St. Joseph's Hospital

National Labor Relations Board - Board Decisions

Aug 13, 1982

263 N.L.R.B. 375 (N.L.R.B. 1982)

ST. JOSEPH'S HOSPITAL
St. Joseph's Hospital and Local 1199 R.I., a Subdi-
vision of National Union of Hospital and
Health Care Employees, a Division of RWDSU,
AFL-CIO. Cases 1-CA-11825 and I-RC-
13628
August 13, 1982
DECISION, ORDER, AND DIRECTION
OF FOURTH ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
On February 10, 1982, Administrative Law
Judge Nancy M. Sherman issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, St. Joseph's
Hospital, Providence, Rhode Island, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held
on April 29, 1976, in Case 1-RC-13628 be, and it
hereby is, set aside and that Case l-RC-13628 be,
and it hereby is, remanded to the Regional Direc-
tor for purposes of conducting a rerun election.
[Direction of Fourth Election and Excelsior foot-
note omitted from publication.]
The General Counsel did not except to the Administrative Law
Judge's finding that the no-solicitation rule promulgated by Respondent
in November 1977 did not violate Sec. 8(aXI) of the Act.
a Chairman Van de Water finds it unnecessary to rely on the Adminis-
trative Law Judge's citation of TR.W. Bearing Division, a Division of
TR. W., Inc., 257 NLRB 442 (1981), in the last paragraph of sec. II of her
Decision
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge:
Case l-CA-11825 is based on a charge filed by New
263 NLRB No. 50
England Health Care Employees Union, District 1199,
National Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO' (the Union), against St. Joseph's
Hospital (the Hospital), on May 27, 1976, and amended
on July 8 and 22, 1976, and a complaint which issued on
October 27, 1976. Case l-RC-13628 is based on a peti-
tion filed by the Union on November 26, 1974, pursuant
to which a representation election was conducted on
April 17, 1975 (lost by the Union); a rerun election was
held on October 30, 1975 (also lost by the Union); and a
second rerun election was held on April 29, 1976 (also
lost by the Union). On May 6, 1976, the Union filed
timely objections to conduct affecting the results of the
April 1976 election.
The October 1976 complaint alleges that since on or
about November 27, 1975, the Hospital had violated Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended (the Act), by maintaining an overly broad no-
solicitation rule. Objection 5 of the Union's May 1976
objections alleges that the Hospital had promulgated an
unlawfully broad no-solicitation rule and had also en-
forced its no-solicitation and no-distribution rules unlaw-
fully. In a third supplemental decision on objections
issued on July 9, 1976, the Regional Director overruled
all the May 1976 objections except Objection 5, which,
he stated, raised issues identical to the issues to be pre-
sented in the complaint authorized by him and should be
resolved at a hearing along with the issues involved in
the unfair labor practice case. On October 27, 1976, the
Acting Regional Director consolidated the two cases for
hearing, pursuant to Section 102.33 of the Board's Rules
and Regulations.
The consolidated.cases were initially heard in Boston,
Massachusetts, on April 27, 1977, before Administrative
Law Judge Leonard M. Wagman. On July 11, 1977, Ad-
ministrative Law Judge Wagman issued his Decision,
sustaining the complaint and recommending that the
April 1976 election be set aside.
Thereafter, counsel for the General Counsel (the Gen-
eral Counsel) and Respondent filed timely exceptions to
Administrative Law Judge Wagman's Decision. On Sep-
tember 18, 1979, the Board reopened the record in the
case and remanded the proceedings for a further hearing
in accordance with the Supreme Court's decision in
N.L.R.B. v. Baptist Hospital, Inc., 442 U.S. 773 (1979).
This hearing was held before me on June 11, 1981, in
Boston, Massachusetts.
Upon the entire record made on July 11, 1977, and on
June 11, 1981, including the demeanor of the witnesses,2
and after due consideration of all the briefs filed by the
General Counsel and the Hospital at various stages of
the proceeding, I hereby make the following findings of
fact, conclusions of law, and recommendations.
