Providence Hospital

National Labor Relations Board - Board Decisions

Aug 18, 1987

285 N.L.R.B. 320 (N.L.R.B. 1987)

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Providence Hospital and Massachusetts Nurses As-
sociation . Case 1-CA-17255
18 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
- On 28 July 1981 Administrative Law Judge
George F. Mclnerny issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed limited ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, i and
conclusions2 only to the extent consistent with this
decision and to adopt the recommended Order as
modified.
The judge found the Respondent violated Sec-
tion 8(a)(1) by promulgating a rule that prohibited
off-duty employees from distributing handbills at its
main entrance, and by requesting two off-duty, em-
ployees who were distributing such handbills at the
main entrance to leave the Respondent's property.
The judge also found that the Respondent had not
violated Section 8(a)(1) by promulgating a rule that
prohibited informational picketing on its property
and by preventing off-duty employees and others
from picketing on its property. We agree, but only
for the following reasons.
i In sec III ,A, par 1, the judge erroneously stated the parties ' collec-
tive-bargaining agreement expired 3 December 1979 The correct date is
31 December 1979 In sec III,B , par 9, the judge erroneously stated that
the Respondent prohibited handbillmg in a paragraph of its 10 March
1980 notice to the Union "separate" from and "independent" of the para-
graph in which it prohibited picketing In fact, both prohibitions were
contained in the same paragraph We correct these inadvertent errors
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(1) by asking employees if they would cross the Union's picket line in
the event the Union struck , we emphasize that a health care employer
may properly ask if employees intend to participate in a strike after the
union serves a strike notice pursuant to Sec 8(g) Preterm, Inc., 240
NLRB 654 (1979) The employer must , however, explain fully the pur-
pose of its question , assure employees that it will not take reprisals
against them as a result of their response, and otherwise refrain from cre-
ating a coercive atmosphere Id at 656 Although the evidence shows
that Supervisor Mary Tarbell told one of the several employees ques-
tioned that she was concerned about staffing levels, the Respondent con-
cedes that it did not otherwise take the precautions that Preterm required
We therefore find it unnecessary to determine whether the Union's
notice, which stated only that it intended to picket the Respondent's hos-
pital, was sufficient to satisfy the threshold requirement for permitting
such questions about strike intentions pursuant to Preterm
In the absence of any evidence of threats or intimidation accompanying
the Respondent 's inquiries , Chairman Dotson would not find a violation
here
285 NLRB No. 52
1. BACKGROUND3
The Respondent operates a hospital in Holyoke,
Massachusetts. Massachusetts Nurses Association
(the Union) had represented the Respondent's
nurses for approximately 10 years when, in Sep-
tember 1979, the parties began negotiations for a
successor to their contract, which was to expire 31
December 1979.
By February 19804 the parties had yet to reach
agreement, and some of the Union's nurses con-
cluded that negotiations were proceeding more
slowly than they wished. An "Action Committee,"
composed of union members, thus decided it would
picket the Respondent's hospital to inform the
public where the Union stood on contractual
issues.
On 27 February the Union notified the Respond-
ent that it intended to picket the hospital on 10
March. In a meeting with Holyoke police, the
Union told the Respondent that it intended to
picket on sidewalks leading from the hospital build-
ing's main entrance to the driveway. This area is
on property the Respondent owns. The Union also
indicated at this meeting that it intended-to distrib-
ute handbills.
The Respondent's hospital is located on U.S.
Route 5. The speed limit on Route 5 in front of the
hospital is 45 miles per hour. The hospital's main
entrance is located about 250 feet from the high-
way and is served by a semioval one-way driveway
with an entrance at the north end and an exit at the
south. There are traffic lights at both ends of the
driveway, where the driveway intersects with
Route 5. Traffic coming from the north may enter
the driveway directly from Route 5. From the
south, traffic must enter through a jughandle that
diverts traffic from the northbound lane and directs
it into the driveway through the north traffic light.
Ninety-nine percent of the traffic that enters the
hospital enters through the north entrance. Speed is
limited to 15 miles per hour in the hospital drive-
way. A public bus system maintains a bus stop at
an island in front of the hospital 's main entrance,
on the Respondent's property.
