St. Joseph Hospital Corporation

National Labor Relations Board - Board Decisions

Mar 8, 1982

260 N.L.R.B. 691 (N.L.R.B. 1982)

ST. JOSEPH HOSPITAL CORPORATION
St. Joseph Hospital Corporation and Beverly J.
Clanton; President of Local 2635, American
Federation of State, County and Municipal Em-
ployees, AFL-CIO
Local 2635, American Federation of State, County
and Municipal Employees, AFL-CIO and St.
Joseph Hospital Corporation
Council 25, American Federation of State, County
and Municipal Employees, AFL-CIO and St.
Joseph Hospital Corporation. Cases 7-CA-
15381, 7-CG-15(1), and 7-CG-15(3)
March 8, 1982
DECISION AND ORDER
On August 24, 1979, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, Respondent St. Joseph
Hospital Corporation and the General Counsel
filed exceptions and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge to the extent consistent herewith.
We agree with the Administrative Law Judge
that St. Joseph Hospital Corporation, herein called
Respondent, violated Section 8(a)(l) of the Act by
maintaining and giving effect to an unlawful work
rule prohibiting employees from making false state-
ments,2 but did not violate Section 8(a)(5) and (1)
I The Administrative Law Judge found that Local 2635. American
Federation of State. County and Municipal Employees, AFL-CIO. Re-
spondent in Case 7-CG-15(1), and Council 25. American Federation of
State, County and Municipal Employees. AFL-CIO. Respondent in Case
7 CG-15(3), had violated Sec 8(g) of the Act by engaging in the unlaw-
ful picketing of St Joseph Hospital Corporation No exceptions were
taken to the Administrative L.aw Judge's findings in this regard
The General Counsel has moved to sever Cases 7-CG- 15() and 7
CG-15(3) from Case 7-CA-15381. In support thereof, he argues that Re-
spondent Unions have agreed to and have in fact begun to comply with
the Administrative lIaw Judge's recommended Order in those cases. all
parties to these proceedings have been advised of the motion to sever and
do not oppose the motion, and no exceptions have been taken to the Ad-
ministrative Law Judge's findings in those cases Additionally, the Gener-
al Counsel points out that the remedies sought or obtained in both cases
are not interrelated. As there is no opposition to the General Counsel's
motion and no exceptions have been taken to the Administrative Law
Judge's findings concerning the CG cases, and inasmuch as it appears
that no prejudice will result to any of the parties from the severance of
said cases. we shall grant the General Counsel's motion to sever the
cases
2 In agreeing with the Administrative L aw Judge that Respondent's
work rule is per ic unlawful because it prohibits, inter alia. the utterance
of inadvertent or unknowingly false statements which the Board has held
are protected within the context of concerted activity, we also note that
said rule is overly broad in that it prohibits the making of such statements
during an employee's nonworking time and while off company property.
Accordingly, we find that Respondents work rule is also unlawful for
this reason See .4merean (Catr Iron Pipe Companv. 234 NLRB 1126
(1978). enfd 600 F2d 132(8th Cir. 1979)
In joining his colleagues in this finding. Chairman Van de Water em-
phasizes that this rule evolved to protect employees who make a "false.
though otherwise innocent, assertion. for instance, that employees of
other employers were enjoying better (or w;rse) working conditions than
260 NLRB No. 89
by refusing to process a grievance filed by employ-
ee Beverly Clanton 3 concerning her suspension.
However, we do not agree with the Administrative
Law Judge that Clanton's suspension violated Sec-
tion 8(a)(3) and (1) of the Act nor do we agree
with his finding that Respondent violated Section
8(a)(4) and (1) of the Act by enforcing the provi-
sions of a collective-bargaining agreement against
Clanton which thereby purportedly penalized her
for having filed a charge with the Board.
The relevant facts are as follows: Since 1973, Re-
spondent has had collective-bargaining agreements
with Local 2635, of which Clanton was president,
and Council 25, American Federation of State,
County and Municipal Employees, AFL-CIO. In
early May 1978, 4 Council 25 was engaged in ef-
forts to organize certain of Respondent's technical
employees and, in an attempt to aid Council 25 in
its organizational drive, Clanton sought out the as-
sistance and participation of other unions in a
"demonstration" to be conducted on Respondent's
premises. In furtherance of Council 25's objectives,
Clanton, in conjunction with other union leaders,
caused to be published under her name an article in
the May 10 edition of Flint UAW News-Local 599
Headlight Edition which, in addition to seeking the
support of UAW members in the upcoming demon-
stration, was highly critical of Respondent. The ar-
ticle, in part, stated that "the hospital administra-
tion has continually lied to, harassed, and even
threatened to jail the union representative at St. Jo-
seph's Hospital."
