Holyoke Visiting Nurses Assn.

National Labor Relations Board - Board Decisions

Apr 11, 1994

313 N.L.R.B. 1040 (N.L.R.B. 1994)

1040
313 NLRB No. 182
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The consolidated complaint alleged violations of Sec. 8(a)(1), (3),
and (5) of the Act. Prior to the scheduled hearing, the Respondent
and the Charging Party entered into a non-Board settlement which
disposed of the 8(a)(3) allegations. At the opening of the hearing,
the Respondent and the General Counsel entered into a settlement
as to the 8(a)(5) allegations which the judge approved over the
Charging Party’s objections. The judge’s decision is limited to var-
ious allegations of independent 8(a)(1) conduct. There are no excep-
tions to the judge’s conclusion that the Respondent violated the Act.
Holyoke Visiting Nurses Association and Local 285,
Service Employees International Union, AFL–
CIO, CLC. Cases 1–CA–29743, 1–CA–29965, 1–
CA–30187, and 1–CA–30487
April 11, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On February 4, 1994, Administrative Law Judge
Robert W. Leiner issued the attached decision.1 Coun-
sel for the General Counsel filed exceptions, and the
Respondent filed a response in opposition to the Gen-
eral Counsel’s exceptions.
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 response and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified.
The Board has construed the General Counsel’s ex-
ceptions as a motion to correct an inadvertent error.
In his motion the General Counsel notes that para-
graph 3(d) of the judge’s conclusions of law provided
that the Respondent violated Section 8(a)(1) by threat-
ening to videotape and videotaping its employees who
picketed at its Maple Street and Isabella Street loca-
tions, that paragraph 1(d) of his recommended Order
directed the Respondent to cease and desist therefrom,
but that the judge inadvertently omitted any reference
thereto in his notice to employees. Accordingly, the
General Counsel requests that the notice be amended
to include language reflecting paragraph 1(d) of the
judge’s recommended Order. The General Counsel also
requests that the Board modify the judge’s rec-
ommended Order to reflect that the Respondent has
moved from the facilities in which the judge ordered
the notice to be posted and that the Respondent should
be ordered to post the notice at its facilities located at
330 Whitney Avenue, Holyoke, Massachusetts.
In response, the Respondent contends that the judge
did not ‘‘inadvertently omit’’ reference to this matter,
that the judge’s provision in paragraph 1(f) of his rec-
ommended Order providing for a broad cease-and-de-
sist order ‘‘has been considered overbroad and unen-
forceable,’’ and that the judge intended to ‘‘capture
any and all future coercive action by this statement.’’
The Respondent’s opposition also argues against a spe-
cific reference to videotaping as an unlawful act in that
videotaping ‘‘in and of itself IS NOT AN UNLAWFUL
ACT,’’ that videotaping violations are fact specific, and
that videotaping is a ‘‘tremendous POSITIVE, preventive
tool for stopping violent acts or property damage.’’
Further, the Respondent objects to the General Coun-
sel’s reference to the address for posting, contending
that the posting has already been accomplished at the
new location, so that any requested change is unneces-
sary.
Having duly considered the matter, the Board grants
the General Counsel’s motion to correct the judge’s in-
advertent failure to provide for a paragraph in the no-
tice to correspond to paragraph 1(d) of the judge’s rec-
ommended Order and to correct the recommended
Order to reflect the Respondent’s current address.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Hol-
yoke Visiting Nurses Association, Springfield, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for the first sentence in
paragraph 2(a).
‘‘(a) Post at its facilities at 330 Whitney Avenue,
Holyoke, Massachusetts, copies of the attached notice
marked ‘Appendix.’’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT direct employees to remove union in-
signia or buttons or threaten them with discipline for
failure thereof where the buttons or insignia are worn
in nonpatient care areas.
WE WILL NOT disparately enforce any dress code or
rule where the effect thereof is to prevent or prohibit
employees from wearing union buttons or insignia in
nonpatient care areas.
WE WILL NOT coercively interrogate our employees
regarding their intention to engage in or the extent of
their engaging in or supporting anticipated strikes or
any other concerted protected activities.
1041HOLYOKE VISITING NURSES ASSN.
1 The charges and amended charges supporting complaints in the
above four consolidated cases were timely filed and served on the
Respondent (G.C. Exhs. 1(a) through (d), (j)–(o), (s)–(v), and (bb)–
(ee)). Pursuant to these charges, a complaint issued in Case 1–CA–
29743 on October 28, 1992, which was subsequently consolidated
with Case 1–CA–29965. This consolidated complaint was issued and
served on January 21, 1993. On April 28, 1993, a complaint was
issued and served in Case 1–CA–30187. Lastly, on June 16, 1993,
a complaint was issued and served in Case 1–CA–30487. The order
consolidating the four complaints was issued and served on July 28,
1993.
WE WILL NOT threaten employees with videotaping,
and WE WILL NOT videotape our employees engaged in
picketing activities or other concerted protected activi-
ties.
WE WILL NOT threaten employees with civil action
or other retaliation or discipline for engaging in the
protected concerted activities of writing letters to phy-
sicians with whom we have business concerning their
wages, hours, or other terms or conditions of employ-
ment, seeking aid of such physicians, or of the em-
ployees’ display of union busting signs in their per-
sonal vehicles or the display of any other lawful signs
relating to protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
HOLYOKE VISITING NURSES ASSOCIA-
TION
Gene M. Switzer, Esq., for the General Counsel.
Albert R. Mason, Esq., of Chicopee, Massachusetts, for the
Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard in Springfield, Massachusetts, on
August 25 and 26, 1993, on General Counsel’s consolidated
complaints, as amended at the hearing, which allege, in sub-
stance1 that Respondent engaged in conduct in violation of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, (the Act). Specifically, the consolidated complaint in
Cases 1–CA–29743 and 1–CA–29965 alleges violation of
Section 8(a)(1) of the Act. The complaint in Case 1–CA–
30187 alleges violations of Section 8(a)(1), (3), and (5) of
the Act. The complaint in Case 1–CA–30487 alleges viola-
tion of Section 8(a)(5) of the Act.
Respondent filed timely answers to all of the complaints
wherein it admitted the filing and service of the charges, the
jurisdictional facts, and the statutory status of certain named
Respondent personnel, particularly the supervisory and agen-
cy status, within the meaning of Section 2(11) and (13) of
the Act, of Elizabeth Stroshine, vice president of operations,
and Barbara LaFrance and Deborah Patulak, nursing super-
visors.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant, oral, and written evidence, and to argue
orally on the record. At the close of the hearing, the parties
waived final argument and elected to submit posthearing
briefs which have been received and carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, comparing their testimony to the testimony of
adverse witnesses, the interest of the witnesses, and the
credibility of the testimony in light of surrounding cir-
cumstances, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaints allege, Respondent admits, and I find that,
at all material times, Respondent has been and is a corpora-
tion with an office and place of business in Holyoke, Massa-
chusetts, where it is engaged in the business of providing
health care services to patients in their homes; that in con-
ducting its business operations, it annually derives gross rev-
enues in excess of $100,000, and that it annually purchases
and receives at its Holyoke facility goods valued in excess
of $5,000 directly from points located outside the Common-
wealth of Massachusetts. Respondent’s answers fail to admit
or deny the conclusion that the Respondent is engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act; rather it avers only that that allegation constitutes
a question of law to be determined. Without deciding wheth-
er Respondent’s answer constitutes an admission within Sec-
tion 102.20 of the Rules and Regulations of the National
Labor Relations Board, it is clear that Respondent, by its ad-
missions of annual commercial transactions, has admitted the
basis on which the Board exercises jurisdiction over visiting
nursing associations. In East Oakland Community Health Al-
liance, 218 NLRB 1270, 1271 (1975), the Board established
that it would exercise its discretionary jurisdiction where the
visiting nurses association has annual gross revenues of not
less than $100,000, the admitted gross annual revenue de-
rived by Respondent. Respondent further admits that it annu-
ally received at Holyoke goods valued in excess of $5,000
directly from points located outside Massachusetts. Under
such circumstances, I find that the Board would exercise ju-
risdiction over Respondent as an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaints allege, Respondent admits, and I find that
at all material times, Local 285, Service Employees Inter-
national Union, AFL–CIO, CLC has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Disposition of Various Complaint Allegations at the
Opening of the Hearing
At the opening of the hearing, Respondent and General
Counsel entered into a settlement agreement, which I ap-
proved over the objection of the Charging Party, covering all
allegations of the 8(a)(5) violations in the complaints in
Cases 1–CA–30187 and 1–CA–30487. Respondent and
Charging Party had already entered into a non-Board settle-
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment relating to the alleged violations of Section 8(a)(3) in
the complaint in Case 1–CA–30187, and the General Counsel
having no objection thereto, the General Counsel moved to
sever the 8(a)(3) allegations. I granted the motion, with the
approval of all parties, conditioned on compliance with non-
Board settlement agreement.
The substance of the remaining allegations in the several
complaints relates to eight allegations of violation of Section
8(a)(1) of the Act: (1) threatening employees with discipline
if they did not remove union buttons; (2) disparately enforc-
ing a dress code rule requiring employees to remove union
buttons; (3) maintaining and enforcing a rule forbidding em-
ployees from wearing union insignia at work; (4) threatening
to videotape employees engaged in picketing; (5) videotaping
employees engaged in picketing; (6) polling employees con-
cerning their intentions to strike without giving the employ-
ees assurances that their answers would not be held against
them; (7) threatening employees with civil and disciplinary
action for having engaged in the alleged protected concerted
activity of sending letters to various doctors concerning
terms and conditions of employment under which they were
working for Respondent; and (8) threatening employees with
disciplinary action for displaying union signs in their car
windows stating that Respondent was ‘‘union busting.’’
B. Background
Respondent administers nursing care in the privacy of the
patient’s own homes. It functions from two locations in Hol-
yoke, Massachusetts: the main office at the corner of Maple
and Essex Streets; and its hospice on Isabella Street, 3 miles
away from its Maple Street office. The employees who regu-
larly administer both physical and emotional nursing services
are about 25 registered nurses and therapists directly em-
ployed by Respondent and 7–10 ‘‘contract’’ nurses regularly
supplied by a nursing service. See Holyoke Visiting Nurses
Assn. v. NLRB, 11 F.3d 302 (1st Cir. 1993). All such per-
sons, however, are subject to Respondent’s work rules. Nurs-
ing services are rendered to terminally ill patients; to patients
requiring medical and surgical services; and to patients re-
quiring maternal health care.