The Respondent owns all of the property be-
tween the main entrance to the hospital and Route
5 except for two areas at each end of the driveway
where public property extends for 80 feet or so
from the highway onto the driveway, encompass-
ing that part of the driveway and narrow strips
next to it. There is no sidewalk next to this part of
3 We have added certain uncontroverted facts not set out in the
judge's decision
4 All dates are in 1980 unless otherwise indicated
PROVIDENCE HOSPITAL 321
the driveway. There is instead a grassy area which,
at some points, is steep.
Next to Route 5's southbound lane, adjacent to
hospital property, is a public breakdown lane.
Along the jughandle next to the northbound lane is
a public sidewalk.
Shortly before picketing was to begin on 10
March, the Respondent's administrator, Owen Con-
nolly, gave the Union the following notice:
Allowable Areas for Picketing and
Handbilling
The purpose of this notice is to inform you
of Providence Hospital's position regarding al-
lowable sites for picketing and handbilling pur-
suant to your 8(g) notice dated February 27,
1980. Of primary concern to the Hospital is
the prevention of interference with our patient
care responsibilities. As a result, picketing will
not be allowed to occur on Providence Hospi-
tal property or buildings.
Any picketing which does occur in the envi-
rons of the Hospital will be restricted to public
property. Available areas of public property
include: (1) the land adjacent to Route 5 along
the access and exit roads leading to and from
the Hospital for approximately 100 feet; (2) the
sidewalk along the east side of Route 5 and;
(3) the traffic island in the left turn lane on the
east side of Route 5. These areas provide suffi-
cient means by which you can communicate
with your intended audience and also do not
violate the property rights of the Hospital.
Further, be advised that any handbilling done
in conjunction with your picketing should also
be restricted to public property areas.
About 1:30 that afternoon, Respondent Director
of Security Everett Booth discussed the notice
with union members Patricia Cody and James Vail-
lancourt, and Booth walked the hospital boundries
with them. The judge found that Booth indicated
that picketing was to take place only on public
property.
About 2 p.m., off-duty employees, their spouses
and children, and a nonemployee union representa-
tive began informational picketing on public prop-
erty at the hospital driveway entrance and exit, on
the sidewalk adjacent to the jughandle, and in the
breakdown lane along Route 5. Their picket signs
carried various slogans such as, "Angels of Mercy,
treated like hell," "professional pay for professional
nurses," and "Be a nurse; starve with dignity."
They also distributed handbills, which discussed
the parties' bargaining status and the nurses' con-
cerns in detail. The handbills asked the recipients
to write the Respondent's board of directors,
whose namec and addresses were printed on the
other side.
After a short time, the Union abandoned picket-
ing and handbilling at the driveway exit and in the
breakdown lane along Route 5. The Union felt that
the exit was too isolated, and police warned that
picketing in the breakdown lane was dangerous.
About 2:45 p.m. nurse Vaillancourt and an em-
ployee, identified only as Terry, put down their
picket signs, walked to the hospital' s main en-
trance, and began handbilling. After about 10 min-
utes, Security Director Booth approached, read to
the employees from the Respondent's notice to the
Union, and asked them to leave. They complied.
Also on 10 March, and at other times , off-duty
employees distributed leaflets at the main entrance
of the hospital advocating representation of the
technical, service, and maintenance employees by
the United Food and Commercial Workers Union.
The Respondent acknowledged permitting this ac-
tivity.
The Respondent's personnel policy handbook,
dated "12-1-73" proscribes "Soliciting during
working time or distributing literature in working
areas for any purpose except the United Fund
without the express written approval of the Person-
nel Department." A 12 March memo from the Re-
spondent's administrator to all department heads
reiterated the foregoing rule but deleted the provi-
sion for approved exceptions.
Discussion
A. Picketing
In Fairmont Hotel, 282 NLRB 139 (1986), issued
subsequent to the judge's decision here, the Board
held that in cases involving conflicts between prop-
erty rights and Section 7 rights, the Board's task is
"first to weigh the relative strength of each party's
claim ." The Board states in Fairmont Hotel, supra
142:
If the property owner 's claim is a strong one,
while the Section 7 rights at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative . [Fn. omitted.]
