The Presbyterian Medical Center

National Labor Relations Board - Board Decisions

Jan 11, 1977

227 N.L.R.B. 904 (N.L.R.B. 1977)

904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Presbyterian Medical Center and Service Em-
ployees International Union , Local No. 105. Case
27-CA-4674
January 11, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a charge duly filed on September 25, 1975, by
Service Employees International Union, Local No.
105 (hereinafter called the Union), against The
Presbyterian Medical Center (hereinafter called Re-
spondent), the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 27, on February 6, 1976, issued
and served on the parties a complaint alleging that
Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. The complaint alleges that the Respondent
promulgated an illegal no-solicitation and no-distri-
bution rule. An amendment to the complaint, dated
May 4, 1976, alleges an additional violation of
Section 8(a)(1) of the Act in that the Respondent
unlawfully barred one of its employees from pursuing
distribution and solicitation activities on behalf of the
Union. A second amendment to the complaint, dated
June 30, 1976, realleges violations as stated above and
further alleges that the Respondent promulgated and
enforced an illegal "no-access" rule. Respondent filed
timely answers to the complaint and the amend-
ments, denying the commission of any unfair labor
practices.
On July 13, 1976, the parties entered into a
stipulation wherein they agreed that certain docu-
ments including the charge, complaint, answer,
amendment to complaint, answer to amendment to
complaint, second amendment to complaint, answer
to second amendment to complaint, and the "Stipula-
tion of the Facts and of the Record" shall constitute
the entire record herein, expressly waived all proceed-
ings before an Administrative Law Judge, and
submitted this case directly to the National Labor
Relations Board.
By order dated August 3, 1976, the Board approved
the stipulation, transferred the proceeding to itself,
and set a date for the filing of briefs. Thereafter,
briefs were filed by the General Counsel and by
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
227 NLRB No. 135
The Board has considered the entire record herein
and the briefs, and makes the following findings.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that
Respondent is a Colorado corporation , engaged at its
hospital in Denver ,- Colorado, in the providing of
medical and health care services , and that it annually
purchases and receives goods and materials valued in
excess of $50,000 directly from points and places
outside the State of Colorado , and has a total annual
volume of revenues of at least $250,000. The com-
plaint alleges , the answer admits, and we find that
Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and we
find that Service Employees International Union,
Local No. 105, is, and at all material times has been, a
labor organization within the meaning of Section 2(5)
of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
On August 7, 1975, Respondent promulgated and
enforced until October 2, 1975, the following no-
solicitation and no-distribution rule:
[N]o materials shall be distributed to and no
solicitation shall be made of any hospital patient
or employee in any public area within the hospital
premises. Any solicitation must be confined to
nonwork and nonpublic areas and during non-
working time.
On September 25, 1975, an off-duty employee,
Mary Walter, began distributing union literature to
the Respondent's employees outside of the hospital
entrance at approximately 6 a.m. Walter was sched-
uled to begin work that day at 8 a.m. At approximate-
ly 7 a.m., Respondent's director of personnel, Mary
Lou Harvey, directed Walter to stop distributing the
union literature. When Walter refused to comply,
Harvey departed momentarily and returned with a
police officer, and again ordered Walter to stop
distributing and to leave the premises. In so doing,
Harvey made reference to a rule promulgated by
Respondent prohibiting off-duty employees from
being on the hospital premises except while attending
authorized hospital functions. When the police officer
THE PRESBYTERIAN MEDICAL CENTER
threatened to arrest Walter, she ceased her distribu-
tion and left the area.
B. Discussion and Conclusion
Respondent's no-solicitation and no-distribution
rule is presumptively violative, on its face, of Section
8(a)(1) of the Act. Respondent's asserted intention in
promulgating this rule is to prevent either solicitation
or distribution in those areas to which patients and
visitors have access. While recognizing Respondent's
interest in curtailing employee solicitation and distn-
bution activities on the basis of patient care, the
Board has also recognized the necessity of balancing
such a business justification with the right of employ-
ees to discuss or solicit union representation. Accord-
ingly, the Board has found that a hospital could be
warranted in prohibiting solicitation and/or distribu-
tion in immediate patient care areas, such as the
patients' rooms, operating rooms, and places where
patients receive treatment.' However, as conceded by
Respondent, its rule is broader than the Board has
decided, in the cases cited, to permit. The rule
prohibits solicitation and distribution in nonworking
areas to which patients and visitors have access. This
includes such public areas as cafeterias, lobbies, and
the like. We find the promulgation and maintenance
of the no-solicitation and no-distribution rule violate
Section 8(a)(1) of the Act.
Respondent's no-access rule prohibits employees
from being on the hospital premises except during