Most of Respondent’s employees and the contract nurses
report to work prior to 8 a.m. They arrive at the Maple Ave.
premises as early as 7 a.m. if their work ends at 3:30 p.m.
and at 7:30 if their workday ends at 4 p.m. (Tr. 435). Super-
visors distribute the day’s work assignments around 8 a.m.
and sometimes before 8 a.m. (Tr. 434–435). Employees, as
well as contract nurses, spend about an hour in the office
speaking to supervisors about the day’s work assignments
until they leave for work. Thus they are ordinarily in the of-
fice at least from 8 to 9 a.m. At the end of the workday,
they return to the Maple Street office at or after 3 p.m. and
spend about an hour and a half in the office finishing up re-
ports and other documentation concerning the patients who
they have treated at their homes during the day. Thus, they
spend about 25 percent of their worktime at the Maple Street
office and about 75 percent at the homes of patients.
C. The Dress Code
After consultation with a committee composed of super-
visors (Patulak and Cavanaugh) and the employee-nurses,
Respondent, in March 1992 (Tr. 331), issued a revised dress
code for all professionals, including contract nurses, entitled
‘‘Professional Dress Code’’ to apply in the office and in the
field. The code (G.C. Exh. 6), following initial paragraphs
admonishing professional, employees that their individual
dress reflects on Respondent’s relationship to patients and
their families, as well as to students and the general public,
directs that attire be neat, clean, professional and ‘‘appro-
priate.’’ A name tag is to be worn at all times. Styles should
reflect safety considerations and the necessities of patient
care. It warns that skirts are to be midknee in length and that
sleeveless and tight-fitting garments are unacceptable. The
code applies both at Isabella Street and Maple Street.
Separate paragraphs are devoted to the subjects of ‘‘Cloth-
ing,’’ ‘‘color,’’ ‘‘Shoes,’’ ‘‘Accessories,’’ ‘‘Preferred
Dress,’’ and ‘‘Acceptable Dress.’’
The complaint alleges, and Respondent admits, that at all
material times (since March 1992), Respondent has main-
tained the following rule, devoted to ‘‘Clothing,’’ which pro-
vides:
Recreational clothing (such as jeans, any garment with
rivets, sweat, t-shirts, clothing of denim or with logos
or slogans, shorts, culottes, stirrup and stretch pants) are
not acceptable.
The code, in the paragraph devoted to ‘‘Color,’’ asserts
that clothing can be of any color but only dark or pastel
shades are acceptable. Prints and stripes should be small and
understated. Under the paragraph on ‘‘Shoes,’’ after admon-
ishing the necessity for safety, comfort, and style, the code
requires that the shoes be closed toe; low or flat heel and
always clean and in good repair and without an easily identi-
fied logo. Canvas sneakers and sandals are not acceptable.
Hosiery must be worn at all times.
Under the paragraph devoted to ‘‘Accessories,’’ the code
warns that accessories be selected with staff and patient safe-
ty in mind. In particular, ‘‘small earrings (up to 1 inch),
rings and nondangling bracelets may be worn.
There is no dispute that at the time Respondent’s super-
visors consulted unit employees with regard to the promulga-
tion of the new code, prior to its issuance in March 1992,
and in the committee discussions, there was no discussion re-
garding the wearing of ‘‘buttons,’’ much less union buttons
(Tr. 135). Indeed, in a period of 7 years prior to the promul-
gation of the new code, employees had sometimes worn
large (greater than 2 inches in diameter) white stickers with
blue lettering, bearing a slogan of four intertwined ‘‘S’’
showing the words safety, security, solidarity, and salary
with Local 285, SEIU on the sticker. There were other simi-
lar large union stickers worn by the nurses. Employees who
wore these stickers to work were not asked to remove them.
D. The Wearing of Buttons and Insignia Following
Issuance of the New Code
The new dress code issued March 1992. As will be noted
hereafter, on September 14, 1992, in preparation for and in
aid of a showing of solidarity in contract negotiations, 15 to
20 nurses came to work wearing union buttons, but, on pain
of discipline up to discharge, were prohibited from wearing
them on Respondent’s premises.
The evidence, nevertheless, shows that in the period subse-
quent to the issuance of the new dress code, but both before
1043HOLYOKE VISITING NURSES ASSN.
2 The union button, further described below, is about 33 millime-
ters in diameter. A quarter dollar is 24 millimeters in diameter.
and after Respondent’s September 14, 1992 prohibition of
the wearing of union buttons, the following unit employees
wore ‘‘buttons’’ of various types at the Maple Avenue office
and in the field:
(a) Kristine Breng: For the period of approximately May
1992–May 1993 (when she ceased being a Respondent em-
ployee), she wore a ‘‘fanny pack’’ to work each day. On the
fanny pack, she wore a button of about 1 inch (25 millime-
ters) in diameter (a little smaller than the union button2
which read: ‘‘AIDS, Nobody’s Fault. Everybody’s Problem.’’
Respondent’s fanny pack is a bag on a strap worn around the
waist, either in front or in back of the body. Breng wore the
fanny pack (with the button) in front of her body and wore
it in or around the office during worktime. Whether or not
any Respondent supervisor ever saw the AIDS button at-
tached to the fanny pack, no supervisor ever asked her to re-
move the button. Supervisor Patulak who had daily contact
with Breng and saw her wear the fanny pack around the of-
fice denied having seen the button affixed to it. As will be
noted hereafter, she wore the fanny pack, with the AIDS but-
ton attached, on September 14 without Respondent comment
(Tr. 128) when Respondent demanded that she remove her
union button, worn on her shirt. Employee Briget Foley re-
called that Breng wore the AIDS button even after Septem-
ber 14.
(b) Martha Fisk: With the text of the new code having
been served on unit employees in March 1992, Martha Fisk,
starting on or about Labor Day 1992, continually wore her
son’s U.S. Air Force Academy pin high up on her shirt near
the neck area, clearly visible. About the size of a quarter dol-
lar, it bore on its face the roman numerals ‘‘31’’ and a
‘‘Grim Reaper’’ squadron symbol: a hand holding a sickle
(Tr. 293). After the implementation of the code, she wore it
not only in the ordinary workday presence of supervisors
(Stroshine, LaFrance, and Patulak) but also during several
grievance meetings with them. In addition, she regularly
wore the pin without incident in the field while administering
patient care. No supervisor ever asked her to remove the pin.
Employee Briget Foley recalled that Fisk wore her pin every
day (Tr. 216-217).
(c) Patricia Moreno: testified that after the new code, she
wore a pin from time to time and, on one occasion, a rep-
resentative of management (the supervisor of maternal child
health care) complimented her on the pin (Tr. 100). Other
employees also wore pins after the implementation of the
new code (Tr. 105). Moreno observed that, on September 14,
1992, when supervisors directed Martha Fisk to remove her
union button, they did not ask her to remove her Air Force
Academy pin. Fisk corroborated this (Tr. 298).
(d) Glen E. Daviau: Daviau, a staff nurse and union stew-
ard, like other employees, saw Kristine Breng’s AIDS button.
Both before and after the issuance of the new code, and even
after Respondent’s September 14, 1992 prohibition against
wearing union buttons, Daviau wore his U.S. Air Force pin
representing his squadron patch, bearing the logo ‘‘Oper-
ation, Helping Hand’’ with the squadron identification identi-
fied thereunder, ‘‘74th Aerial Medivac Squadron, Desert
Storm.’’ The pin also displays a red cross on top of an eagle
with wings on a gold facing. Neither at grievance meetings
nor at any other time did Respondent’s representatives ask
him to remove the pin which is about three-quarters of an
inch to an inch in diameter. Thus, employees, including
Briget Foley, saw Kristine Breng, Glen Daviau, and Martha
Fisk wear buttons with numbers and letters on them.
E. Respondent’s Supervisors and the Wearing
of Buttons
Supervisor Patricia Cavanaugh, who drafted the new code,
testified that she never saw Kristine Breng’s AIDS button on
her fanny pack and never noticed Martha Fisk’s pin. She tes-
tified that if she did see the pin, she thought it was a ‘‘nurs-
ing pin’’ a classification which is ‘‘allowed’’ under the code.
When asked whether such a provision was actually in the
code, she said that she would first have to check. She finally
testified, with regard to nursing pins as ‘‘allowed’’ under the
code, that it ‘‘was my interpretation of the code, yes, it is’’
(Tr. 379). She never noticed Daviau’s Air Force pin.
Supervisor LaFrance did not testify in this proceeding.
F. The Maple Street Facility as a Nonpatient Care Area
As above noted, employees spend about 25 percent of
their worktime in the Maple Street office speaking with su-
pervisors, doing paperwork, receiving assignments, and
speaking with coworkers. The remaining 75 percent is spent
outside the Maple Street office and is devoted to nursing and
medical care in the homes of patients. In the afternoon, em-
ployees return to the office after seeing their patients and file
reports, thus filling out the workday.
In the 2-1/2 years that staff physical therapist Patricia
Moreno was employed by Respondent (leaving voluntarily in
November 1992), she observed no patient care in the Maple
Street facility (Tr. 86).
Patricia Cavanaugh, who, in September 1992, was the di-
rector of the hospice facility on Isabella Street, 3 miles away
from the Maple Street facility, testified that the Isabella
Street facility is devoted to the administration of care for ter-
minally ill patients. Respondent’s nurses, among other per-
sonnel, deal with the physical and emotional problems of
these patients. Some of Respondent’s nurses are concerned
solely with the hospice patients. Hospice patients do not re-
ceive treatment in the hospice (Tr. 328). ‘‘Very occasion-
ally,’’ less than once a week, nonhospice patients are treated
in the hospice.
Cavanaugh testified that Respondent’s staff personnel, ad-
ministering hospice medical care, visit the homes of the ter-
minally ill where the families of the terminally ill patients
are present (Tr. 331–332). Cavanaugh spends roughly a third
of her 32-hour workweek at the Maple Street office, with
most of her time spent in meetings, She had little contract
with the employees thus offering little opportunity to see
what they were wearing (Tr. 360).
With regard to Maple Street, Cavanaugh testified that pa-
tients are rarely at that facility for treatment, less than once
a month (Tr. 368), since there are no examining rooms or
treatment rooms there (Tr. 368). Cavanaugh then admitted
that in a period of a year, not more than one or two patients
would show up at the Maple Street facility for any purpose
including changing of a dressing (Tr. 369). Bereaved patients
or hospice patients are not treated at Maple Street (Tr. 370),
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but family members do appear in the hospice at least once
a month (Tr. 370–371).
