UPMC and its subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi

National Labor Relations Board - Board Decisions

Aug 6, 2018

366 NLRB No. 142 (N.L.R.B. 2018)

366 NLRB No. 142
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
UPMC, UPMC Presbyterian Shadyside, d/b/a UPMC
Presbyterian Hospital and d/b/a UPMC
Shadyside Hospital and SEIU Healthcare Penn-
sylvania, CTW, CLC.
UPMC, UPMC Children’s Hospital, and SEIU
Healthcare Pennsylvania, CTW, CLC.
UPMC and UPMC Mercy Hospital, d/b/a Mercy
Hospital and SEIU Healthcare Pennsylvania,
CTW, CLC. Cases 06–CA–171117, 06–CA–
171123, 06–CA–171126, 06–CA–171621
August 6, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND EMANUEL
On January 18, 2018, Administrative Law Judge
Thomas M. Randazzo issued the attached decision. The
Respondents jointly filed exceptions and a supporting
brief, the General Counsel filed an answering brief, and
the Respondents filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions

1 The Respondents also filed a notice of supplemental authority to
direct the Board’s attention to General Counsel Memorandum 18-04,
“Guidance on Handbook Rules Post-Boeing.”
2 By order dated April 11, 2017, the judge severed the complaint’s
allegation that the Respondents constitute a single employer from the
unfair labor practice allegations, and the judge retained the single-
employer allegation for resolution at a later date, if necessary. On April
26, 2018, the General Counsel filed a motion with the judge seeking his
approval to withdraw the single-employer allegation in light of a set-
tlement of that allegation reached between the General Counsel and the
Respondents. The Charging Party Union filed an opposition to the
General Counsel’s motion, and the Respondents filed a reply. By order
dated June 1, 2018, the judge granted the General Counsel’s motion.
3 The Respondents have excepted to some of the judge’s credibility
determinations. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In crediting the testimony of employee Pamela Banks, the judge cit-
ed several cases, including PPG Aerospace Industries, Inc., 353 NLRB
223 (2008). In affirming the judge’s credibility determinations, we do
not rely on his citation to PPG Aerospace Industries, which was decid-
ed by a two-member Board. See New Process Steel, L.P. v. NLRB, 560
U.S. 674 (2010).
and to adopt his recommended Order as modified and set
forth in full below.4
1. We agree with the judge that the Respondents’ So-
licitation and Distribution Policy is overbroad because it
prohibits off-duty employees who are permissibly on the
Respondents’ property from engaging in Section 7 activi-
ty. In the healthcare setting, a ban on employee solicita-
tion outside immediate patient care areas during non-
working time is presumptively invalid. See Beth Israel
Hospital v. NLRB, 437 U.S. 483, 507 (1978). Here, the
Respondents permitted off-duty employees access to the
cafeteria but prohibited them from soliciting (or being
solicited by) employees on nonworking time, both in the
cafeteria and in other nonworking and non-patient care
areas of the hospitals. And, as the judge found, the Re-
spondents have not satisfied their burden of demonstrat-
ing that their prohibition of off-duty solicitation was nec-
essary to avoid disruption of healthcare operations or
disturbance of patients.5 Accordingly, we adopt the
judge’s findings that the Respondents violated Section
8(a)(1) of the Act by maintaining a policy that prohibits
off-duty employees from soliciting or being solicited and
that Respondent UPMC Mercy Hospital violated Section
8(a)(1) by enforcing that policy against off-duty employ-
ee Joshua Malloy, who engaged in union solicitation in

The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
Member Emanuel agrees that Children’s Hospital Supervisor Linda
Terry threatened employee Pamela Banks with unspecified reprisals by
telling her that employees “shouldn’t be passing out flyers on UPMC’s
property” while recounting that employee Tasha, who was seen passing
out flyers in front of the hospital, was “on the verge of being fired.”
Member Emanuel finds it unnecessary to pass on the judge’s finding
that Terry also threatened Banks with unspecified reprisals by telling
Banks that she saw Banks’ face “on the front of a union paper around
the hospital” and that Banks “should be careful about leaving [her]
union flyers laying around the hospital” because the additional finding
would not materially affect the remedy.
4 We have amended the judge’s conclusions of law and remedy and
modified his recommended Order to conform to the violations found
and the Board’s standard remedial language. We shall substitute new
notices to conform to the Order as modified.
5 Because we find the Respondents’ policy is invalid, we find it un-
necessary to pass on the judge’s analysis regarding whether the Re-
spondents’ solicitation and distribution policy is overbroad under the
balancing framework announced in The Boeing Company, 365 NLRB
No. 154 (2017). To the extent that the judge analyzed the policy under
the “reasonably construe” standard of Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), which was overruled by the Board in
Boeing, supra, we do not rely on it. Finally, we note that the Board in
Boeing did not disturb longstanding precedent governing employer
restrictions on solicitation and distribution, which already strikes a
balance between employee rights and employer interests.
Member Pearce agrees that the Respondents’ policy is unlawful un-
der Beth Israel Hospital, supra, and related cases. He adheres to his
dissent in Boeing.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
UPMC Mercy’s cafeteria around March 10, 2016. See
Eastern Maine Medical Center, 253 NLRB 224, 226
(1980) (finding no-solicitation rule that permits solicita-
tion only during breaks and not during other nonworking
time, such as before and after work and during
lunchtime, violated Section 8(a)(1)), enfd. 658 F.2d 1
(1st Cir. 1981). Having granted off-duty employees ac-
cess to the hospital’s cafeteria, the Respondents could
not at the same time prohibit such employees from solic-
iting other employees in the cafeteria who were on non-
working time.
2. We also agree with the judge, for the reasons he
stated, that the Respondents’ unwritten rule prohibiting
employees from leaving nonwork-related materials in
nonworking areas is overbroad.6 The unwritten rule at
issue is not simply a ban on litter, and the Respondents
were not merely engaged in normal housekeeping. Ra-
ther, the Respondents’ rule bars an employee on non-
working time from placing union literature in an employ-
ee break room (a nonworking area) to be read later on by
another employee on nonworking time. Such activity is
a form of distribution,7 and the Respondents have failed
to justify their ban against such union activity. Accord-
ingly, we adopt the judge’s findings that the Respondents
violated Section 8(a)(1) of the Act by maintaining an
unwritten rule prohibiting employees from distributing
union literature in nonworking areas during nonworking
time and that Respondent UPMC Presbyterian Shadyside
Hospital violated Section 8(a)(1) by enforcing that rule in
its employee-only break room when Unit Director Scal-
ise discarded union literature and other pamphlets while
informing employees that there would be no more papers
unrelated to the Hospital’s official business put out on
the break room table.8

6 The judge inadvertently stated that an instructional chart provided
by the Respondents to managers indicated that on-duty and off-duty
employees were prohibited from distributing literature in nonwork
areas during nonwork time, when in fact only off-duty employees were
prohibited from doing so. The judge’s error does not affect our deci-
sion, however, because we rely not on the instructional chart but on the
Respondents’ admission that they have maintained an unwritten rule
prohibiting employees from leaving behind nonwork materials in non-
work areas and on testimony that Jamie Scalise, Unit Director for 12
South of Respondent Presbyterian Shadyside, reiterated the rule to
employees in an employee-only break room in December 2015.
7 See Superior Emerald Park Landfill, LLC, 340 NLRB 449, 456–
457 (2003) (employer violated Sec. 8(a)(1) by maintaining a rule pro-
hibiting employees from leaving union brochures on a table in the
employees’ lunchroom); Sprint/United Management Co., 326 NLRB
397, 398–399 (1998) (employer violated Sec. 8(a)(1) by maintaining a
rule prohibiting the placement of union materials in employee lockers,
which were nonworking areas, during nonworking time).
8 We find it unnecessary to pass on the judge’s additional finding
that the Respondents violated Sec. 8(a)(1) of the Act by promulgating
AMENDED CONCLUSIONS OF LAW
Replace the judge’s Conclusion of Law 3 with the fol-
lowing paragraphs, and renumber the subsequent para-
graphs accordingly.
“3. Respondent UPMC Presbyterian Shadyside violat-
ed Section 8(a)(1) of the Act by maintaining a provi-
sion in its Solicitation and Distribution Policy that pro-
hibits off-duty employees from soliciting or being so-
licited and by maintaining and enforcing an unwritten
rule that prohibits employees from distributing non-
work-related materials in nonworking areas during
nonworking time.
4. Respondent UPMC Children’s Hospital violated
Section 8(a)(1) of the Act by maintaining a provision in
its Solicitation and Distribution Policy that prohibits
off-duty employees from soliciting or being solicited
and by maintaining an unwritten rule that prohibits em-
ployees from distributing nonwork-related materials in
nonworking areas during nonworking time.
5. Respondent UPMC Mercy Hospital violated Section
8(a)(1) of the Act by maintaining and enforcing a pro-
vision in its Solicitation and Distribution Policy that
prohibits off-duty employees from soliciting or being
solicited and by maintaining an unwritten rule that pro-
hibits employees from distributing nonwork-related
materials in nonworking areas during nonworking
time.”
ORDER
A. Respondent UPMC Presbyterian Shadyside d/b/a
UPMC Presbyterian Hospital and d/b/a UPMC
Shadyside Hospital, Pittsburgh, Pennsylvania, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a provision in its Solicitation and Dis-
tribution Policy that prohibits its off-duty employees
from soliciting or being solicited in nonworking and non-
patient care areas to which they have been granted access
by the Respondent.
(b) Maintaining and enforcing an unwritten rule that
prohibits employees from distributing nonwork-related
materials in nonworking areas during nonworking time.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overly broad provision in the Solicita-
tion and Distribution Policy that prohibits off-duty em-

the unwritten no-distribution rule, as any such additional violation
would not materially affect the remedy.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 3
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
ployees from soliciting or being solicited in nonworking
and non-patient care areas to which they have been
granted access by the Respondent.
(b) Furnish employees with inserts for the current So-
licitation and Distribution Policy that (1) advise that the
unlawful provision has been rescinded or (2) provide a
lawfully worded provision on adhesive backing that will
cover the unlawful provision, or publish and distribute to
employees a revised policy that (1) does not contain the
unlawful provision or (2) provides lawfully worded pro-
visions.
(c) Rescind the overly broad unwritten rule prohibit-
ing employees from distributing nonwork-related materi-
als in nonworking areas during nonworking time.
(d) Within 14 days after service by the Region, post at
its Pittsburgh, Pennsylvania facility copies of the at-
tached notice marked “Appendix A.”9 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 15, 2015.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. Respondent UPMC Children’s Hospital, Pitts-
burgh, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a provision in its Solicitation and Dis-
tribution Policy that prohibits its off-duty employees
from soliciting or being solicited in nonworking and non-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
patient care areas to which they have been granted access
by the Respondent.
(b) Maintaining an unwritten rule that prohibits em-
ployees from distributing nonwork-related materials in
nonworking areas during nonworking time.
(c) Threatening employees with retaliation and un-
specified reprisals for engaging in union and/or protected
concerted activities.
(d) Creating the impression that employees’ union ac-
tivities are under surveillance.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overly broad provision in the Solicita-
tion and Distribution Policy that prohibits off-duty em-
ployees from soliciting or being solicited in nonworking
and non-patient care areas to which they have been
granted access by the Respondent.
(b) Furnish employees with inserts for the current So-
licitation and Distribution Policy that (1) advise that the
unlawful provision has been rescinded or (2) provide a
lawfully worded provision on adhesive backing that will
cover the unlawful provision, or publish and distribute to
employees a revised policy that (1) does not contain the
unlawful provision or (2) provides lawfully worded pro-
visions.
(c) Rescind the overly broad unwritten rule prohibit-
ing employees from distributing nonwork-related materi-
als in nonworking areas during nonworking time.
(d) Within 14 days after service by the Region, post at
its Pittsburgh, Pennsylvania facility copies of the at-
tached notice marked “Appendix B.”10 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 15, 2015.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
C. Respondent UPMC Mercy Hospital d/b/a Mercy
Hospital, Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a provision in its Solici-
tation and Distribution Policy that prohibits its off-duty
employees from soliciting or being solicited in nonwork-
ing and non-patient care areas to which they have been
granted access by the Respondent.
(b) Maintaining an unwritten rule that prohibits em-
ployees from distributing nonwork-related materials in
nonworking areas during nonworking time.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overly broad provision in the Solicita-
tion and Distribution Policy that prohibits off-duty em-
ployees from soliciting or being solicited in nonworking
and non-patient care areas to which they have been
granted access by the Respondent.
(b) Furnish employees with inserts for the current So-
licitation and Distribution Policy that (1) advise that the
unlawful provision has been rescinded or (2) provide a
lawfully worded provision on adhesive backing that will
cover the unlawful provision, or publish and distribute to
employees a revised policy that (1) does not contain the
unlawful provision or (2) provides lawfully worded pro-
visions.
(c) Rescind the overly broad unwritten rule prohibit-
ing employees from distributing nonwork-related materi-
als in nonworking areas during nonworking time.
(d) Within 14 days after service by the Region, post at
its Pittsburgh, Pennsylvania facility copies of the at-
tached notice marked “Appendix C.”11 Copies of the
notice, on forms provided by the Regional Director for

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 15, 2015.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 6, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 5
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a provision in the Solicitation
and Distribution Policy that prohibits you, when off duty,
from soliciting or being solicited in nonworking and non-
patient care areas to which you have been granted access
by your employer.
WE WILL NOT maintain and enforce an unwritten rule
that prohibits you from distributing nonwork-related ma-
terials in nonworking areas during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad provision in the So-
licitation and Distribution Policy that prohibits you,
when off duty, from soliciting or being solicited in non-
working and non-patient care areas to which you have
been granted access by your employer.
WE WILL furnish you with inserts for the current So-
licitation and Distribution Policy that (1) advise you that
the unlawful provision has been rescinded or (2) provide
a lawfully worded provision on adhesive backing that
will cover the unlawful provision, or WE WILL publish
and distribute to you a revised policy that (1) does not
contain the unlawful provision or (2) provides lawfully
worded provisions.
WE WILL rescind the overly broad unwritten rule pro-
hibiting you from distributing nonwork-related materials
in nonworking areas during nonworking time.
UPMC PRESBYTERIAN SHADYSIDE D/B/A
UPMC PRESBYTERIAN HOSPITAL AND D/B/A
UPMC SHADYSIDE HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a provision in the Solicitation
and Distribution Policy that prohibits you, when off duty,
from soliciting or being solicited in nonworking and non-
patient care areas to which you have been granted access
by your employer.
WE WILL NOT maintain an unwritten rule that prohibits
you from distributing nonwork-related materials in non-
working areas during nonworking time.
WE WILL NOT threaten you with retaliation and unspec-
ified reprisals for engaging in union and/or protected
concerted activities.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad provision in the So-
licitation and Distribution Policy that prohibits you,
when off duty, from soliciting or being solicited in non-
working and non-patient care areas to which you have
been granted access by your employer.
WE WILL furnish you with inserts for the current So-
licitation and Distribution Policy that (1) advise you that
the unlawful provision has been rescinded or (2) provide
a lawfully worded provision on adhesive backing that
will cover the unlawful provision, or WE WILL publish
and distribute to you a revised policy that (1) does not
contain the unlawful provision or (2) provides lawfully
worded provisions.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL rescind the overly broad unwritten rule pro-
hibiting you from distributing nonwork-related materials
in nonworking areas during nonworking time.
UPMC CHILDREN’S HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or enforce a provision in the
Solicitation and Distribution Policy that prohibits you,
when off duty, from soliciting or being solicited in non-
working and non-patient care areas to which you have
been granted access by your employer.
WE WILL NOT maintain an unwritten rule that prohibits
you from distributing nonwork-related materials in non-
working areas during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad provision in the So-
licitation and Distribution Policy that prohibits you,
when off duty, from soliciting or being solicited in non-
working and non-patient care areas to which you have
been granted access by your employer.
WE WILL furnish you with inserts for the current So-
licitation and Distribution Policy that (1) advise you that
the unlawful provision has been rescinded or (2) provide
a lawfully worded provision on adhesive backing that
will cover the unlawful provision, or WE WILL publish
and distribute to you a revised policy that (1) does not
contain the unlawful provision or (2) provides lawfully
worded provisions.
WE WILL rescind the overly broad unwritten rule pro-
hibiting you from distributing nonwork-related materials
in nonworking areas during nonworking time.
UPMC MERCY HOSPITAL D/B/A MERCY
HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Julie Polakoski-Rennie, Esq. and Zachary Hebert, Esq. for the
General Counsel.
Ruthie Goodboe, Esq. for the Respondent.
Claudia Davidson, Esq. for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This
case was tried in Pittsburgh, Pennsylvania, on April 13, June
15, 16, and July 21, 2017. The SEIU Healthcare Pennsylvania,
CTW, CLC (the Charging Party or Union) filed charges on
March 4, 2016 (and amended charges on March 16, 2016) in
Cases 06–CA–171117, 06–CA–171123, and 06–CA–171126;1
and a charge on March 14, 2016 (and an amended charge on
March 21, 2016), in Case 06–CA–171621. The General Coun-