On or about May 18, Respondent's director of
personnel and labor relations, Jerry Vogler, ob-
tained a copy of this newspaper article and, after
consulting with Respondent's president and its
legal counsel, Vogler, on May 19, sent Clanton a
mailgrams advising her that the demonstration
scheduled for May 23 was unlawful under Section
8(g) of the Act, that Respondent viewed her call
for the mass demonstration as "an irresponsible
act," and that Respondent would "take appropriate
action" to ensure that quality patient care would
continue to be provided. On May 20, a local news-
paper, the Flint Journal, published an article on the
upcoming demonstration which identified Clanton
as being involved in the demonstration.
It is undisputed that, on May 23, Respondent, as
found by the Administrative Law Judge, was un-
Respondent's employees " American Cast Inrn Pipe Co.. supra at 1129 He
would not, therefore. construe this holding necessarily to protect egre-
gious and maliciously false statements of employees
' In his Decision. the Administrative Law Judge frequenlly refers Io
Clanton by her maiden name. Carr
All dates hereinafter are in 1978, unless otherwise indicated
:'he lest of the mailgram is fully set forth in the Administrative Law
Judge's Decsion. s ecc IllA,2
691
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawfully picketed by the Unions herein as well as
by several other labor organizations. Among those
engaged in the picketing on behalf of Local 2635
were Clanton and employees Daryl Bergeron and
Trudy Langford, both of whom, like Clanton, were
union officials. 6
On May 26, the day after the election which
Council 25 lost, Vogler individually advised Clan-
ton, Bergeron, and Langford that he was consider-
ing taking disciplinary action against them 7 and
would, upon returning from his vacation and after
reviewing the facts and consulting with Respond-
ent's counsel, inform them what disciplinary action,
if any, would be taken. Upon his return from vaca-
tion on June 5, Vogler reviewed the matter with
Respondent's attorney and its president. They de-
cided to discipline only Clanton. Voglcr testified
that Respondent chose not to discipline Bergeron
and Langford because it was "not able to show
through the evidence that they had organized, or
been a leader in the picketing that occurred...."
Thereafter, at a meeting held on June 7, and at-
tended by Vogler, Clanton, Clanton's union repre-
sentative, Sandra Lynn, and Respondent's supervi-
sor, Cliff Kittle, Vogler handed Clanton a letter ad-
vising her that she was being suspended for 2
weeks for having violated the "no-strike" clause of
its collective-bargaining agreement 8 and for having
violated Respondent's rules prohibiting employees
from making "viciokis, false or malicious statements
about employees of the Hospital." However, be-
cause of her good work record, Clanton was not
required to serve out the 2-week suspension but a
record of the disciplinary action was placed in her
personnel file. Clanton thereafter requested that
Respondent remove from her personnel file the
record of the action taken against her, but Re-
spondent declined to do so. She then filed a griev-
ance pursuant to the grievance-arbitration proce-
dures in the parties' collective-bargaining agree-
ment. Subsequently, she also filed a charge with
the Board on June 27 alleging her suspension as
being in violation of Section 8(a)(3) and (1) of the
Act. 9
By letter dated July 5, Respondent advised Clan-
ton and the Unions that, by filing a charge with the
Board, Clanton had elected to pursue "a legal or
statutory remedy" and that, accordingly, under ar-
6 It appears that the employees were picketing during their nonwossrk-
ng time
7 According to Vogler, he told Clanton that he was "contemplating
disciplinary action against her as a result of her participation in the pick-
eting . and as a result of the letter that appeared in the LAW News "
K The "no-strike" clause, which is art Xill, sec i, of the parties' col-
lective-hargaining agreement. is set forth in the Administrative Law
Judge Decision. sec Ill,A,2
9 That charge was subsequently withdrawn on July 25 and later refiled
in the instant case under a different theory
tide V, section 5, of the collective-bargaining
agreement,i° she was barred from further process-
ing her grievance. It further advised them that it
considered the matter closed. ''
With respect to the suspension, the Administra-
tive Law Judge, as noted above, correctly found
that Respondent's rule prohibiting employees from
making false statements was per se unlawful and
that, consequently, Clanton's statements in the
UAW News, which in addition to her unlawful
picketing formed the basis for her suspension, were
protected by Section 7 of the Act. Accordingly, he
found that, while Respondent may have had a
valid reason for suspending Clanton, i.e., her un-
lawful picketing, her suspension was nevertheless
unlawful since it was based, "in part," on the
lawful protected activity engaged in by Clanton on
behalf of Council 25.
Subsequent to the issuance of the Administrative
Law Judge's Decision in this case, the Board in
Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), had occasion to reconsider and
clarify its position in "dual motivation" cases. In
Wright Line, supra, the Board abandoned the "in
part" test which for many years it had used to de-
tcrmine whether the Act had been violated in
"dual motivation" cases. Under the Wright Line
test, the General Counsel is required to "make a
prima facie showing sufficient to support the infer-
ence that protected conduct was 'a motivating
factor' in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected con-
duct." Id. at 1089. It is this analysis which we use
to determine the legality of Respondent's conduct
herein.