On the other hand, Supervisor Patulak at first testified that
some nurses had several of their patients come to the Maple
Street facility on a weekly basis (Tr. 384–385). The families
of these patients (these were not hospice patients or termi-
nally ill patients) did not accompany the patients. On cross-
examination, however, Patulak admitted that she had no per-
sonal knowledge of any patient coming to the Maple Street
facility for nursing or medical care (Tr. 421–422).
Respondent, other than the testimony of Cavanaugh and
Patulak, introduced no testimony with regard to medical care
administered either at the Maple Street facility or at the hos-
pice.
G. The Events of September 14, 1992
The most recent collective-bargaining agreement between
the parties expired on October 31, 1992. Negotiations for a
successor agreement took place between September 29, 1992,
through February 1993 covering 12 sessions (Tr. 24–25). Of
approximately 25 unit employees, approximately 15 to 20 of
them, on Monday, September 14, 1992, reported for work at
or before 8 a.m. wearing round union buttons, about 1.33
inches in diameter, navy blue background with white letter-
ing which read: ‘‘SEIU LOCAL 285 Massachusetts’’ (G.C.
Exh. 2).
On the Sunday evening before Monday, September 14, at
a union meeting, the membership decided to wear union but-
tons to work the following morning in order to show support
for each other, including support for those employees who
had been allegedly suspended for writing a letter to Respond-
ent’s board of directors.
The next day, Monday, September 14, about 7:15 a.m.,
two union agents distributed union buttons to unit employees
as they entered the Maple Street facility. As early as 7:45
a.m., an employee came out of the facility and told them that
Patulak was asking employees to remove the buttons. The
union agents entered the building and asked Patulak whether
she had asked the employees to remove the buttons. Patulak
said that the union buttons were not part of Respondent’s
dress code so that the employees were not permitted to wear
them. When the union agents insisted that it was illegal to
require removal of the buttons, Patulak told them only that
the buttons were not part of the dress code. The union
agent’s reference to the existence of Supreme Court deci-
sions allowing employees to wear union buttons did not per-
suade Patulak (Tr. 41). Patulak did not deny this conversa-
tion or the timing thereof. The union agents then left the
building.
Shortly thereafter, an employee came out and told them
that nurse Briget Foley had been called into Supervisor Bar-
bara LaFrance’s office and was being disciplined for wearing
her union button. The union agents reentered the building,
vainly sought Supervisor LaFrance, but did encounter Briget
Foley. When they asked her if she had been disciplined, she
told them that LaFrance told her to remove the union button
and she did so under protest, failing which, she would have
been disciplined (Tr. 43). Supervisor Patulak admitted that
LaFrance told Foley that if she didn’t remove the button, she
would be subject to discipline (Tr. 484).
Similarly, employee Kristine Breng, without contradiction,
testified that she wore the union button on her shirt that
morning; was speaking to another nurse who wore the same
button; and that Supervisor Patulak came to her desk and
told them they had to remove their union buttons (Tr. 123).
Patulak said it was against the dress code. Both nurses re-
moved their union buttons (Tr. 123).
Nurse Nancy Hosta also wore the button that morning ar-
riving at her desk between 7:45 and 8 o’clock, i.e., before
worktime. Supervisor Patulak came to her desk and asked
her to remove the button. She removed the button (Tr. 132).
At about the same time, nurse Patricia Moreno asked Hosta
to accompany her to Barbara LaFrance’s office and she did
so. In the office, Supervisor Barbara LaFrance asked Moreno
to remove the union button. When Moreno asked why,
LaFrance told her that it was not part of the dress code.
Moreno told her that the dress code was not being enforced
and that she would take the union button off under protest.
Supervisor LaFrance told her that if she did not remove the
union button, she would be considered insubordinate and
subject to discipline (Tr. 133).
Staff Nurse Briget Foley also wore the button that morn-
ing. While standing near the mail boxes, Supervisors Patulak
and LaFrance told her that the union button wasn’t part of
the dress code. Foley told them that she had a legal right to
wear the button and proceeded to her desk. At that point, she
had not been told to remove the button. Patulak and
LaFrance told her only was that it was not part of the dress
code (Tr. 201). Patulak testified that she asked Foley to re-
move the button before 8 a.m. (Tr. 434) and asked six or
seven other employees to remove their buttons (Tr. 435).
Supervisor LaFrance telephoned Foley and asked to see
her in her office. Foley asked if she needed to bring a union
steward with her and LaFrance said ‘‘possibly’’ (Tr. 202).
Foley found union steward Glen Daviau who accompanied
her to LaFrance’s office. As they entered, Supervisor Patulak
walked in behind them and closed the office door. LaFrance
told Foley that the union button was not part of the dress
code and was clearly a ‘‘label.’’ LaFrance told her that she
had already been told to remove the button and failed to do
so and that such conduct constituted insubordination (Tr.
203). Foley asked LaFrance what she meant by that and
LaFrance told her that she would ‘‘‘have to think about it’’
(Tr. 203). Foley testified that when LaFrance used the word
‘‘insubordination,’’ it meant that she would be disciplined.
Indeed an employee had already been fired for, among other
reasons, insubordination (Tr. 204).
Foley then asked LaFrance why employees had never been
told to remove even larger union stickers that they had pre-
viously worn and were now being asked to remove the
smaller union buttons (Tr. 206–208). LaFrance answered that
the wearing of the union button was not part of the current
dress code (Tr. 208). Foley told LaFrance that she would re-
move the button because she was compelled to (Tr. 209).
Foley testified that when she wore larger union stickers in
the past, in the office and in the homes of patients and there
had not been any disruption of work in wearing them wheth-
er in the office or at their place of administering patient care
(Tr. 209). As above noted, Foley, as other employees testi-
fied thereafter, saw Kristine Breng continued to wear the
AIDS button and Glen Daviau continued to wear his squad-
ron pin (Tr. 217).
Union Steward Glen E. Daviau corroborated Foley’s testi-
mony on the events in Supervisor LaFrance’s office and
1045HOLYOKE VISITING NURSES ASSN.
added that LaFrance ultimately told her that if she did not
remove the union button she would be subject to discipline
‘‘up to and including discharge’’ (Tr. 273–274).
Discussion and Conclusions; Union Buttons
By virtue of the amended consolidated complaint (Cases
1–CA–29743; 1–CA–29965), the General Counsel avers that
Respondent violated Section 8(a)(1) of the Act by virtue of
the following allegations:
7. At all material times, Respondent has maintained
the following rule:
Recreational clothing (such as jeans, any garment
with rivets, sweats, t-shirts, clothing of denim or
with logos or slogans, shorts, culottes, stirrup and
stretch pants) are not acceptable.
8. (a) About September 14, 1992, Respondent
through [Supervisors] Patulak and LaFrance, enforced
the rule described above in paragraph 7 selectively and
disparately by telling employees to remove union but-
tons and threatened them and impliedly threatened them
with disciplinary action if they did not remove the but-
tons.
(b) Since on or about September 14, 1992, Respond-
ent has maintained and enforced a rule which forbids
the wearing of Union insignia while employees are at
work.
(1) The above facts demonstrate that nothing in the exist-
ing dress code, its preparation, derivation, employer-em-
ployee discussions, or any pre-September 14, 1992 under-
standing or practice, remotely related to, or in any way con-
cerned, the wearing of buttons or a restriction on wearing
buttons, union buttons or union stickers. In fact, historically,
the practice was quite the other way. The code speaks of
clothing, even earrings; but nothing on buttons. It is purely
Respondent’s September 14 ‘‘interpretation’’ that brings but-
tons within the code (Tr. 379). Supervisor Cavanaugh said it
was forbidden by the code because, ipse dixit, she said it
was. (2) The Maple Street facility, in particular, and, on the
instant evidence, the Isabella Street Hospice facility, were
both nonpatient care areas. The most that can be said of ei-
ther facility is that on particularly rare and isolated occa-
sions, a patient or a family would show up at Maple Street
or at Isabella Street. Although it may well be that the Isa-
bella Street facility was concerned with the treatment of fam-
ilies as well as terminally ill patients, there presence in the
facility was rare even on Supervisor Cavanaugh’s testimony.
(3) Respondent’s September 14, 1992 prohibition on the
wearing of union buttons in Respondent’s facilities, a spe-
cific prohibition relating to the wearing of union buttons in
the workplace in nonpatient care areas, also applied to pro-
fessional employees while traveling and on nonworktime.
This prohibition, finding no basis in the preparation, deriva-
tion, understanding, practice, or language in the dress code,
was merely an ad hoc demonstration of union animus and
discrimination against wearing union buttons. Even if, how-
ever, the present Respondent prohibition against the wearing
of union buttons were in the code it would make no legal
difference; it would remain unlawful. And it would make no
difference, in addition, notwithstanding that the prohibition
might have extended to pins or buttons with or without logos
on them (provided there is no particular offensive language
on them). Simply put, Respondent, by dress code or other-
wise, under the actual facts herein, could not prohibit em-
ployees’ wearing an inoffensive union button in the work-
place, with union identification thereon. The Board has again
recently held, in Ichikoh Mfg., 312 NLRB 1022, 1024
(1993):
It is well settled that the Act protects the right of
employees to wear union insignia while at work and,
absent ‘‘special circumstances,’’ it violates Section
8(a)(1) for an employer to prohibit employees’ wearing
of such insignia. Republic Aviation Corp. v. NLRB, 324
U.S. 794 (1945).
It is not necessary, in finding a violation of Section 8(a)(1)
of the Act based upon unlawful employer coercion, for the
employer prohibition to have been an ‘‘order.’’ Ibid. It is
enough that the employer ensures that the union button-wear-
ers would understand themselves to constitute a disfavored
group. Ibid.
Moreover, this is not a case concerning the wearing of an
employer ‘‘uniform,’’ much less where the wearing of the
employer’s uniform, together with accessories, is embodied
in a collective-bargaining agreement which establishes guide-
lines to ensure a public image of neat, clean, uniformed em-
ployees, who may wear only particular employer-furnished
pins or buttons. United Parcel Service, 312 NLRB 596
(1993). Nor is this a case of a high-fashion department store
where a large, gaudy union election button might be unnec-
essarily intrusive in a selling area although a smaller button
might be protected. Compare Davison Paxon Co. v. NLRB,
462 F.2d 364 (5th Cir. 1972), with Nordstrom, Inc., 264
NLRB 698 (1982), cited in Raley’s Inc., 311 NLRB 1245,
1249 (1993). Furthermore, the employee’s statutory right to
wear the union button, even in a selling area, is given greater
weight than the employer’s right against unintrusive union
buttons and a uniform appearance, even in a case of unin-
formed employee, in the presence, as in the instant case, of
employee support for ‘‘collective-bargaining activity,’’ Pay’N
Save Corp. v. NLRB, 641 F.2d 697, 701 fn. 10 (9th Cir.