I. JURISDICTION
The Hospital is a Rhode Island corporation which op-
erates a private, nonprofit hospital and provides health
care facilities and services for the acutely ill in Provi-
' The Union's name appears as amended at the 1981 hearing.
a The only witness who testified before Administrative Law Judge
Wagman also testified before me.
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence, Rhode Island. The Hospital's gross annual volume
of business exceeds $250,000. The Hospital annually
causes more than $2,000 worth of goods to be purchased
and transported in interstate commerce from and
through various States other than Rhode Island to the
Hospital's place of business in Rhode Island. I find that,
as the Hospital concedes, it is engaged in commerce
within the meaning of the Act, and that to assert juris-
diction over its operations will effectuate the policies of
the Act.
The Union is a labor organization within the meaning
of the Act.
iI. ALLEGED PREELECTION UNFAIR LABOR
PRACTICES AND OBJECTIONABLE CONDUCT
Between November 26, 1974, and October 10, 1975, a
period more than 6 months before the filing of the initial
charge herein, Respondent's personnel policies hand-
book, which is distributed to all new employees, con-
tained the following rule:
Solicitation. In order to protect you and our pa-
tients from annoyance or disruption of work, no so-
licitation of any kind is permitted during working
hours or on hospital property without the written
permission of the Hospital Administrator. This in-
cludes circulating petitions, selling merchandise and
chances, and the passing of literature, cards, or
written announcements that do not have to do with
hospital-business operations ....
On September 18, 1975, the Regional Director set
aside the April 1975 election partly on the ground that
the foregoing rule applied on its face to any place on
hospital property and was admittedly enforced in regard
to the parking lot, and that employees had admittedly
never been notified in writing of the Hospital's alleged
practice of permitting solicitation and distribution in the
cafeteria during lunchtime and breaktimes.
On October 10, 1975, 20 days before the first rerun
election, this rule was superseded by the following rule,
which on that date was posted on Respondent's bulletin
board, and which was in effect at the time of the second
rerun election on April 29, 1976:
Solicitation by Employees [of the Hospital]. In
order to protect you and our patients from annoy-
ance or disruption of work, no solicitation or distri-
bution of any kind is permitted during working time
and in working areas. Working time does not in-
clude meal time or rest periods. Working time does
include working time of both the employee doing
the solicitation or distribution, and the employee to
whom it is directed. If you have any questions as to
the meaning of working time or working areas
please ask the Personnel Office for clarification.
Thereafter, this rule (except for the bracketed words)
was reprinted in a personnel policies booklet which Re-
spondent distributed to its employees in the spring of
1977. The Union's November 1975 objections to the Oc-
tober 1975 election included an objection based on this
rule; the Regional Director found it unnecessary to de-
termine in his February 1976 decision whether this ob-
jection had merit, in view of his finding that another
union objection was meritorious and was sufficient to in-
validate the election.
In an affidavit given to a Board attorney on November
24, 1975, Gerald H. Christman, who at all relevant times
has been Respondent's personnel administrator, stated:
The employees are not allowed to solicit for the
union during working time and in working areas, as
the recent amendment states. They are not allowed
to solicit at any time during [sic] working areas.
Working areas are those areas where patient care,
business operations, and office operations [sic]. The
kitchen and the laundry are also working areas.
Corridors are also considered working areas be-
cause of the patient and visitor traffic. The lobby is
not considered a work area and solicitation would
be allowed there, but it has never come up.
This affidavit was introduced into evidence without ob-
jection at the initial hearing in April 1977. Christman at-
tended that hearing as a witness for the General Counsel,
but was asked no questions about this affidavit. In sus-
taining the complaint and finding merit in the objections,
Administrative Law Judge Wagman's July 1977 Decision
relied in part on this affidavit. At the June 1981 hearing
before me, Christman testified that employees have never
been forbidden to solicit for the Union in "non-patient
care areas" such as the laboratory, the laundry, the
kitchen, and the storage room, so long as such solicita-
tion does not interrupt someone else who is working.
For demeanor reasons, I regard Christman's 1975 affida-
vit regarding the Hospital's 1975 policy as more reliable
than his 1981 testimony.
Between January 1, 1976, and June 1, 1980, Robert E.