1 In addition, the Charging Party filed a second amended charge in
Case 06–CA–171123 on April 4, 2016.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 7
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
sel issued an Order Consolidating Cases, Consolidated Com-
plaint and Notice of Hearing (herein Complaint) on January 30,
2017, and an Amendment to Complaint on March 24, 2017.
The Complaint and Amendment to Complaint allege that the
Respondents violated Section 8(a)(1) of the Act. The General
Counsel specifically alleges that Respondent, at UPMC Chil-
dren’s Hospital in about October 2015, threatened employees
with unspecified reprisals if they engaged in union activities; on
or about December 16, 2015, threatened employees with un-
specified reprisals and to retaliate against them for engaging in
union activities; and on or about December 16, 2015, created
the impression that it was engaging in surveillance of employ-
ees’ union activities. The Complaint further alleges that Re-
spondent violated Section 8(a)(1) of the Act by oral announce-
ment, promulgating and maintaining a rule prohibiting employ-
ees from distributing non-work materials in non-work areas;
and by publication on its Infonet, unlawfully maintaining and
enforcing a solicitation policy by prohibiting staff members
from soliciting or being solicited while off duty. Finally, the
Complaint alleges that Respondent UPMC, its subsidiary, Re-
spondent UPMC Presbyterian Shadyside (Respondent Presby-
terian Shadyside), its subsidiary Respondent UPMC Children’s
Hospital (Respondent Children’s), and Respondent UPMC
Mercy Hospital (Respondent Mercy) constitute a single-
integrated business enterprise and a single employer within the
meaning of the Act. In its answer, the Respondent denies that it
violated the Act as alleged and it denies that the Respondents
constitute a single employer.
The Complaint and Amendment to Complaint do not allege
that Respondent UPMC independently committed violations of
the Act.
The Procedural Issue of the Prehearing Motion to Bifurcate the
Single Employer Allegations from the Unfair Labor
Practice Allegations
Respondent UPMC filed a prehearing motion to bifurcate the
hearing in these matters on April 4, 2017, requesting that doc-
ument production and the hearing concerning the unfair labor
practice charges proceed first, and that the single employer
allegations, document production, and litigation concerning the
single employer issues occur at a later compliance phase,
should those issues become necessary to litigate. The Re-
spondent also timely petitioned to revoke the following sub-
poenas duces tecum issued and served by the General Counsel
on March 24, 2017, to the Custodians of Record for Respond-
ent UPMC, Respondent Presbyterian Shadyside, Respondent
Children’s, and Respondent Mercy: B-1-VXK26T (Presbyteri-
an); B-1-VXN59Z (Mercy); B-1-VVOF2H (Children’s). The
Respondents also filed a timely joint petition to revoke the
subpoena ad testificandum issued by the General Counsel to
Andrea Clark-Smith, Esq., Respondent UPMC’s in-house
counsel. (A-1-VXNNGF).
A. Background
This procedural issue raised by Respondent UPMC is not
one of first impression for these parties. The same bifurcation
issue arose in UPMC and its Subsidiary, UPMC Presbyterian
Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi-
tal and d/b/a UPMC Shadyside Hospital, Case Nos. 06–CA–
102465 et al., 2014 WL 6808989 (NLRB Div. Judges Nov. 14,
2014) (Carissimi, ALJ), a case involving allegations of numer-
ous unfair labor practices and an allegation that Respondent
UPMC and Respondent Presbyterian constitute a single em-
ployer. In that case, the parties agreed, with the judge’s ap-
proval, to first litigate the substantive unfair labor practice alle-
gations in the complaint against Respondent Presbyterian and
then litigate the issue of whether Respondent UPMC and Re-
spondent Presbyterian constituted a single employer. 2014 WL
680989 at p. 2. That trial thus commenced with the litigation of
the unfair labor practice allegations, with the judge deferring
ruling on the Respondents’ petitions to revoke the General
Counsel’s and Union’s subpoena duce tecum relating solely to
the single employer issue. Id. As the trial regarding those un-
fair labor practice allegations progressed, Judge Carissimi ad-
dressed the issues raised by the petitions to revoke subpoenas
so the parties could prepare to litigate the single employer
phase of the proceeding. On February 24, 2014, Judge Caris-
simi denied, in substantial part, the petitions to revoke. There-
after, he ordered both Respondents to produce the documents
pursuant to the subpoenas. The Respondents then indicated
they would not comply with the order and, on March 20, 2014,
on behalf of the Board, the General Counsel filed an application
for enforcement of the subpoenas in the United States District
Court of the Western District of Pennsylvania. Id.
In that case, the Judge Carissimi issued an order severing the
single employer allegations from the unfair labor practice alle-
gations in the complaint. In doing so, the judge determined that
it was appropriate to first issue a decision regarding the unfair
labor practices committed by Respondent Presbyterian and later
to issue a supplemental decision pertaining to the issue of
whether the Respondents constituted a single employer. The
judge reasoned that in light of the ongoing subpoena enforce-
ment proceeding in district court, there was uncertainty as to
when the single employer allegations would proceed to trial,
and it would avoid delaying disposition of the substantive com-
plaint allegations while awaiting the outcome of the protracted
subpoena enforcement litigation involving the single-employer
issue. Id. at pp. 2–3. Judge Carissimi’s November 14, 2014
decision is pending at the Board on exceptions.2
B. Respondent UPMC’s Motion to Bifurcate and the General
Counsel’s and Union’s Oppositions
In Respondent UPMC’s motion to bifurcate the single em-
ployer issues in the instant case, it notes that it filed petitions to
revoke the General Counsel’s subpoenas, in particular those
requests for documents pertaining to the single-employer issue,
and it indicated that it would continue to challenge any orders
which would require it to comply with those subpoenas. The
Respondent asserted that litigation of the single employer sub-
poena issues would likely carry on far beyond the hearing date
set for this matter, and that document production and hearing
time regarding the single employer issue would “completely
subsume the underlying unfair labor practice allegations, which

2 The Board has not yet ruled on Judge Carissimi’s decision dated
November 14, 2014, and as such it has no binding precedential value.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are relatively straightforward.” (GC Exh. 1(x) at p. 5). The
Respondent further argued that if my determination on the un-
fair labor practice issues was that no unfair labor practices were
committed, and the complaint was dismissed, it would not be
necessary to litigate the remedial issues such as the single em-
ployer allegations. The Union filed an opposition to the motion
on April 5, and the General Counsel filed an opposition on
April 6, 2017. (GC Exh. 1(y) and 1(z)).
C. Analysis
Section 102.35(a)(8) of the Board’s Rules and Regulations
provides that the administrative law judge shall have authority
between the time he is designated and transfer of the case to the
Board “[t]o dispose of procedural requests, motions, or similar
matters ….; and upon motion order proceedings consolidated or
severed prior to issuance of administrative law judge deci-
sions.” Consistent with that rule, the Board has specifically
held that issues involving the severance of cases in proceedings
are within the administrative law judge’s discretion. Adair
Standish Corp., 283 NLRB 668, 669–671 (1987), enfd. 875
F.2d 866 (6th Cir. 1989). The Board has also held that motions
seeking to sever and/or bifurcate litigation of particular issues
raised by the complaint are likewise matters within the adminis-
trative law judge’s discretion. See Asociacion Hospital del
Maestro, Inc., 317 NLRB 485, 490 (1995) (where Board denied
respondent’s appeal of the judge’s denial of its motion to bifur-
cate the trial and litigate respondent’s Section 10(b) statute of
limitations defenses before the merits); Gulfport Stevedoring
Assn., 15–CA–096939, unpub. Board order issued Sept. 9, 2013
(2013 WL 4782797, 2013 NLRB LEXIS 593) (denying re-
spondent’s motion to dismiss without prejudice to renewing its
jurisdictional arguments, and any request to bifurcate the hear-
ing, before the administrative law judge). See also NLRB v.
Chapa De Indian Health Program, Inc., 316 F.3d 995, 1002
(9th Cir. 2003) (noting that the administrative law judge denied
the respondent’s motion to sever).
The Board has found that one such area where bifurca-
tion/severance is appropriate is on issues of single or joint em-
ployer status. Beverly Health and Rehabilitation Services, Inc.,
335 NLRB 635, 653 fn. 4 (2001). In Beverly Health and Reha-
bilitation Services, the Board affirmed the Bifurcating Order
issued by the administrative law judge that held the presenta-
tion of evidence on the single employer issue may “require
several weeks of litigation on a matter involving refinement of
remedy rather than the basic question presented . . . whether
unfair labor practices were perpetrated and, if so, remedied at
least by normal procedure.” Id. In that case, the Board affirmed
the judge’s determination that the remedial issues “present
clearly severable issues which can be resolved in a supplemen-
tary hearing and decision after the ULP and normal remedy
determinations are made.” Id. See also Le Rendezvous Restau-
rant, 323 NLRB 445, fn. 2 and 3 (1997).
Applying these principles to the instant case, in an Order
dated April 11, 2017, I found it appropriate to sever the com-
plaint allegations that Respondent UPMC is a single employer
with Respondent Mercy, Respondent Children’s, and Respond-
ent Presbyterian from the unfair labor practice allegations, and
to bifurcate this proceeding. (GC Exh. 1(bb)). In so doing, I
found it appropriate to first litigate and issue a decision regard-
ing the unfair labor practices, and later, at a second phase, liti-
gate and issue a supplemental decision regarding the issue of
whether the Respondents constitute a single employer within
the meaning of the Act. In reaching that determination, I found
that a number of factors warranted bifurcation. In the instant
case there are no allegations that Respondent UPMC inde-
pendently committed any of the alleged unfair labor practices
so there appears to be no basis for it to be involved in the de-
termination of whether the other Respondents committed the
unfair labor practice violations alleged. The only significance
in alleging UPMC as a respondent is the single employer issue.3
In addition, the Respondent has asserted that the single em-
ployer allegation and evidence will take substantial time to
litigate. I found merit in that assessment, as the presentation of
evidence by the General Counsel, the Union, and the Respond-
ent, including documentary evidence and related testimony on
the issues of whether Respondent UPMC is a single employer
with the other three entities would likely result in many days of
litigation with the introduction of many documents necessary to
prove such single employer findings. While the General Coun-
sel asserted that Respondent’s assessment was a “gross exag-
geration,” and instead estimated that the presentation of the
General Counsel’s case on the single employer issue could be
achieved in “a day’s time or less,” I found that assessment did
not include the amount of time the Respondent would take for
the presentation of its evidence on the single employer issue,
and I found the General Counsel’s and Charging Party’s argu-
ments in opposition to be unrealistic and unpersuasive. Thus, I
found that litigation of the single employer allegations in the
complaint and the parties’ presentation of evidence would like-
ly take a substantial amount of time.
In my Order, I further noted that the Respondent indicated
that it would, like it did in Judge Carissimi’s case, dispute any
orders requiring it to produce the subpoenaed documents
sought on the single employer issue, thus requiring the General
Counsel to seek enforcement of the subpoenas in federal court.
Such actions would likely further delay the trial and the poten-
tial remedy of any possible unfair labor practice violations. On
that subject, the Union asserted that the Respondent made cer-
tain assumptions with regard to how the General Counsel
would proceed after the Respondent refused to comply with a
possible order to produce the documents subpoenaed on the
single employer issue, thus inferring that the General Counsel
could proceed to litigate the single employer issue without the
information it subpoenaed and without seeking enforcement in
federal court of any orders to produce the documents. I found
that argument equally unpersuasive, as it would seem that the
General Counsel would need the information it subpoenaed as
evidence to support its assertions that the Respondents consti-
tute a single employer within the meaning of the Act. Finally, I
noted that should it be determined that no violations of the Act

3 There are no allegations in the Complaint or Amendment to Com-
plaint that Respondent UPMC itself had independently committed any
unfair labor practices. Respondent UPMC would only have liability for
any unfair labor practices if it is found to be a single employer with the
other entities.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 9
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
have been committed, it would be unnecessary to litigate reme-
dial issues such as the single employer allegations.
Taking into consideration the length of time that would be
required to litigate the single employer issues and balancing
that consideration against the need for resolution of the unfair
labor practice issues, I found that severing the single employer
complaint allegations from the unfair labor practice allegations,
and bifurcating the proceeding, was supported by and con-
sistent with extant Board precedent. Beverly Health and Reha-
bilitation Services, Inc., 335 NLRB 635, 653 fn. 4 (2001).
Accordingly, I granted the Respondent’s motion and severed
the single employer allegations from the allegations concerning
the unfair labor practices, and proceeded with litigation of the
unfair labor practices.4
Even though a determination regarding the alleged single
employer status of UPMC with the named entities is left for a
later phase of this proceeding, for the purposes of this initial
phase of the proceeding Respondent UPMC Mercy Hospital,
Respondent UPMC Children’s Hospital, and Respondent
UPMC Presbyterian Shadyside will be collectively referred to
as “Respondent(s).”
On the entire record,5 including my observation of the de-
meanor of the witnesses,6 and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respond-
ent (the Respondent filed a “Consolidated Post-Hearing Briefs
of Respondents’ UPMC Presbyterian Shadyside, Children’s
Hospital of Pittsburgh of UPMC, and UPMC Mercy Hospital”),
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondents UPMC Mercy Hospital, UPMC Children’s
Hospital, and UPMC Presbyterian Shadyside Hospital are
Pennsylvania nonprofit corporations with offices and places of
business in Pittsburgh, Pennsylvania, where they have been
engaged in the operation of acute care hospitals providing inpa-
tient and outpatient medical care.
The Respondents, during the 12-month period ending Febru-
ary 29, 2016, each purchased and received at their Pittsburgh,
Pennsylvania facilities good valued in excess of $50,000 direct-

4 I noted that after issuing a decision regarding the unfair labor prac-
tice allegations, I would then proceed with litigation of the single em-
ployer issues, and I would accordingly address and rule on petitions to
revoke the subpoena duces tecm paragraphs that pertained to the single
employer issues. At the conclusion of that phase of the trial, I would
set forth a schedule for the filing of briefs on that issue and issue an
appropriate supplemental decision regarding the single employer alle-
gations in the complaint.
5 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Re-
spondent’s Exhibit; “GC Br.” for the General Counsel’s brief; “CP Br.”
for the Charging Party’s brief, and “R. Br.” for Respondent’s brief.
6 In making my findings regarding the credible evidence, including
the credibility of the witnesses, I considered the testimonial demeanor
of such witnesses, the content of the testimony, and the inherent proba-
bilities based on the record as a whole. In addition, I have carefully
considered the testimony in contradiction to my factual findings, but I
have discredited such testimony.
ly from points outside the Commonwealth of Pennsylvania, and
derived gross revenues in excess of $250,000.7 I therefore find
that Respondents have been employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent also admitted by stipulation, and I so find,
that the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.8
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Maintenance and Enforcement of its So-
licitation and Distribution Policy Prohibiting Employees from
Soliciting or Being Solicited in Non-Work Areas While off Duty
1. The maintenance of its Solicitation and Distribution Policy
that prohibits employees from soliciting or being solicited in
non-work areas while off duty
The Respondent stipulated that since on or about September
15, 2015, and continuing to the present, it has maintained the
same Solicitation Policy in the “UPMC Policy and Procedure
Manual,” at all of its facilities involved in this proceeding, and
which is published on the UPMC Infonet. That policy (HS-
HR0717) entitled “Solicitation and Distribution” reads as fol-
lows:
I. POLICY
It is the policy throughout UPMC subsidiary hospitals
and facilities to limit solicitation and distribution activi-
ties to prevent interference with deliveries of patient
care, patient recovery, and performance of staff duties
and to avoid imposition on any patient or visitor.
Links to policies referenced within this policy can be
found in Section V.
II. SCOPE
This policy applies both to the staff members doing the
soliciting or distributing of literature and the staff mem-
ber being solicited or receiving the distribution in Hospi-
tal or other facilities located in the United States. Cov-
ered activities include, but are not limited to: solicitation
for raffles, charity drivers, sale of goods, proposing or
procuring membership in any organization, or canvass-
ing. Activities sponsored and approved by UPMC or a
business unit’s President are permitted, such as United
Way campaigns.
III. DEFINITIONS
A. The term “staff member” in this policy includes em-
ployees, volunteers, students and contracted workers.
B. “On duty” means periods during which a staff mem-