1989). In the instant case, the employees are not in uniform
and wore the buttons on September 14 to express solidarity
with previously suspended employees and with the union
preparing for the collective-bargaining negotiations com-
mencing September 29, 1992.
The rule governing the wearing of union buttons in health
care institutions, has been stated in Asociacion Hospital Del
Maestro, 283 NLRB 419, 425 (1987), enfd. 842 F.2d 575
(1st Cir. 1988). That case, particularly relying on Mesa Vista
Hospital, 280 NLRB 298 (1986), states the rule as follows:
In health care facilities, rules that contain restrictions
of nonworking time solicitation outside immediate pa-
tient care areas are preemptively invalid. NLRB v. Bap-
tist Hospital, 422 U.S. 773, 781 (1979). The presump-
tion is also applicable to rules restricting the wearing of
insignia outside immediate patient care areas. George J.
London Memorial Hospital, 238 NLRB 704, 708
(1978). . . . An employer may rebut the presumption
by demonstrating that the rule is ‘‘necessary to avoid
disruption of healthcare operations or disturbance of pa-
tients.’’ [Citing Beth Israel Hospital v. NLRB, 437 U.S.
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In addition, the court observed that in that case, an employee
who was unlawfully subject to an over-broad rule, was not told that
he could wear the union ribbon in a nonpatient care area, supra at
fn. 3.
4 Patulak admitted that she asked employee Briget Foley to remove
the union button before 8 a.m., i.e., before the commencement of
worktime (Tr. 435–436). Respondent’s actual position is that it can,
under its dress code, forbid professionals wearing the union button
any place on its premises, at or before worktime; and at any other
place when the professionals are at work.
483, 507 (1978)]. The Supreme Court has observed that
the Board’s presumption ‘‘does no more than place on
the hospital the burden of proving, with respect to areas
to which it applies, that union solicitation, may ad-
versely affect patients.’’ [Emphasis added.]
While the Supreme Court has held that proscriptions of the
wearing of union insignia in ‘‘immediate patient care areas’’
are not presumptively valid, Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978), because of the special need of patients
for a tranquil atmosphere, Eastern Maine Medical Center v.
NLRB, 658 F.2d 1 (1st Cir. 1981), Respondent proscribes
wearing the union button when the nurse was at Maple Street
or working in the field. That is altogether too broad since
Maple Street and Isabella Street facilities are nonpatient care
areas. The Court of Appeals for the First Circuit, in
Asociacion Hospital Del Maestro v. NLRB, 842 F.2d 575 (1st
Cir. 1988), observed:3
Yet, if proscriptions apply to areas other than those as-
sociated with immediate patient care, the burden is on
the hospital to show the insignia worn only in those
areas would still disrupt patient care or disturb patients.
NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979).
Respondent adduced no such proof, indeed, the proof is
quite the other way.
The General Counsel alleges, in complaint paragraph 8(b),
without regard to the existence of the dress code, that since
September 14, 1992, Respondent has maintained and en-
forced a rule which forbids the wearing of union insignia
while employees are at work. The General Counsel alleges
that this violates Section 8(a)(1) of the Act. Having found
that Respondent, on September 14, 1992, forbade its unit em-
ployees from wearing the union button anywhere at the
Maple Street facility, and since I have found the Maple
Street facility in particular (as well as the Isabella Street
Hospice facility) is a nonpatient care area, Respondent’s ac-
tions of September 14, 1992, in declaring that the employees
were not to wear the union button any place in the facility,
violates Section 8(a)(1) of the Act, as alleged. I find that
such a declaration, quite apart from the threat of discipline
based on insubordination in case of a failure to remove, con-
stitutes a prima facie violation of Section 8(a)(1) of the Act.
The employees, prima facie, have a Section 7 right to wear
the button in a nonpatient care area. Republic Aviation Corp.
v. NLRB, 324 U.S. 794 (1945); Ichikoh Mfg., supra; and
Asociacion Hospital Del Maestro v. NLRB, supra. The bur-
den of proof then shifts to Respondent to prove ‘‘special cir-
cumstances’’: that the wearing of the button anywhere in its
facilities at any time interferes with patient care and neces-
sitates its rule against wearing the button outside of imme-
diate patient care areas. NLRB v. Baptist Hospital, 442 U.S.
773 (1979); Asociacion Hospital Del Maestro v. NLRB,
supra; Raley’s Inc., supra at fn. 3.
The closest Respondent comes to proving ‘‘special cir-
cumstances’’ to escape violation of Section 8(a)(1) relates to
two arguments. The first is the extensive testimony of super-
visor Deborah Patulak concerning Respondent’s nondiscrim-
inatory enforcement of the dress code. Her testimony was
that with regard to employees wearing clothing, otherwise
unacceptable under the dress code (without regard to union
buttons), they could wear such unacceptable clothing if they
were not on worktime (compare Tr. 381–384 with Tr. 436–
437). Such testimony, however, is no defense. The Board
rule, enforced by the courts, is that the crucial problem is not
‘‘work time’’ but the existence of a nonpatient care area.
For, in particular, employees, under the Act, are privileged
on worktime, to wear union insignia while at work. Absent
‘‘special circumstances’’ (ordinarily, that the insignia inter-
feres with patient care, production, safety, or discipline), to
coerce employees to refrain from exercising that right vio-
lates Section 8(a)(1) of the Act. Compare Asociacion Hos-
pital Del Maestro, supra, with Ichikoh Mfg., supra. Patulak’s
testimony offers no defense.
On the same basis, Respondent seems to argue that be-
cause other pins worn by employees did not have clear and
observable logos or statements on them, Respondent was
privileged to enforce its rule preventing the employees from
wearing union buttons which contained prominent union
identification on them. But it would seem to be a fruitless
exercise in the demonstration of the statutory right to show
union solidarity (through privileged ‘‘solicitation’’ on
worktime in nonpatient care areas), for union proponents to
wear blank buttons. Employees can wear union buttons iden-
tifying the union. I find that Patulak’s testimony on even-
handed proscription of slogans offers Respondent no defense,
as I already found with regard to its defense that Respondent
permitted the employees to wear union buttons on ‘‘non-
work time,’’ which, however, is also not supported by the
facts.4
The second apparent ‘‘special circumstances’’ defense is
Respondent’s argument (Brief, 5–6) in which it distinguishes
the visiting nurses situation from a hospital situation. Thus,
in a hospital situation, the wearing of irregular or unaccept-
able items on a uniform can be corrected by virtue of super-
visor observation throughout the workday. Since the visiting
nurses herein spend 75 percent of their time away from
Maple Street or Isabella Street, Respondent argues that their
dress and attire cannot be subject to scrutiny as would nurses
in a hospital. Thus Respondent urges that patients, their fam-
ilies, and the ‘‘community’’ would not want to see union
buttons on these nurses. In order to ‘‘police’’ Respondent’s
right to prevent wearing of union buttons, Respondent insists
that it had the right to prevent their wearing the union but-
tons in the nonpatient care areas (‘‘while in the office’’) in
order to prevent the employees from wearing them out in
public, in particular, among the patients or their families (R.
Br., 5–6).
That argument has neither record nor speculative support.
If Respondent feared that the professionals would wear the
allegedly disruptive union button while visiting patients or
their families (i.e., in patient care areas) outside the office,
1047HOLYOKE VISITING NURSES ASSN.
5 Again, I am not necessarily suggesting that such a limited rule
would pass muster in the presence of evidence that larger union
stickers were worn in the presence of patients without ill effect on
the patients. This evidence, alone, tends to rebut the ‘‘special cir-
cumstances’’ defense.
6 In view of my finding that there was disparate dress code en-
forcement with regard to union buttons as opposed to other buttons
and pins, I need not and do not reach questions concerning proof
of Respondent’s other nonenforcement and/or disparate enforcement
of its dress code: the length of earrings; the brightness, tightness, or
revealing nature of clothing; or the wearing of sweat shirts with or
without logos by contract employees and Respondent’s own employ-
ees. In passing, however, it appeared to me that Respondent was on
weak ground in having its supervisor admit that the contract nurses,
all subject to Respondent’s dress code rules, were the object of 20
Continued
it could simply have issued an instruction5 limiting such
wearing outside the office. It failed to do so. Instead, it pro-
hibited them from wearing it not only in the office, a non-
workplace area, but where observed by the ‘‘community.’’
Furthermore, the little evidence contained in the record with
regard to the nurses’ willingness to remove buttons is that
they obeyed Respondent’s orders to remove the buttons with-
out any indication of insubordination (e.g., Briget Foley (Tr.
209); Insofar as the evidence of nurses’ experience goes, the
record is uncontradicted that nurses wore union buttons and
stickers in the presence of patients without disrupting the pa-
tients or causing any problems (Tr. 209). At bottom, Re-
spondent’s September 14 action supporting its prohibition
was simply union animus.
I thus conclude, consistent with General Counsel’s allega-
tion in paragraph 8(b), supra, that Respondent failed to sup-
port its burden of proof to show ‘‘special circumstances’’ re-
lieving it of its violation of Section 8(a)(1) of the Act in
maintaining an enforcing a ‘‘rule’’ prohibiting the wearing of
union buttons in nonpatient care areas. Cf. Holyoke Visiting
Nurses Assn., 310 NLRB 684 (1993), enfd. 11 F.3d 302 (1st
Cir. 1993).
In paragraph 8(a) of the consolidated complaint (Cases 1–
CA–299743; 1–CA–29965), the General Counsel alleges a
violation of Section 8(a)(1) commencing September 14,
1992, by Respondent’s enforcing its dress code rule concern-
ing clothing (complaint par. 7) selectively and disparately by
telling employees to remove union buttons and threatening
them with disciplinary action if they failed to do so.