assigned working hours or while attending authorized
hospital functions. As described above, Respondent,
using its no-access rule as justification, prevented an
off-duty employee from distributing union literature
outside of the hospital entrance. As stated in Tri-
County Medical Center, Inc.;2 a rule which denies off-
duty employees entry to parking lots, gates, and other
outside nonworking areas will be found to be invalid
unless justified by business considerations.
Respondent asserts four business justifications for
promulgating and continuing to enforce its no-access
rule. The presence of off-duty employees in the
outside nonworking areas of its premises would
allegedly: (1) increase disputes as to whether an
employee still present on company premises was
actually working overtime, (2) interfere with work
productivity when oncoming employees are engaged
in conversation by off-duty workers and thereby
delayed in reaching their posts; (3) increase the
potential number of suspects when hospital property
or drugs are stolen , as well as the potential number of
victims for criminal assailants asserted to frequent the
I See Si John's Hospital and School of Nursing, Inc, 222 NLRB 1150
(1976), Lutheran Hospital of Milwaukee, Inc, 224 NLRB 176(1976), Baylor
University Medical Center, 225 NLRB 771 (1976).
905
area; and (4) make more difficult an already serious
parking situation, particularly during the day shift
when 850 employees are on duty, with 568 parking
spaces available.
Respondent, however, has failed to provide an
adequate factual basis for establishing that these four
assertions serve as valid business justifications. No
evidence is presented to show that disputes regarding
overtime would be significantly more frequent should
off-duty employees be allowed access to outside
nonworking areas of the hospital. Similarly, there is
no evidence offered to show that conversations
between outgoing and oncoming personnel would
interfere with work productivity. While it is stipulated
that there have been 15 arrests of employees for thefts
of hospital drugs and property during approximately
the first 6 months of the year, there is no showing how
many, if any, of these thefts involved off-duty
employees, or that the alleged crime problem could
not be adequately controlled by denying off-duty
employees access to the interior of the hospital
building. Finally, to the extent Respondent relies on
the insufficiency of parking spaces, its rule is misdi-
rected. The rule is not addressed to parking by off-
duty employees, but rather to their personal presence
in the area. Therefore, we need not pass on whether a
narrower rule prohibiting parking in the lot by off-
duty employees would, in the circumstances present-
ed here, unduly interfere with the employees' Section
7 rights.
Accordingly, we find that Respondent has violated
Section 8(a)(1) of the Act by promulgating and
enforcing a no-access rule which denies off-duty
employees access to outside nonworking areas of the
hospital premises.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth above
have a close, intimate and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
Upon the basis of the foregoing facts and upon the
entire record in this case, we make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2 222 NLRB 1373 (1976) We find no meet in Respondent's objection to
our applying the holding in Tn-County Center retroactively
906 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
2. By promulgating, maintaining, and enforcing a
rule which restricts the areas in which employees on
nonworking time may orally solicit for labor organi-
zations, and restricts the nonworking areas in which
employees on their nonworking time may distribute
materials on behalf of labor organizations, Respon-
dent has-violated Section 8(a)(1) of the Act.
3. By promulgating, maintaining and enforcing a
no-access rule which denies off-duty employees entry
onto outside nonworking areas of its premises,
Respondent has violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act:
Regional Director for Region 27, after being duly
signed by an authorized representative of the Re-
spondent, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Presbyterian Medical Center, Denver, Colorado,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, and enforcing a rule
or regulation prohibiting its employees from soliciting
on behalf of any labor organization on Respondent's
premises in other than immediate patient care areas,
during nonworking time, or prohibiting the distribu-
tion of union literature in nonworking areas during
employees' nonworking time.
(b) Promulgating, maintaining, and enforcing a rule
or regulation which prevents off-duty employees from
distributing or soliciting on behalf of any labor
organization in the outside nonworking areas of the
hospital premises.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its place of business in Denver, Colora-
do, copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by the
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prohibits our em-
ployees from soliciting on behalf of any labor
organization on our hospital premises in other
than immediate patient care areas, during employ-
ees' nonworking time , or from distributing litera-
ture on behalf of any labor, organization in
nonworking areas of the hospital premises during
their nonworking time.
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prevents off-duty
employees from distributing or soliciting on
behalf of any labor organization in the outside
nonworking areas of the hospital premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
THE PRESBYTERIAN
MEDICAL CENTER