7 Although Respondent’s UPMC Mercy Hospital, UPMC Children’s
Hospital, and UPMC Presbyterian Shadyside Hospital did not admit to
the legal conclusion, they admitted to the commerce information neces-
sary to establish jurisdiction. (See Revised GC Exh. 1(s), para. 4(c)
through 4(h) and Revised GC Exh. 1(u), para. 4(c) through 4(h)).
8 The Respondent also stipulated at trial that Jamie Scalise has been
a supervisor and agent of UPMC Presbyterian Shadyside, Thomas Hritz
has been a supervisor and agent of UPMC Mercy, and Linda Terry has
been a supervisor and agent of Children’s Hospital, each within the
meaning of Section 2(11) and 2(13) of the Act. (GC Exh. 2)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber is scheduled to work.
C. “Off duty” means any period during which a staff
member is not scheduled to work.
D. “Working time” means those periods of the workday
when a staff member is on duty and is engaged in per-
forming work duties.
E. “Non-working time” means those periods of the
workday when a staff member is on duty but is not ex-
pected to be performing work tasks (i.e., meal periods or
breaks).9
IV. PROCEDURES
A. No staff member shall engage in solicitation of other
staff members, patients, and visitors during working
time. In order for solicitation to be permitted, both the
staff member soliciting and the staff member being so-
licited must be on non-working time.
B. No staff member may engage in solicitation during
working or non-working time in patient care areas, such
as patient rooms, operating rooms, patient lounges, areas
where patients receive treatment, corridor and sitting
rooms adjacent to patient care areas if a patient or family
member is present. For other work areas, no staff mem-
ber may engage in solicitation during working time.
C. No staff member may distribute any form of litera-
ture that is not UPMC related business or staff duties at
any time in any work, patient care, or treatment areas.
Additionally, staff members may not use UPMC elec-
tronic messaging systems to engage in solicitation dur-
ing working time. (see also Policy HS-IS0147) Electron-
ic Mail, Messaging and Texting).
D. Off-duty staff members may not enter or re-enter the
interior of their work areas or other work areas within
their workplace facility aside from the cafeteria, exercise
facility, Human Resources building, for any purpose (in-
cluding solicitation or distribution) except to visit pa-
tients, receive medical treatment, or for other purposes
such as are available to the general public.
E. Generally, only professional recognition, employer
service pins, and staff member ID badges may be worn
in patient care or treatment areas. When a special activi-
ty, such as those related to breast cancer awareness and
similar medical causes or connected to local sports
teams, is approved by the business unit President, or
his/her designee, then other insignia may be worn during
such special activity.
F. Non-staff members may not solicit, distribute or post
materials at any time on UPMC private property without
prior authorization from the President of the business
unit, or that person’s designee.
G. All situations of unauthorized solicitation or distribu-
tion must be immediately reported to a supervisor or de-
partment director and the Human Resources Department

9 The Consolidated Complaint contains an inaccurate transcription of
the wording for the description of “Non-working time” by the insertion
of the word “not” before the phrase “on duty. (GC Exhs. 3, 4, and 5).
and may subject the staff member to corrective action up
to and including discharge.
(Tr. 89–99; 275–278; GC Exh. 3, 4, and 5)
The record establishes an ongoing union organizing drive at
the Respondent’s facilities during the relevant time period of
this case. (Tr. 281) Respondent witness Samuel Anthony Kane,
the current Director of Food and Nutrition Services at Presby-
terian Shadyside Hospital, testified in support of Respondent’s
defense regarding its maintenance of the Solicitation Policy.
(Tr. 202–204) Kane testified that prior to his current position
he served as Retail Manager for Presbyterian Shadyside from
2013 to 2016. (Tr. 203) In that position, Kane managed the
Presbyterian Shadyside cafeteria and was responsible for the
implementation of UPMC policies as they affected the cafete-
ria. Although he testified that he had no involvement in devel-
oping polices applicable to the cafeteria, he in fact implemented
policies with regard to operating the cafeteria. (Tr. 253; 256–
257)
Kane testified that one such policy he was familiar with was
the Solicitation Policy and he attended meetings with managers
concerning that policy that were held across the UPMC facili-
ties, and he received training from Human Resources regarding
the Solicitation Policy. (Tr. 257–260) Kane also testified that
since he started working for UPMC, he was aware of a union
organizing drive, and that he, along with other managers, re-
ceived management training on how to respond to a union or-
ganizing drive, part of which included training concerned with
the Solicitation Policy. (Tr. 281) In his training on the imple-
mentation of the Solicitation Policy, he was instructed on what
areas of the facility solicitation was allowed and not allowed,
and he recalled learning that solicitation in the cafeteria was
permissible for “employees on breaks during work time.” (Tr.
260–261) According to Kane, “on break” meant they are work-
ing on a shift and they are on a break. (Tr. 266) Regarding off
duty employees’ rights to solicit, he testified that “[t]hey are not
permitted to solicit while off duty.” (Tr. 266–267) He testified
that the term “solicit” to him “would be asking questions, hav-
ing conversations, providing literature, looking for people to
make donations, offering to sell things, offering to go places,
offering to attend events.” (Tr. 267)
Kane also testified with regard to a chart that he was provid-
ed during his training on the Solicitation Policy. (GC Exh. 6)
The Respondent’s chart provides that “On Duty Employees”
who are on “Non-Working Time” are allowed to solicit in areas
not defined as “Patient Care Areas,” including “Other Work
Area[s]” and “Non-Work Area[s].” It also provides that “Off-
Duty Employee[s]” are not allowed to solicit in “Other Work
Area[s]” and “Non-Work Area[s]” not defined as “Patient Care
Areas.” (GC Exh. 6) Kane, however, testified that he did not
know whether an employee break room or the cafeteria consti-
tuted work areas for employees who did not work in the cafete-
ria, and he could not identify the areas that were considered
“non-work areas.” (Tr. 271)
2. The Respondent’s enforcement of its Solicitation and Distri-
bution Policy by prohibiting employees from soliciting or being
solicited in a non-work area while off duty
Joshua Malloy, a floor tech environmental services employee
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 11
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
on the overnight/third shift at Respondent UPMC Mercy Hospi-
tal, testified that he was in the Mercy Hospital cafeteria around
noon on March 10, 2016, with Union Organizer Amber Sten-
man, talking to employees, handing out union flyers, and ask-
ing employees sign a union petition. (Tr. 118–120; 122–124)
The record establishes that the Mercy Hospital cafeteria is typi-
cally used by UPMC employees, patients’ families, and the
public, and at noon that day there were approximately 65–70
people there. (Tr. 127, 133)
Malloy, who was not on duty at the time, testified that he and
Stenman asked employees to sign a petition entitled “We’re
Worth More” that stated: “Hospital Workers are rising up for
better jobs, better healthcare and a stronger Pittsburgh” on
April 14th by “…joining thousands across the country to turn
low-wage hospital jobs into jobs that can support families.” (Tr.
124–125, 132–133; GC Exh. 13) The bottom portion of the
document contained a section where employees could sign their
name and provide their contact information, and could fill in a
response to the following statement: “Yes! I will stand with
my coworkers on April 14 because…” (GC Exh. 13) Stenmen
testified that she and Malloy spoke to employees in the cafete-
ria and showed them the petition, and if the employees “agreed
with the idea that they were worth more, they signed the bottom
part and kept the top,” and she and Malloy took the bottom
portion of the petition that the employees filled out and signed.
(Tr. 132–133)
Malloy and Stenmen also handed employees a document en-
titled: “Know Your Rights” which outlined employees’ rights
under the National Labor Relations Act, such as the right to
engage in protected concerted activity without management
retaliation or unlawful surveillance. (GC Exh. 14) That docu-
ment stated:
KNOW YOUR RIGHTS
Hospital workers have the right to organize;
Hospital workers have the right to talk about wages and work-
ing conditions while they’re at work, anywhere where they
usually can engage in non-work conversations;
Hospital workers have the right to share written information
about wages and working conditions during the same time
and in the same places as they are permitted to share other
written non-work information;
Hospital workers have the same rights as other workers to en-
gage in concerted activity, including permissible picketing
and protected strikes, provided that they give 10 days’ notice
of the activity’s time;
Hospital workers have the right to not be retaliated against
(discharged, disciplined, or any other adverse action) for en-
gaging in protected concerted activity; and
Hospital workers have the right to have their union activities
be free from management surveillance.
(GC Exh. 14)
Malloy and Stenmen testified that they handed out the union
flyers for 1 hour, from approximately 12 p.m. to 1 p.m. without
incident. (Tr. 125–126) At that time, there were employees
wearing their work uniforms and badges eating their lunches,
and there were also members of the general public or patients’
families. (Tr. 125–126) However, shortly after 1 p.m., Malloy
was approached by Respondent’s Dietary Supervisor Thomas
Hritz who asked Malloy his name and whether he was on duty.
Malloy told him his name and stated that he was not on duty
and that he worked the third shift. (Tr. 126, 134) Hritz then
told Malloy that he could not hand out flyers or have people
sign the petition because it violated UPMC’s Solicitation Poli-
cy. (Tr. 126, 134)
Stenman, who was standing close enough to hear Hritz’s
conversation with Malloy, testified that she approached Hritz
and asked what the problem was and if he was a manager, to
which Hritz responded that he was a manager. (Tr. 134–135)
According to Stenman, she asked for clarification on what he
was saying, and Hritz stated that Malloy could be there talking,
but he could not pass anything out. (Tr. 135) Stenman stated
that Malloy was in a non-work area on non-work time, and
questioned whether that meant he could not pass out or sign up
employees on union cards. In response, Hritz stated that Mal-
loy could sign his coworkers up on union cards if he was on
duty, but if he was off-duty, “he could only be there talking.”
(Tr. 135) When Stenman remarked that “it seemed a little odd
that these rules weren’t written down somewhere,” Hritz re-
sponded “I don’t know what is or isn’t policy, I only know
what is passed down to me through human resources.” (Tr.
135–136) Stenman told him that she believed that if Malloy
was “in the cafeteria talking to people about anything else be-
sides the union . . . nothing would have been said” about it. (Tr.
136) Hritz responded that Malloy could be there talking to
people off duty, he could sign his coworkers up on union cards
when he was on duty, but he could not distribute materials or
solicit when he was off duty. (Tr. 136) Stenman asked Hritz if
someone complained to management about the fact that they
were handing out materials, and he responded that “somebody
saw the activity and reported it.” (Tr. 137) At that point, Mal-
loy asked Hritz if he was going to be fired, and Hritz responded
that he was not going to be fired and that he could stay and talk
to people as long as he wanted, but he could not hand out flyers
or have people sign petitions because it violated UPMC’s Solic-
itation Policy. (Tr. 126–127, 137) Malloy responded that they
were going to leave, and he and Stenman left the cafeteria. (Tr.
137)
After the noon incident in the UPMC Mercy Hospital cafete-
ria, Hritz sent an email that day at 1:24 p.m. (to persons whose
positions were not identified in the record), the subject of which
stated: “Union Solicitation in the Cafeteria.” (GC Exh. 6) In
that email, Hritz wrote:
Just a heads up that an off-shift employee was in the cafeteria
this afternoon soliciting and distributing union material. I
spoke with him and explained the rules for off-shift employ-
ees in non-work areas and asked him to stop. I advised him
that he is free to talk about the union with other employees,
but that he is not allowed to solicit or distribute. Keep your
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eyes open for others doing the same.
To know what is allowed, I’ve attached the solicitation distri-
bution chart to refresh your memories.
(GC Exh. 6)
As mentioned above, the chart attached to the email provides
that “On Duty Employees” who are on “Non-Working Time”
are allowed to solicit in areas not defined as “Patient Care Are-
as,” including “Other Work Area[s]” and “Non-Work Area[s].”
The chart similarly provides that “Off-Duty Employee[s]” are
not allowed to solicit in “Other Work Area[s]” and “Non-Work
Area[s]” not defined as “Patient Care Areas.” (GC Exh. 6)10
The Respondent did not call any witnesses pertaining to the
events that occurred at UPMC Mercy Hospital on March 10,
2016. However, in defense of its maintenance and enforcement
of the Solicitation Policy, the Respondent presented the testi-
mony of Kane, the former Retail Manager and the current Di-
rector of Food and Nutrition Services at UPMC Presbyterian
Shadyside Hospital’s cafeteria. Kane had no duties or respon-
sibilities relating to Mercy Hospital and his testimony con-
cerned only the cafeteria at Presbyterian Shadyside Hospital.
He testified about the operations of that cafeteria, such as times
the cafeteria was busy, when there were changes in staffing at
that hospital, when the employees used the cafeteria for meal
breaks, and how long the lines of customers were at the regis-
ters for that cafeteria. (Tr. 204–213)
The record establishes that the cafeteria provides food to pa-
trons. Respondent failed to offer any credible evidence estab-
lishing that the Mercy Hospital Cafeteria was a patient care
area or a “work area” for anyone other than those employed to
work in the cafeteria. However, in defense of its justification
for the solicitation policy, the Respondent offered Exhibit 11
into the record and Kane’s testimony regarding that exhibit.
(Tr. 219–230; R. Exh. 11) Kane identified the exhibit as a pho-
tograph of “the monitor near the exit” of the Presbyterian
Shadyside cafeteria that “tracks patients as they move through
their procedure[s].” (Tr. 219) However, he admitted that he did
not take the photograph of the alleged monitor, he did not know
who took the photograph and he did not see who took the pho-
tograph, he did not know when the photograph was taken, he
had not seen that photograph prior to his testimony in this case,
he did not know if the photograph was of a monitor used else-
where at Presbyterian Shadyside Hospital or at any other
UPMC facility, and he did not know all the information dis-
played on the monitor in the photograph or what the letters and
numbers on the monitor meant or where they originated. (Tr.
219–230)
3. The positions of the parties
The General Counsel and the Union allege that Respondent’s
maintenance of the Solicitation Policy is unlawful, specifically
asserting that the definition for “off duty” and “non-working
time,” along with the prohibition against solicitation during
working time and the requirement that permissible solicitation
must be on non-working time, are vague. They also argue that
the maintenance and enforcement of the Solicitation Policy is