The record is uncontradicted that Respondent supervisors
observed employees (Martha Fisk’s Air Force Academy Pin;
Glen Daviau’s squadron pin) wearing buttons on their shirts
and other apparel and made no reference to those pins. In-
deed, there is some evidence that employee Patricia Moreno
received a compliment on her pin (Tr. 100–101) from a su-
pervisor after the new code was in operation. Respondent’s
Sepember 14 direction to employees to remove only the
union buttons is unlawfully disparate and constitutes a prima
facie violation of Section 8(a)(1).
To the extent Respondent defends on the ground that the
supervisors did not ‘‘see’’ the pins, I reject that defense.
There is no question that the supervisors actually observed
the pins. It may well be true that they did not actually ‘‘no-
tice’’ the pins, regardless of whether they had logos on them.
All of the pins, except Moreno’s, had logos on them whether
or not they were as bright and forthcoming as the Union logo
on the union pin. The reason, I find, that the Respondent’s
supervisors ‘‘saw’’ but did not ‘‘notice’’ the other pins is
that the wearing of pins, whether nursing school identifica-
tion, military buttons or otherwise, was commonplace. The
military and similar pins (but not the large AIDS pin) may
have been unobtrusive and did not have bold lettering on
them as did the union pin. It is for that reason that they were
not ‘‘noticed,’’ though ‘‘seen.’’ The supervisors observed
them but simply did not record notice of them. The super-
visors did take notice of the union pin, with its white letter-
ing on a dark background, not because it was obtrusive but
because it was a union pin. The AIDS pin was even larger
and apparently as bright.
It was Respondent’s object to prevent the wearing of the
union pin regardless that it had ‘‘seen,’’ though it had not
‘‘notice,’’ the other unobtrusive pins. I find that this dispar-
ate enforcement against union pins is a sufficient showing of
selectivity to support the General Counsel’s allegation in the
complaint. I thus find in the alternative, that Respondent’s
disparate enforcement of its dress code violates Section
8(a)(1) of the Act as alleged. In addition, I find that Re-
spondent’s threats of discipline if the pins were not removed
were further violations of Section 8(a)(1) of the Act as al-
leged. Although it is not necessary to find the existence of
a threat of discipline in order to find unlawful coercion, nev-
ertheless, I find the threats of discipline by Respondent’s su-
pervisors if the employee did not remove the union pins in
the nonpatient care areas, to constitute a further violation of
the Act. St. Vincent’s Hospital, 265 NLRB 38, 42 (1982).
Respondent does not argue that the instant case is one
where the wearing of the union button in any way would
cause dissention among Respondent’s employees or that the
union identification on the button is in any way obscene or
inherently provocative, Southwestern Bell Telephone Co., 200
NLRB 667 (1972). Rather, this case involves nonuniformed
employees’ wearing pins to show solidarity because of the
alleged suspension of employees for engaging in the con-
certed act of writing a letter to the Respondent’s board of di-
rectors, and in the presence of impending negotiations for a
new collective-bargaining agreement (negotiations commenc-
ing September 29, 1992) with the contract expiring October
31, 1992. The wearing of the union button in nonpatient care
areas in the presence of approaching collective-bargaining
negotiations adds greater weight to employees’ statutory right
as against Respondent’s inchoate, generalized dress code.
Pay’N Save Corp. v. NLRB, 641 F.2d 697, 701 fn. 10 (9th
Cir. 1989).
Basically, the problem in generally banning the union but-
ton at its nonpatient care Maple Street facility, and else-
where, all without regard to a credible impact on patient
care, in order to present a good public image while deliver-
ing patient care, is that Respondent engaged in the very con-
duct proscribed in Beth Israel Hospital v. NLRB, 437 U.S.
483, 500–501: ‘‘[it] is not surprising that [the hospital’s] as-
sessment of the need for a particular practice might overcom-
pensate its goals and give too little weight to employee orga-
nizational interest.’’ In Beth Israel v. NLRB, supra, the Su-
preme Court found unlawful the hospital’s ban on union so-
licitation in the hospital cafeteria used by employees, visitors
and patients. Asociacion Hospital del Maestro, 283 NLRB
419, 427 fn. 11 (1987).6
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
communications (after March 1992 inauguration of the dress code)
between Respondent and the contractor wherein Respondent pro-
tested the contract nurses repeatedly wearing clothing violating Re-
spondent’s dress code. After none of these objections was there an
improvement in their observance of the dress code, much less was
there any Respondent threat of discipline against the contractor for
the violations compared to Respondent’s instantaneous threat of dis-
cipline for insubordination in case of failure to remove union but-
tons.
H. Violation of Section 8(a)(1)
1. Polling employees in anticipation of the strike
As above noted, Respondent’s unfair labor practices with
regard to the union buttons and their prohibition occurred on
September 14, 1992. The existing collective-bargaining
agreement was to expire October 31, 1992. In light of that
expiration, negotiations for a further agreement commenced
September 29 and continued through February 1993 (Tr. 24–
25).
On November 12, however, the Union served on Respond-
ent a 10-day strike notice, the strike to commence Monday,
November 23, at 8 a.m. (G.C. Exh. 3). The Union stated that
it would picket at the Maple Street and Isabella Street en-
trances to Respondent’s facilities.
On Thursday, November 19, Respondent placed in each
employee’s mailbox a questionnaire (G.C. Exh. 12) concern-
ing the employee’s intention to participate in the strike. Re-
spondent’s questionnaire observed that it was preparing to
meet patient needs in view of the strike and had issued the
questionnaire for that purpose. In particular, it asked each
employee whether the employee intended to report to work
on November 23; whether the employee would not return to
work until the strike was resolved; and whether the strike
was a 1-day strike. Respondent further stated that, if the em-
ployee did not execute and return the questionnaire, it was
assuming that the strike would be a continuing strike and that
Respondent would plan for striker replacement for patient
needs accordingly. The questionnaire also directed that the
form be returned to Supervisor Patulak no later than 2 p.m.
on Friday, November 20, 1992. The only evidence of record
relating to employee response to the questionnaire was em-
ployee Nancy Hota’s response (G.C. Exh. 12). She said that
she was unable to answer the questionnaire because her an-
swer was contingent on the result of the collective-bargaining
negotiation of the next day, Friday, November 20.
Late in a collective-bargaining session of the next day, Fri-
day, November 20, the Union served directly on Respondent
a letter (G.C. Exh. 4) in which it notified Respondent that
the start of the strike was to be postponed from 8 a.m. on
Monday, November 23, to 8 a.m. on Tuesday, November 24.
When the Union served its strike-postponing letter on Re-
spondent, Respondent served a further document on the
union and its negotiators (G.C. Exh. 5). It stated that the em-
ployees’ group health insurance would be ‘‘terminated during
a strike situation’’ and further advised the employees that
they could continue coverage by payment of the premium
and a 2-percent surcharge under COBRA.
This Respondent November 20 letter to the Union and the
employees also stated that:
You should also be aware of the fact that any and all
picketing activities during the strike will be monitored
by sight and sound videotape cameras in order to insure
the safety and proper conduct of all concerned. Should
any individuals be involved in any improper conduct or
conduct that could cause liability, then the individuals
involved would be subject to immediate disciplinary ac-
tion and/or liability. The union will also be held liable
given any liability issues.
On Monday, November 23, 1992, bargaining unit employ-
ees reported for work at 8 a.m., were met at the front door
by Respondent’s counsel (Mason) and vice president
(Stroshine), and were not allowed in the building though they
wished to go to work. The lawyer told the employees that
patient assignments had already been made and that he con-
sidered the employees to be on strike. None of the employ-
ees were then carrying picket signs. Later the same day, Re-
spondent nevertheless distributed to all employees a docu-
ment (R. Exh. 5) in which it repeated that it had made efforts
to determine whether the strike was a 1-day strike and that,
absent such knowledge, it was preparing for patient care cov-
erage on a continuing basis. It observed that late in the
evening at the prior collective-bargaining session (Friday
night, November 20), the Union served notice of a change
in the date of the strike. Respondent’s memorandum to the
employees (R. Exh. 5) stated that the late notice was ‘‘Too
Late’’ and that arrangements had already been made to pro-
vide patient care for Monday, November 23. Thereafter, by
picket signs and otherwise, the employees, commencing on
November 23, complained that Respondent’s refusal to per-
mit them to work on November 23 was a ‘‘lockout.’’ Re-
spondent’s November 23 memorandum (R. Exh. 5) denied
that there was a lockout. It further notified the employees
that if they intended to work on Tuesday, November 24, they
must notify Respondent no later than 2 p.m. of that same
day, November 23, 1992, in order to properly make the nec-
essary assignments for Tuesday, November 24. The employ-
ees commenced picketing the Maple Street and Isabella
Street office entrances on November 23, 24, and 25, 1992,
the picket signs stating that the employees had been locked
out.
The picketing, peaceful in all respects, without blocking of
entrances, jostling, or otherwise irregular was from 8 a.m. to
5 p.m. on each of the above 3 days with Respondent’s video
cameras visible to the employees. The Union invited the
media to observe the picketing and they arrived with video
cameras.
The Union had previously engaged in informational pick-
eting on October 1 with about 12 to 15 employees picketing
the Maple Street office after work between 4 p.m. and 6 p.m.
The picketing was peaceful and without incident. Prior to
that October 1, 1992 picketing, there had been picketing 10
years before, on November 29, 1983, which was peaceful
and related to a strike. There also was informational picket-
ing in 1981. During the 1981 picketing, a patient (Goldie
Scott) was on the picket line seated in a wheelchair belong-
ing to Respondent. The patient carried a sign stating: ‘‘I am
a patient, I support the nurses; give them a contract’’ (Tr.
480-481; R. Exh. 14).
Respondent’s president and chief executive officer since
1977, Phyllis A. Capers, testified that she had been employed
by Respondent since 1971, president and chief executive of-
ficer since 1977; and that it was her decision, together with
1049HOLYOKE VISITING NURSES ASSN.
7 Respondent adduced in evidence, solely for purposes of judging
Caper’s state of mind in ordering the videotaping, a newspaper pic-
ture and report concerning mass picketing by Local 1199, New Eng-
land Health Care Employees’ Union (R. Exh. 16). Local 1199 there-
after was merged with the instant local of the SEIU, Local 285. The
date of the apparent mass picketing by Local 1199 was more than
12 years before the instant picketing and before the merger of the
unions. Although another document in evidence (R. Exh. 15) shows
members of this Local 285 ‘‘crowding’’ into the office of another
employer, there is no suggestion that those employees were engaged
in any violations in crowding into the office. Moreover, I am con-
fused, in the face of Respondent adducing evidence with regard to
other employers’ relationships with this local union and other
unions’ relationships with other employers by Respondent identify-
ing the union herein, not as Local 285, but as Local 404 of the Serv-
ice Employees International Union (R. Br., p. 11).
counsel and other members of the management team (Tr.