Factors that may affect the relative strength or
weakness of an asserted property right include the
following: the use to which the property in ques-
tion is put, any restrictions placed on public access
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the property or to the facility located on the
property, and the size and location of the private
facility. By way of example, the Board noted that
"a single store surrounded by its own parking lot
provided exclusively for the convenience of cus-
tomers will have significantly more compelling
property right claim" than "the owner of a large
shopping mall who allows the general public to uti-
lize his property without substantial limitation." Id.
at 141, Concerning the Section 7 right, factors that
may affect the relative strength or weakness of
such a right include the following: the nature of
the' right asserted, the purpose for which it is being
asserted, the employer that is the target of the ac-
tivity, the situs of the activity, the relationship of
the situs to the target, the intended audience of the
activity, and, possibly, the manner in which the
right is being asserted. Id., slip op. at 9-10. By way
of example, the Board noted that "organizational
rights and the right to engage in primary economic
activity at the situs of a dispute may be viewed as
more compelling than handbilling and other infor-
mational activity at locations other than the pri-
mary situs." Id. at 142.
Applying the Fairmont test in this case, we find
that the Section 7 right and the property right as-
serted here are both strong rights that are relative-
ly equal. The picketers here included employees
engaged in an economic protest against their own
employer to publicize their bargaining position in a
contract negotiation dispute. This kind of primary
economic activity involves a core Section 7 right.
On the other, hand, the property right asserted by
the Respondent in its hospital and surrounding
grounds, which it does not share with any other
enterprise, is at least as strong as that of a luxury
hotel or a single retail store surrounded by its own
parking lot. There is no evidence that the public
visits the hospital and its property for reasons unre-
lated to the provision of medical services. There
likewise is no evidence that the Respondent has
ever permitted anyone to picket on its property.
The presence of picketers on hospital property
could well tend to disturb patients entering and
leaving the hospital.5
As the strong Section 7 right and strong proper-
ty right asserted here are relatively equal, we must
determine whether the General Counsel met the
burden of showing that the Union, in the absence
of access to the Respondent's property, had no' rea-
sonable alternative means for communicating with
5 Even where neither picketing nor nonemployees are involved, the
significance of specialized health care concerns has been recognized to
the extent of permitting greater restrictions on exclusively employee Sec
7 solicitation and distribution within a hospital See Beth Israel Hospital V.
NLRB, 437 U .S 483 (1978), NLRB P Baptist Hospital, 442 U.S. 773
(1979).
its intended audience. We find that the General
Counsel has failed to meet this burden. It appears
that picketing on public property adjacent to the
main driveway entrance from Route 5 enabled the
Union to convey its protests to 99 percent of the
public using the Respondent's hospital. There is no
evidence of safety hazards or other factors frustrat-
ing effective communication with the public at this
point.
Accordingly, we find that the Respondent's pri-
vate property interests were not required to yield
to picketing in the furtherance of the Union's Sec-
tion 7 claim. The Respondent therefore did not
violate Section 8(a)(1) of the Act by prohibiting
such activity.6
B. Handbilling
With respect to the Respondent's 10 March pro-
hibition of handbilling in furtherance of the Union's
protest by two off-duty employees at the hospital's
main entrance, we do not rely either on Fairmont'
or Tri-County Medical Center, 222 NLRB 1089
(1976).8 We agree with the General Counsel's ar-
gument in exceptions that the conduct at issue con-
stituted unlawful disparate treatment of protected
union activity.9
Initially, we note our agreement with the judge's
rejection of the Respondent's argument that the
handbilling at the main entrance to the hospital was
conjoined with the Union's picketing and handbill-
6 Member Stephens agrees with the result pursuant to his concurring
opinion in Fairmont.
9 The Supreme Court in Sears, Roebuck & Co. v. San Diego County Dis-
trict Council of Carpenters, 436 U.S. 180, 205 (1978), reiterating the test
set forth in NLRB P. Babcock & Wilcox Co., 351 U S 105 (1956), stated.