Lynch, who at the time of the June 1981 hearing was the
Hospital's executive vice president, was the administra-
tive officer in charge of the Hospital. He testified at the
June 1981 hearing before me that from October 1975 for-
ward employees were permitted to solicit at any time, so
long as nobody's work was interfered with in the laun-
dry, the kitchen, and all other "non-patient areas." I
attach virtually no probative weight to his testimony
with respect to 1975, when he was not yet working at
the Hospital. Nor do I accept his testimony with regard
to the period between January 1, 1976 (when he started
to work at the Hospital), and the April 29, 1976, elec-
tion, or between the election and the November 28,
1977, promulgation of a different solicitation rule. The
credibility of such testimony is diminished by his willing-
ness to testify about the 1975 period, of which he could
have no knowledge. Moreover, his uncertainty about
whether he ever instructed his subordinates to report to
him whenever employees were disciplined for violating
hospital rules, his testimony that when acting as adminis-
trative officer in an 800-employee hospital he received
reports of only five to eight disciplinary actions a year,
and his testimony that there were other verbal and writ-
ten warnings which did not come to his attention show
that he had little knowledge of how the management
376
ST. JOSEPH'S HOSPITAL
representatives under him were interpreting the solicita-
tion rule.3
The Hospital concedes that, so long as employees who
are working are not disturbed, the Hospital could not
lawfully forbid solicitation between employees about
union matters on their own time in the business oper-
ations areas, office operations areas, kitchen, and the
laundry. Accordingly, I find that by maintaining this rule
the Hospital violated Section 8(a)(1) of the Act and en-
gaged in conduct calling for the election to be set aside.
I would reach the same result even if I credited Christ-
man's and Lynch's testimony regarding what employees
were in fact permitted to do. Lynch testified that, so far
as he knew, employees were never advised in writing
that the written rule meant anything different from what
it said. Further, the rule on its face is at least susceptible
of the interpretation that it forbids solicitation at any
time in working areas which are not patient care areas.
With exceptions immaterial to this portion of the Deci-
sion, such restrictions are unlawful with respect to peri-
ods when neither the employee doing the soliciting nor
the employee being solicited is expected to be actively
working; and the risk of ambiguity must be borne by the
promulgator of the rule. T.R. W: Bearing Division, a Divi-
sion of T.R. W., Inc., 257 NLRB 442 (1981). This conclu-
sion is unaffected by the absence of evidence that anyone
was ever disciplined for violating the rule; for all that ap-
pears, this rule caused employees to refrain, for fear of
punishment, for exercising their statutory right to engage
in solicitation in these areas when neither they nor the
employees being solicited were expected to be actively
working.
Ill. THE 1977 RULE
On November 28, 1977, Respondent distributed to its
employees, posted on hospital bulletin boards, and con-
veyed to employees through departmental meetings, the
following rule, which superseded the October 10, 1975,
rule:
Solicitation or Distribution by Employees of the Hospi-
tal:
In order to protect our patients from annoyance or
disruption, no solicitation or distribution of any kind
is permitted in direct patient care areas.
Verbal solicitation by employees is allowed during
work time provided it does not interfere with their
work performance or that of their fellow employ-
ees, and provided it does not disrupt or interfere
with patient care or the work flow.
Distribution of a written nature is not permitted
during working time.
Work time does not include meal time or rest peri-
ods. Work time does include the working time of
s Accordingly, I need not and do not pass on the General Counsel's
testimony that the assertedly limited scope of the Hospital's exceptions to
Administrative Law Judge Wagman's Decision and of the Board's
remand order precludes the Hospital from introducing additional evi-
dence regarding the Hospital's application of the 1975 rule.
both the employee making the distribution and the
employee to whom it is directed.
Personnel Administrator Christman testified that this
rule forbids employees to solicit in patient rooms, in cor-
ridors off patient rooms, in corridors off treatment
rooms, in nursing stations, and in elevators when they
are being used for patient transport. The General Coun-
sel's brief concedes that this rule is lawful to the extent
that it forbids solicitation in patient rooms, and in corri-
dors in the operating-room suite and in the emergency-
room suite. However, the General Counsel contends that
the rule is unlawful to the extent that it forbids solicita-
tion in all other corridors, in hospital elevators, and in
nursing stations.