472), to use the videotape cameras and tape the picketing.
She further testified that she made the decision on the rec-
ommendation of counsel, that ‘‘videotaping be considered as
a general practice in order to prevent any impropriety during
the strike’’ (Tr. 478). She conceded that there had been no
acts of violence during previous strike and picketing al-
though there was mass picketing in 1983.
Much of Caper’s testimony related to the above 1981 inci-
dent involving a Respondent patient in a wheel chair carrying
a sign in favor of support for the nurses. Caper first testified
that she believed that the patient, Goldie Scott, had been the
subject of misconduct by the nurses and possible abuse (Tr.
484), but thereafter admitted that it was even possible that
the patient had voluntarily joined in support of the Union
(Tr. 484). As a general matter, Caper stated her position that
employees and the Union cannot request the help of patients
in a labor dispute (Tr. 485) because of the patient relation-
ship with the nurses. It was her testimony that her prior ex-
periences, as a Respondent employee, then with various
union actions including the strikes or picketing of 1981 and
1983, together with employee claims of union busting and
the Union’s actions with other employers, all caused her to
conclude that videotaping was in order. There is no proof of
record that this Union, with this Employer or any other Em-
ployer, engaged in violence at any time.7
Respondent’s counsel testified that he had been involved
in a strike in which ‘‘somebody’’ was killed on the picket
line (Tr. 539). That incident involved a different union and
a different employer (Tr. 539-540). Attorney Mason testified
that based upon his overall experience, he now makes it a
practice of recommending to his clients that they videotape
any and all picketing and strike activity (Tr. 540). He admit-
ted that prior to the instant strike activity regarding the Hol-
yoke Visiting Nurse Association, he had no prior experience
with this union concerning strike activity (Tr. 543, 544). In
the one situation in which he was retained and in which
Local 285 engaged in picketing (Nonotuck Resource), his in-
formation with regard to alleged union misconduct was only
hearsay (Tr. 545).
During the first week that the unit employees returned to
work after the strike, Respondent distributed a notice to them
(R. Exh. 8) advising them that there would be no disciplinary
action taken against any individual who ‘‘acted in a legal and
proper manner.’’
2. Polling of the employees concerning the strike
Respondent’s questionnaire to the employees (G.C. Exh.
12) of November 19, 1992, inquires into their intent to report
to work on the first day of the proposed strike; whether the
employees will continue this strike until it is resolved and
into the anticipated length of the strike. The failure to return
the questionnaire raises the assumption, according to Re-
spondent, that the employee will continue to participate in
the strike until the strike is over. This constitutes polling of
employees relating to their engaging in a protected, concerted
activity.
There is no question that the Respondent, in fact, notified
the employees, certainly in the November 29 distribution,
that in view of the Union’s strike notice of November 12,
it was preparing to meet Respondent’s patients’ needs (G.C.
Exh. 12). I further find that it was in response to meeting
its patients’ needs that Respondent made the inquiries con-
tained in its November 19 questionnaire.
Notwithstanding that such inquiries, so motivated, are en-
tirely lawful, the Board, in Preterm, Inc., 240 NLRB 654,
656 (1979), has explicitly ruled that:
In order to lessen the inherently coercive effect of the
polling of its employees, Respondent had an obligation
to explain fully the purpose of the questioning, to as-
sure the employees that no reprisals would be taken
against them as a result of their response, and to refrain
from otherwise creating a coercive atmosphere. By the
failure of its representative to comply with these re-
quirements in questioning a number of employees, Re-
spondent interfered with, restrained and coerced its em-
ployees in the exercise of their right to engage in pro-
tected, concerted activity.
The Board expressly rejected the contention that the strict
safeguards of Johnnie’s Poultry Co., 146 NLRB 770 (1964),
enf. denied 344 F.2d 617 (8th Cir. 1965), be relaxed in cases
of interrogation of prospective strikers by health care institu-
tions. The entire rationale of Johnnie’s Poultry is premised
on the establishment of specific safeguards designed to mini-
mize the coercive impact of otherwise unlawful employer in-
terrogation into the concerted protected and union activities
of its employees, Johnnie’s Poultry Co., supra at 775. As
General Counsel’s citation of Preterm, Inc., supra, indicates,
the interrogation must take place with a simultaneous assur-
ance to those employees interrogated that there will be no re-
prisal based on their answers. Such assurance was not given
here. I am constrained to conclude, as General Counsel ar-
gues, that the questionnaire of November 19, 1992, inquiring
into the individual employee’s intent with regard to engaging
in the strike and whether the employee will continue on
strike until the strike is resolved, violates Section 8(a)(1) of
the Act because of no simultaneous assurance that there
would be no reprisal.
In addition, quite apart from the Johnnie’s Poultry require-
ment that the participation of the employee must be on a vol-
untary basis, a further Johnnie’s Poultry condition (Johnnie’s
Poultry, supra at 775) is that ‘‘the questioning must occur in
a context free from employer hostility to union organiza-
tion.’’
Two months before the distribution of this questionnaire,
and in the context of the approaching termination of the ex-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
isting collective-bargaining agreement, Respondent dem-
onstrated union animus and indeed engaged in unfair labor
practices in prohibiting the wearing of union buttons in Re-
spondent’s nonpatient care area, supra.
Respondent’s written communication to the employees
served on them after their return from picketing, in or about
the last week of November 1992, in which it advised the em-
ployees that there would be no retaliation for their picketing,
November 23–25, has no curative effect on the lawfulness of
the prior unlawful interrogation of November 19. Not only
was the assurance untimely, but it related to the picketing,
not Respondent’s interrogation. An assurance that there
would be no retaliation for picketing ‘‘against anyone who
acted in a legal and proper manner . . . [if] we find that
misconduct was not involved’’ neither relates to nor cannot
affect the lawfulness of the earlier interrogation. Moreover,
the promise of no retaliation is conditioned on the picketing
being conducted in a ‘‘legal and proper manner.’’ What must
the employees avoid in order to engage in legal picketing
which is also ‘‘proper’’?
3. Videotaping and threat to videotape
President of Respondent (Phyllis Capers) testified that she
made the final decision to videotape with regard to the in-
stant November 23–25 picketing (R. Br., p. 12). Respondent
concedes that she had been involved in only two previous
strike situations with the Union; the first, a 1-day strike,
wherein the videotape camera was not used; the other, 10
years prior to that (Friday, September 11, 1981, therefore 12
years before the present incident) where a patient was placed
in a wheelchair taken from Respondent without its permis-
sion, with the patient bearing a sign in support of the picket-
ing unit employees. Respondent argues that since the bor-
rowed wheelchair and the use of the patient was an abuse
of the nurse-patient relationship, Respondent’s president’s
final decision was to use the videotape camera for safety and
security purposes (R. Br., p. 13).
Respondent further concedes that on Friday night, Novem-
ber 20, 2 days before the picketing, Respondent passed out
notices (G.C. Exh. 5) to the staff and union officials notify-
ing them that the video camera together with a sound camera
was going to be used ‘‘to insure safety and proper conduct
for all concerned.’’ The notice warns of disciplinary action
against any individual ‘‘involved in any improper conduct’’
(G.C. Exh. 5). Respondent observes that no union or official
employee protested Respondent’s notice. Lastly, Respondent
notes that the picketing was peaceful in all respects and that
newspaper reporters, photographers, and TV reporters and
cameramen were called, apparently by the Union, to report
on and record the picketing.
Respondent makes the following arguments with regard to
the videotaping: (1) since there were no objections to Re-
spondent’s November 20 notice that there would be
videotaping, and since the Union sought out the media to
photograph and record the picketing, then Respondent’s own
videotaping was not unlawful. In support of that position Re-
spondent cites U.S. Steel Corp. v. NLRB, 682 F.2d 98 (6th
Cir. 1982).
Respondent further argues that when the staff returned to
work, they were advised that there would be no reprisals
taken if there was no unlawful conduct. Under such cir-
cumstances, Respondent urges that there was no unlawful
surveillance or the impression of surveillance since there was
no tendency to interfere with, restrain, or coerce employees
in the exercise of their rights under the Act.
On the other hand, General Counsel argues, and I find,
that there is a violation of Section 8(a)(1) of the Act if there
is videotaping without some legitimate justification or ration-
ale. Videotaping has a tendency to intimidate employees, cre-
ating fear of reprisals. Waco, Inc., 273 NLRB 746, 747
(1984), F. W. Woolworth Co., 310 NLRB 1197 (1993).
Videotaping here was not mere ‘‘observation’’; and when, as
here, employer surveillance constitutes more than ‘‘mere ob-
servation,’’ it violates the Act. F. W. Woolworth, supra.
Here, videotaping consisted of continuous scrutiny over a
substantial period of time Nashville Plastic Products, 313
NLRB 462 (1993), and was not ‘‘mere observation’’ and is
unlawful. Indeed the intimidating object of the videotaping is
readily discerned from Respondent’s own objective (G.C.
Exh. 5): ‘‘to insure the safety and proper conduct of all con-
cerned.’’ Having then added that ‘‘improper conduct’’ would
lead to ‘‘immediate disciplinary action,’’ Respondent leaves
the picketers in doubt as to what constitutes ‘‘improper con-
duct’’ on the picket line. Is repetitive chanting, name-calling,
or shouting ‘‘improper’’? The natural effect of such a threat
is to intimidate the pickets to refrain not merely from illegal
activity but from what Respondent conceives as ‘‘improper
conduct.’’ Such videotaping and the threat thereof violates
Section 8(a)(1) of the Act.
The evidence shows that in September 1981, the Union,
apparently without Respondent’s permission, took a wheel-
chair and placed a patient in there with a sign supporting the
nurses picketing and urging Respondent to ‘‘give them a
contract.’’ Assuming arguendo that the wheelchair was Re-
spondent’s and was taken without permission, there is no
evidence with regard to whether the patient, Goldie Scott, in
the wheelchair, was a voluntary participant in the picketing
or whether through overt or implicit coercion, taking advan-
tage of the nurse-patient relationship, the elderly woman was
coerced into supporting the picket line. I conclude, in any
event, that Respondent’s concern for this arguably illegal act,
with no nexus to picket line violence, was too remote to jus-
tify the instant videotaping. Furthermore, the existence of
peaceful informational picketing in October 1992 or peaceful
picketing during the strike of 1984 cannot serve as a basis
for videotaping in November 1992.
