St. Peter's Medical Center

National Labor Relations Board - Board DecisionsApr 22, 1976

223 N.L.R.B. 1022 (N.L.R.B. 1976)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Peter's Medical Center and District 1199 , Nation- al Union of Hospital and Health Care Employees Union, Retail, Wholesale and Department Store Workers Union, AFL-CIO . Case 22-CA-6061 April 22, 1976 DECISION AND ORDER On July 30, 1975, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, both Respondent and General Counsel filed exceptions and supporting briefs. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and briefs and has decided to affirm the Administrative Law Judge's finding and conclusion that Respondent coerced and restrained its employ- ees in violation of Section 8(a)(1), when Supervisor Prescott indicated to employee Gainer that the Union was not wanted, and that Respondent would hire older women "to get the union out." We do not, however, agree with the Administrative Law Judge's finding that Respondent's no-solicita- tion rule did not violate Section 8(a)(1). In support of his finding, the Administrative Law Judge notes that the rule does not contain a reference to union solici- tation; that the rule was designed to protect employ- ees from outsiders coming to the hospital to solicit rather than directed to solicitation by the employees themselves ; that the rule existed for some time prior to any union organizational activity; and that it was promulgated at a time when hospitals were not under the jurisdiction of the National Labor Relations Board. Additionally, the Administrative Law Judge found that solicitations occurred freely and without any interference by Respondent. The record shows that Respondent distributes an employee handbook to new employees which sets forth certain work rules and privileges. Included in such handbook is a rule which is entitled "Visitors or Solicitors" and contains the following language: Employees are not permitted to receive per- sonal visitors while on duty. Please arrange to have personal or business matters conducted elsewhere. The hospital has a firm policy prohibiting so- licitation for any reason. This is to protect the employee from any solicitor of products, litera- ture, services, bill collectors, insurance salesmen, etc. Solicitation for fund drives will be conducted by the Community Relations Office with the en- dorsement of the Executive Director. Departmental collections or participations in gifts must be authorized by the Division Head with the approval of the Executive Director. Employees are urged to report any violation of the solicitation rules to the Department Head since solicitors cause interruption of service, and in most cases, prove embarrassing to the em- ployees. While the Administrative Law Judge correctly pointed out that the no-solicitation rule makes no reference to union solicitation, we find that the ab- sence of the word "union" therein is not controlling and does not alter the fact that union solicitation is prohibited by the rule in view of the specific lan- guage that "The hospital has a firm policy prohib- iting solicitation for any reason." Clearly, such lan- guage is reasonably susceptible of the interpretation that the prohibition extends to any attempts by any solicitor, including an employee, soliciting other em- ployees for union membership at any and all times. It is, of course, settled that any ambiguity in the rule must work against the promulgator of the rule rather than the employee who would test the rule's applica- tion.' Thus, such rule, absent Respondent's further clari- fication, places employees on notice that they must not solicit during their nonworking time in nonwork areas. Although the Administrative Law Judge found that the rule was designed to protect employees from outsiders coming to the hospital to solicit, rather than directed to solicitation by the employees themselves, the record is devoid of any evidence that Respondent so clarified the purpose of the rule by indicating to its employees, orally or in writing, that such rule did not, and does not, prohibit employee solicitation for the Union during nonworking time 2 Nor does the record show that such broad rule is necessary for Respondent to maintain production or discipline. As to the Administrative Law Judge's reliance on the Board's decisions in Essex International, Inc.,3 'See, for example , N.L. R. B. v. Harold Miller et al., d/b/a Miller Charles & Co., 341 F.2d 870, 871 (C.A. 2, 1965). enfg . 148 NLRB 1579 (1964). The fact that the rule identifies certain other types of activities normally engaged in by employees as permissible . if authorized , heightens the impression that the ban on "solicitation for any reason" extends to employee solicitation of union membership. 