"To gain access, the union has the burden of showing that no other rea-
sonable means of communicating its organizational message to the em-
ployees exists or that the employer's access rules discriminate against
union solicitation " Our decision in Fairmont addressed only the "reason-
able alternative means" prong of this disjunctive text. See Husky Oil,
N.P.R. Operations v. NLRB, 669 F.2d 643, 648 (10th Cir 1982 ) (alterna-
tive grounds for access).
9 Contrary to the judge's analysis, Tri-County Medical Center is inappo-
site, as the case concerned whether off-duty employees may have access
to private property in order to communicate with other employees. In
the present case, access was sought by off-duty employees in order to
communicate with the public. '
9 The General Counsel's complaint in this case included allegations
that on 10 March the Respondent promulgated and enforced an unlawful
no-solicitation , no-distribution rule and unlawfully prohibited off-duty
employees from engaging in handbilling in front of the main entrance to
the hospital . The General Counsel's brief to the judge argued that the
Respondent's 10 March notice to the Union constituted a discriminatory
no-distribution rule. The General Counsel filed several exceptions to the
judge's decision related to this contention , including an exception to the
judge's failure to find that the Respondent's regular solicitation and distri-
bution rule restricted only soliciting during working time and distributing
literature in working areas The General Counsel's brief to the judge was
resubmitted in support of the exceptions Thus, contrary to the Respond-
ent's assertion , it is clear that the General Counsel alleged the Respond-
ent's exclusion from its main entrance of employees engaged in handbill-
ing on 10 March constituted discriminatory treatment and the General
Counsel preserved this argument in the exceptions.
6
PROVIDENCE HOSPITAL
ing on public property. The handbilling at the main
entrance was a functionally and geographically dis-
tinct activity, and we decline to view it as an ex-
tension of the picketing onto private property.
There is no evidence of any general rule restrict-
ing the solicitation and handbill distribution activi-
ties of the Respondent's employees at the hospital's
main entrance during nonworking time. To the
contrary, the applicable rule in the Respondent's
personnel policy handbook permits such activities,
as it bars solicitation only during working time and
bars distribution of literature only in working areas.
Additionally, there is no evidence of any general
rule prohibiting off-duty employees from entering
or remaining on the Respondent's property. Under
these circumstances, we find the Respondent's ad
hoc adoption of a special rule to prohibit handbill-
ing on its property by employees engaged in the
protest concerning contract negotiations constitutes
disparate treatment of union activities in violation
of Section 8(a)(1) of the Act. We further find the
Respondent's exclusion, pursuant to this rule, of
two off-duty employees handbilling at the main en-
trance is similarly violative of Section 8(a)(1) of the
Act.10
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Providence Hospital, Holyoke, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(a).
"(a) Discriminatorily prohibiting handbilling in
support of the Massachusetts Nurses Association
by off-duty employees in front of the main hospital
entrance."
2. Delete paragraphs 1(b) and 2(a), relettering
subsequent paragraphs accordingly.
3. Substitute the attached 'notice for that of the
administrative law judge.
10 See Knogo Corp, 262 NLRB 1346, 1360-1362 ( 1982), enfd in perti-
nent part 727 F 2d 55 (2d Cir 1984), Chrysler Corp, 232 NLRB 466, 476-
478 (1977)
In support of the disparate treatment theory, the General Counsel ex-
cepted to the judge 's failure to find that employees have leafletted in the
hospital lobby in support of the "right to life" movement and have
leafletted at hospital entrances in support of and in opposition to an orga-
nizing effort by another union There was conflicting evidence about the
"right to life" leafletting that the judge failed to resolve In any event,
we need not pass on either exception in light of our conclusion that the
Respondent's adoption and enforcement of a rule prohibiting handbilling
on the Respondent's property by off-duty employees concerning the con-
tract negotiations constituted unlawful disparate treatment of union ac-
tivities
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
323
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminatorily prohibit handbill-
ing in support of the Massachusetts Nurses Asso-
ciation by off-duty employees in front of the main
hospital entrance.
WE WILL NOT interrogate our employees about
whether or not they will cross picket lines.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
PROVIDENCE HOSPITAL
Kathleen F. McCarthy, Esq, for the General Counsel
Jay M. Presser, Esq and John H. Glenn, Esq. (Skoler,
Abbott & Hayes, PC), of Springfield, Massachusetts,
for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge.