As noted above, the General Counsel has the ini-
tial burden of showing that Clanton's protected ac-
tivity was a motivating factor in her suspension.
The General Counsel, we find, has met that
burden. The evidence clearly establishes, and Re-
spondent does not deny, that the purportedly false
statements made by Clanton in the UAW News-
which we have found to be protected by Section 7
of the Act-were indeed a motivating factor in her
suspension. This finding is further buttressed by the
a Art V, sec. 5, in part, provides that "The sole remedy available to
any employee for anty alleged breach of this Agreement shall be pursuant
to the (irievance Procedure, provided, however, that nothing herein shall
precent an employee from electing to pursue a legal or statutory remedy
providing such election will bar any further oir subsequent proceedings
fir relief under the Grievance Procedure"
e I)Dspite Respolndent's refusal to proceed on the grievance, an arbi-
tration hearing was scheduled foir December 4 to resolve the question of
whether the suspension Vwas arbitrable and. if so, to determine the griev-
anlce on its merits. The record does not reveal whether the arbitration
hearing was ever held
692
ST. JOSEPH HOSPIT'AI. C()()RATION
fact that the suspension letter given by Vogler to
Clanton states that she was being suspended for
having violated Respondent's unlawful work rule.
Under these circumstances, it is clear that the Gen-
eral Counsel has made out his prima facie case as
required under Wright Line and that the burden
now shifts to Respondent to show that, even absent
her protected activities, Clanton would neverthe-
less have been disciplined for her part in the un-
lawful picketing. The record evidence, in our view.
clearly establishes that Respondent has met its
burden.
As noted above, on May 19, Vogler sent Clanton
a mailgram advising her that the mass demonstra-
tion which she had advocated in her UAW News
article of May 10 was in violation of Section 8(g)
of the Act. It is significant to note, however, that,
while Respondent at this time warned Clanton of
the illegal nature of the demonstration, it made no
mention of the allegedly false statements made by
her in the May 10 article nor did it warn her that
such statements might be contrary to its work rules
and could lead to discipline. Rather, its main con-
cern, as is evident by a plain reading of that letter.
related solely to the illegal nature of the demon-
stration. Furthermore, although these allegedly
false statements were made by Clanton on May 10.
no disciplinary action was taken against Clanton
until after she actually participated in the unlawful
picketing on May 24. Thus, the timing of the disci-
plinary action, coming as it did on the heels of the
picketing, and the fact that, as evident from the
May 19 mailgram, Respondent was concerned only
with the illegal demonstration that was being
planned by Clanton convince us that it was the lat-
ter's leadership role and participation in the unlaw-
ful picketing that precipitated her suspension. 12
Any false statements Clanton may have made in
contravention of Respondent's unlawful work rule
were, in our view, merely incidental factors which
Respondent took into account when meting out
such discipline. It is clear to us, however, that, in
the absence of these factors, Clanton would never-
theless have been suspended for her other conduct
related to the unlawful picketing. That employees
Bergeron and Langford were not disciplined for
12 Our dissenting colleagues argue that our reliance on the timing of
the discipline is without merit since, in their ,iew., Clanton was also not
put on notice that her conduct in organizing and participating in the un-
lawful demonstration could result in disciplinary action. In so doing.
however, our colleagues seem to have ignored the fact that, in its May 19
mailgram, Respondent specifically advised Clanton of the illegal nature
of the demonstration and further warned her that her conduct amiounted
to "an irresponsible act " Thus, while Respondent did not explicitlx wvvrn
Clanton of any disciplinary measures that might he forthcoming a, a
result of her conduct, it is reasonable to assume that Clantorn knew or
should have known, by virtue of that mailgram, that her continued ef-
forts to organize and evenitually participate in the illegal demonstration
might result In disciplinary measures being taken against her
taking part in the unlawful picketing does not cast
doubt on our finding since, as previously noted, in
addition to her unlawful picketing, Clanton, unlike
Bergeron and Langford, had been instrumental in
organizing the picketing. In view of the above, we
find that Respondent has met its burden as required
under Wright Line. supra, by showing that Clanton
would have been suspended even if she had not en-
gaged in the conduct found protected herein.':'
Accordingly, we conclude that Clanton's suspen-
sion did not violate Section 8(a)(3) and (1) of the
Act, as alleged.