2 We do not regard the Williams-Zirkle incident, even construing it as an indication of Zirkle's displeasure over "working time" solicitation as a suffi- cient communication to employees that the rule did not apply to solicitation during their breaktime and other nonworking time . That purpose was com- municated to only one employee . Of course, this incident strengthens our conclusion that the rule, as viewed even by Respondent , did apply to em- ployees' union solicitation. X211 NLRB 749 (1974). (Members Fanning and Jenkins dissenting in part). Member Penello agrees with his colleagues that Respondent main- tained an unlawful no-solicitation rule. As stated in his concurring opinion in Essex International, supra, Member Penello would find a rule prohibiting solicitation during working hours to be invalid unless the employer clarified the facially invalid rule to all of its employees . In the present case, no evidence was presented by the Respondent showing such clarification. 223 NLRB No. 140 ST. PETER'S MEDICAL CENTER and House of Mosaics, Inc., Subsidiary of Thomas In- dustries, Inc.,4 we find such reliance misplaced. In Es- sex, a Board majority found that a no-solicitation rule which prohibited soliciting during "work time" was valid, and required the party attempting to inval- idate the rule to show by extrinsic evidence that the rule was intended to restrict or prohibit solicitation during breaktime or other nonworking periods. On the other hand, the Board pointed out that a rule prohibiting solicitation during "working hours" is prima facie susceptible of the interpretation that so- licitation is prohibited during all business hours and, thus, invalid. Therefore, an employer is required to show by extrinsic evidence that such rule does not apply to breaktime or other nonwork periods. The Board in House of Mosaics, Inc., held that the validity of no-solicitation rules must be tested against the standards set forth in Essex, and that the rule in issue , which proscribed solicitation "in the building at any time," was therefore prima facie invalid, but that extrinsic evidence established that the rule was applied in a lawful manner. The Board found that extrinsic evidence overcame the prima facie invalidity of the rule and therefore the rule did not violate the Act. Clearly, the Administrative Law Judge's finding that the rule in issue does not violate Section 8(a)(1) is not supported by the aforementioned cases in view of the absence of extrinsic evidence that Respondent made known to any employee that the no-solicitation rule was never intended to be applied to the employ- ees' nonworking time, i.e., coffeebreaks, lunchbreaks, or restbreaks, or that such rule did not apply to non- working areas of the hospital. Although a hospital may prohibit solicitation and distribution even on nonworking time in strictly patient care areas,' Re- spondent presented no evidence that its rule is so limited. Although, as found by the Administrative Law Judge, the rule existed for some time prior to any union organizational activity, the record also shows that, at the time of the hearing, and at all relevant times, the unlawful no-solicitation rule was applica- ble and continued, in its unamended form, to be ap- plicable to all of Respondent's employees. While the Administrative Law Judge finds that the no-solicitation rule was promulgated at a time when hospitals were not under the jurisdiction of the Na- tional Labor Relations Board, we conclude that such circumstance is irrelevant to and beyond the scope of the complaint. In view of the foregoing, we find that Respondent maintained an unlawful no-solicitation rule to the ex- 1023 tent it prohibits all solicitation in all of the hospital areas other than in immediate patient care areas, thereby restraining and coercing employees in viola- tion of Section 8(a)(1) of the Act . Accordingly, the conclusions of law , the recommended Order, and the notice to employees have been revised and amended to reflect the above conduct found violative of the Act. ADDITIONAL CONCLUSION OF LAW Conclusion of Law 2 in the attached Administra- tive Law Judge's Decision is renumbered 3 and the following Conclusion of Law 2 is added: "2. By maintaining a no-solicitation rule re- stricting employees' right to solicit for the Union dur- ing their nonworking time in areas of the hospital other than immediate patient care areas, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, affecting com- merce within the meaning of Section 2(6) and (7) of the Act." 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 as modified below and hereby orders that the Respondent, St. Peter's Medical Center, New Brunswick, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(b) and relet- ter the remaining paragraph as (c): "(b) Maintaining a no-solicitation rule restricting employees' right to solicit for the Union during their nonworking time in areas of the hospital other than immediate patient care areas." 2. Substitute the attached notice for that of the Administrative Law Judge. Member Penello is also unwilling to consider any of the evidence offered herein to show employees ' subjective understanding of the rule. To do so, in his view, would put an employee in a position of placing his job on the line in order to test the application of the rule . Such a course can only inhibit employees from exercising their Sec . 