Respondent's hospital is a multistory structure with a
basement and a subbasement. Above the second floor,
the Hospital is divided into two wings, an east wing and
a west wing. At the third-floor level, it is possible for an
ambulatory person to walk between the two wings, but
stretchers cannot be carried between the two wings.
Above the third-floor level, the two wings are wholly
separate, and one wing can be reached from the other
only by descending to at least the second floor (or, in
case of an ambulatory person, to at least the third floor),
walking over to the other side, and going up again. The
west wing rises as far as the sixth floor. The east wing
rises to the 10th floor, but the 9th and 10th floors are ac-
cessible only to maintenance personnel.
The facilities in the hospital include an emergency-
room area, a cat-scan area, an X-ray department, a radi-
ology area, and an ultrasound area, on the first floor; an
electrocardiogram area and an operating and recovery
room area on the second floor; a coronary-care unit in
the west wing of the third floor; a respiration-therapy
area in the west wing of the fourth floor; an intensive-
care unit in the east wing of the fourth floor; and a ma-
ternity ward in the west wing of the sixth floor. Patients'
bedrooms are located in both wings of the third and fifth
floors, and in the east wing of the fourth, sixth, and sev-
enth floors.
The Hospital has three sets of elevators, of which two
sets go from the first floor to the top (sixth) floor of the
west wing, and the third set goes from the first to the
eighth floor of the east wing. All these elevators are used
both for the transport of patients and by other persons
(staff, ambulatory patients, and visitors) who have occa-
sion to move between floors in the hospital.
In Central Solano County Hospital Foundation. Inc.,
d/b/a Intercommunity Hospital, 255 NLRB 468 (1981),
the Board held, in reliance on, inter alia, Baptist Hospital,
supra, 442 U.S. at 789, that as to hospital no-solicitation
rules, "the halls and corridors adjacent to patient rooms,
operating rooms, X-ray rooms, and other immediate pa-
tient care areas . . . are extensions of immediate patient
care areas in which solicitation may presumptively be
prohibited." The General Counsel contends that no such
presumption should be applied in the instant case, on the
ground that, because of the layout of the Hospital, appli-
cation of such a presumption would permit the Hospital
to ban solicitation in practically all the corridors above
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the basement level.4 However, the solicitation rule on its
face permits employees to solicit other employees
(except in "direct patient care" areas) during the work-
ing time of either or both, provided such activity does
not interfere with anyone's work and does not disrupt or
interfere with patient care or the workflow. Moreover,
the evidence shows that nonwork areas which are availa-
ble to employees during their nonwork time for such
things as breaks are situated on every floor of the Hospi-
tal (except for the basement, which is not contended to
contain any patient-care areas), and on every floor of
each wing where the wings are separate. More specifical-
ly, such areas include the first-floor dining area, snack-
bar, gift shop, lobby, credit office, and lounge; the
second-floor copy room, nurses lounge and locker room,
and orderlies' locker and toilet area; the third-floor west-
wing solarium and locker area and a classroom in the
east wing; the fourth-floor west-wing solarium and east-
wing lounge and classroom; two classrooms and a
nurses' locker room in the fifth-floor west wing and a
conference room in the fifth-floor east wing; the sixth-
floor west-wing nurses locker room and east-wing con-
ference room; a seventh-floor conference room; and an
eighth-floor open court. 5 In addition, the Hospital is sur-
rounded by parking lots where employees are free to so-
licit at any time. I conclude that giving normal play in
the instant case to the Intercommunity Hospital presump-
tion would not unduly limit the employees' opportunity
to engage in solicitation activity on Hospital property.
In Presbyterian/St. Luke's Medical Center, 258 NLRB
93 (September 21, 1981, ALJD), the Board, in reliance
on Baptist Hospital, supra, 442 U.S. 773, held valid a so-
licitation ban in hallways, elevators, and stairways, used
for the movement of patients and emergency equipment.