The fact remains, as I observed the witnesses as they testi-
fied and reviewed the record, that the videotaping of the
peaceful November 23–25 picketing was solely at the ex-
plicit urging of counsel (Albert R. Mason, Esq.) notwith-
standing that the ‘‘decision’’ to engage in the videotaping
was the ‘‘decision’’ of Respondent’s president. In terms of
the actual motivation for the videotaping, I brush aside Re-
spondent’s attempts to demonstrate a historical basis to le-
gitimize the instant videotaping, particularly the Union’s
1981, 1984, and early 1992 picketing all of which was
peaceful and notwithstanding the 1981 picketing involving
the placing of a patient in Respondent’s wheelchair. The ac-
tual motivation for President Caper’s ‘‘decision’’ is to be
found in the testimony of Attorney Mason (Tr. 538 et seq.).
Although he testified that he merely ‘‘advised’’ Respondent,
he conceded that it was his practice based upon past experi-
ence to recommend that in most, if not all instances, that
there be videotaping whenever there is any kind of strike ac-
1051HOLYOKE VISITING NURSES ASSN.
tivity as a ‘‘preventive measure’’ (Tr. 538). This anticipatory
antisepsis—a ‘‘preventive measure’’—is, by its own terms,
redolent with intimidation, not with merely recording action
on the picket line. Furthermore, there is no question, as I ob-
served his emotional testimony, that the motivation for the
instant videotaping, based on counsel Mason’s generalized
preference for videotaping, is to be found in his 1970 experi-
ence where an individual was killed on the picket line (Tr.
539). Such a basis for motivation has the ring of truth and
was the actual source for videotaping in this case.
I have no doubt of Attorney Mason’s credibility and the
genuineness of his experience in 1970 when an individual
was killed on the picket line in a labor matter in which he
was involved. Again, I have no doubt that it was this experi-
ence which propelled him into generally advising his clients,
as a ‘‘preventive measure,’’ to videotape in order to warn
pickets and forestall any similar or lesser acts of violence,
intimidation, or coercion. Yet, on this record, the objective
of the videotaping was intimidating since it was obscure
(‘‘proper conduct’’) and Attorney Mason has had no experi-
ence with this union based on strike activity (Tr. 543). In the
one situation where there might have been unlawful activity
by this union in a picketing situation, it was clear that Attor-
ney Mason’s knowledge of any such activity was solely hear-
say (Tr. 545). In addition a patient in Respondent’s wheel-
chair on picket line 10 years earlier does not license general-
ized videotaping in order to ensure ‘‘proper conduct.’’
It follows, therefore, that since Respondent President Ca-
pers made her decision based particularly on Attorney Ma-
son’s advice; and since Attorney Mason generally advises the
videotaping of all picketing in anticipation of the possibility
of a repetition of the unhappy violence he experienced in
1970; and since he has had no experience with this union ei-
ther in strike activity or in picketing activity which proved
to be other than lawful, peaceful picketing, I conclude that
Respondent’s threat to videotape and its actual videotaping
of the November 23–25 picketing violated Section 8(a)(1) of
the Act, as alleged.
This conclusion finds direct support in F. W. Woolworth
Co., 310 NLRB at 1177:
Here, the record provides no basis for the Respondent
reasonably to have anticipated misconduct by those
handbilling, and there is no evidence that misconduct
did, in fact, occur. Unlike our dissenting colleague, we
adhere to the principle that photographing in the mere
belief that ‘‘something might happen’’ does not justify
Respondent’s conduct when balanced against the tend-
ency of that conduct to interfere with the employees’
right to engage in concerted activity.
Furthermore, in F. W. Woolworth Co., supra, the Board
rejected the dissenting member’s reliance on United States
Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982), denying
enf. 255 NLRB 1338 (1981). There, the Board held that the
fact that the employees publicized their activities is entitled
to ‘‘little weight’’ in determining the coercive effect of em-
ployer recordation. The Board has continued to rely on its
own decision in that case. See F. W. Woolworth Co., supra.
Indeed, the Board’s decision in U.S. Steel was cited in John
Ascuaga’s Nugget, 298 NLRB 524 fn. 3, 554 (1990), enfd.
in relevant part 968 F.2d 991 (9th Cir. 1992). Lastly, distin-
guishing the cases of non-surveillance when the employer
was engaged in mere observation, the Board held, in F. W.
Woolworth Co., supra, that the pictorial recording of employ-
ees engaged in protective concerted activities tends to create
fear among employees of future reprisals. That ‘‘something
might happen’’ is the equivalent of Respondent’s ‘‘preven-
tive measure.’’ Bound by the Board’s rules and decisions,
particularly F. W. Woolworth, supra (‘‘something might hap-
pen’’), I necessarily am constrained to reject Respondent’s
reliance on U.S. Steel Corp. v. NLRB, supra, as a defense.
To the extent Respondent suggests that when the employ-
ees returned to work and were provided with a notice stating
that there would be no reprisals, this might constitute suffi-
cient assurance against a repetition of Respondent’s conduct
or reprisals for employee conduct, such a Respondent com-
munication (R. Exh. 8) does not amount, under Board law,
to a repudiation of Respondent’s unfair labor practice in
videotaping the picketing. Respondent did not explicitly
guarantee against Respondent’s repetition of its conduct.
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
4. The employees’ right to communicate with doctors
and Respondent’s answer thereto; the display of the
‘‘Union busting’’ signs and Respondent’s
answer thereto
After the picketing of November 23–25, 1992, the employ-
ees returned to work on November 27.
Sometime in December 1992, 20 unit employees signed a
letter delivered to physicians with whom Respondent dealt
(R. Exh. 1). After first observing that the unit has been
unionized for over 10 years and that for the most part the
parties enjoyed a positive working relationship, the letter ad-
verts to a ‘‘crisis situation’’ over issues which did not in-
volve money or benefits. The first complaint is the group’s
inability to meet with Respondent concerning working condi-
tions and patient care. The letter refers to a prior letter to the
Respondent’s board of directors which resulted in 19 em-
ployees being suspended from work. They next complain that
they never reached taking a final strike authorization vote be-
cause Respondent locked them out of work during Thanks-
giving week. In addition, they complain that Respondent
‘‘immediately canceled our health insurance coverage with
no notice or warning.’’ Finally the letter appeals to the phy-
sicians for help because they are concerned with issues
which relate to the giving of quality patient care. The writers
of the letter invite the physicians to express their concerns
to Respondent’s management.
Respondent urges that this letter written by the 20 employ-
ees contains falsehoods which could cause Respondent harm
(R. Br., p. 9).
As a result of this letter to the doctors, Respondent an-
swered with its own letter of January 8, 1993, to each of the
subscribers to the letter (G.C. Exh. 8). In particular, Re-
spondent’s letter urges that the employees’ letter to the doc-
tors was false in three respects: (1) that Respondent locked
out its staff; (2) that Respondent canceled the group insur-
ance without notice or warning; and (3) that Respondent had
suspended the 19 members of its staff simply because they
had written a letter to Respondent’s board of directors.
Respondent’s January 8, 1993 letter to the employees
(G.C. Exh. 8), after adverting to the substance of the letter
which it is answering, observes:
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Initially, we are taking this opportunity to point out to
you that the above statements are ‘‘false’’ and could be
the grounds for a civil action if damages to the agency
results from your actions.
Respondent particularly states that the 19 employees who
had previously written to the board of directors were sus-
pended for insubordination. Respondent further observes that
there had been no determination by any competent authority
that there was a lockout during the Thanksgiving week,
moreover, that the employees were notified, in writing, con-
cerning the cancellation of insurance coverage and how to
keep the coverage in effect should the employees choose to
do so. It then states that the employees’ letter to the physi-
cians constitutes grounds for civil action against all the indi-
viduals should any damage or harm to the agency come
about due to the letter.
Respondent’s letter then makes two further observations:
(a) it warns the employees that, under Respondent’s work
rules, as private sector employees, any damaging remarks or
adverse actions by them outside of agency time, and/or off
agency premises that do, or can, have an adverse impact on,
the Respondent, are subject to disciplinary action up to and
including discharge; (2) employees who return to work from
a labor dispute must work under Respondent’s terms and
conditions of employment and not set their own.
Lastly, it notes that some employees are displaying signs
in their car windows that state Respondent is ‘‘Union bust-
ing, Its illegal.’’ Respondent observes that such a display
subjects the employees to disciplinary action particularly be-
cause they chose to work for the employer and must work
under the Employer’s conditions. It observes that these signs
cause the employee to be subject to discipline for disparaging
the Employer.
The letter ends by stating to the employees that they are
being notified and warned that, in the future, should they re-
frain from taking action that can disparage or harm Respond-
ent, as well as refrain from contacting persons with whom
Respondent works, with ‘‘untrue and disparaging remarks’’
about Respondent, that ‘‘could adversely impact’’ upon Re-
spondent. Respondent warns that then ‘‘you would be subject
to immediate disciplinary action up to and including dis-
charge’’ (G.C. Exh. 8).
Elizabeth Stroshine, Respondent’s vice president of oper-
ations, testified that Attorney Mason drafted the letter (G.C.
Exh. 8; Tr. 467) and that there were three things that con-
cerned Respondent about the employees’ letter to the doctors,
all of which resulted in Respondent’s January 8 answer: the
employees had chosen to write to the doctors; the letter con-
tained false statements that disparage Respondent; and the
letter, sent after the nurses had returned to work, was thus
sent at a time when the employees were subject to Respond-
ent’s work rules. In particular, however, Stroshine testified
that the only disparagement suffered by Respondent in the
employee letter (G.C. Exh. 8) were the false statements con-
cerning the suspension of the employees’ having written to
the board of directors; the lockout; and the cancellation of
insurance (Tr. 469–470).
General Counsel’s witness testified that the employees be-
lieved themselves to have been locked out on November 23
because on November 20 (Friday) they had notified Re-
spondent that they were postponing the strike to a com-
mencement date of November 24; that when, on Monday,
November 23, they were not permitted to work, it was not
a matter of the employees striking; rather it was a matter of
Respondent locking them out.