Based on a charge filed on March 10, 1980, by the Mas-
sachusetts Nurses Association (the Association), the
Acting Regional Director for Region 1 of the National
Labor Relations Board (the Board) issued a complaint on
November 26, 1980, alleging that Providence Hospital
(Respondent or the Hospital) had violated Section 8(a)(1)
of the National Labor Relations Act, 29 U.S.C § 151 et
seq. Respondent filed an answer on December 2, 1980,
denying the commission of any unfair labor practices.
Pursuant to notice contained in the complaint, a hear-
ing was held before me in Holyoke, Massachusetts, on
December 8, 1980, at which all parties had the opportu-
nity to present testimony and documentary evidence, to
examine and cross-examine witnesses, and to argue
orally. After the close of the hearing,' the General
Counsel and Respondent submitted briefs, which have
been carefully considered.2
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
1 The General Counsel has moved to correct the transcript in a
number of instances That motion is allowed
2 Both counsel for the General Counsel and counsel for the Respond-
ent are to be complimented on the superior quality of their briefs submit-
ted
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Providence Hospital is an unincorporated part of the
Sisters of Providence. It maintains its principal office and
place of business in Holyoke, Massachusetts, where it is
engaged in the business of operating a hospital providing
medical services. Annually, Respondent receives gross
revenues in excess of $250,000, and annually purchases
and receives at its Holyoke location supplies, goods, and
materials valued in excess of $50,000 directly from points
outside the Commonwealth of Massachusetts. The com-
plaint alleges, the answer admits, and I find that the Hos-
pital is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) 'of the Act, and a
health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Massachusetts Nurses Association is a labor or-
ganization within the meaning of Section 2{5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The facts in this case are relatively simple and largely
uncontroverted. The Association has represented nurses
at Providence Hospital for approximately 10 years. Prior
to the actions that constitute the facts in this case, the
parties had a collective-bargaining agreement that ex-
pired on December 3, 1979. Negotiations for a replace-
ment to that contract had begun in September 1979 and
were proceeding more slowly than some of the nurses
wished, so sometime around the beginning of February
the Association, or rather an action committee composed
of members of the Association, decided that they would
picket the Hospital in order to inform the public where
the Association stood on the issues. Notice of their inten-
tion to picket was sent to the Hospital originally on Feb-
ruary 21,3 but due to the requirements of Section 8(g) of
the Act this notice was considered defective, and a new
notice, dated February 27, was sent, informing the Hos-
pital that picketing would begin at 2 p.m. on March 10.
The Association also contacted the Holyoke police to
determine the effect of local ordinances on the picketing.
As a result, a meeting was held at the police station at
which the Association representatives made known their
intention to picket on two sidewalks leading from the
front, or main , entrance of the Hospital to the main
driveway. The Hospital is situated on a rise overlooking
U.S. Route 5, a busy highway that runs from New
Haven, Connecticut, to Newport, Vermont, for much of
its length through the valley of the Connecticut River.
The front or main entrance is located about 250 feet
from the surface of the highway. A long curving one-
way driveway serves as the access to the Hospital from
the highway, with the entrance at the north end of the
property and the exit at the south end. At both points
3 All dates are in 1980 unless otherwise specified
there are traffic lights to permit access and egress onto
Route 5, which has a speed limit of 45 miles per hour.
Traffic coming from the north may enter directly at the
northern traffic lights, and from the south by means of a
jughandle that diverts northbound traffic off the traveled
portion of the highway and then permits crossing con-
trolled by the traffic lights. This eliminates the need for
left turns by northbound traffic.
The driveway comes by the main entrance with a loop
to permit cars to drive up directly to the entrance, and
with access to a large parking lot situated between the
driveway and the highway. There are sidewalks extend-
ing for about 100 feet on either side of the loop that
comes up to the main entrance, and it is here that the
Association planned to picket. There are no sidewalks
down the remainder of the driveway, nor on Route 5,
but there is a sidewalk adjacent to the jughandle access,
At the meeting in the police station, the management
representatives made no response to the Association's an-
nounced intention to picket on the sidewalks next to the
main entrance. It was also indicated at that meeting that
there would be 50 to 100 people involved in the picket-
ing.
