used by employees, and non-
employees, including patients, members of their families, and
other visitors. Cooper has not met its burden of showing that
distribution of union flyers by a hospital employee in the
Parkade automobile parking areas, during his or her nonwork-
ing time, would disrupt healthcare operations or disturb pa-
tients. There was no showing that patients, or their families, or
friends spend more time in the Parkade than is necessary to
move from a vehicle to the elevator leading to the hospital
lobby. Thus, their exposure to union activity is brief and easily
avoided by taking the elevator to the Hospital’s lobby. I find
therefore that by maintaining its no–distribution rule in the
Parkade’s automobile parking areas, Cooper has restrained and
interfered with and coerced its employees in the exercise of
their Section 7 right to engage in union activity, and thereby
violated Section 8(a)(1) of the Act. Southern Maryland Hospi-
tal Center, 293 NLRB 1209, 1220 (1989), enfd. In relevant part
916 F. 2d 932 (4th Cir. 1990). I further find that by enforcing
that rule against employee Donna Conrey in the Parkade park-
ing area and by confiscating the union literature in her posses-
sion on March 30, Cooper again violated Section 8(a)(1) of the
Act. St Luke’s Hospital, 300 NLRB 836, 837 (1990).
The record shows that Cooper Hospital has permitted em-
ployees to engage in solicitation of sales of merchandise in the
Trauma Unit. Further, Cooper has allowed distribution of lit-
erature in connection with such solicitation, as well as distribu-
tion of the purchased items, in the Trauma Unit, near patients’
beds. Cooper has not shown any instance where a member of
its management has confronted an employee engaged in such
conduct, and ordered him or her to cease violating its rules.
Nor has Cooper come forward with any showing that it has
disciplined anyone, other than Conrey, for engaging in solicita-
tion or distribution. I find that by selectively enforcing its no-
solicitation/no-distribution rules against Conrey’s union activity
while permitting solicitation and distribution by employees
engaged in commercial activity, Cooper violated Section
8(a)(1) of the Act. K & M Electronics, 283 NLRB 279 (1987).
I have found that on March 30 and April 5, Leipold admitted
to employee Conrey that Cooper’s management was willing to
permit the sales of Avon products, cookies, cakes, and other
things, but was concerned about the distribution of union litera-
ture. I find that Leipold’s message to Conrey was likely to
cause the listening employee to fear punishment if she contin-
ued to distribute union literature on Cooper’s premises. Accord-
ingly, I find that by Leipold’s remarks to Conrey, Cooper fur-
ther violated Section 8(a)(1) of the Act. Alexian Brothers
Medical Center, 307 NLRB 389 (1992).
The record leaves no doubt that Cooper issued a verbal
warning to Conrey on April 5, in response to her distribution of
union literature in the Parkade. Leipold’s testimony showed
that as a matter of Cooper’s policy, Leipold kept the warning in
her desk for 1 year and used it to formulate Conrey’s evaluation
as a nurse. Thus, contrary to Cooper’s position, that this was
nondisciplinary “verbal counseling” (Cooper’s Br., p. 22), I
find that the verbal warning issued to Conrey on April 5, was
disciplinary. I also find that Cooper violated Section 8(a)(3)
and (1) of the Act by using the verbal warning to punish Con-
rey for engaging in union activity. Funk Manufacturing Co.,
301 NLRB 111, 113 (1991).
CONCLUSIONS OF LAW
1. The Respondent, The Cooper Health System, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. JNESO, District 1, International Union of Operating Engi-
neers, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by:
(a) Prohibiting employees from engaging in union solicita-
tion during nonworking time outside of immediate patient care
areas of its hospital.
(b) Prohibiting employees from engaging in union solicita-
tion or distribution of union literature in the parking areas of the
Parkade during nonworking time.
(c) Prohibiting employees from distributing union literature
during nonworking time in nonworking areas of its hospital and
while wearing scrubs.
(d) Enforcing a no-solicitation/no-distribution rule against
union activity while permitting solicitation and distribution for
commercial and other nonunion related activity.
(e) Telling employees that Cooper is enforcing a no-
solicitation/no-distribution rule against union activity while
permitting solicitation and distribution for commercial and
other nonunion related activity.
(f) Confiscating union literature from employees in the
course of enforcing a prohibition against distribution of union
literature in the parking areas of the Parkade during nonwork-
ing time.
4. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by disciplin-
ing employee Donna Conrey with a verbal warning because she
engaged in union activity.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that Respondent is-
sued a written verbal warning to employee Donna Conrey in
violation of Section 8(a)(3) and (1) of the Act, I shall order the
removal of that warning from Respondent’s files and records
and notification to her in writing that this has been done and
that the warning will not be used against her in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7