Contrary to the Administrative Law Judge, we
also find that Respondent's refusal, pursuant to the
terms of the collective-bargaining agreement with
the Unions, to process Clanton's grievance because
she filed a charge with the Board did not violate
Seciton 8(a)(4) and (1) of the Act. Article V, sec-
tion 5, of the parties' collective-bargaining agree-
ment contains a proviso which bars any further
processing of a grievance once the grievant elects
to pursue any legal or statutory remedy that might
be available to resolve that grievance. This limita-
tion, however, is imposed only on the right further
to use the grievance-arbitration procedure, a right
which arises by virtue of the contract;'4 it is not a
I ' W\, fitnd no basis fior our dissenting colleagues' claim that Respond-
elt sought to exculpate itself at the hearing by attempting to "explain
aiv'as' its "confessiotn' that it disciplined Clanton for making false stalte-
menis in addition to her unlawful picketing Conilrars to their asscrtlion. a
close reading of the record reveals no real or apparent ilnconsistencies in
Respondcnrl', testimony At no time during the hearing did Respondent
denis that It disciplined Clanton. in part, for has tig made false f lstatement
against it Instead, the record rex als that, in addition to its purported
"confession,' Respondent further "confessed" that Clanton's participation
and leadership role in the unlawful picketing was the principal reason fior
her suspension. Thus, we too, like our dissenting colleagues, are willing
to take Respondent at its word. which is uncontradicted, that while it dis-
ciplined Clanton for making false statements as well as for her involve-
ment in the unlawful picketing, it was this latter reason which formed the
principal basis for her suspension Clearly. had Respondent not "con-
fessed" to having suspended Clanton. in part, for her false statements. the
issue would have been quickly resolved since Clanton's suspension for
having engaged in the unlawful picketing would undoubtedly have been
lawful Respondent's "confession" has. however, presented the Board
with the classic dual motivation case and it is precisely because of this
that a Wright Line analysis is necessary to determine if Respondent would
have disciplined Clanton even in the absence of any protected activity
she may have engaged in In view of the evidence as described above
and in light of Respondent's uncontradicted testimony. we are convinced
that Clanton would have been suspended even if she had not made any
false statements Additionally, unlike our dissenting colleagues. we do not
find significant the fact that the June 7 disciplinary letter fails to state
specifically that Clanton's leadership role in the demonstration was a
factor in her suspension The weight of the credible evidence. as found
by the Administrative L aw Judge, reveals that Clanton was told by
Vogler during the June 7 meeting that her role in organizing and promot-
ing the unlawful demonstration had indeed been a factor in Respondent's
decision to discipline her
II it should be noted that the right of a part) to pursue a grievance to
arbitrafion is a contractual right and does not arise by operation of law
Thus, whle a collectlive-bargaininig agreement may or mar not, depend-
ing on the wishes of the parties, contain a grievance-arbitration clause, it
is clear that in the absence of such a clause a party cannot he compelled
to) arbitralt a grievance Garteay Coal (Co. s I nired .Mine Workere o)
4onfrica. 414 U' S 368 (1974) See also Molffirr Bulding .'aftcria/l Company
and l.umhbermonn Whoialeu Ciompun., 214 Nl RB 655 (1974)
69O3
DECISIONS ()F NA'IIONAI I ABOR RELATIONS BOARD
limitation on any legal or statutory rights a griev-
ant may have. In fact, article V, section 5, of the
contract expressly recognizes the right of an em-
ployee to pursue other legal or statutory means to
resolve his or her grievance. Consequently, we find
nothing impermissible in a clause, such as this one,
which seeks to prevent duplicative adjudication by
requiring an election of remedies, especially where
the limitation being imposed is on a contractual
right, rather than on a legal or statutory right. Ac-
cordingly, we find that, in refusing to process
Clanton's grievance to the arbitration stage of the
contract's grievance-arbitration procedure, Re-
spondent was merely adhering to its contractual
obligations and was in no way penalizing Clanton
for having filed a charge with the Board. Under
these circumstances, we conclude that Respondent
did not violate Section 8(a)(4) and (1) of the Act, 1 5
as found by the Administrative Law Judge.
It is also apparent from the above facts, and we
so find, that Respondent, as found by the Adminis-
trative Law Judge, did not violate Section 8(a)(5)
and (1) of the Act by refusing to process Clanton's
grievance since, in refusing to do so, Respondent
was merely enforcing a provision of its contract
with the Union, which it was entitled to do.' 6
In view of the above findings, we shall, with the
exception of the 8(a)(1) finding relating to the un-
lawful work rule, dismiss the complaint against Re-
spondent St. Joseph Hospital Corporation.