Shortly before the picketing was scheduled to begin at
2 p.m. on March 10, Owen Connolly, the Hospital's ad-
ministrator, sent the Association a memorandum in the
form of a notice. This informed the Association of the
Hospital's "primary concern" to prevent interference
with patient care responsibilities, and pursuant to that
concern restricted picketing to the land adjacent to
Route 5 along the access roads leading to and from the
Hospital for approximately 100 feet, and on the east side
of Route 5 around the jughandle.4 This, according to
Connolly's memorandum, would "provide sufficient
means by which you can communicate with your intend-
ed audience and also do not violate the property rights
of the Hospital." The memorandum concluded by advis-
ing that handbilling done in conjunction with the picket-
ing-was also restricted to public property areas.
B. The No-Solicitation Rule
The General Counsel alleges that this notice violated
the law in its prohibition against picketing on the Hospi-
tal's property and, insofar as it purported to restrict
handbilling on the property of the Hospital , constituted
an unlawful no-solicitation rule.
Following the receipt of this notice from the Hospital,
the Association decided that it would not test the no-
picketing ban on the Hospital 's- property . About 1:30
p.m. on March 10, the Hospital's director of security,
Everett Booth , spoke to Association members Patricia
Cody and James Vaillancourt . They discussed the
boundaries and limitations imposed by the Hospital, and
actually viewed the boundaries at the entrances where
the picketing was to be permitted . Those boundaries
were at the north entrance driveway at the traffic light,
at the south end, or exit , driveway , and on the sidewalks
adjacent to the jughandle on Route 5. It is difficult to de-
4' This latter location was, of course , public property , on the other side
of the highway from the Hospital.
PROVIDENCE HOSPITAL
termine from the testimony of Patricia Cody just where
the picketing would be allowed. If, for example, Cody's
statement that Everett indicated that picketing could
extend for 100 yards up the driveway then this would
allow picketing for more than 200 feet onto the Hospi-
tal's property. It is clear from the notice described
above, as well as from Everett Booth's testimony, that
the picketing was not to take place on Hospital property
at all. A plan submitted in evidence as a joint exhibit
shows two indentations at each end of the Hospital
driveway where the boundaries of the highway enter
and included the driveway itself together with narrow
strips on either side, where the picketing was to take
place. Cody must , therefore, have been in error in her es-
timate of the extent of the permitted area, and I find that,
in fact, picketing was confined to these indicated public
areas.
The picketing began about 2 p.m on March 10 and
took place in the areas indicated by the Hospital at the
north and south terminals of the driveway, on the side-
walk adjacent to the jughandle and, for a time, along the
breakdown lane of Route 5. The picketing in the break-
down lane was discontinued after a warning from the
police that this was dangerous, and was abandoned at the
south driveway exit shortly after it began because the
Association felt the location was too isolated and that
they should concentrate their efforts on one or two loca-
tions.
About 45 minutes after the picketing began , a nurse
named James Vaillancourt, who was a member of the
Association' s negotiating committee, together with an-
other nurse identified in the record only as "Terry," left
the picket line, taking with them copies of the one-sheet
leaflet that was being handed out by the pickets. Vaillan-
court and Terry went up to the main entrance to the
Hospital and began handing out the leaflets to people en-
tering and leaving by the front door
Within minutes after their arrival and the commence-
ment of the handbilling, Everett Booth came up to Vail-
lancourt and Terry and, after they had identified them-
selves as employees, Booth went back inside the Hospital
building . He returned about 10 minutes later with a copy
of the Hospital's notice regarding the picketing and
handbilling, and read them those sections specifying the
locations where picketing and handbilling were permit-
ted. Vaillancourt stated that they were not picketing at
that moment, but only handbilling, to which Booth re-
plied that the handbilling was being done in conjunction
with the picketing and that he would have to ask them
to leave. At that point Vaillancourt and Terry returned
to the picket line and resumed picketing.