10 The parties stipulated at hearing that the chart was attached to
Hritz’s email (GC Exh. 6). (Tr. 94–96)
unlawful because it amounts to a sweeping prohibition against
employees soliciting anywhere in its facilities, including those
places that are open to the public and are non-patient care areas,
such as the cafeteria. Finally, they argue that there is no justifi-
cation for the rule.
The Respondent alleges that its policy and its definitions of
“non-working time” and “off-duty” are not vague or ambigu-
ous, and there is a distinction between employees who are on
“non-working time” and those who are “off duty.” (R. Br. 10)
It further alleges that the policy provides that off-duty employ-
ees are barred from access and soliciting in the facility, not
unlike members of the public, and therefore Malloy was
properly banned from soliciting in the cafeteria while off-duty.
Furthermore, Respondent argues that there is justification for
prohibiting solicitation by off-duty employees in the cafeteria,
and that its policy and its enforcement did not violate the Act as
alleged.
4. Analysis
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7 [of the
Act].” Section 7, the cornerstone of the Act, provides that:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities.
The rights under Section 7 have been found to “necessarily
encompass[] the right effectively to communicate with one
another regarding self-organization at the jobsite.” Beth Israel
Hospital v. NLRB, 437 U.S. 483, 491 (1978). This includes
employee communications regarding their terms and conditions
of employment. Central Hardware Co. v. NLRB, 407 U.S. 539,
547 (1972); Parexel International, LLC, 356 NLRB 516, 518
(2011). As mentioned above, under Section 7, employees also
have the right to engage in activity for their “mutual aid or
protection,” which also includes communicating regarding their
terms and conditions of employment. Eastex, Inc. v. NLRB, 437
U.S. 556, 565 (1978). Thus, a core activity protected by Sec-
tion 7 is the right of employees to discuss, debate, and com-
municate with each other regarding their workplace terms and
conditions of employment. As the United States Supreme
Court has recognized, the workplace “is a particularly appropri-
ate place for the distribution of Section 7 material, because it ‘is
the one place where [employees] clearly share common inter-
ests and where they traditionally seek to persuade fellow work-
ers in matters affecting their union organizational life and other
matters related to their status as employees.’” Eastex, supra at
574, quoting Gale Products, 142 NLRB 1246 (1963); Central
Hardware, supra at 542–543.
It has long been recognized, however, that employees’ Sec-
tion 7 rights to communicate with their fellow employees in the
workplace is not without limits. The Board is responsible for
balancing “the undisputed right of self-organization assured to
employees under the Wagner Act and the equally undisputed
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 13
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
right of employers to maintain discipline in their establish-
ments. Like so many others, these rights are not unlimited in
the sense that they can be exercised without regard to any duty
which the existence of rights of others may place upon employ-
er or employee.” Beth Israel Hospital v. NLRB, 437 U.S. 483,
492, quoting Republic Aviation Corp., v. NLRB, 324 U.S. 793,
797–798 (1945). Thus, in analyzing the propriety of employer
rules that limit or govern communications among employees in
the workplace, the Board balances employees’ Section 7 rights
and the rights and interests of employers. Republic Aviation,
supra at 797–798. In Hudgens v. NLRB, 424 U.S. 507, 522
(1976), the Court recognized that “the locus of the accommoda-
tion [between the legitimate interests of both] may fall at differ-
ing points along the spectrum depending on the nature and
strength of respective Section 7 rights and private property
rights asserted in any given context.” (Internal quotes and
bracketing omitted).
With regard to employer maintenance of rules, it is well es-
tablished that an employer violates Section 8(a)(1) of the Act if
it maintains workplace rules that would reasonably tend to chill
employees in the exercise of their Section 7 rights. Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), citing
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999); Valley Health System LLC d/b/a
Spring Valley Hospital Medical Center, 363 NLRB No. 178
(2016); T-Mobile USA, Inc, 363 NLRB No. 171 (2016); Triple
Play Sports Bar, 361 NLRB 308, 313 (2014); Hills & Dales
General Hospital, 360 NLRB 611, 615 (2014). In addition, the
Board does not require that an employer actually apply a rule
for it to be found unlawful. “Where the rules are likely to have
a chilling effect on Section 7 rights, the Board may conclude
that their maintenance is an unfair labor practice, even absent
evidence of enforcement.” Layayette Park Hotel, supra; see
also Farah Mfg. Co., 187 NLRB 601, 602 (1970), enfd. 450
F.2d 942 (5th Cir. 1971) (the mere maintenance of the rule
itself inhibits the engagement in otherwise protected organiza-
tional activity and is not precluded by the absence of evidence
that it was invoked).
The analytical framework for determining whether mainte-
nance of rules violate the Act is set forth in Lutheran Heritage
Village-Livonia, supra. Under Lutheran Heritage, a work rule
is unlawful if “the rule explicitly restricts activities protected by
Section 7.” 343 NLRB at 646 (emphasis in the original). If the
work rule does not explicitly restrict protected activities, it
nonetheless will violate Section 8(a)(1) if “(1) employees
would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights.” Id. at 647. In the instant case, there is
neither evidence nor allegation that the challenged rule was
promulgated in response to union activity. There is also no
claim that the rules have been discriminatorily applied. Rather,
in this case the claim is that the challenged rule is overbroad
and vague, as the stated definitions of “non-working time” and
“off duty” are confusing and unclear to the reasonable employ-
ee, and thus would reasonably tend to chill employees in the
exercise of their rights under Section 7 of the Act.
The Respondent’s rule, when taking into consideration how
it defines “non-work time” and “off-duty” and when the rule is
read as a whole, is confusing and quite frankly, conflicting.
Section IV D of the rule provides that off-duty employees (also
referred to as “staff members”) may not enter work areas of the
facility for any purpose (specifically including solicitation and
distribution) with the exception of or “aside from” the “cafete-
ria.” Thus, Section IV D allows off-duty employees access to
the cafeteria for purposes of solicitation and distribution. Sec-
tion IV A of the rule, however, provides that while employees
shall not engage in solicitation during working time, for solici-
tation to be permitted, both the employee soliciting and the
employee being solicited “must be on non-working time.”
Even though “off-duty” employees are undisputedly not work-
ing and are “non-working” while in that status, the Respondent
draws a distinction between those employees who are “off-
duty” (defined as periods that the employee is not scheduled to
work) and “non-working time” (defined as periods of the work-
day when the employee is on duty but is not expected to be
performing work duties, i.e. “meal periods or breaks.”) Thus,
by specifically providing that the only permissible solicitation
must be by employees on “non-working time,” the rule ex-
cludes solicitation by off-duty employees (who are not working
but nevertheless fail to meet Respondent’s definition for being
on “non-work time”). Therefore, while Section IV D of the
rule provides that off-duty employees are permitted to solicit in
the cafeteria, Section IV A prohibits those same off-duty em-
ployees from soliciting anywhere at the facility, which would
include the cafeteria.
The Respondent’s rule is thus confusing and conflicting re-
garding off-duty employee solicitation in the cafeteria. That
factor, however, and how that part of the rule would reasonably
be construed, are factors no longer taken into consideration by
the Board. In The Boeing Company, 365 NLRB No. 154
(2017), the Board recently addressed its analytical framework
for determining whether maintenance of rules violate the Act.
In that case, the Board overruled the “reasonably construe”
standard in prong one of the Lutheran Heritage analytical
framework. The Board stated that it “will no longer find un-
lawful the mere maintenance of facially neutral employment
policies, work rules and handbook provisions based on a single
inquiry, which made legality turn on whether an employee
‘would reasonably construe’ a rule to prohibit some type of
potential Section 7 activity that might (or might not) occur in
the future.” Id. slip op. at 2. Instead, the Board set forth a new
standard under which it determined that:
[W]hen evaluating a facially neutral policy, rule or handbook
provision that, when reasonably interpreted, would potentially
interfere with the exercise of NLRA rights, the Board will
evaluate two things: (i) the nature and extent of the potential
impact on NLRA rights, and (ii) legitimate justifications asso-
ciated with the rule. We emphasize that the Board will con-
duct this evaluation, consistent with the Board’s “duty to
strike the proper balance between…asserted business justifi-
cations and the invasion of employee rights in light of the Act
and its policy,” focusing on the perspective of employees,
which is consistent with Section 8(a)(1). As the result of this
balancing…the Board will delineate three categories of em-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment policies, rules and handbook provisions:
Category 1 will include rules that the Board designates as
lawful to maintain, either because (1) the rule, when reasona-
bly interpreted, does not prohibit or interfere with the exercise
of NLRA rights; or (ii) the potential adverse impact on pro-
tected rights is outweighed by justifications associated with
the rule….;
Category 2 will include rules that warrant individualized scru-
tiny in each case as to whether the rule would prohibit or in-
terfere with NLRA rights, and if so, whether any adverse im-
pact on NLRA-protected conduct is outweighed by legitimate
justifications; and
Category 3 will include rules that the Board will designate as
unlawful to maintain because they would prohibit or limit
NLRA-protected conduct, and the adverse impact on NLRA
rights is not outweighed by justifications associated with the
rule.
Id. Slip op. 2-3.
The Board held that the above three categories represent a
classification of results from the application of the new test, and
they are not part of the test itself. Id. In addition, the Board
decided that retroactive application of the new standard is ap-
propriate, and it will therefore apply the new policies and
standards to “all pending cases in whatever stage.” Id. slip op.
at 16; citing SNE Enterprises, Inc., 344 NLRB 673, 673 (2005)
(quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–
1007 (1958)). The Board’s standard articulated in The Boeing
Company is therefore applicable to the instant case.
a. The nature and extent of the potential impact on NLRA
rights by prohibiting off-duty employees from soliciting or
distributing materials in non-working areas.
Under the standard articulated in The Boeing Company the
nature and extent of the potential impact of the Respondent’s
rule or policy on NLRA Section 7 rights must first be deter-
mined. As mentioned above, the record establishes that the
Respondent maintains a Solicitation and Distribution Policy
that prohibits off-duty employees from soliciting or distributing
material in the cafeteria. Unquestionably, the potential impact
of such a ban is extensive, as it would prevent and prohibit
employees who are off duty and not on working time from
engaging in solicitation and distribution regarding the union
and its literature in non-working areas, and it would therefore
interfere with employees’ attempts to engage in union and pro-
tected concerted activities. Such a prohibition would certainly
strike at the heart of employees’ rights under Section 7 of the
Act. In fact, its effect and impact would be inimical to one of
the most fundamental precepts of the Act—the right to form,
join, or assist labor organizations.
The record further establishes that Respondent has enforced
that policy by preventing employees from engaging in union
solicitation and distribution in the cafeteria while they were on
off-duty status and not working. In this connection, the Re-
spondent has not refuted its enforcement of the Solicitation
Policy resulting in banning employees who are off duty from
soliciting in the cafeteria. It is undisputed that Malloy and
Stenman testified that Manager Hritz told them that Malloy was
not permitted to solicit in the cafeteria by handing out union
flyers and asking employees to sign a union petition while he
was off duty. (Tr. 136) In addition, the instructional chart pro-
vided to Respondent’s management for training on the rule
instructs that on-duty and off-duty employees are prohibited
from soliciting in nonpatient care areas that are non-work areas.
(GC Exh. 6; Tr. 279) Thus, the record establishes that the Re-
spondent’s enforcement of the rule has resulted in the denial of,
and interference with, employees’ union and protected activi-
ties.
In Republic Aviation, supra, the U.S. Supreme Court upheld
the Board’s ruling that an employer’s policy prohibiting solici-
tation in the facility at any time “entirely deprived [employees]
of their normal right to ‘full freedom of association’ in the plant
on their time, the very time and place uniquely appropriate and
almost solely available to them therefor.” 324 U.S. at 801 fn. 6
(internal quotation marks omitted). In that case, the Court rec-
ognized that “time outside working hours, whether before or
after work, or during luncheon or rest periods, is an employee’s
time to use as he wishes without unreasonable restraint, alt-
hough the employee is on company property.” Id. at 803 fn. 10.
Rules prohibiting solicitation “outside of working hours, alt-
hough on company property,” the Court held, is therefore pre-
sumptively unlawful absent “special circumstances [that] make
the rule necessary in order to maintain production or disci-
pline.” Id. at 803–804 fn. 10 (quoting Peyton Packing Co., Inc.,
49 NLRB 828, 843–844 (1943)). Thus, the Board has held
with U.S. Supreme Court approval, that restrictions on employ-
ee solicitation during non-working time, and on distribution
during non-working time in non-working areas, are violative of
Section 8(a)(1) unless the employer justifies them by a showing
of special circumstances which make the rule necessary to
maintain production or discipline. Beth Israel Hospital, supra at
492–493.
In St. John’s Hospital & School of Nursing, 222 NLRB 1150
(1976), enfd. in part 557 F.2d 1368 (10th Cir. 1977), the Board
considered the fact that a hospital’s primary function is patient
care, and found that the “special characteristics” of hospitals
warranted a rule that is different from that which it generally
applied to other employers. Thus, the Board, with Supreme
Court approval, has given consideration to the fact that a hospi-
tal’s primary function is patient care, and “that a tranquil at-
mosphere is essential to the carrying out of that function.” Beth
Israel Hospital v. NLRB, 437 U.S. 483, 495 (1978); NLRB v.
Baptist Hospital, 442 U.S. 773 (1979); St. John’s Hospital &
School of Nursing, Inc., 222 NLRB 1150 (1976), enfd. in part
557 F.2d 1368 (10th Cir. 1977). In order to provide that at-
mosphere, hospitals may have some leeway in restricting the
exercise of employees’ Section 7 rights and “may be justified in
imposing somewhat more stringent prohibitions on solicitation
than are generally permitted.” Beth Israel Hospital, supra at
495.
On that basis, it has been established that hospitals may pro-
hibit solicitation in “immediate patient care areas,” such as
“patients’ rooms, operating rooms, and places where patients
receive treatment,” because in such areas where solicitation
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 15
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
might be unsettling to patients who are in need of quiet and
peace of mind, the balance between protected activities and
patient needs may be struck against the employee’s rights.
NLRB v. Baptist Hospital, 442 U.S. 773, at 780–781 (approving
the standard applied by the Board in St. John’s Hospital). In
Beth Israel Hospital, supra, the Court reasoned that hospitals
may only prohibit solicitation and distribution in those areas
because it is necessary to avoid disruption to patient care or
disturbance to patients. In that case, it was recognized that the
cafeteria functioned as a natural gathering place for employees
and was more of an employee-service area than a patient care
area, and the hospital failed to present evidence that the pro-
scription of solicitation in the cafeteria (and coffeeshop) was
necessary to prevent either disruption of patient care or disturb-
ance of patients. Therefore the employer in that case violated
Section 8(a)(1) by maintaining an overly broad rule against
solicitation. In addition, in Baptist Hospital, supra, the Court
further clarified that “immediate patient care areas” do not in-
clude cafeterias, gift shops, and lobbies on the first floor of the
hospital. Id. at 786. Thus, extant Board law establishes that no
solicitation or no distribution rules in a hospital that prohibit
solicitation in areas other than immediate patient care areas,
violate Section 8(a)(1) of the Act, absent a showing of disrup-
tion to patient care.
b. The legitimate justifications associated with the rule
Initially, I note that the evidence offered by the Respondent
does not establish that the cafeterias in its hospitals are “work
areas” or “immediate patient care areas.” In particular, at
UPMC Mercy Hospital, where there was evidence of the Re-
spondent’s enforcement of the rule to prohibit an off duty em-
ployee from soliciting and distributing in the cafeteria, there
was no evidence establishing that the cafeteria was either a
work area for employees other than cafeteria workers, or that it
was an area where immediate patient care was provided. The
evidence offered by Respondent to arguably support its defense
of a legitimate justification for the rule in the cafeteria was the
admission of Respondent Exhibit 11 into the record and Kane’s
testimony regarding that exhibit. As mentioned above, Kane
testified that the exhibit was a picture of the monitor near the
exit of a different hospital—the UPMC Presbyterian Shadyside
hospital—and his assertion that it “tracks patients as they move
through their procedure[s].” (Tr. 219) That exhibit, however, is
entitled to very little, if any weight if it was offered for that
proposition. In that regard, Kane admitted that he did not take
the photograph of the alleged monitor, he did not know when
the photograph was taken or the identity of the person who took
it, he had not seen the photograph prior to his testimony in this
case, he did not know if the photograph was of a monitor used
elsewhere at the Presbyterian Shadyside Hospital or at any
other UPMC facility, and he did not know all the information
displayed on the monitor in the photograph or what the letters
and numbers on the monitor meant or where they originated.
(Tr. 219–230) Kane’s admitted lack of knowledge pertaining
to the monitor, how it was used, who used it, which hospital
that monitor was actually located in, whether the photograph
was an authentic and accurate portrayal of the monitor, and
most importantly, how exactly that monitor evinced the admin-
istration of immediate patient care, entitles it to very little, if
any, weight.
I note that even assuming that monitor was used to show the
progress and status of patient procedures or surgeries, and even
if it was located at the exit of the Presbyterian Shadyside Hos-
pital cafeteria, such facts are insufficient to establish that the
cafeteria is a “work area” or that “immediate patient care” was
administered in the cafeteria. If anything, such monitors may
be used to inform families eating in the cafeteria when their
family members’ procedures have been completed, which fails
to equate its use to the administration of “immediate patient
care.” In addition, as mentioned above, in Baptist Hospital,
supra, the U.S. Supreme Court clarified that “immediate patient
care areas” do not include cafeterias. 442 U.S. 773, at 786.
Thus, the Respondent failed to present any credible evidence
that any of the cafeterias at its hospitals involved in this case
constitute “work areas” or “immediate patient care areas.”
In addition, no evidence was presented establishing that un-
ion solicitation or distribution in the cafeterias caused or result-
ed in any disruption in patient care. In particular, there was no
evidence offered to establish that Malloy’s soliciting in the
Mercy Hospital cafeteria caused a disruption in patient care.
As purported justification, the Respondent presented Kane’s
testimony that Respondent’s alleged need for the Solicitation
and Distribution Policy was due to the operation of the cafete-
ria. For example, he testified that the Presbyterian Cafeteria
was busy around meal times, especially at lunchtime, that he
had complaints that it took too long for employees to get lunch
in the cafeteria as their lunchtime was only 30 minutes long,
and that patients without dietary restrictions were able to use
the cafeteria if they missed a meal. Kane’s testimony that he
“believe[d]” the cafeteria plays a part of patient care because
the cafeteria “feed[s] the caregivers that are taking care of the
patients,” is not supported by record evidence. In fact, the rec-
ord is devoid of any credible evidence establishing that feeding
caregivers equates to “immediate patient care,” or even if it did,
that Malloy’s protected activity interfered with or disrupted
such patient care. The Respondent’s assertions in that regard
are therefore meritless, and they fail to establish under extant
Board law that a ban on solicitation by off-duty employees
during non-working time, in non-working areas is necessary or
justified. Beth Israel Hospital, supra. Accordingly, the Re-
spondent’s maintenance and enforcement of the Solicitation
and Distribution Policy prohibiting solicitation and distribution
by off duty employees during non-working time, in non-
working areas, constitutes a violation of Section 8(a)(1) of the
Act.
As such, I find that under the Board’s new analysis set forth
in The Boeing Company, supra, the portion of Respondent’s
Solicitation and Distribution rule discussed above is properly
categorized as a Category 3 rule that is unlawful to maintain
because it prohibits or limits employees’ Section 7 protected
conduct, and the adverse impact on such rights is not out-
weighed by the alleged justifications associated with that rule.
365 NLRB No. 154, slip op. at 2–3.
c. The Respondent’s assertion that the rule at issue constitutes a
lawful “no-access” rule for off-duty employees is without mer-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it, and even assuming that assertion were accurate, its argument
that prohibiting off-duty employee access to the cafeterias is
lawful because off-duty employees are more analogous to non-
employees or the general public, rather than employees,
is unpersuasive.
As mentioned above, the Respondent alleges that its Solicita-
tion and Distribution policy is not vague or ambiguous, and that
it clearly bans off-duty employee access to its cafeterias, which
it alleges is not unlawful and supported by legal precedent. In
that connection, the Respondent asserts that its definitions
“clearly establish what status an employee holds with regard to
being able to solicit under the [Solicitation and Distribution]
policy, and defines their rights accordingly.” (R. Br. at p. 11)
According to the Respondent, the “NLRB has clearly recog-
nized that different rules apply to employees who were not
scheduled to work or who were not scheduled to be on an em-
ployer’s property, and has developed guidelines to address what
rights off-duty employees have…,” citing Tri-County Medical
Center, Inc., 222 NLRB 1089 (1976) as support for that propo-
sition. (R. Br. at p. 11)
The Respondent, relying on the Board’s decision in GTE
Lenkurt, Inc., 204 NLRB 921 (1973), overruled on other
grounds in Resistance Technology, Inc., 280 NLRB 1004, 1007
fn. 7 (1986), enfd. 830 F.2d 1188 (D.C. Cir. 1987), asserts that
off-duty employees are “more analogous” for purposes of ac-
cess to “a nonemployee, and [they are] subject to the principles
applicable to non-employees.” (R. Br. at 13–14) The Respond-
ent further asserts that since the General Counsel did not pre-
sent evidence that Mercy Hospital “advertised or opened the
cafeteria to the general public,” or that the public was “invited
into the cafeteria to dine,” the public does not have access to its
cafeteria. (R. Br. p. 14) Simply put, the Respondent reasons
that since off-duty employees are allegedly “more nearly anal-
ogous to members of the general public with regard to rights to
access,” and since the general public has allegedly been denied
access to the cafeteria, its off-duty employees (such as Malloy)
are to be treated like the public and are “not [allowed] to solicit
or distribute in the cafeteria.” (R. Br. at 13–14) On that basis,
the Respondent asserts that it has not violated the Act by main-
taining and enforcing its policy.
The Respondent’s arguments, however, are not supported by
the record. In this connection, the record does not establish that
the public has been denied access to the Respondent’s facilities
or their cafeterias. To the contrary, as Malloy credibly testified,
the “general public” and patients’ families have access to, and
were present at the Mercy Hospital cafeteria. In addition,
whether the Respondent “advertised” that the cafeteria was
opened to the public, or whether it officially “granted access” to
the public for use, is immaterial. The record simply does not
establish, as the Respondent alleges, that the public has been
prohibited or barred from access to the facilities or their cafete-
rias. Thus, the Respondent’s argument on this point is unper-
suasive.
In addition, the record does not support the Respondent’s as-
sertion that its policy clearly provides that access to the cafete-
ria is banned for off-duty employees. Section IV. D. of the
Solicitation and Distribution Policy actually provides that while
off-duty employees may not enter work areas of the facility for
any purpose, they may enter the cafeteria. Importantly, the
Respondent’s assertion is also contradicted by the undisputed
evidence establishing that when Malloy was confronted by
Manager Hritz and identified himself as being “off duty” be-
cause he worked third shift, Hritz did not inform him that the
UPMC Solicitation and Distribution Policy prohibited access to
the cafeteria for off-duty employees. Instead, Hritz informed
him that Malloy could be there talking to people while off duty,
but he could not distribute materials or solicit when he was off
duty. (Tr. 126, 134–136) In addition, it is important to note that
the complaint in this case does not allege that Respondent un-
lawfully maintained and enforced an unlawful “no access”
policy for off-duty employees, but rather that it maintained and
enforced an unlawfully overbroad “no solicitation and distribu-
tion policy” (Section IV. A.) which prohibits off-duty employ-
ees from solicitation in the cafeteria (a non-work area).11
However, in addressing the Respondent’s arguments, even
assuming the policy clearly denied off-duty employees’ access
to the facility and cafeteria as Respondent alleges it does, the
Respondent’s arguments lack legal support. It is true that the
Section 7 right of employees to organize on their employer’s
property is fundamentally different from the rights of non-
employees, such as union organizers. Town & Country Super-
markets, 340 NLRB 1410, 1413 (2004); Gayfers Department
Stores, 324 NLRB 1246, 1249 (1997). As explained in Gay-
fers:
The Supreme Court has recognized a “distinction of sub-
stance” between the rights of employees who are rightfully on
the employer’s property pursuant to the employment relation-
ship and nonemployee union organizers, and distinctly differ-
ent rules of law apply to each. Under Republic Aviation
[Corp. v. NLRB, 324 U.S. 793 (1945)], the standard governing
the rights of employees, an employer may not bar the distribu-
tion of union literature in nonworking areas of its property
during nonworking time unless the employer can justify its
rule as necessary to maintain discipline and production. 324
U.S. at 113 [324 NLRB at 1249.]
In Town & Country Supermarkets, the Board noted that, in
contrast, nonemployees may be treated as trespassers and are
entitled to access to the premises only if they have no reasona-
ble nontrespassory means to communicate their message. Cit-
ing NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956);
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The Board in
Town & Country Supermarkets thus recognized that “[t]he
critical distinction is that employees are not strangers to the
employer’s property, but are already rightfully on the employ-
er’s property pursuant to their employment relationship, thus
implicating the employer’s management interests rather than its
property interest. 340 NLRB at 1414; citing Hudgens v. NLRB,
424 U.S. 507, 521 fn. 10 (1976); Eastex, Inc. v. NLRB, 437
U.S. 556, 571–573 (1978). The Board therefore concluded
that, “under Republic Aviation, supra, off-duty employees may