i' We find our dissenting colieagues' reliance on Globe Manufacturing
Company, 229 NLRB 1025 (1977); Whale Oil Company. Inc., 169 NlRB
51 (1968); and 17'0 Corporation of Rhode Island. Inc., 246 NLRB 810
(1979). to be clearly misplaced. In Globe ManuJaciuring Company, the
Board found that an employer had violated Sec. 8(a)(4)and (1) of the Act
by denying an employee's request for reinstatement because he had filed
a charge with the Board, and in Whale Oil Company, the Board found
that an employer's refusal to process an employee's grievance because he
had filed a charge with the Board violated Sec. 8(a)(4) and (I) of the Act
even though the union therein had acquiesced in the employer's conduct
Similarly, in ITO Corporation, the Board found that a respondent union
had violated Sec. 8(b)(l)(A) of the Act by refusing to allow one of its
members access to its established grievance procedure because he had
filed a charge with the Board. In those cases, hosweser, the refusal by the
named respondent to process the "formal or informal" grievance was not
based on the respondent's reliance on a valid election of remedies clause
in a contract, such as the one herein, which waived only an employee's
contractual right to further process a grievance when and if an employee
elected to pursue other statutory or legal relief. Further, in none of these
cases was the named respondent acting in accordance with a contractual
obligation in refusing to process the grievance. Indeed, with the excep-
tion of Globe Manufacturing Company, in which there was no collective-
bargaining agreement, the respondents in Whale Oil Company and 110
Corporation were clearly in breach of their contractual obligations which
required them to process said grievances. In view of the foregoing, we
find the aforecited cases clearly distinguishable from the instant case and,
therefore, not controlling.
"6 In order to make out what they perceive to be an 8(a)(5) violation,
our dissenting colleagues first write the election of remedies provision
out of the contract, and then find a violation based on Respondent's
having availed itself of that provision. We find nothing in the Act to au-
thorize such a course of action
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
St. Joseph Hospital Corporation, Flint, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Publishing, maintaining, or enforcing any rule
of conduct which unlawfully limits the rights of its
employees to make statements relating to wages,
hours, working conditions, or other terms and con-
ditions of employment.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of any right guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Post at its general hospital in Flint, Michigan,
copies of the attached notice marked "Appen-
dix."' 7 Copies of said notice, on forms provided by
the Regional Director for Region 7, after being
duly signed by an authorized representative of Re-
spondent, shall be posted by 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 em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material
(b) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT Is FURTHER ORDERED that Cases 7-CG-15(1)
and 7-CG-15(3) be, and they hereby are, severed
from Case 7-CA-15381 and that Respondent
Unions in the CG cases, their officers, agents, and
representatives, shall take the action set forth in the
Administrative Law Judge's recommended Order
in those cases.
IT IS FURTHER ORDERED that the remainder of
the complaint in Case 7-CA-15381 be, and it
hereby is, dismissed in its entirety.
MEMBERS FANNING and JENKINS, concurring in
part and dissenting in part:
We agree with our colleagues' and the Adminis-
trative Law Judge's finding that Respondent St.
Joseph Hospital Corporation violated Section
"' In the event that this Order is enforced by a Judgment of a Unted
States Court of Appeals, the words in the notice reading "Posted by
Order of the National L.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
694
ST. JOSEPI HOSPITAL CORPORATItON
8(a)(1) of the Act by maintaining and giving effect
to an unlawful work rule prohibiting employees
from making merely false statements. Further,
while we agree with our colleagues that the legal-
ity of Clanton's suspension must be viewed in light
of the Board's recent Decision in Wright Line, a
Division of Wright Line. Inc., 251 NLRB 1083
(1980), we do not agree with their conclusion that
Clanton's suspension did not violate Section 8(a)(3)
and (1) of the Act. Nor do we agree with their
finding that Respondent's refusal to process Clan-
ton's grievance did not violate Section 8(a)(4) and
(5) of the Act.
Under the Board's Wright Line test, the General
Counsel, as our colleagues correctly point out, is
required to make a prima facie showing that an em-
ployee's protected activity was a "motivating
factor" in an employer's decision to discipline that
employee. Once the General Counsel has made
such a showing, the burden then shifts to the re-
spondent who must show that, even absent any
protected activity, the employee would neverthe-
less have been disciplined. We agree with our col-
leagues that the General Counsel has made a prima
facie showing that Clanton's protected activity was
a motivating factor in Respondent's decision to sus-
pend her. However, contrary to our colleagues, we
would further find that Respondent has not met its
burden of showing that Clanton would have been
suspended even if she had not engaged in any pro-
tected activity.
The undisputed facts reveal that, while Respond-
ent may have been concerned with the illegal pick-
eting engaged in by its employees, it nonetheless
took no disciplinary action against two other em-
ployees, Bergeron and Langford, who, along with
Clanton, had been identified as having participated
in the unlawful picketing. Although Respondent
claims that evidence available to it did not show
that either Bergeron or Langford had organized or
been leaders in the picketing, Respondent's June 7
disciplinary letter to Clanton merely states that
Clanton had violated article XIII of the collective-
bargaining agreement, the no-strike clause. Under
the facts known to Respondent at the time, the
same was true regarding Bergeron and Langford.