Similarly, with regard to the cancellation of insurance, the
employees believed that it was canceled as a result of Re-
spondent’s lockout. The cancellation of insurance would re-
sult only if there had been a strike. Since there was no strike,
General Counsel argues, their insurance was canceled unilat-
erally by Respondent. Lastly, General Counsel’s witness tes-
tified that the 19 employees had been suspended on Septem-
ber 9, as a result of a letter written in the summer of 1992,
not for insubordination but for contacting the board of direc-
tor’s concerning a labor relations problem.
The ‘‘Union busting at Holyoke VNA It is illegal’’ signs
were placed in the employee car windows and clearly visible
to those passing by. The sign showed a diagonal red line
through a facsimile of the union button. Employee Hostal
testified that she put the sign in her car because of the labor
dispute with the parties. This dispute resulted in Respond-
ent’s warning, above, with regard to such signs being ‘‘inap-
propriate,’’ subjecting an employee whose car bears such a
sign with disciplinary action for disparaging the Employer.
5. Respondent’s warning employees of a civil action for
engaging in concerted protected activities and warning
of discipline for displaying the union busting sign
There are two issues of fact which govern the legal con-
clusions relating to Respondent’s warning its employees of a
civil action in retaliation for their writing the letter to the
physicians and its warning of discipline for displaying
‘‘union busting’’ signs in the employees’ cars. The first sig-
nificant issue is my conclusion that it may be assumed,
arguendo, that Respondent is correct in that the employees’
assertions in the doctors’ letter are false. The second is that
the only disparagement to Respondent, as Vice-President
Stroshine testified (Tr. 469–470), resulted from the falsity of
the statements. In other words, there was no further, other,
or independent proof that the ‘‘disparagement’’ arose from
circumstances other than the falsity of the three alleged state-
ments in the employees’ doctor letter and there was no proof
that any of these ‘‘false’’ statements were derived from mal-
ice by the writers, or any of them.
The General Counsel correctly cites Allied Aviation Serv-
ice Co., 248 NLRB 229, 230 (1980), enfd. 108 LRRM 2279
(3d Cir. 1980), for the Board rule that:
An employee may properly engage in communication
with a third party in an effort to obtain the third party’s
assistance in circumstances where the communication
was related to a legitimate, ongoing labor dispute be-
tween the employees and their employer, and where the
communication did not constitute a disparagement or
vilification of the employer’s product or its reputation.
That case, however, went further than the rule cited by Gen-
eral Counsel. The Board held therein that it would not limit
the employees’ communications to the third party for assist-
ance to the strict confines of the specific arguments raised
with their employer (Allied Aviation Service Co., supra at
231). Furthermore, the Board held, in determining whether
the employee communication constituted disparagement of
1053HOLYOKE VISITING NURSES ASSN.
the employer or its product, that absent a ‘‘malicious mo-
tive,’’ an employee’s right to appeal to the third party is not
dependent on the sensitivity of the employer to the employ-
ees’ choice of forum. Moreover, the Board held that appeal-
ing to a class of persons who would put economic or other
pressure on the employer was a protected activity (supra at
231).
To the extent that Respondent argues that it was ‘‘dispar-
aged’’ because of the employees’ false statements, as Vice
President Stroshine testified (and as I have assumed,
arguendo), the courts enforcing Board decisions, have estab-
lished that employers may proscribe ‘‘maliciously false’’
statements, but may not proscribe and punish the publication
of ‘‘false’’ statements. Texaco, Inc. v. NLRB, 462 F.2d 812,
815 (3d Cir. 1972), cert. denied 409 U.S. 1008. Accord:
American Cast Iron Pipe Co. v. NLRB, 600 F.2d 132 (8th
Cir. 1979), enfg. 234 NLRB 1126 (1978). Thus, absent proof
of malice, the merely ‘‘false’’ statements, which Stroshine
testified disparaged Respondent, are insufficient as a matter
of law, to meet the test of unlawful disparagement which
would provide a defense to Respondent. The defense of
‘‘disparagement’’ must rest on employee malice and, as
above, there was no proof, offer to prove, or any evidence
of any such condition. Thus, assuming arguendo that the em-
ployee statements in their letter to the physicians were false,
Respondent may not threaten them with discipline or a civil
action in retaliation therefore without violating Section
8(a)(1) of the Act. See Pioneer Finishing Corp. v. NLRB,
667 F.2d 199 (1st Cir. 1981), enfg. 247 NLRB 1299 (1980),
cert. denied 406 U.S. 1080 (1983); also Local 1-2 Utility
Workers Union (Consolidated Edison), 312 NLRB 1143 fn.
2 (1993).
Respondent argues that, in any event, the employees who
wrote the letter to the doctors had already returned to Re-
spondent’s employ from the picket line and therefore the let-
ter was in some way unprotected or subject to Respondent’s
work rules. In the first place, a work rule which prohibited
employees from engaging in otherwise protected concerted
activities would appear to be unlawful. It is the statute rather
than Respondent’s work rules that govern the statutory rights
of employees, absent special circumstances (interference with
production, safety, or discipline) or a clear and unmistakable
waiver in a collective-bargaining agreement, to engage in
such activity. In the instant case, there is no claim that Re-
spondent’s work rules are embodied in the collective-bar-
gaining agreement, that the employees’ activities interfered
with patient care or discipline, and there is no independent
evidence of a union or employee waiver of the right to en-
gage in protected concerted activities. Thus Respondent’s
work rules, if any, which would unilaterally restrict the em-
ployees’ statutory rights would be unlawful.
To the extent Respondent argues that employees may not
engage in concerted protected activities because they are not
on the picket line or on strike or, in any event, are actually
working for Respondent, Respondent has cited no authority
for that proposition. Employees may lawfully engage in pro-
tected activities while on strike, on a picket line or, within
limitations, while in ordinary employment. I find, in any
event, that Respondent’s work rules fail to constitute a de-
fense to Respondent’s threat to bring a civil action against
the employees for having engaged in a protected, concerted
protected activity, arguably containing false statements, in
their letter to the doctors.
With regard to the ‘‘union busting’’ sign, the General
Counsel correctly notes that Board precedent has permitted
various extravagant statements of opinion in describing unat-
tractive features of employers. If the Board, with court ap-
proval, protects statements on signs which asks the public:
‘‘Please don’t feed management. They only suck blood,’’
then a mere ‘‘union busting’’ assertion against an employer,
the Respondent herein, pales in comparison. See RAI Re-
search Corp., 257 NLRB 918 (1981), enfd. 688 F.2d 816 (2d
Cir. 1982). That the employees had returned to employment
is irrelevant. Respondent’s threat of discipline in its January,
1993 letter (G.C. Exh. 8) is an unlawful threat and violates
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Holyoke Visiting Nurses Association, Respondent, at all
material times, has been and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and is a health care institution within the meaning of
Section 2(14) of the Act.
2. Local 285, Service Employees International Union,
AFL–CIO, CLC, the Union, at all material times has been
and is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced
and continuing to interfere with, restrain, and coerce its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, thereby violating Section 8(a)(1) of the Act by
the following acts and conduct at its Maple Street and Isa-
bella Street facilities in Holyoke, Massachusetts.
(a) Since on or about September 14, 1992, Respondent
violated Section 8(a)(1) of the Act when it directed its em-
ployees to remove their union buttons worn in nonpatient
care areas and thereafter separately violated Section 8(a)(1)
of the Act by threatening them with discipline for failure to
obey that direction.
(b) Since on or about September 14, 1992, Respondent
violated Section 8(a)(1) of the Act by disparately enforcing
its dress code so as to prohibit employees from wearing
union buttons.
(c) Since on or about November 19, 1992, Respondent
violated Section 8(a)(1) of the Act when, against a back-
ground union animus derived from unremedied unfair labor
practices regarding the removal of union buttons as above-
described in subparagraphs (a) and (b) hereof, and without
first assuring employees of their freedom from retaliation,
Respondent coercively interrogated its employees regarding
their intention to engage in, and the extent of their engaging
in and supporting, an anticipated strike.
(d) Since on or about November 20, 1992, Respondent
violated Section 8(a)(1) of the Act by threatening to video-
tape and videotaping its employees engaged in picketing ac-
tivities at its Maple Street and Isabella Street locations in
Holyoke, Massachusetts.
(e) Respondent violated Section 8(a)(1) of the Act by
threatening employees with civil action and discipline for en-
gaging in the protected concerted activities of writing a letter
to physicians with whom Respondent did business and in
displaying signs in their personal vehicles accusing Respond-
ent of union busting.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
9 In view of the findings in Holyoke Visiting Nurses Assn. v.
NLRB, 11 F.3d 302 (1st Cir. 1993), it appears that Respondent
should be placed under the obligation of a broader responsibility to
avoid violating the Act, Hickmott Foods, 242 NLRB 1357 (1979).
The court having sustained the Board’s findings and conclusions of
a studied 8(a)(3) discharge involving the same labor organization,
the present violations must be viewed in a different light. Respond-
ent appears not to be an embattled employer innocently overstepping
the limits of lawful action, defending against an aggressive union.
Rather, Respondent is a repeat offender along a broad spectrum of
8(a)(1) conduct. Bad motivation in 8(a)(1) violations is not a nec-
essary element. El Rancho Market, 235 NLRB 468, 471 (1978). The
effect here, if not the motive, was, by a series of unlawful acts, to
intimidate the Union. Respondent has already had a bite of the
apple. To fail to invoke a broad injunctive order is to invite further
statutory misconduct.
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.’’
On the above findings of fact and conclusions of law and
on the entire record, I issue the following recommended8
ORDER
The Respondent, Holyoke Visiting Nurses Association,
SpringField, Massachusetts, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Directing employees to remove their union buttons
worn in nonpatient care areas and thereafter threatening them
with discipline for failure thereof.
(b) Disparately enforcing any dress code or rule so as to
prohibit employees from wearing union buttons or other
union insignia in nonpatient care areas.
(c) Coercively interrogating employees with regard to their
intention to engage in, and the extent of their engaging in
and supporting, anticipated strikes or other concerted pro-
tected activities.
(d) Threatening employees with videotaping, and
videotaping, their picketing or other concerted protected ac-
tivities.
(e) Threatening employees with civil action or other dis-
cipline for engaging in protected concerted activities includ-
ing writing letters to physicians with whom Respondent has
business activities and displaying union busting signs in their
personal vehicles.
(f) In any other manner9 interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities at Maple Street and Isabella Street,
Holyoke, Massachusetts, copies of the attached notice
marked ‘‘Appendix.’’10 Copies of said notice on forms pro-
vided by the Regional Director for Region 1, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent immediately on 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 Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.