7 rights to engage in union solicitation during their nonworking time. °215 NLRB No. 123 (1974). 5 For further discussion of no-solicitation and no-distribution rules in hospitals, see St. John's Hospital and School of Nursing, Inc., 222 NLRB No. 182 (1976), and Baptist Hospital, Inc., 223 NLRB 344 (1976), where the Board held that banning solicitation on nonworking time in strictly patient care areas, such as patients ' rooms, operating rooms, and places where pa- tients receive treatment, such as x-ray and certain therapy areas , is valid in hospitals. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with re- prisals because of their union activity. WE WILL NOT promulgate, maintain , or enforce any rule or regulation which prohibits our em- ployees from soliciting on behalf of any labor organization during their nonworking time in any area of the hospital other than immediate patient care areas. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act. ST. PETER'S MEDICAL CENTER DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Newark , New Jersey, on various dates in Feb- ruary, March , and May 1975, based on charges filed Sep- tember 16, 1974, and a complaint issued on October 25, 1974, alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The General Counsel and the Respondent have filed briefs. Upon the entire record in the case , including my obser- vation of the witnesses , and upon consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a New Jersey corporation, is engaged in providing health and medical care and related services at its hospital in New Brunswick, New Jersey. Its gross reve- nue during the calendar year 1973 was in excess of $250,000, and during that year it purchased materials val- ued in excess of $50,000 which were delivered to it directly from points outside the State of New Jersey. I find, as Respondent admits , that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges three separate instances of state- ments by admitted Supervisor Lillian Prescott to employee Gloria Gainer as violative of Section 8(a)(l)-all involving credibility conflicts between Prescott and Gainer; it further alleges that Respondent's "no-solicitation" rule was unlaw- fully broad, and that it was unlawfully applied as to one employee, Tracy Williams,' in violation of Section 8(a)(1); and, finally, it alleges that Respondent discharged employ- ee Gainer because of her union activities, thereby violating Section 8(a)(3) and (1) of the Act. B. Facts and Discussion 1. The Gainer discharge Although, as noted above, there is considerable dispute as to the facts respecting the various 8(a)(1) allegations of the complaint, the facts relative to Gainer's discharge, that is, what actually occurred on the day of her discharge, Sep- tember 13, 1974, are relatively straightforward. Gainer went into the hospital employee cafeteria, ordered one egg, a roll, and a slice of bacon. Cafeteria employee Palumbo apparently put two small pieces of bacon (equivalent to one slice) on the plate. Cafeteria Supervisor Loretta Gior- dano , acting as cashier at the time, took a bill from Gainer and gave her 30 cents change.2 When Gainer asked Gior- dano if she had been charged for two slices of bacon, and Giordano said "yes," Gainer told Giordano that she had ordered only one slice . According to Gainer, she then told Giordano to take back the plate and Giordano responded by telling Gainer not to come back in her cafeteria any more. Gainer then asked for her money back, and Giorda- no tossed a dollar bill at her, the bill landing on the floor. According to Giordano, she offered to take the extra slice back, but Gainer said to take back the entire plate, and Giordano agreed. When Gainer asked for her money back, Giordano, who was attending to the next person on line, proffered the dollar bill without looking at Gainer, felt a "touch," and the dollar bill was then on the floor. The General Counsel and Respondent (as well as Gainer and Giordano) agree, in any event, that the money landed on the floor. When the money fell to the floor, Gainer asked Giordano three times to pick it up, and Giordano refused. Thereupon, Gainer said to Giordano, "You fat fucker, I will slap the shit out of you" (Gainer's testimony), and picked up the dollar bill. According to Giordano, it was at this point that she told Gainer to get out of her cafeteria and "to never come in there and use that language on me or anyone else in there again." 3 Supervisor Prescott, security guard John Moseley, and employee Ann Brown were in the cafeteria line behind Gainer. When Gainer uttered her parting remarks at Gior- dano, they said "Gloria!" Moseley added, "We can't have 1 This "application" also involves a credibility conflict-between Wil- liams and Executive Housekeeper Barbara Zirkle. 2 It seems that Gainer gave Giordano a $5 bill, and the latter gave change for S I-a mistake later rectified-and one which does not have any material bearing on the issue herein. 