Accordingly, the distinction relied on by Respond-
ent is not supported by the terms of the letter. In-
stead, Respondent, as testified to by Vogler, chose
to discipline only Clanton because, unlike Bergeron
and Langford, she had engaged in other conduct
such as the publication of the article in the UAW
News which was critical of Respondent. Thus, had
Clanton not made the purportedly false state-
ments-which our colleagues and we agree was
protected activity-she would have escaped disci-
pline, as did Bergeron and Langford.' According-
ly, we would find that Respondent has not met its
burden of showing that Clanton would have been
disciplined even if she had not engaged in protect-
ed activity and that her suspension therefore violat-
ed Section 8(a)(3) and (1) of the Act, as alleged.' 9
Contrary to our colleagues, we agree with the
Administrative Law Judge's determination that the
election of remedies section in article V, section 5,
of the collective-bargaining agreement 2 0 is unen-
forceable insofar as it precludes the processing of
grievances where concurrent unfair labor practice
charges have been filed. In addition to the reasons
set forth by the Administrative Law Judge, we
rely on clear precedent establishing that the exist-
ence of pending unfair labor practices may not be
used as the basis for refusing to consider an em-
ployee's formal or informal grievance, 21 even
where the employee's representative has acquiesced
in the employer's conduct.2 2 Such a provision, in
our view, is invalid and unenforceable insofar as it
seeks to place limitations on an employee's statu-
tory right to have full and unimpeded access to the
Board. Consequently, Respondent's attempt to en-
force that provision against Clanton for having ex-
ercised her statutory right to file a charge with the
Board is, in our view, violative of Section 8(a)(4)
and (1) of the Act,2 3 as found by the Administra-
tive Law Judge.
'" We find the majority's reliance on the timing of the discipline to he
without merit Although no disciplinary action was taken against Clanton
until after the unlawful picketing occurred, neither did Respondent warn
Clanton that such discipline could result, although it was aware on May
19. prior to the picketing, that Clanton was organizing such picketing for
Mas 23 It begs the question to argue, as the majority does, that Clanton
would not have been disciplined if she had not engaged in that unprotect-
ed picketing. That might be so, but that is not the test The test is not
whether unprotected activity played a role in the disciplinary decision
but whether protected activity was a motivating factor
:9 We are not as easily persuaded, as is the majority, that Respondent's
later attempt to explain away its confession that Clanton was disciplined
for -"icious. false or malicious statements," as well as for violation of the
no-strike clause, was not simply a self-serving attempt to exculpate itself
We are willing to take Respondent's word at the time for its motivation.
it knows better than we what its reasons were, and better then than now
Had Respondent actually relied on Clanton's leadership role in the dem-
onstration, its June 7 letter could have easily been drafted to so state
This it clearly did not do
o0 The provision in question, art V, sec. 5, is fully set forth in fn 10,
supra.
21 Globe Manufacturing ( ompanv. 229 NLRB 1025 (1977)
22 Whale Oil Companv. Inc., 169 NLRB 51 (1968). It is irrelevant that
a union's acquiescence in a respondent's unlawful conduct is on an ad hoc
basis or is embodied in a bargaining agreement Indeed. the
institutionalization of discriminatory practices should not thereby serve to
legitimize such misconduct
2a Although the majority correctly points out that in the absence of a
griecance-arbitration clause parties to the bargaining agreement may not
be compelled to arbitrate disputes, it is clear that the parties to the instant
bargaining agreement did negotiate griesance-arbitration clauses The fact
that additional, discriminatory restrictions on such grievance-arbitration
procedures were jointly negotiated does not absolve Respondent of its
8(a)(4) misconduct See Whale Oil Company, supra at 54 See also ITO
Corporation of Rhode Island. Inc. 246 NI RH 810, 812-813 (1979)
695
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Inasmuch as we would find the election of reme-
dies section of the bargaining agreement unenforce-
able, we would also find, contrary to our col-
leagues, that Local 2635's request to proceed with
Clanton's grievance was appropriate based on
rights under the collective-bargaining agreement.2 4
Accordingly, Respondent's refusal to do so, in our
view, amounted to a failure to abide by the terms
and conditions of that contract and consequently
constituted a violation of Section 8(a)(5) and (1) of
the Act.2 '
24 In this regard, we note the existence of a scerahility clause in the
instant bargaining agreement, stating:
Any l'ection of this Agreement which is ruled inconsistent with pres-
eni or future state or federal laws or statutes shall become null and
void without effect on the remaining rections Should such a cl, on
he declared null and void in final action from whose judgement [sicl
no appeal has been taken, upon w ritten request of either party, the
parties will meet to negotiate the matter.
Therefore, under the bargaining agreements severability clause ,nily sec
5 of the grievance-arbitration procedure would, il our view, be crnsid-
ered null and void, alid not the remaining sections of that article.