7 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.
COOPER HEALTH SYSTEM 1165
ORDER
The Respondent, The Cooper Health System, Camden, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from engaging in union solicita-
tion during nonworking time outside of immediate patient care
areas of the hospital.
(b) Prohibiting employees from engaging in union solicita-
tion or distribution of union literature in the automobile parking
areas of the Parkade during nonworking time.
(c) Prohibiting employees from distributing union literature
during nonworking time in nonworking areas of the hospital.
(d) Prohibiting employees from distributing union literature
while wearing hospital scrubs or other hospital uniforms.
(e) Selectively and discriminatorily enforcing a no-solici-
tation/no-distribution rule against union activity while allowing
solicitation or distribution regarding commercial or other non-
union activity.
(f) Telling employees that Cooper Hospital is selectively and
discriminatorily enforcing a no-solicitation/no-distribution rule
against union activity while allowing solicitation and distribu-
tion regarding commercial or other non-union activity.
(g) Confiscating union literature from employees.
(h) Issuing written verbal warnings to employees, or other-
wise disciplining employees because they engage in union ac-
tivity protected by Section 7 of the Act.
(i) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove from
Respondent’s files any reference to the written verbal warning
notice, which it issued to Donna Conrey on April 5, 1997, and
within 3 days thereafter, notify her, in writing, that this has
been done and that the warning will not be used against her in
any way.
(b) Rescind the overly broad no-solicitation rule promulgated
by Respondent in its Summary of Employment Policies and
Practices dated 1996–1997 and in the 1997–1998 edition of the
same employee manual.
(c) Rescind the overly broad no-solicitation rule set forth in
the portion of Human resource Policy #1.050 under the heading
“PROCEDURE.”
(d) Within 14 days after service by the Region, post at its fa-
cility in Camden, New Jersey copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the 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 in-

8 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-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United Stes Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 3, 1997.
(e) Within 21 days after receiving service by the Region, file
with the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply

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 ordered 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 con-
certed activities.

WE WILL NOT prohibit employees from engaging in union
solicitation during nonworking time outside of immediate pa-
tient care areas of the hospital.
WE WILL NOT prohibit employees from engaging in union
solicitation or distribution of union literature in the automobile
parking areas of the Parkade during nonworking time.
WE WILL NOT prohibit employees from distributing union
literature during nonworking time in nonworking areas of the
hospital.
WE WILL NOT prohibit employees from distributing union
literature while wearing hospital scrubs or other hospital uni-
forms.
WE WILL NOT selectively and discriminatorily enforce a
no-solicitation/no-distribution rule against union activity while
allowing solicitation or distribution regarding commercial or
other nonunion activity.
WE WILL NOT tell employees that Cooper Hospital is se-
lectively and discriminatorily enforcing a no-solicitation/no-
distribution rule against union activity while allowing solicita-
tion and distribution regarding commercial or other nonunion
activity.
WE WILL NOT confiscate union literature from our em-
ployees.
WE WILL NOT issue written verbal warnings to employees,
or otherwise discipline employees because they engage in un-
ion activity protected by Section 7 of the Act.
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 within 14 days from the date of this Order, re-
move from our files any reference to the written verbal warning
notice, which we issued to Donna Conrey on April 5, 1997, and
within 3 days thereafter, notify her, in writing, that this has
been done and that the warning will not be used against her in
any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
WE WILL rescind the excessively broad no–solicitation rule
which we promulgated in our Summary of Employment Poli-
cies and Practices dated 1996–1997 and in the 1997–1998 edi-
tion of the same employee manual.
WE WILL rescind the overly broad no-solicitation rule set
forth in the portion of our current Human Resource Policy
#1.050, under the heading “PROCEDURE.”

THE COOPER HEALTH SYSTEM