3 1 credit Giordano 's version in this respect because it seems unlikely that Giordano would tell Gainer never to come back merely because of the up-to-that-point mild dispute over whether Gainer had one or two strips of bacon. ST. PETER'S MEDICAL CENTER this in here ." Gainer then left the cafeteria . Moseley went to the housekeeping office and told Zirkle about the inci- dent . Supervisor Offenburger was in Zirkle 's office at the time. Zirkle, Offenburger, and Moseley went back toward the cafeteria, met Giordano in the hallway, and Giordano told them about the incident. Shortly thereafter, Gainer went back to the cafeteria to exchange the $1 bill she had received for the $5 bill she had given . She met Moseley at the cafeteria door, and Moseley told her that Zirkle wanted her in the office. When Gainer arrived there, the first thing Zirkle said, according to Gainer , was "let me hear your side of the story." Gainer testified that she said that "like she thought I was lying," adding "Because that is no way to ask nobody about nothing that has been done . She didn't have to say let me hear your side of the story, you know." After Gainer told her "exactly what happened," Zirkle told Gainer she was dismissed , because "we can't go around here having people using profanity." Gainer asked Zirkle to give her a chance, but Zirkle said "No, I am sorry, you are fired." Zirkle and Offenburger gave somewhat different ver- sions of the termination interview , both agreeing , however, that Gainer never said she was sorry or asked for a second chance . Offenburger testified that Zirkle told Gainer "I'm sorry this had to happen," and asked Gainer "Do you think I would be able to trust you being up on the patient floor with your temper the way it is?" to which Gainer responded "No. You couldn't trust me." Zirkle then said that "due to the severity of the infraction," she had no alternative but to terminate Gainer . Zirkle 's testimony was to the same general effect , but that she also characterized what Gainer had done, in talking to Gainer, as a "verbal attack and threatening action on one of our supervisors." Although , for reasons set forth below , resolution of pre- cisely what was said to Gainer at that time is not necessary to my disposition of this issue, I am inclined to accept Offenburger's version as the most accurate of the three, partly because Gainer herself was admittedly angry and upset at the time , and therefore less likely to remember precisely what was said, and partly because, as noted again subsequently, Offenburger seemed to be a particularly can- did witness, not averse to admitting matters even though they were unfavorable to his employer. Although the incident described above obviously trig- gered Gainer's discharge, the General Counsel contends that Respondent seized upon this incident as a pretext- that it knew of Gainer 's extensive union activities, had demonstrated its animus toward the Union , and "was wait- ing for an incident involving a union adherent to occur, so as to enable it to make an example of the ungrateful em- ployee, an example not easily forgotten by the other em- ployees." As stated by the General Counsel, "Gainer's dis- charge was part of a carefully orchestrated campaign to defeat the Union , and in this instance , an attempt by Re- spondent to specifically demonstrate to its employees its power to retaliate against an employee who had the temeri- ty to espouse the Union 's cause." Further supporting this position , urges the General Counsel , is the fact that other employees who had used profanity or obscene language were not discharged by Respondent, tending to show that the.treatment of Gainer was disparate in nature , and that 1025 Respondent's real reason in her case was her union activi- ties. Accepting for purposes of this issue all the testimony of the General Counsel 's witnesses , and assuming therefore, both that Respondent knew of Gainer's union activities and harbored animus toward the Union, I cannot agree that the General Counsel's case, when viewed against what Gainer herself testified occurred on September 13, 1974, establishes that Respondent was motivated in discharging Gainer by her union activities. Thus, taking all the General Counsel's evidence at face value, we have only four 8(a)(1) violations shown between the start of the Union' s. cam- paign in March 1974 (admittedly known to management by May 1, 1974) and September 13, 1974, when Gainer was discharged. This does not impress me as a "carefully orch- estrated campaign to defeat the Union"-particularly when three of the four 8(a)(1) allegations involve one low- ranking supervisor, Prescott, to one employee, Gainer (the two were friends), and the fourth the hospital's "no-solici- tation" rule, which had been in existence for several years, which did not mention the word "union," and, even if un- lawful , scarcely demonstrates animus toward the Union. Secondly, Gainer was not the leading employee advocate of the Union; Elaine Koplow and Alan Kaufman were the ringleaders. As noted, the union campaign began in March; Gainer did not even begin working at St. Peter's until July 17. So her union activities were both substantial- ly lesser in degree, and shorter in time, than Koplow's and