25 Our cilleagues protest that we wiiuld find the provision illegal and
that we then, apparently from perversity, refuse Io acknowledge that pro-
vision as a defetnse toi what wiould otherwise be a plain refusal to abide by
the contract's grievance procedure. We agree that we do sio Having
found the provision a nullity, we would. of course, treat it as such I'ihe
majority's reaction, perhaps, stems from their refusal to perceise addi-
tional underpinnings for our finding the provision itself is bad. 'IThe provi-
sion, in our view, is not unlawful simply because it requires an employee
to select from among different forums It requires the employee toI waive
rights he may have in one forum but niot in the other Item: An employee
may perceive unlawful discrimination where there is none, but that em-
ployee may nonetheless have a perfectly siunld case under the cnitract,
one which the majority would require be surrenrdered should the eniploy-
ee wish ttl test the unfair labor practice aspect of the case
APPENDIX
NOTICE To EMPILOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIll NOT publish, maintain, or enforce
any rule of conduct which unlawfully limits
the rights of our employees to make statements
relating to wages, hours, working conditions,
or other terms and conditions of employment.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
ST. JOSEPH HOSPITA. CORPORATION
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLI Y, Administrative Law Judge: The
original charges in Cases 7-CG-15(1) and 7-CG-15(3)
were both filed by St. Joseph Hospital Corporation on
June 9, 1978. An order consolidating cases, consolidated
complaint and notice of hearing thereon was issued on
June 30, 1978, alleging that Local 2635, American Feder-
ation of State, County and Municipal Employees, AFL-
CIO, and Council 25, American Federation of State,
County and Municipal Employees, AFL-CIO (herein
sometimes called Unions), had picketed in violation of
Section 8(g) of the Act.
The charge in Case 7-CA-15381 was filed by Beverly
J. Clanton;' president of Local 2635, American Feder-
ation of State, County and Municipal Employees, AFL-
C10 on July 28. A complaint thereon issued on August
25, 1978, alleging that St. Joseph Hospital Corporation
(herein sometimes called the Employer) violated Section
8(a)(3) and (1) of the Act as detailed below.
Answers were timely filed by all Respondents and on
August 25 an order consolidating cases and rescheduling
hearing was issued in the above cases. The hearing
opened on September 18, 1978, and adjourned until Oc-
tober 19, 1978.
At the hearing on September 18, 1978, the complaint
was amended to add an 8(a)(1) and (3) allegation based
on the Employer's refusal to process a grievance filed by
Clanton because she had filed an unfair labor practice
charge with the Board.
On October 3, 1978, based on an amended charged
filed by Clanton in Case 7-CA-15381, counsel for the
General Counsel filed a motion to amend the complaint
to add a violation of Section 8(a)(l) in maintaining un-
lawfully broad rules and a violation of Section 8(a)(5) in
the aforementioned refusal to process Clanton's griev-
ance. Upon the resumption of the hearing on October 19,
the General Counsel's motion to amend the complaint
was granted. The substance of the additional allegations
of the complaint were all uenied by the Employer.
The hearing was held before me on September 18, Oc-
tober 19 and 26, all in 1978. Briefs have been filed by all
parties which have been duly considered.
FINDINGS OF FACT
I. THE EMPLOYER'S BUSINESS
The Employer is an nonprofit general hospital located
in Flint, Michigan. During the year ending December 31,
1977, the Employer had gross revenues in excess of
$500,000 and purchased and had shipped directly to its
Flint, Michigan, hospital, from points outside the State of
Michigan, linens, medicines, and other goods valued in
excess of $50,000. The complaint alleges, the answer
admits, and I find that the Employer is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. rHi l ABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Unions are labor organizations within the mean-
ing of Section 2(5) of the Act.
It was stipulated at the hearing that by marriage Beverly Carr's name
is now Beverly Clanton.
696
ST. JOSEPH HOSPITAL CORPORATION
111. THE ALLEGED UNFAIR tAROR PRACTICES
A. Facts
1. Background
In substance, the Unions are alleged to have picketed
at the Employer's premises on May 23, 1978, without
giving 10 days' prior notice thereof to the Employer and
to the Federal Mediation and Conciliation Service as re-
quired by Section 8(g) of the Act.
The Employer is alleged to have issued a 2-week sus-
pension in connection with the alleged picketing to
Union President Beverly Clanton because she engaged in
lawful activity on behalf of Local 2635: also that the
Employer refused to process Clanton's grievance on the
suspension, thereby violating Section 8(a)(1),(3), and (5)
of the Act; finally, that Employer violated Section
8(a)(1) of the Act by publishing and maintaining unlas-
fully broad rules prohibiting protected Section 7 employ-
ee conduct.