In evaluating the legal effect of the Hospital's notice, I
am urged by the General Counsel to use the test adopted
by the United States Supreme Court in Republic Aviation
Corp. v. NLRB, 324 U S 793 (1945), in which the rights
of employees to engage in solicitation and distribution
are balanced not against the employer's property rights5
S Because the employees involved were lawfully on the employer's
property
325
but against the employer's right to maintain productive
safety and/or discipline. The Respondent, on the other
hand, argues that this situation is controlled by the line
of cases headed by NLRB v. Babcock & Wilcox Co., 351
U.S. 105 (1965), in which the issue concerned the right
of nonemployment union organizers to enter the employ-
er's premises to communicate.
There are distinctions in this case from both Republic
Aviation and Babcock & Wilcox The former case in-
volved an industrial plant, in which the solicitation or
distribution in question would have no impact on third
parties, as at Providence Hospital, patients, visitors, and
others, unconnected with current labor-management
issues. Likewise, Republic Aviation did not consider the
question of picketing in establishing a balance between
the rights of employees and management.6 Babcock &
Wilcox, too is different from the instant case, in that the
activities of nonemployees are really not at issue.' How-
ever, the employees who participated in the picketing
and handbilling here were off-duty, and the Board has
held that persons in that category are more analogous to
nonemployees, thus requiring the balancing of off-duty
employees' statutory rights against the employer's pri-
vate property rights GTE Lenkurt, Inc., 204 NLRB 921
(1973). I must then view this case under Babcock &
Wilcox standards, rather than those in Republic Aviation.
In applying these standards I must balance the Hospi-
tal's private property rights against the Section 7 rights
of its off-duty employees. In so doing I think there is a
distinction between the exercise of those Section 7 rights
as manifested in handbilling by off-duty employees, and
picketing by those same employees. In respect to the
former activity the Board has held, distinguishing GTE
Lenkurt, supra," that a no-access rule for off-duty em-
ployees is invalid if it restricts access to the outside of
the employer's premises. Tri-County Medical Center, 222
NLRB 1089 (1976). In this case, there was no evidence
as to legitimate business considerations that would justify
any restriction on off-duty employees outside the main
entrance of the Hospital. I find, therefore that that part
of the Hospital's notice prohibiting handbilling by off-
duty employees was invalid and was in violation of Sec-
tion 8(a)(1) of the Act. The action of Director of Securi-
ty Booth in ordering Vaillancourt and Terry to discon-
tinue handbilling on March 10 constituted a separate and
independent violation of Section 8(a)(1).
I have considered Respondent's argument that the
actual handbilling incident on March 10 was an integral
part of the picketing; the employees who were engaged
in the handbilling at the Hospitals main entrance were, in
fact, pickets, and the same standards that apply to the
8 But see Chrysler Corp, 228 NLRB 486 (1977) In that case, again,
there was no real or potential third-party impact
I do not consider the presence among the pickets of Shirley Astle, an
Association employee, and spouses and children of employees as material
or significant There is no indication that the Hospital contemplated the
presence of nonemployees either as pickets or distributors of handbills
when it prepared and sent its notice restricting picketing and handbilling
The presence of nonemployees was, then, unforeseen and coincidental to
the issue here
s But not reversing the GTE Lenkurt standard of review of off-duty
employee activities
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing should, equally, apply to the handbilling. It is
true that Vaillancourt and Terry were engaged in the
picketing on March 10; they left the picket line to
engage in the handbilling; that the handbills they distrib-
uted at the main entrance were the same as those being
handed out by the pickets; and after they were forbidden
to continue handbilling, Vaillancourt and Terry returned
to the picket line and commenced again to picket them-
selves. However, the facts also show that the prohibition
against handbilling was contained in a separate and inde-
pendent paragraph in the Hospital's notice, and thus was
applicable as a distinct condition regardless of whether
there was any picketing. In the discussion between the
director of security and Vaillancourt and Terry at the
main entrance it was the notice and its prohibition
against handbilling on the Hospital property that was
cited by Booth as authority for his request that the hand-
billing at that location be discontinued. For these reasons
I disagree with Respondent's position that the handbill-
ing was so integrated with the picketing that it must,
perforce, be governed by the same rules.
Turning to the Hospital's prohibition against picketing
on its property as expressed in the notice to the Associa-
tion, and affirmed on March 10 by Everett Booth who
marked off on the site the lines that were not be to
crossed, I think a different standard must be applied.