Kaufman's. When the General Counsel's affirmative case is weighed against the September 13 incident which Re- spondent asserts motivated Gainer's discharge, the balance scales tilt sharply in favor of the latter. For an employee saying "You fat fucker, I'll slap the shit out of you" to a cafeteria supervisor is manifestly the kind of conduct that could furnish good cause for discharge. True, sensibilities to the use of obscenities vary consider- ably from person to person. And in today's more open and liberal times with respect to the use of language that was once deemed fit only for sailors and longshoremen, many would regard the use of formerly tabu words not even to constitute misconduct. But there is an obvious difference between their use in a context of extreme anger, coupled with a threat of violence (the "I'll slap the shit out of you" portion), and merely using the obscenities adjectivally. Again, the question is not whether every employer might have discharged Gainer for her outburst-some might have regarded discharge as a harsh punishment-but whether Barbara Zirkle, head of St. Peter's Hospital's housekeeping department, discharged Gloria Gainer for that reason. It seems to me , on the evidence discussed, much more likely that Zirkle's asserted reason was the true reason than that Gainer's union activities motivated Zirkle. In so concluding, I have not ignored the evidence ad- duced by the General Counsel in an attempt to show that, since other employees used obscenities and profanity and were not discharged, Respondent treated Gainer disparate- ly. All but one example may be dealt with summarily, for they do not come close to resembling Gainer's outburst. Thus, there was substantial testimony concerning the regu- lar use of obscene language by employees Cleveland Baker and Ruby Jennings . In neither instance , however, was the 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD language used to a supervisor . It is significant that even some of the employees involved in the use of minor ob- scenities (as compared to those used by Gainer on Septem- ber 13) were reprimanded and warned, and Supervisors Prescott , Offenburger, and Ramteke all reported Baker to Zirkle for using bad language , although not used in anger, or threateningly, or to a supervisor. This very evidence tends to show that Respondent does not condone the use of obscenities in any context. The final incident, which occurred some 2 weeks after Gainer's discharge, involved Supervisor Ramteke and em- ployee Carlin, and has Carlin cursing ("Fuck you") Ram- teke, and throwing a putty knife at him. This incident, tes- tified to by Ramteke , is somewhat similar to the Gainer incident . But Zirkle's explanation of what occurred there- after impressed me as reasonable . When Carlin went to her office immediately after the incident with Ramteke, he im- mediately apologized, explained about difficulties at home, with his mother having cancer, problems with his "girl friend," problems stemming from his Vietnam experiences, and asked to go see Sister Manion to apologize to her (the incident took place near her office ). In all the circum- stances, according to Zirkle , she decided to give Carlin an- other chance, but to issue a written warning to him, also telling him that any further warnings would result in "se- vere disciplinary action and would probably be termina- tion." As Respondent cogently argues, the complaint with re- spect to Gainer's discharge had already issued at this time, and Zirkle was obviously aware of the similarities between the two situations, and could, by discharging Carlin, appar- ently known to be antiunion, and frankly admitted by Zir- kle to have informed Offenburger about attendance at union meetings, have dispelled any suspicion that Gainer's discharge was discriminatory . But the differences between the two situations outweigh the similarities . First , we have Carlin's "plea for mercy" with an explanation of his multi- tudinous problems . Next, we have the fact that Gainer was a relatively new employee. Finally, and I hope this does not offend women's liberationists, the same language used by a man to a man might well seem less offensive , particu- larly to someone like Zirkle, than when used by a woman to a woman. This incident also cuts both ways-for al- though brought out by the General Counsel to show dispa- rate treatment, it demonstrates that the hospital did not overlook or condone this kind of conduct even to an an- tiunion employee. For all the foregoing reasons , I find that the General Counsel has not established by a preponder- ance of the evidence that Respondent discriminatorily dis- charged Gloria Gainer.4 2. The alleged 8(aXI) violations The 8(a)(l) allegations, as noted above , are based pri- 4 Although this conclusion makes it unnecessary to resolve the threshold question of whether Respondent was aware of Gainer's union activities, I am satisfied that it was-based on Gainer's openness in her activities, and the obvious fact that Prescott knew of them , and, Prescott being a supervi- sor, such knowledge is attributable