Rather similarly, in Intercommunity Hospital, supra, the
Board found that a hospital had justified its prohibition
of solicitation in a central corridor which linked the halls
adjacent to patients' rooms with the corrodor adjacent to
"the operating room, etc.," because patients were regu-
larly moved through that corridor en route to treatment,
diagnostic evaluation, and operations and from postoper-
ation recovery rooms to the patient rooms. These deci-
sions establish the validity of the Hospital's ban on solici-
tation in elevators when they are being used to transport
patients.
Intercommunity Hospital, supra, held that because of
the varied layouts of nurses stations, prohibitions on so-
licitation in such areas are not presumptively valid. The
Board found such a ban to be valid in the case before it
because the desk areas of such stations were not en-
closed, fairly loud conversations there could be heard
from nearby patients' rooms, and some employees are
always on duty there and would be subject to distraction
if solicitation were permitted. The Hospital here contains
seven nurses stations. The nurses station in the west wing
4 The General Counsel does not suggest that application of the pre-
sumption should be affected by the fact that the Hospital permits union
solicitation in treatment areas which treat only patients who are employ-
ees of the Hospital. Accordingly, I do not consider this issue.
a Christman testified that this was also true of certain toilet areas.
However, most of such areas can accommodate only one employee at a
time.
of the sixth floor, which is the maternity ward, is imme-
diately adjacent to the labor and "prep" rooms, and is
separated from the hallway only by a counter which is
well below chin level and extends only about a fourth of
the approximately 46 feet where the nurses station imme-
diately abuts the hallway. The other six nurses stations
are separated from the hallway by counters which end
well below chin level; the space between the counters
and the ceiling is not glassed-in.6 The nurses station in
the third-floor east wing is about 16 feet from the nearest
patient's bedroom; the other five stations are about 8 feet
away. Inferentially, someone is always on duty at every
nurses station. Intercommunity Hospital points to the va-
lidity of the Hospital's ban on solicitation at the nurses
stations.
CONCLUSIONS OF lAW
1. The Hospital is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Between November 27, 1975, and November 27,
1977, the Hospital violated Section 8(a)(l) of the Act by
maintaining a rule which forbade union solicitation in
working areas which are not patient-care areas, during
times when neither the employee doing the soliciting nor
the employee being solicited was supposed to be actively
working, and thereby engaged in an unfair labor practice
which affects commerce within the meaning of Section
2(6) and (7) of the Act.
4. On and after November 28, 1977, the Hospital has
not engaged in unfair labor practices alleged in the com-
plaint.
THE REMEDY
Having found that the Hospital has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom, and from like or related con-
duct, and to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended
Order:
ORDER 7
The Respondent, St. Joseph's Hospital, Providence,
Rhode Island, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining any rule which forbids union solicita-
tion, during times when neither the employee doing the
soliciting nor the employee being solicited is supposed to
6 The basis for many of the factual findings in these two sentences is
summarized in my February 5, 1981, order denying motion that a view
be taken.
I7 n the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
378
ST. JOSEPH'S HOSPITAL
be actively working, in working areas other than imme-
diate patient-care areas, corridors adjacent to immediate
patient-care areas, elevators, or nurses stations.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its Hospital in Providence, Rhode Island,
copies of the attached notice marked "Appendix."s
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it, immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region i, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the second rerun election
conducted in Case I-RC-13628 on April 29, 1976, be set
aside and that the Regional Director for Region 1 con-
duct a third rerun election at a time he deems appropri-
ate.
e In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence and state their positions, it has
been found that we violated the National Labor Rela-
tions Act. We have been ordered to post this notice.
WE Wll.L NOT maintain any rule which forbids
employees from engaging in union solicitation,
during times when neither the employee doing the
soliciting nor the employee being solicited is sup-
posed to be actively working, in working areas
other than immediate patient-care areas, corridors
adjacent to immediate patient-care areas, elevators,
or nurses stations. The solicitation rule which has
been in effect since November 28, 1977, does not
forbid union solicitation during such time in areas
where it must be permitted.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of your rights under the Act.
ST. JOSEPH'S HOSPITAL
379