The purpose of the picketing was, in the words of the
General Counsel's witnesses, to inform the public of the
Association's position on the economic issues then exist-
ing between it and the Hospital. In this sense, the intend-
ed audience for the picketing was those members of the
public who were entering the Hospital's property as pa-
tients, visitors, employees, or those engaged in rendering
various services or delivering supplies. This being the
case, there is no indication in this record that the mes-
sage from the pickets to the public would be conveyed
any less effectively by the fact that the pickets were pa-
trolling at the entrance of the driveway through which
99 percent of all traffic enters the Hospital, instead of the
main entrance.
We do not have here the existence of intervening
property owned by neutral third parties as in Scott Hud-
gens, 230 NLRB 414 (1977). The balancing required in
that case and similar cases when the Section 7 rights of
employees could not be exercised because their employ-
er's location was inside the mall or shopping center is
not necessary here. In this case the right of the Associa-
tion to inform the public, those entering the Hospital
grounds as well as those merely passing by on Route 5,
is unimpaired. It is unnecessary to interfere with the
right of the Hospital to the quiet enjoyment of its own
property. Babcock & Wilcox, supra.
I find, accordingly, that the Respondent has not violat-
ed Section 8(a)(1) of the Act by prohibiting picketing by
the Association at the main entrance of the Hospital.
C. The Interrogation
Sometime in February, the date is not certain, Supervi-
sor Mary Tarbell asked an employee, Doris Harris, if she
would cross a picket line if there was a strike. Harris re-
plied that if there was a strike she would be likely to
vote for it, so she would not cross the picket line.
In a separate incident, staff nurse Diane Mackler testi-
fied that, also on an undetermined date in February,
Mary Tarbell asked a group of employees, including
Mackler, whether any of them would cross a picket line
if there was a strike.
Another nurse, Linda Smith, testified that a supervisor
named Frances Tallon asked her, sometime in February,
if she would cross a picket line in the event of a strike.
This testimony was credible and was undenied. There
was no evidence of threats or intimidation, but there was
also no evidence that the purpose of the questioning was
explained by the supervisors, nor any assurances that em-
ployees would be free from reprisals if they refused to
answer the questions.
In these circumstances the Board has held that when
conduct tends to interfere with the free exercise of em-
ployee rights under the Act, a violation of Section
8(a)(1) will be found. Donald E. Hernley, Inc., 240 NLRB
840 (1979). See also Johnnie's Poultry Co., 146 NLRB 770
(1964); Struksnes Construction Co., 165 NLRB 1062
(1967). I find that Respondent has violated Section
8(a)(1) by these three instances of interrogation.
IV. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, I will recommend that it cease and desist there-
from and I shall further recommend that it take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent promulgated a prohibi-
tion against handbilling on its property by its employees,
I shall recommend that it rescind such prohibition.
CONCLUSIONS OF LAW
1. Respondent Providence Hospital is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and a health-care institution within
the meaning of Section 2(14) of the Act.
2. The Charging Party, Massachusetts Nurses Associa-
tion, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By promulgating a rule prohibiting the distribution
of literature on its property by employees, Respondent
has violated Section 8(a)(1) of the Act.
4. By requesting employees distributing literature on
its property to desist, Respondent has violated Section
8(a)(1) of the Act.
5. By coercively interrogating its employees, Respond-
ent has violated Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
9 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
PROVIDENCE HOSPITAL 327
ORDER
The Respondent, Providence Hospital, Holyoke, Mas-
sachusetts, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Prohibiting its employees from distributing litera-
ture in front of a main entrance to the Hospital, in other
areas not devoted to patient care, or in other nonwork
areas.
(b) Requesting employees to stop distributing literature
n such areas.
(c) Interrogating its employees about their intentions
o cross or not to cross picket lines.
(d) In any like or related manner interfering with, re-
;training, or coercing its employees in the exercise of
heir rights under Section 7 of the Act
2. Take the following affirmative action necessary to
!ffectuate the policies of the Act.
(a) Immediately revoke that portion of its notice to the
kssociation issued in March 1980 prohibiting employees
'rom distributing literature on its premises.
(b) Post at itK Holyoke, Massachusetts facility copies of
the attached notice marked "Appendix."i ° Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 Nation-
al 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 "