to Respondent (see the discussion of the alleged 8(a)(l) violations , infra). manly on Gainer's testimony concerning conversations with Supervisor Prescott, with Prescott denying in each in- stance the operative language. Gainer's testimony has Pres- cott, about September 5, telling Gainer that she had a copy of the "yellow union leaflet," but did not have a copy of the "blue leaflet," and asking Gainer for one of the latter. At the same time, Prescott told Gainer "to be careful be- cause Miss Zirkle didn't want no union there and she would assign me to more work or assign me by myself so I can't talk to other people and told me to be careful." Ac- cording to Gainer, Prescott also told her to be careful on a number of other occasions. On September 11, when Gainer came to work, a number of employees were standing out- side the hospital. Gainer asked Prescott what was wrong, and Prescott responded "Well, you haven't seen nothing yet, they have hired my grandmother." When Gainer in- quired what this was all about, Prescott said that "they are hiring older employees to get the union out and they were going to get rid of the younger employees." I was not impressed with Prescott as a witness, primarily because she denied too much. Thus, although it is clear from the testimony of Supervisors Offenburger and Ram- teke, both Respondent's witnesses, that at various monthly meetings of supervisors prior to Gainer's discharge the Union was discussed quite often, including mention of Ko- plow and Kaufman as being union "plants," Prescott de- nied that any such discussions occurred at meetings prior to Gainer's discharge, although she attended those monthly meetings. Prescott also testified that she never saw Gainer with union literature prior to Gainer's discharge. She ad- mitted having told Gainer to "watch herself," but claims this concerned Gainer's wandering around the hall on breaks, etc. The contrast between her testimony and that of Offenburger and Ramteke was quite marked-the latter two candidly testified to matters that were hardly suppor- tive of Respondent's case.5 I am constrained, accordingly, to credit Gainer over Prescott with respect to these conversations. Even though Gainer was somewhat short-tempered and belligerent on the stand, particularly during cross-examination, she ad- mitted many damaging items, including her own language at the September 13 cafeteria incident. And, far from seem- ing to contrive evidence to support her case, her testimony, limited as it was in this respect to statements by only one minor supervisor, Prescott, with nothing at all said about Gibson or Zirkle, for example, having interrogated or threatened her, or mentioned the Union at the time of her termination, was not particularly self-serving in support of her discharge being discriminatorily motivated. Even Gainer's testimony concerning having given a card to employee Gray with Gibson observing the "transaction" had a tinge of truth to it. Gibson testified that she was talking to "Leon the painter about the Union." Had she sought to contrive a story about being observed handing a union card to another employee, she would much more likely have picked someone whom she knew, and someone who was avowedly prounion and more likely to back up 5 For example , the testimony concerning Carlin was adduced from Ram- teke , and, as noted, both testified to the discussions about the Union and Offenburger testified to the singling out of Kaufman and Koplow for spe- cial mention at the staff meetings. ST. PETER'S MEDICAL CENTER her story. Gray testified, at a reopening of the hearing, that he met Gainer in a bar, and Gainer told him that what she had testified to concerning giving him a card was not true, that it was Koplow's idea that she do so, and that she did not really want to come back to work, merely to prove that she could come back. Gainer denied having said anything to this effect to Gray. Koplow, although perhaps the most active of employees in organizing for the Union, and ap- parently believed to have been a union plant by Personnel Director Rainey, also was quite restrained in her testimo- ny. She corroborated Gainer with respect to the Gray inci- dent, and otherwise testified only to discussions in the cafe- teria, during breaks, at which hospital officials and supervisors were nearby, at other tables. This was plainly not a witness seeking to fabricate or contrive a case against the company. I believe her testimony, therefore, that Gray, a week or so after the meeting with Gainer at the bar, told her that he did not remember the conversation testified to by Gainer at which she gave him a card, but that it might have hap- pened. Why Gray would manufacture such a story I have no idea, but I do not, for the foregoing reasons, discredit Gray, as against Prescott, because of Gray's testimony. This is not to say that in every instance I accept Gainer's testimony, over, for example, that of Zirkle and Offenbur- ger concerning what was said at Gainer's termination inter- view. Gainer was obviously angry and upset at the time, and her own testimony that she