11 As mentioned above, Section IV. A. provides that the only per-
missible solicitation is by employees on “non-working time,” and there-
fore solicitation by off-duty employees is prohibited.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 17
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
engage in protected solicitation and distribution in nonwork
areas of the employer’s property.” Id. at 1414.
The Respondent, ignoring the Republic Aviation principles,
relies instead on the 40-year-old Board holding in GTE
Lenkurt, supra, in support of its argument. In GTE Lenkurt, the
Board found that a rule which prohibited off-duty employees
from “enter[ing] the plant or remain[ing] on the premises” was
“presumptively valid absent a showing that no adequate alter-
native means of communication are available.” 204 NLRB at
921. In that case, the Board, in so finding, reasoned that off-
duty employees were “more nearly analogous” to non-
employees than employees with respect to access to an employ-
er’s premises. Id.
However, in Capital Medical Center, 364 NLRB No. 69, slip
op. at 4, fn. 10 (2016), the Board found that its holding in GTE
Lenkurt has “long since been superseded.” In that case, the
Board noted that in Nashville Plastic Products, 313 NLRB 462,
463 (1993), the Board specifically rejected that reasoning and
held that off-duty employees should not be treated like non-
employees, such as nonemployee union organizers, for purpos-
es of access. In Nashville Plastic Products, the Board observed
that in Tri-County Medical Center it “narrowly construed” the
holding of GTE Lenkurt in order to prevent undue interference
with the rights of employees under Section 7 of the Act” and
established a test for determining whether a no-access rule for
off-duty employees is valid.12
In light of Tri-County Medical Center and Nashville Plastic
Products, the Board in Capital Medical Center determined that
GTE Lenkurt, the case relied upon by Respondent, is “no longer
good law with respect to the validity of an off-duty no-access
rule.” Id. slip op. at 4. While the Board recognized that reli-
ance on the principle articulated in those cases that the legality
of off-duty no-access rules rest on a balancing of the employ-
er’s property rights against the impact of the rule on employee
Section 7 rights is proper, it reiterated that such a balance is
found by application of Republic Aviation and its progeny.
Capital Medical Center, supra, slip op. at 4, fn. 10; See e.g.

12 In Tri-County Medical, the Board held that such a rule is valid on-
ly if it (1) limits access solely with respect to the interior of the plant
and other working areas; (2) is clearly disseminated to all employees;
and (3) applies to off-duty employees seeking access to the plant for
any purpose and not just to those employees engaging in union activity.
I find that such an analysis is neither necessary nor appropriate here as
the instant case involves the validity of a no-solicitation rule, not a no-
access rule. However, even assuming the Tri-County standard was
applicable to this case, Respondent’s policy is unlawful under the third
prong of that standard. Even assuming the policy generally prohibited
off-duty access, the Respondent’s policy (Section 2) contains an excep-
tion, indefinite in scope, under which off-duty access is permitted for
“[a]ctivities sponsored and approved by UPMC or a business unit’s
President . . . such as United Way campaigns.” (GC Exhs. 3, 4, and 5)
In Piedmont Gardens, 360 NLRB 813, 813–814 (2014), the Board
found that such an exception unlawful as it “gives the Respondent
‘broad—indeed, unlimited—discretion ‘to decide when and why em-
ployees may access the facility.’” Citing, J.W. Marriott Los Angeles at
L.A. Live, 359 NLRB 392, 392, (2012) (quoting Sodexo America LLC,
358 NLRB 668, 669 (2012) (finding facially unlawful a rule prohibiting
off-duty access except in unspecified circumstances with prior approval
of a manager)).
Saint John’s Health Center, 357 NLRB 2078, 2081–2082
(2011). Thus, even assuming the Respondent’s policy consti-
tutes a no-access rule for off-duty employees, the Respondent’s
assertion that off-duty employees are “more analogous” for
purposes of access to nonemployees, and they are therefore
subject to the principles applicable to nonemployees, is without
merit or legal support. Accordingly, I find the Respondent’s
arguments set forth above are misplaced and without merit.
Instead, I find that based on the well-established law dis-
cussed above that is grounded in the Supreme Court’s landmark
decision in Republic Aviation, supra, the Respondent’s mainte-
nance and enforcement of its Solicitation and Distribution Poli-
cy prohibiting solicitation and distribution by off-duty employ-
ees during non-working time, in non-working areas, has an
extensive adverse impact on the protected Section 7 rights of
employees, and that special circumstances or legitimate justifi-
cations have not been established which would outweigh the
adverse impact the rule has on employees’ Section 7 rights. As
such, Respondent’s maintenance and enforcement of the rule
constitutes a violation of Section 8(a)(1) of the Act.
B. Respondent’s Oral Announcement, Promulgation, and
Maintenance of a Rule Prohibiting Employees from Distrib-
uting Non-work Materials in Non-work Areas
1. The Facts
As mentioned above, regarding the distribution of non-work
materials at its facilities, UPMC Presbyterian Shadyside Hospi-
tal, UPMC Mercy Hospital, and UPMC Children’s Hospital
maintain a UPMC Solicitation and Distribution Policy that
provides that “No staff member may distribute any form of
literature that is not UPMC related business or staff duties at
any time in any work, patient care, or treatment areas.” (GC
Exh. 3, 4, 5, IV. C) However, the record establishes Respond-
ent also orally announced, promulgated, and maintained a Dis-
tribution Policy that also prohibited employees from distrib-
uting non-work materials in non-work areas, and that such poli-
cy was enforced at Presbyterian Shadyside Hospital.
The facts regarding this allegation are essentially undisputed.
The record establishes that there is an employee break room
located on 12 South of Presbyterian Shadyside Hospital, which
is also referred to as the “staff lounge.” (Tr. 341) The break
room contains a counter, sink, refrigerator, microwave, coffee
makers, staff employee lockers, places to hang coats, a time
clock, and tables and chairs. (Tr. 341) The employee break
room is a non-work area and it is not an immediate patient care
area. In this regard, the record establishes that the break room
is used by the nurses and aides and other employees who work
in that unit primarily for lunch breaks, spending any “down
time” they may have, and for meetings, which include monthly
staff meetings. (Tr. 72–73, 341–342) The break room is not
open to or utilized by the public. (Tr. 116, 351)
Lorraine Fabrizi, who is currently retired, at that time held
the position of Health Unit Coordinator at UPMC Montefiore
Hospital, which is connected to and considered a part of
UPMC Presbyterian Shadyside Hospital. (Tr. 69–71) Fabrizi,
who was employed from 2003 until September 2015, testified
that during her employment she had always seen papers left on
the tables in the 12 South employee break room. (Tr. 72–73)
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fabrizi testified that it was “past practice” for employees to
leave papers on the break room tables, such as Avon books and
orders for items such as candy that employees would sell for
their children. (Tr. 74) She also testified that papers were left
on the break room tables “all the time,” and that “there was
always something there.” (Tr. 74–75) Current UPMC East
employee Jamie Hopson, who previously worked as a Patient
Care Technician at Presbyterian Shadyside 12 South, also cred-
ibly testified that prior to November 2015, she had seen papers
left in the 12 South break room by employees who were selling
things, such as Avon products and hoagies during football sea-
son, for their children. (Tr. 112, 116) In addition, Hopson testi-
fied that she left union flyers in the 12 South break room in
November 2015. (Tr. 114–115) Fabrizi’s and Hopson’s testi-
mony that flyers and papers were routinely distributed or left by
employees in the break room was also corroborated by Re-
spondent witness Jamie Scalise, the Unit Director for 12 South
of Presbyterian Shadyside Hospital, who acknowledged that
items were left by employees in the break room, and that such
items included menus and flyers. (Tr. 342–343)
Fabrizi testified that in September 2015, she attended a staff
meeting held by Scalise in the 12 South break room. (Tr. 72–
73) She testified that approximately 6–7 employees consisting
of nurses and aides were present. During that meeting, Scalise
took pamphlets and flyers that were on the break room table
and threw them in the garbage. (Tr. 72–73) She testified that
the pamphlets included a flyer from the Union, an Avon book-
let, and other pamphlets concerning items being sold by em-
ployees at work, such as candy for school and Girl Scout cook-
ies. (Tr. 73) As Scalise threw the items in the trash, she stated
“it’s solicitation,” and that UPMC has a policy that employees
are not allowed to solicit. (Tr. 73) Scalise also informed the
employees that there would be no more papers or pamphlets of
any type put out on the tables in the break room. (Tr. 73, 78)
Scalise, who testified for the Respondent on this issue, ad-
mitted to holding a staff meeting to discuss the distribution
policy, and that in that meeting, she stated that the union flyer
violated that policy.13 Scalise testified that she holds staff
meetings once a month, at three different times. Between the
October and December meetings, she was given a union flyer
by a “member of the management team.” (Tr. 350) She testi-
fied that for the December staff meeting, she included on her
written “agenda” for that up-coming meeting a discussion con-
cerning the “solicitation and distribution policy.” (Tr. 347) The
agenda, entitled “Unit 12S Staff Meeting Agenda,” dated De-

13 I note that while Fabrizi testified that staff meeting where she ad-
dressed the distribution policy occurred in September 2015, Scalise
testified that it was in December 2015. (Tr. 71, 343) Although there is
some discrepancy in the record as to when the staff meeting took place,
the actual date of the meeting is immaterial because there is no dispute
about what Scalise said in the meeting. In any event, while I found
Fabrizi to be a credible witness, I find that she may have been mistaken
as to the month. It is more plausible that the meeting occurred in De-
cember 2015 because Hopson credibly testified (as discussed below)
that she left a union flyer in the break room in November 2015, which
appears to have prompted Scalise to address the issue of distributing
non-UPMC materials in the break room by placing the issue on the
agenda for her December staff meeting.
cember 10, indicated that one of the items to be addressed was
“posting non-upmc paper.” (Tr. 345–346; R. Exh. 4) Scalise
admitted that in the December 2015 staff meeting, she dis-
cussed the distribution policy, addressed distributing non-
UPMC materials, and during that meeting she stated that the
union flyer violated the policy. She specifically testified that
during the December staff meeting, she told the employees that
“they were not allowed to leave or post things in the break
room [or] to leave them there if they were not UPMC related.”
(Tr. 347) Scalise admitted that she specifically mentioned un-
ion flyers as one of the documents that was “not UPMC relat-
ed,” and therefore were not permitted to be posted, distributed,
or left on the break room tables. (Tr. 347) While Scalise testi-
fied that she did not remember if she had thrown anything away
during the meeting, she offered no reason for throwing any of
the flyers or pamphlets away other than that they allegedly
violated the distribution policy.
The record establishes that the break room was routinely
cleaned by the housekeeping staff. (Tr. 116, 351) The Re-
spondent did not present any credible evidence that litter from
flyers or pamphlets created a hazard or unsafe conditions in the
break room, and it offered no business or safety related reasons
for prohibiting solicitation and distribution of flyers in the
break room where only employees had access and use of that
space.
Fabrizi testified that during that time period she had seen
Nurse Aide Jamie Hopson placing some union pamphlets on
the table in the break room, so shortly after that staff meeting
when she saw Hopson again, she told Hopson she should not
put the pamphlets down in the break room anymore because of
the policy and if she did so she was going to get in trouble. (Tr.
74, 78) Hopson testified that she had in fact placed a union
flyer in the 12 South break room in November 2015. (Tr. 115)
That flyer was a one-page document with a purported heading
of an article from the Pittsburgh Post-Gazette dated November
10, 2015, which read “Wage Committee Testimony ‘Shocking,’
Councilman Says.” (Tr. 115, GC Exh. 12) That flyer stated:
“Hospital workers shared formal testimony with City for ALL
Wage Review Committee and are spreading the truth about
hospital jobs,” and it included a photograph of Hopson and a
quote from her regarding her pay and ability to save money.
(GC Exh. 12) When Hopson went into the break room the next
day, the union flyer was no longer there. (Tr. 116)
According to Hopson, after Fabrizi advised her not to leave
pamphlets in the break room anymore, she initiated a conversa-
tion with Scalise in which she asked Scalise how she was vio-
lating the Solicitation Policy by putting out union flyers, be-
cause she wasn’t selling anything or asking for money, which
was her understanding of “solicitation.” (Tr. 112–114) In re-
sponse, Scalise told her that she was not allowed to put flyers
out, but she was allowed to talk about the Union. (Tr. 112)
Although Respondent called Scalise as a witness, she did not
provide testimony regarding her conversation with Hopson, and
thus Hopson’s assertions are uncontradicted.
Fabrizi testified that since the staff meeting with Scalise
where she informed the staff that they could not engage in dis-
tributing pamphlets or flyers in the break room, she no longer
saw any papers on the table in the 12 South break room. (Tr.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 19
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
74) In addition, Hopson also testified that since her conversa-
tion with Scalise she no longer distributed or left any union
flyers in the break room. (Tr. 117)
2. Analysis
The undisputed evidence establishes that even though the
written Solicitation and Distribution Policy maintained by
UPMC Presbyterian Shadyside Hospital, UPMC Mercy Hospi-
tal, and UPMC Children’s Hospital provides that distribution of
non-UPMC related material is prohibited at any “work, patient
care, or treatment areas,” (GC Exhs. 3, 4, and 5, Section IV. C.)
the Respondent orally announced, promulgated, and maintained
an unwritten Distribution Policy that prohibited employees
from distributing non-work materials in non-work areas. That
unwritten policy, however, was not just applicable to Presbyter-
ian Shadyside Hospital, where there is evidence of its enforce-
ment. Instead, the evidence appears to establish that the un-
written policy was applicable at all three of the Respondent
Hospitals involved in this case. In fact, the Respondent
acknowledged such in its position paper dated May 9, 2016,
submitted by Counsel for Respondent to the government during
the investigation of this case, stating:
The policy against posting is not contained within the Solici-
tation and Distribution Policy. It is a long term, unwritten
policy which forbids the posting of anything anywhere on
Hospital property by anybody that is not official Hospital
business. Posting includes leaving behind materials in either
working or non-working areas of the Hospitals, as well as af-
fixing anything to bulletin boards, walls, doors, lockers, win-
dows, pillars, and furnishings on or in Hospital property. (GC
Exh. 15)”14
In addition, Scalise’s announcement of the unwritten distri-
bution policy appeared to be consistent with Respondent’s in-
structional chart attached to GC Exhibit 6, which was purport-
edly provided to supervision in management training, which
would include the Respondent Hospitals in this case. (Tr. 279)
That instructional chart provided that on-duty and off-duty
employees were prohibited from distributing literature in non-
patient areas that are non-work areas during non-work time.
(GC Exh. 6)
The Board has long held that an employer may lawfully pro-
hibit employees from distributing literature in work areas in
order to prevent a hazard to production that could be created by
littering the premises. Stoddard-Quirk Mfg. Co., 138 NLRB
615 (1962). However, in general, rules or policies prohibiting
distribution of literature will be deemed unlawful if they restrict
distribution on non-working time in non-working areas. NLRB
v. Magnovox Co. of Tennesee, 415 U.S. 322, 324 (1974). The
Board has also held that an employer’s right to preclude distri-
bution of literature in working areas does not apply to mixed-
use areas. DHL Express, Inc., 357 NLRB 1742, 1742 fn. 1

14 It is well established Board law that respondent position papers
submitted to the NLRB are admissible and can be construed as admis-
sions. See Evergreen America, 348 NLRB 178, 187–188 (2006);
Smucker, 341 NLRB 35, 38–40 (2004); Tarmac America, 342 NLRB
1049 (2004); United Scrap Metal, Inc., 344 NLRB 467, 468 fn. 5
(2005); Black Entertainment Television, Inc., 324 NLRB 1161 (1997).
(2011); Superior Emerald Park Landfill, LLC, 340 NLRB 449,
456–457 (2003); Transcon Lines, 235 NLRB 1163, 1165
(1978), affd. in relevant part 599 F.2d 719 (5th Cir. 1979) (em-
ployer failed to meet burden of establishing that distribution in
an area used for recreation as well as work, occurred in a work
area or during work time). Nor does that principle extend to
areas used for activities only incidental to the employer’s main
function. Santa Fe Hotel & Casino, 331 NLRB 723, 723
(2000).
In MTD Products, Inc., 310 NLRB 733 (1993), the Board
held that an employer rule prohibiting solicitation or distribu-
tion “[o]n Company premises . . . unless approved by the Com-
pany,” was, on its face, overly broad and presumptively unlaw-
ful because it was not restricted to working time. See Our Way,
Inc., 268 NLRB 394 (1983). In that case, the Board found that
the employer failed to rebut that presumption by communi-
cating or applying the rule in such a way as to convey intent
clearly to permit solicitation during breaktime or other periods
when employees were not actively working, and that the rule
prohibiting “all solicitation and distribution” was overly broad
in violation of Section 8(a)(1) of the Act.
These principles have been applied in the health care setting,
as it is well established that health care facilities, such as the
Respondent Hospitals, are permitted to prohibit distribution in
immediate patient care areas, but must show a disruption of
health care operations or disturbance of patient care for a blan-
ket no-distribution rule applicable to nonpatient care areas to be
lawful under the Act. Beth Israel Hospital, 437 U.S. 483, 507
(1978). Thus, as a health care facility, the Respondents must
demonstrate a disruption to patient care for the no-distribution
rule applicable to nonpatient care areas to be lawful under the
Act.
The Respondent prohibited the distribution of materials in
the Presbyterian Shadyside Hospital break room, which undis-
putedly is a nonpatient care and a non-work area. I find such a
rule is overly broad and presumptively unlawful. When this
rule was invoked, it did not draw a distinction between patient
care/work areas and nonpatient care/non-work areas. In fact,
the Respondent admitted this Distribution Policy bans the
“posting of anything anywhere on Hospital property by any-
body that is not official Hospital business.” (GC Exh. 15)
Moreover, in this case, the Respondent failed to present any
evidence establishing a disruption of patient care when em-
ployees distribute materials in non-immediate patient care areas
(such as in the employees’ break room) which would warrant a
broad prohibition. As mentioned above, even though the policy
was announced and enforced at Presbyterian Shadyside Hospi-
tal, the evidence establishes that it was applicable to and main-
tained by the all of the Respondent Hospitals involved in this
case. Accordingly, I find that Respondent UPMC Presbyterian
Shadyside, UPMC Mercy, and UPMC Children’s Hospitals’
oral announcement, maintenance, and enforcement of the over-
ly broad Distribution Policy violated Section 8(a)(1) of the Act.
With regard to this complaint allegation, the Respondent ar-
gues that its rule, as announced and promulgated by Scalise,
pertains to posting documents and leaving material in the break
room, and is simply a “housekeeping rule” which is “separate
and distinct from the Solicitation and Distribution Policy.” (R.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Br. p. 20–23) Incredibly, the Respondent goes so far as to as-
sert that employees placing union flyers on the table in the
break room and leaving them there did not “involve distribu-
tion, but rather the leaving behind or posting of materials. . . .”
(R. Br. p. 22) These assertions, however, are without merit.
Initially, I point out that Respondent’s argument is not sup-
ported by the record. The placement of union materials on the
tables in the break room and posting the material in that room
constituted “distribution” of union material. It is undisputed
that when Scalise addressed the employees in her staff meeting,
she was referring to the placement of material on the table or
posted in the break room as “distribution.” In this connection,
Fabrizi credibly testified that as Scalise picked up the materials
on the table, she stated “it’s solicitation,” and told the staff that
UPMC had a policy that employees were not allowed to solicit,
and she further informed the employees that they were prohib-
ited from placing papers or pamphlets of any type on the tables
in the break room. (Tr. 73, 78) Thus, it is clear that Scalise was
referring to the policy pertaining to the solicitation and distribu-
tion of material in that non-work area, rather than simply a
housekeeping rule.
Most importantly, however, the Respondent’s assertions that
Scalise was not commenting on employees “distributing” mate-
rials during non-working time or in non-working areas, but
instead was only discussing “the posting of materials or leaving
materials behind in the break room,” is belied by her testimony
on direct examination concerning the staff meeting, where she
stated that the agenda reference to “the posting [of] non-UPMC
paper was a discussion of the solicitation and distribution poli-
cy.” (Tr. 347) Critically, the argument that placing and leaving
union literature on the tables in the break room did not consti-
tute “distribution” simply because it was left there for other
employees to read if they desired, is also unsupported by Board
law. In fact, Page Avjet, Inc., 278 NLRB 444, 450 (1986), one
of the cases cited by the Respondent in support of its position,
concerned an employer’s “distribution procedure” that consist-
ed of “plac[ing] the literature on the tables for the employees to
take and read as they desired.” Id. at 450.
The Respondent’s assertions that this matter involves a
“housekeeping rule” and that it did not violate the Act because
throwing out the material on the tables was not unlawful, re-
veals that it mischaracterizes the issue at hand. The complaint
does not allege that the act of collecting and throwing away the
union literature in the break room violated the Act. Instead, it
alleges that the Respondent violated the Act by orally announc-
ing, promulgating, and maintaining a distribution policy that
prohibited employees from distributing non-work materials in
non-work areas. The Respondent’s characterization of this
issue as being a “housekeeping” matter is therefore not accurate
and it is unsupported by the record.
I further find that Respondent’s reliance on the cases cited in
support of that argument is misplaced. In that connection, that
the Respondent specifically relies on Page Avjet, Inc., 278
NLRB 444 (1986) and North American Refractories, Co., 331
NLRB 1640 (2000) in support of its assertion that it did not
violate the Act. I find, however, that both cases are unpersua-
sive. In Page Avjet, supra, the Board affirmed the Administra-
tive Law Judge’s decision wherein one finding was that a su-
pervisor did not violate the Act, when, on one occasion after an
employee break ended in the break room, he picked up union
literature that was “scattered on the floor and left on the tables.”
Id. at 450. The judge found that employees did not have the
right to “clutter break areas with union literature.” Id. Unlike
that case however, in the instant case there is no evidence that
the union flyers were scattered on the floor or that employees
“cluttered” the break room with union literature. In addition, in
the instant case, the Respondent informed employees that they
could not distribute material in the break room by leaving it on
the tables or posting it, while the employer in Page Avjet main-
tained a distribution procedure that allowed employees to place
literature on the tables for the employees to take and read if
they desired, and the employees had freely distributed literature
without incident. Id. Furthermore, as mentioned above, Page
Avjet involved an issue of whether the employer violated the
Act by picking up the literature in the break room, which dif-
fers from the instant case that involves whether the Respondent
violated the Act by announcing, promulgating, and enforcing a
policy that prohibited the distribution of material on non-work
time in non-work areas such as the break room in question.
Therefore, Page Avjet is clearly distinguishable from the instant
case.
I further find that Respondent’s reliance on North American
Refractories, Co., 331 NLRB 1640 (2000) is misplaced. In
North American Refractories, an employer, during a union
organizing drive, confiscated and removed union literature
from the employee lunchroom to enforce its housekeeping
rules, and the Administrative Law Judge found no violation of
the Act with regard to that allegation, and dismissed it. In that
case, however, no exceptions were taken to the judge’s recom-
mended dismissal of that allegation of disparate enforcement of
the housekeeping and distribution rules. North American Re-
fractories, 331 NLRB 1640 fn. 1. Therefore, that issue was
never before the Board, and the judge’s findings with regard to
that allegation have no precedential value.15