construed Zirkle's asking for "her side of the story" as somehow provocative indi- cates the extent to which she was upset. Thus, although my conclusion, already reached, would be the same even fully crediting Gainer's version, I do not believe she asked for a "second chance," and credit Zirkle and Offenburger that she did not apologize at that meeting. Having credited Gainer over Prescott, the question re- mains whether Respondent violated Section 8(a)(1) by these incidents, or any of them. As to the request by Pres- cott for the "blue card," Gainer's own testimony is that Prescott "wanted that blue leaflet to see the wages and things on the back of it." I agree with Respondent that a supervisor's interest in the rates of pay in the Union's cam- paign literature is legitimate , and does not amount to re- straint or coercion. As to the admonition to Gainer to be careful because "Zirkle didn't want no union there," this plainly constitutes restraint and coercion within the mean- ing of Section 8(a)(1) of the Act, and the violation is en- hanced rather than diminished by the fact that Prescott was apparently a friend of Gainer's, as the General Coun- sel correctly states . Wichita Eagle & Beacon Publishing Co., Inc., 199 NLRB 360, 370 (1972); Caster Mold & Machine Company, Inc., 148 NLRB 1614, 1621 (1964). Similarly, the statement by Prescott concerning the hiring of older wom- en "to get the union out," even if meant in friendship to Gainer, could not help but be coercive, as representing to Gainer knowledge gleaned by Prescott in her supervisory status . This statement, too, I find violative of Section 8(a)(l). The final question herein concerns the legality of Respondent's no-solicitation rule. The entire rule in ques- tion , entitled "Visitors or Solicitors," reads as follows: 1027 Employees are not permitted to receive personal vis- itors while on duty. Please arrange to have personal or business matters conducted elsewhere. The hospital has a firm policy prohibiting solicita- tion for any reason . This is to protect the employee from any solicitor of products, literature, services, bill collectors, insurance salesmen, etc. Solicitation for fund drives will be conducted by the Community Relations Office with the endorsement of the Executive Director. Departmental collections or participations in gifts must be authorized by the Division Head with the ap- proval of the Executive Director. Employees are urged to report any violation of the solicitation rules to the Department Head since solici- tors cause interruption of service, and in most cases, prove embarrassing to the employees. The rule itself, as is evident, contains no mention of "union" solicitation. And, as Respondent contends, it is plain on its face that the rule was designed to protect em- ployees from outsiders coming to the hospital to solicit, rather than directed to solicitation by the employees them- selves. Furthermore, the rule existed for some time prior to any union organizational activity, and, indeed, was pro- mulgated at a time when hospitals were not under the juris- diction of the National Labor Relations Board. In these circumstances, I cannot find that the rule itself violated Section 8(a)(1). House of Mosaics, Inc., Subsidiary of Thom- as Industries, Inc., 215 NLRB No. 123 (1974); Essex Inter- national, Inc., 211 NLRB 449 (1974). Although the General Counsel points to an incident involving employee Tracy Williams as evidencing application of the rule in an unlaw- ful manner, I do not find that the evidence supports his position. I construe the testimony as showing only that Zir- kle was upset at Williams' passing out cards on working time, and do not accept Williams' testimony that Zirkle defined working time as any time after he punched in. In this connection, the testimony of both Offenburger and Ramteke confirms Zirkle, as well as the fact (viz, the Gain- er-Gray incident witnessed by Gibson), that solicitation for the union obviously occurred freely, without any interfer- ence by Respondent. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and coerc- ing its employees as found herein Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any other re- spect. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, I hereby issue the following recommended: OR-DER 6 Respondent, St. Peter's Medical Center, New Brunswick, New Jersey, its officers , agents , successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisals because of their union activity. (b) In any like or related manner interfering with, re- straining, or coercing their employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, 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. (a) Post at its hospital in New Brunswick, New Jersey, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 22, shall be signed by an authorized representa- tive of the Company, posted 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. Rea- sonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed in all other respects. r In the event that the Board 's 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"