15 In addition, even if exceptions had been taken to the allegations at
issue, I note that the facts of North American Refractories are distin-
guishable from the instant case. Unlike the case at hand, in that case
the evidence showed that employees were often reminded of the em-
ployer’s emphasis on cleanliness in work and non-work areas and the
company’s expectation that workers and supervisors would pick up
after themselves in the lunchroom, and the union campaign resulted in
leaflets being left on tables, counters, microwaves, refrigerators, and on
the floor resulting in complaints by other employees concerning “fre-
quent disarray in the lunch and locker rooms, contrary to normal ap-
pearance.” Id. at 1641. No such facts exist in the instant case. In addi-
tion, while in the instant case the employees were informed that distrib-
uting material, including union flyers, constituted a violation of the
Solicitation and Distribution Policy, the company officials in North
American Refractories had expressly informed inquiring employees
that they were free to distribute prounion flyers in the lunchroom dur-
ing breaks, and the employer did not interfere when the employees did
so. Id. at 1642–1643. In addition, and most importantly, unlike the
instant case where the issue is whether the Respondent unlawfully
announced and promulgated a distribution policy banning the distribu-
tion of literature on non-work time in non-work places, the issue in
North American Refractories was whether the employer’s gathering up
the literature violated the Act. Id. at 1643.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 21
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
C. The Respondent UPMC Children’s Hospital’s alleged un-
lawful threats and creation of the impression of surveillance of
employees’ union and protected activities, in violation of
Section 8(a)(1) of the Act
1. The alleged unlawful statement or threat in October 2015 by
Supervisor Linda Terry.
Pamela Banks, a Lead Medical Assistant employed by Re-
spondent UPMC Children’s Hospital on the third floor of the
Ambulatory Department, worked full-time from 7 a.m. to 4:30
p.m. on the day shift. (Tr. 31) In October 2015, a photograph
of her was placed on a union flyer because she was in attend-
ance at one of the union meetings.
Banks testified that on a day in October 2015, at some time
during her afternoon work shift on the third floor of the facility,
she had a conversation with Linda Terry, the Children’s Hospi-
tal Supervisor of Outpatient Registration. (Tr. 32–33) Terry did
not supervise Banks, but Terry did have an employee who
worked as a receptionist in Banks’ department, so she did have
some occasion to speak to Terry. (Tr. 61, 156). According to
Banks, Terry approached her in the hallway and told her that
she saw Banks’ face “on the front of a union paper around the
hospital,” and that Banks “should be careful about leaving [her]
union flyers laying around the hospital.” (Tr. 32–34, 153)
Banks responded that she was allowed to attend union meetings
if she wanted. Banks testified that no one else was present
when Terry made that statement to her about the union flyer,
and that she responded by telling Terry she had the right to
attend union meetings because the flyer Terry was referring to
contained a picture of Banks at a union meeting. (Tr. 62)16
Terry, who testified on the Respondent’s behalf in this pro-
ceeding, denied having this conversation with Banks. In fact,
Terry denied having any conversation with Banks regarding her
photograph being on a union flyer. (Tr. 169)
2. The alleged unlawful statement by Supervisor Linda Terry
in December 2015 and creation of the impression that the em-
ployees’ union and protected activities were under surveillance.
Banks testified that on or about December 16, 2015, Terry
approached her while she was walking in the hallway at work
and asked to speak with her. Banks and Terry went into an
exam room where they were by themselves. (Tr. 38) Accord-
ing to Banks, Terry told her that “they” had seen “Tasha,”17 a
Medical Assistant who also worked on that third floor ambula-
tory department, “passing out flyers out in front of the hospital,
and that they had her on tape.” (Tr. 38) Terry did not identify
to Banks who “they” were. (Tr. 39) Banks responded that “she
[was] allowed to pass out flyers” and “she was in front of the
bus stop at the hospital, not on hospital property.” (Tr. 38)
According to Banks, Terry responded that Tasha “has a lot of
balls to be passing out flyers in front of Children’s Hospital.
She is – don’t you know she is on the verge of being fired, and
how stupid is she[?]” (Tr. 38) Terry then told Banks that they
“shouldn’t be passing flyers out on UPMC’s property” and that

16 Terry and Banks also engaged in another conversation in October
2015 regarding a wage report flyer that was allegedly sent to Respond-
ent’s Human Resources Department. (Tr. 35–37; GC Exh. 11).
17 Tasha’s last name was not identified in the record.
“I would be careful, you never know who is watching.” (Tr. 39)
Banks testified that she understood that Terry was referring
to union flyers in that conversation, and that she told Terry she
would “let Tasha know.” (Tr. 39) Banks further testified that 2
days prior to her conversation with Terry, she saw Tasha pass-
ing out union flyers at the bus stop in front of Children’s Hospi-
tal. (Tr. 40–42)
While Terry acknowledged that in December 2015 she had a
conversation with Banks regarding employees passing out fly-
ers at the bus stop outside the facility, her version of that con-
versation differed significantly from that conveyed by Banks.
While Banks testified that Terry approached her in the hallway,
Terry testified that it was Banks who approached her and initi-
ated the conversation. (Tr. 163–166, 193) Terry testified that
she was standing outside her office on the second floor by the
window that looks out onto the bus stop in front of the hospital,
and while she was looking out the window Banks approached
her and said “Ms. Lin, it wasn’t me passing out flyers.”18 (Tr.
163–166, 185) Terry testified that she responded “[I] never
said it was” and “I didn’t never say it was you passing out fly-
ers.” (163–166) Terry testified that Banks then told her, “It was
Tasha.” (Tr. 166) In response, Terry told Banks that “[i]f any-
one is doing anything illegally outside there’s cameras outside
of the hospital.” (Tr. 166)19
According to Terry, that was the “entire conversation” with
Banks in December 2015, and she claimed that conversation
was the only one she had with Banks concerning flyers. (Tr.
169) Furthermore, in Terry’s testimony, she admitted on cross-
examination that she was aware there was a union organizing
campaign at the Respondent’s facilities (Tr. 190–191), there
were surveillance cameras around Children’s Hospital that
would record activity at the bus stop (Tr. 182, 195), and that in
her conversation with Banks, she mentioned the surveillance
cameras and the possibility that something could be illegal. (Tr.
182) However, she never offered an explanation as to how or
why the passing out of flyers at the bus stop would be illegal.
In that connection, she never mentioned on direct examination
that the flyers Banks referenced were “union” flyers. In fact,
when asked what she understood Banks to mean by her refer-
ence to “flyers,” she simply answered: “paper.” (Tr. 166) She
also testified that she was not aware that Banks was involved in
any union activities. (Tr. 193)
3. The credibility determinations
As mentioned above, there is conflicting testimony regarding
the facts concerning these allegations. Terry denied having the
conversation with Banks in October 2015 where she allegedly
told Banks that she saw her face on the front of a union paper,
and that she should be careful about leaving union flyers
around the hospital. In addition, while Terry admitted to hav-
ing a conversation with Banks regarding employees passing out

18 This reference to “Lin” was not explained. Presumably, it is an
abbreviation for “Linda,” which is Terry’s first name.
19 On cross-examination, she also testified that she told Banks, “If
someone is doing something outside that’s illegal there’s cameras out-
side that we [sic] catch that.” (Tr. 195)
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
flyers at the bus stop outside the facility, Terry’s version of that
conversation differed from that conveyed by Banks.
In instances such as these where the testimony of the General
Counsel’s witness differs from the testimony of the Respond-
ent’s witness, as the finder of fact, I must determine the credi-
bility of the witnesses. Credibility determinations may rely on
a variety of factors, including the context of the witness’ testi-
mony, the witness’ demeanor, the weight of the evidence, es-
tablished or admitted facts, reasonable inferences that may be
drawn from the record as a whole, and the inherent probabilities
of the allegations. Double D Construction Group, Inc., 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001)(citing Shen Automotive Dealership Group, 321 NLRB
586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003).
Credibility findings need not be all or nothing propositions.
Indeed, nothing is more common than for a judge to believe
some, but not all, of the testimony of a witness. Daikichi Sushi,
335 NLRB at 622; Jerry Ryce Builders, Inc., 352 NLRB 1262
fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951). Accord: General Fabrications Corp., 328 NLRB 1114
fn. 1 (1999), enfd. 222 F.3d 218 (6th Cir. 2000). See also J.
Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007).
My observation during the trial was that Banks was a very
credible witness. She appeared to be honest and sincere in her
demeanor. She calmly presented testimony that was consistent,
convincing, and plausible. On the other hand, Terry presented
testimony that was less convincing. In particular, I found that
Terry’s demeanor was guarded, defensive, and frequently eva-
sive. Her testimony was also not credible because at times it
was inconsistent, contradictory, implausible, and simply not
believable. When it came to Terry’s testimony regarding her
contact and interactions with Banks, she was particularly incon-
sistent. On one hand, Terry painted a picture of limited contact
with Banks. She described her relationship with Banks as
“cordial,” and she testified that she did not socialize with her or
“purposefully engage in conversation” with her on a daily basis
(Tr. 163), she only talked to her “once a month” (Tr. 157), and
she didn’t even know what shift or hours Banks worked. (Tr.
160) On the other hand, she presented testimony indicating her
contact with Banks was more than limited. She testified that
she had known Banks for 5 years and saw her once a day. (Tr.
157–158) In addition, since Banks was the lead person in that
section of the hospital or “pod,” Terry testified that she would
talk to her “to ask her if she knows what’s going on with the
issue[s] that’s in the pod.” (Tr. 159)20 Furthermore, despite
testifying that she had “no” other reason to talk to Banks apart
from discussing problems in the pod, she admitted that she had
informal conversations with Banks, such as when she spoke to
her about her “singing” in the pods. (Tr. 163)
Terry’s inconsistent testimony was also evidenced by her an-
swers regarding whether she thought it was “odd” that Banks

20 According to Terry’s testimony, if an employee in the pod con-
tacts her because there is an “issue” in the pod, the first person she
would look for to find out what happened is the person who contacted
her to report the issue, and if that person is not available, the next per-
son she would contact would be the “lead.” (Tr. 160)
would stop to talk to her about passing out flyers when in fact
she was not one of Terry’s employees. In that regard, when
Terry was asked on cross-examination whether she thought it
was odd that Banks stopped to talk to her, she answered “no.”
(Tr. 193) However, she then contradicted herself when she was
asked again: “It wasn’t odd to you that she stopped you to talk
to you about something; is that correct?” and she answered: “It
was odd, yes. To me it was odd.” (Tr. 194)
Terry also presented incredible and implausible testimony
with regard to her knowledge of Banks’ union activities. While
Terry testified that she was not aware that Banks was involved
in union activities, she admitted that the day prior to her con-
versation with Banks, Julia Linzie (one of Terry’s staff em-
ployees at Children’s Hospital), called her on the phone and
told her that Banks was passing out flyers at the bus stop. (Tr.
167–168, 183, 188) Terry acknowledged that the purpose of
the call from Linzie was to inform her of “[a]ctivity going on
on the corner.” (Tr. 186) Specifically, Terry testified that Lin-
zie stated: “Ms. Lin, there’s somebody out here passing out
flyers. I think its Pam.” (Tr. 168) In response, Terry simply
said “Okay.” (Tr. 168) Terry testified that Linzie did not iden-
tify the type of flyer Banks was allegedly passing out, and Ter-
ry admittedly neglected to ask her. (Tr. 168, 187–188)
On this subject, I also found Terry’s testimony evasive and
less than forthright as she testified in a manner that revealed
reluctance to admitting that she knew the flyers being referred
to were “union” flyers, and that passing them out constituted
union activity. When Terry offered testimony on direct-
examination regarding the flyers being passed out at the bus
stop, she made no mention that the flyers were “union” flyers.
Instead, when asked what kind of flyers she understood Banks
was referring to, she was purposefully vague when she an-
swered: “paper.” (Tr. 166) Terry, who on cross-examination
admitted that she remembered her conversation with Linzie,
was asked if the reason she remembered it so well was because
she thought it concerned union activity. Her response was
simply: “no.” (Tr. 191–192) However, Terry then offered the
following evasive testimony on cross-examination by the
Charging Party’s Counsel:
Q. And you knew that Pam Banks was talking to you
the next day about flyers and union activity at the bus stop;
correct?
A. I’m not sure what you’re saying…
Q. You had some notion, you said just earlier, that
when Pam was talking to you about flyers and the bus stop
involved union activity; right? You had some notion
about that?
A. I can’t say that I knew anything.
Q. You thought it; didn’t you?
A. I can’t say what I thought.
Q. You had some thought when you were talking to
Pam Banks that what she was referring to about the day
before had something to do with union activity; correct?
A. I can’t say what I was thinking at that time, ma’am.
Q. Is it possible that you thought – that you under-
stood it to be about union activity? …Is it possible?
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 23
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
A. Maybe, yes.
(Tr. 196–198)
Besides being evasive, Terry’s testimony on this subject was
also incredible and implausible. When asked directly on cross-
examination if she understood that Banks was reported to have
been passing out “Union flyers,” Terry answered: “no.” (Tr.
186) That testimony is simply not believable or plausible.
Despite the fact that Terry allegedly did not know what type of
flyers Banks was passing out, and she thought it odd that Linzie
was calling her about the flyers, she never asked Linzie what
kind of flyers they were or if they were union flyers, she never
asked Linzie why she was calling her about the flyers, and,
incredibly, she testified that she had no interest in finding out
what kind of flyers Banks was passing out. (Tr. 187–188) It is
implausible that Terry, when informed that Banks was passing
out flyers, would fail to inquire about what type of flyers they
were, and in particular, if they were union flyers. I find it
equally implausible and unbelievable that she had “no interest”
in knowing or finding out what kind of flyers Banks was pass-
ing out. In this connection, it is important to note that Terry, as
a supervisor at Children’s Hospital, was aware that there was a
union organizing drive there, she attended management meet-
ings where she was given information about how to handle the
union’s attempt to organize the employees at the hospital, and
she was told on more than one occasion at those meetings that
if there was any union activity that she heard or saw, she was to
report it to Human Resources. (Tr. 181, 190–191) Those facts
make Terry’s testimony even more implausible and unbelieva-
ble.21 Finally, if Terry truly believed the flyers were not union
flyers, as she alleged, she failed to offer any explanation as to
why one of her staff employees would contact her out of the
blue to report that Banks was passing out documents at the bus
stop. (Tr. 166) She also failed to offer any explanation or ra-
tionale as to why passing out just “papers” would be illegal
activity that could be recorded on the surveillance cameras.
I also find equally implausible and incredible Terry’s asser-
tion that it was Banks who approached her and initiated the
conversation about passing out flyers. If in fact Terry’s contact
with Banks (who was not supervised by Terry) was as limited
as Terry alleged, and Terry only spoke to Banks once a month
as she alleged, it is implausible that Banks would approach
Terry unexpectedly to announce that she was not passing out
flyers, and that it was Tasha who engaged in that activity. The
Respondent offered no credible evidence to explain why Banks
would have done such a thing. On the other hand, Banks asser-

21 I note that the Respondent argued in its brief that it is simply not
believable that Terry made the comments that Banks attributed to her
because she is a supervisor with 7 years of experience who admittedly
received management training and instruction regarding union issues
and organizing campaigns. (R. Br. p. 32) I find no merit to that argu-
ment. As mentioned above, I found Terry to be an unreliable witness
whose assertions should not be credited. I also note that the mere fact
that she received management training which presumably included
instructions as to what she should say to employees and what she
should not, does not establish that Terry did not make the specific
statements attributed to her regarding the employees passing out flyers
at the bus stop. See The Avenue Care and Rehabilitation Center, 360
NLRB 152, 155.
tion that Terry approached her to warn her about employees
passing out flyers at the bus stop and that such activity should
not occur because they did not know who was watching, is
credible and plausible. That is especially true considering Ter-
ry’s admission that Linzie had just told her the day before that
Banks was passing out flyers at the bus stop.
In addition, besides finding that Banks was a credible wit-
ness who presented honest and reliable testimony, I note that
she is also a current employee of the Respondent, and on that
basis, I provide her testimony additional weight as she offered
testimony adverse to the interests of her current employer. The
Board has held that where current employees provide testimony
against the interests of their employer, and thus contrary to their
own pecuniary interests, such testimony is entitled to additional
weight when credited. The Avenue Care and Rehabilitation
Center, 360 NLRB 152, 152, fn. 2 (2014); PPG Aerospace
Industries, Inc., 353 NLRB 223 (2008); Advocate South Subur-
ban Hospital, 346 NLRB 209, 209 fn. 1 (2006); Flexsteel In-
dustries, Inc., 316 NLRB 745 (1995), affd. mem. 83 F.3d 419
(5th Cir. 1996).
Thus, where Terry’s testimony differs from Banks’ testimo-
ny, I fully credit Banks and her testimony. Accordingly, I find
that in October 2015, Terry approached Banks in the hallway
and told her that she saw Banks’ face “on the front of a union
paper around the hospital,” and that Banks “should be careful
about leaving [her] union flyers laying around the hospital.”
(Tr. 32–34, 153) In addition, I find that on or about December
16, 2015, Terry approached Banks in the hallway at work and
told her that “they” had seen Tasha “passing out flyers . . . in
front of the hospital, and that they had her on tape.” Terry also
stated that Tasha “has a lot of balls to be passing out flyers in
front of Children’s Hospital. She is – don’t you know she is on
the verge of being fired, and how stupid is she[?]” Finally,
Terry told Banks that they “shouldn’t be passing flyers out on
UPMC’s property” and that “I would be careful, you never
know who is watching.”
4. Analysis
a. The 8(a)(1) coercive statements
As mentioned above, Section 7 of the Act, provides that
“[e]mployees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection” Section 8(a)(1) of the
Act makes it an unfair labor practice for an employer “to inter-
fere with, restrain, or coerce employees” in the exercise of their
rights guaranteed in Section 7 of the Act. It is well established
that the test for interference, restraint, and coercion does not
turn on the employer’s motive or on whether the coercion suc-
ceeded or failed. Instead, the test is whether the employer en-
gaged in conduct which tends to interfere with the free exercise
of employee rights under the Act. American Tissue Corp., 336
NLRB 435, 441–442 (2001) (citing NLRB v. Illinois Tool
Works, 153 F.3d 811, 814 (7th Cir. 1946). In making its deter-
mination, the Board considers the total context in which the
challenged conduct occurs and is justified in viewing the issue
from the standpoint of its impact on the employees. American
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tissue Corp., supra at 442 (citing NLRB v. E. I. du Pont & Co.,
750 F.2d 525, 528 (6th Cir. 1984)).
The Board has held that threatening employees with reprisals
for engaging in union or other protected concerted activities is
coercive to the exercise of their Section 7 rights under the Act.
Metro One Loss Prevention Services Group, 356 NLRB 89, 89
(2010) (employer violates 8(a)(1) if it communicates to em-
ployees that it will jeopardize their job security, wages, or other
working conditions if they support the union); Baddour, Inc.,
303 NLRB 275 (1991) (an employers’ threats of discipline or
job loss for participation in protected concerted activities con-
stitute violations of the Act). The Board has applied this theory
to explicit or implicit threats to employees, including the loss of
their jobs or other adverse work consequences. Jewish Home
for the Elderly of Fairfield County, 343 NLRB 1069, 1091–
1096 (2004) (employer violated Section 8(a)(1) of the Act by
threatening loss of benefits, loss of jobs, and closure of the
facility if the employees supported the union.); Sheraton Hotel
Waterbury, 312 NLRB 304, 305 (1993) (implied threat con-
tained in employer’s posting violated Section 8(a)(1) of the
Act); Metro One Loss Prevention Services Group, supra at 89–
90 (employer implied working conditions could deteriorate if
the employees supported the union organizing drive in violation
of Section 8(a)(1) of the Act).
In this case, Terry’s statement in October 2015 that Banks
should “be careful” about leaving her union flyers around the
facility, inferred that she had been identified as someone engag-
ing in protected activity, and that such conduct was prohibited
and could lead to unspecified reprisals, such as discipline or
discharge. I find that Terry’s statement would certainly tend to
interfere with Banks’ free exercise of protected rights in viola-
tion of Section 8(a)(1) of the Act.
I note that with regard to this allegation, the Respondent ar-
gues that no violation should be found because Terry’s state-
ment was meant to be a “cautionary statement regarding leav-
ing materials out in hospital spaces.” (R. Br. p. 35). That ar-
gument, however, is without merit. The Board has held that
“the supervisor’s motive or intent in making the statement has
no relevancy in an 8(a)(1) context.” Exterior Systems, Inc., 338
NLRB 677, 679 (2002); GM Electrics, 323 NLRB 125, 127
(1997). The Board has also found statements by managers that
are intimidating or coercive, despite the fact that they may have
been meant to be helpful or cautionary, nevertheless infringe on
employees’ Section 7 rights and violate the Act. See Harmony
Corp., 301 NLRB 578, 585–586 (1991) (where supervisors told
two employees to “be careful” because the employer was trying
to find safety violations that could be used against them be-
cause of their union activities, while the warnings were “de-
signed to be helpful,” they were also intimidating and constitut-
ed violations of Section 8(a)(1) of the Act.)
In addition, Terry’s statement in December 2015, that Banks
and the other employees “shouldn’t be passing out flyers on
UPMC’s property,” while also recounting that the employee
she had seen passing out flyers was “on the verge of being
fired,” also conveyed that such conduct could lead to retaliatory
action by the Respondent, such as discipline or discharge. I
find that these comments by Terry would also reasonably cause
an employee to believe they would then be subject to unspeci-
fied reprisals for engaging in the protected conduct of passing
out union flyers, which would certainly tend to interfere with
the free exercise of Section 7 protected rights. Accordingly, I
find that Respondent UPMC Children’s Hospital violated Sec-
tion 8(a)(1) of the Act.
b. The Section 8(a)(1) creation of the impression
of surveillance
I also find that Terry’s statements to Banks that Tasha was
seen “passing out flyers . . . in front of the hospital, and that
they had her on tape,” created the impression that employees’
union and protected activities were under surveillance by the
Respondent. That finding is further evidenced by Terry’s
statement that the employees “shouldn’t be passing flyers out
on UPMC’s property” and that “you never know who is watch-
ing.”
In determining whether a statement or question created an
unlawful impression of surveillance, the Board considers
“whether, under all the relevant circumstances, reasonable em-
ployees would assume from the statement in question that their
union or other protected activities had been placed under sur-
veillance.” Camaco Lorain Manufacturing Plant, 356 NLRB
1182, 1183 (2011); Frontier Telephone of Rochester, Inc., 344
NLRB 1270, 1276 (2005), enfd. mem. 181 Fed. Appx. 85 (2d
Cir. 2006) (citing Flexsteel Industries, Inc., 311 NLRB 257
(1993)). The Board has held that “[t]he idea behind finding ‘an
impression of surveillance’ as a violation of Section 8(a)(1) of
the Act is that employees should be free to participate in union
organizing campaigns without the fear that members of man-
agement are peering over their shoulders, taking note of who is
involved in union activities, and in what particular ways.” Tres
Estrellas de Oro, 329 NLRB 50, 51 (1999) (citing Flexsteel
Industries, supra at 257).
In this case, I find that the flyers being handed out were un-
ion flyers and that Terry’s assertions that such activity did not
constitute union activity or that she was not aware that it consti-
tuted union activity, are not credible, plausible, or supported by
the record. I find that Terry’s statement to Banks that Re-
spondent had Tasha “on tape” outside passing out union flyers,
and her statement that, “I would be careful, you never know
who is watching” would cause reasonable employees to assume
that their protected activities had been placed under surveil-
lance by the Respondent. In addition, the Board has held that
employer comments to employees that specifically name other
employees as having been involved in union activity, such as
being a union leader or the person that started the union move-
ment, “unlawfully creates the impression, in the minds of its
employees, that [it] has been engaged in surveillance of [the]
employees’ union activities.” Royal Manor Convalescent Hos-
pital, Inc., 322 NLRB 354, 362 (1996), enfd. 141 F.3d 1178
(9th Cir. 1998). Furthermore, I find that Terry’s admission that
she told Banks “[i]f anyone is doing anything illegally outside
there’s cameras outside of the hospital,” left little, if any doubt,
that the employees’ protected activities were considered illegal
by the Respondent and that they were under surveillance. Ac-
cordingly, I find that Respondent Children’s Hospital violated
Section 8(a)(1) of the Act.
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 25
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
CONCLUSIONS OF LAW
1. Respondents UPMC Mercy Hospital, UPMC Children’s
Hospital, and UPMC Presbyterian Shadyside Hospital are em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The SEIU Healthcare Pennsylvania, CTW, CLC is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondents UPMC Mercy Hospital, UPMC Children’s
Hospital, and UPMC Presbyterian Shadyside Hospital have
engaged in unfair labor practices in violation of Section 8(a)(1)
of the Act by: maintaining and enforcing an unlawful and over-
ly broad Solicitation and Distribution Policy that prohibits em-
ployees from soliciting or being solicited in non-work areas
while off duty; and orally announcing, promulgating, maintain-
ing, and enforcing an overly broad and unlawful Distribution
Policy prohibiting employees from distributing non-work mate-
rials in non-work areas.
4. Respondent UPMC Children’s Hospital has engaged in
unfair labor practices in violation of Section 8(a)(1) of the Act
by: in October 2015, threatening employees with unspecified
reprisals for engaging union and protected activities; and in
December 2015, threatening employees with retaliation and
unspecified reprisals for engaging union and protected activi-
ties, and creating the impression that employees’ union activi-
ties were under surveillance.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents UPMC Mercy Hospital,
UPMC Children’s Hospital, and UPMC Presbyterian Shadyside
Hospital have engaged in certain unfair labor practices, I shall
order them to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
As I have deferred the single employer issues, I will order Re-
spondent UPMC Mercy Hospital, Respondent UPMC Chil-
dren’s Hospital, and Respondent UPMC Presbyterian
Shadyside Hospital to each post separate notices to employees.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended:22
ORDER
Respondent UPMC Mercy Hospital, Respondent UPMC
Children’s Hospital, and Respondent UPMC Presbyterian
Shadyside Hospital, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining and enforcing a Solicitation and Distribu-
tion Policy or any rule which prohibits employees from engag-
ing in solicitation or being solicited in non-work areas while the
employees and/or their fellow employees are off duty;
(b) Promulgating, maintaining, and enforcing a Distribution

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
Policy or any rule which prohibits employees from distributing
or leaving non-work materials in non-work areas; and
(c) In any like or related manner, interfering with, restrain-
ing or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
In addition, Respondent UPMC Children’s Hospital, its of-
ficers, agents, successors, and assigns, shall cease and desist
from threatening employees with retaliation or unspecified
reprisals because of their union membership, activities, and
support; and creating the impression among employees that
their union activities are under surveillance by telling employ-
ees that they are being watched or that their union activities are
being videotaped.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Within 14 days of the Board’s Order, revise or rescind
the portion of the Solicitation and Distribution Policy that pro-
hibits employees from engaging in solicitation or being solicit-
ed while the employees and/or their fellow employees are off
duty.
(b) Within 14 days of the Board’s Order, rescind their Dis-
tribution Policy which prohibits employees from distributing or
leaving non-work materials in non-work areas.
(c) Furnish all current employees with inserts for the Solici-
tation and Distribution Policy that (1) advise that the unlawful
policies have been rescinded, or (2) provide the language of a
lawful policy; or publish and distribute a revised Solicitation
and Distribution Policy that (1) does not contain the unlawful
portion of the policy, or (2) provides that language of a lawful
policy.
(d) Within 14 days after service by the Region, post at their
respective facilities in Pittsburgh, Pennsylvania, copies of their
respective attached notices marked “Appendix A,” “Appendix
B,” and “Appendix C.”23 Copies of the notices, on forms pro-
vided by the Regional Director for Region 6, after being signed
by the Respondents authorized representatives, shall be posted
by the Respondents and maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. In addition to physical posting
of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet (the Infonet) or an internet
site, and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by any other
material. If the Respondents have gone out of business or
closed the facilities involved in these proceedings, the Re-
spondents shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondents at any time since September 15,
2015.
(e) Within 21 days after service by the Region, file with the

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 6 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
Dated, Washington, D.C. January 18, 2018
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce the portion of our Solicita-
tion and Distribution Policy or any other rule which prohibits
you from engaging in solicitation or being solicited when you
and/or your fellow employees are on non-working time or off
duty.
WE WILL NOT promulgate, maintain or enforce a Distribution
Policy or any other rule which prohibits you from distributing
or leaving non-work materials in non-work areas.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, which are listed above.
WE WILL, within 14 days from the date of the Board’s Order,
revise or rescind the portion of the Solicitation and Distribution
Policy that prohibits employees from engaging in solicitation or
being solicited when the employees and/or their fellow em-
ployees are on non-working time or off duty.
WE WILL, within 14 days of the Board’s Order, rescind our
Distribution Policy which prohibits employees from distrib-
uting or leaving non-work materials in non-work areas.
WE WILL furnish all current employees with inserts for the
Solicitation and Distribution Policy that (1) advise that the un-
lawful policies have been rescinded, or (2) provide the lan-
guage of a lawful policy; or publish and distribute a revised
Solicitation and Distribution Policy that (1) does not contain the
unlawful portion of the policy, or (2) provides that language of
a lawful policy.
UPMCPRESBYTERIAN SHADYSIDE HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce the portion of our Solicita-
tion and Distribution Policy or any other rule which prohibits
you from engaging in solicitation or being solicited when you
and/or your fellow employees are on non-working time or off
duty.
WE WILL NOT promulgate, maintain or enforce a Distribution
Policy or any other rule which prohibits you from distributing
or leaving non-work materials in non-work areas.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, which are listed above.
WE WILL, within 14 days from the date of the Board’s Order,
revise or rescind the portion of the Solicitation and Distribution
Policy that prohibits employees from engaging in solicitation or
being solicited when the employees and/or their fellow em-
ployees are on non-working time or off duty.
WE WILL, within 14 days of the Board’s Order, rescind our
Distribution Policy which prohibits employees from distrib-
uting or leaving non-work materials in non-work areas.
WE WILL furnish all current employees with inserts for the
Solicitation and Distribution Policy that (1) advise that the un-
lawful policies have been rescinded, or (2) provide the lan-
guage of a lawful policy; or publish and distribute a revised
Solicitation and Distribution Policy that (1) does not contain the
unlawful portion of the policy, or (2) provides that language of
a lawful policy.
UPMCMERCY HOSPITAL
UPMC, UPMC PRESBYTERIAN SHADYSIDE, D/B/A UPMC 27
PRESBYTERIAN HOSPITAL AND D/B/A UPMC SHADYSIDE HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce the portion of our Solicita-
tion and Distribution Policy or any other rule which prohibits
you from engaging in solicitation or being solicited when you
and/or your fellow employees are on non-working time or off
duty.
WE WILL NOT promulgate, maintain or enforce a Distribution
Policy or any other rule which prohibits you from distributing
or leaving non-work materials in non-work areas.
WE WILL NOT threaten you with retaliation or unspecified re-
prisals because of your union membership, activities, and sup-
port.
WE WILL NOT create the impression that your union activities
are under surveillance by telling you that you are being
watched or that your union activities are being videotaped.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, which are listed above.
WE WILL, within 14 days from the date of the Board’s Order,
revise or rescind the portion of the Solicitation and Distribution
Policy that prohibits employees from engaging in solicitation or
being solicited when the employees and/or their fellow em-
ployees are on non-working time or off duty.
WE WILL, within 14 days of the Board’s Order, rescind our
Distribution Policy which prohibits employees from distrib-
uting or leaving non-work materials in non-work areas.
WE WILL furnish all current employees with inserts for the
Solicitation and Distribution Policy that (1) advise that the un-
lawful policies have been rescinded, or (2) provide the lan-
guage of a lawful policy; or publish and distribute a revised
Solicitation and Distribution Policy that (1) does not contain the
unlawful portion of the policy, or (2) provides that language of
a lawful policy.
UPMCCHILDREN’S HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-171117 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.