2. The unfair labor practice allegations2
Since about 1973, the Unions have represented the
Employer's service and maintenance employees under
the collective-bargaining agreements, the most recent
being a 3-year contract expiring August 18, 1979. Coun-
cil 25 was also engaged in an effort to organize certain
technical employees of the Employer and a National
Labor Relations Board election was scheduled for May
25, 1978.3
In order to promote support for this organizational
effort, Clanton sought out the assistance and participa-
tion of other unions in conducting what was described
by the Unions as a "demonstration," to be conducted at
the Employer's premises to rally' employees to support
the Union in the upcoming election. To this end, Clanton
spoke with several union leaders and authorized the pub-
lication of an article bearing her name in the Flint UAW
News-Local 599 Headlight Edition of May 10. (G.C.
Exh. 12.) The article's thrust was to seek the assistance
of UAW members for the proposed "demonstration" and
much of the language was critical of the Employer. In
pertinent part, it read, "The hospital administration has
continually lied to, harassed, and even threatened to jail
the union rep. at St. Joseph's Hospital."
On or about May 18, Jerry Vogler, the Employer's di-
rector of personnel and labor relations, came into posses-
sion of this article. Vogler had reservations about the le-
gality of such a "demonstration," and, after consulting
2 There is conflicting testimony regarding certain allegations of the
complaint In resovling these conflicts. I have taken into consideration
the apparent interests of the witnesses; the inherent probabilities: the
probabilities in light of other events; corroboration or lack of it; and con-
sistencies and inconsistencies within the testimony of each witness, and
between the testimony of each and that of other witnesses with similar
apparent interests In evaluating the testimony of each witness I rels spe-
cifically upon his demeanor and make my findings accordingly And.
while apart from considerations of demeanor I have taken into account
the above-noted credibility considerations, my failure to detail each of
these is not to he deemed a failure on my part to have fully considered it
Bishop and Malco Inc.. d/b/oa Wallerir. 159 NLRB 1159. 1161 (1966)
a All dates refer to 1978 unless otherwise indicated
with the president of the hospital and its legal counsel,
sent a mailgram to Clanton on May 19, reading:
We have been informed that your union is urging a
mass demonstration at the hospital on May 23, 1978.
As you well know, Section 8(g) of the National
Labor Relations Act makes it an unfair labor prac-
tice to picket a health care facility, without notify-
ing the facility in writing at least 10 days in ad-
vance. No such notice has been given to this hospi-
tal. Please be advised that the hospital considers
vour call for a mass demonstration to be an irre-
sponsible act and will take appropriate action to
ensure that it is able to continue to provide quality
patient care. [G.C. Exh. 13.]
On May 20, the Flint Journal published an account of
the proposed demonstration, identifying Clanton as being
involved in the demonstration, and quoting her, as to the
purpose of the demonstration, in soliciting employee sup-
port for the May 25 election (Emp. Exh. 6).
The parties stipulated that on the morning of May 23,
about 5 a.m. agents of the Unions walked on the
sidewalks surrounding the Employer's premises with
signs in their hands. In addition to the Unions, other
unions involved in this activity were the Firefighters.
Postal Workers of America, UAW Locals, and other
AFSCME locals. The activity lasted all day until about
4:30 p.m. in numbers of up to 50 participants. Some car-
ried placards bearing such legends as "Justice, Dignity,
and Security"; "Local 825 AFSCME"; "AFL-CIO
Local 2635 AFSCME"; "Put your rights in writing";
"Firefighters Local 352 in Support of AFSCME."
Among those representing Local 2635 were Clanton,
Daryl Bergeron, executive board member, and Trudy
Langford, another union official, who all remained
throughout the day.
It is undisputed, and the General Counsel makes no
contention. that there was any interruption caused by
this activity to the normal operations of the hospital. 4
Nor does it appear that any employees of the Employer
were engaged in this action at times when they normally
would have been working.
On May 26, the day after the election, Vogler spoke to
Clanton, Bergeron, and Langford to advise them that he
was contemplating taking disciplinary action against
them. Upon his return from vacation on June 5, Vogler
reviewed the matter and decided to discipline only Carr.
Vogler testified that while all three were involved in the
activity on May 23, there was no evidence that Bergeron
or Langford were involved in its promulgation or orga-
nization, as was Clanton.
On June 7, Vogler called a meeting for the purpose of
disciplining Carr, attended by himself and Supervisor
Cliff Kittle. Clanton and Chief Steward Sandra Lynn
also attended. Vogler distributed a letter dated June 7
from himself to Clanton reading:
()ne truclkdri cr uipplier did stop tol inquire If ift a, all right to pass.
anld ais, told that it "as not a strike and he could go in
697
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is the follow-up of our discussion of Friday,
May 26, 1978, in which you were put on notice that
the Hospital is contemplating taking disciplinary
action for your involvement and participation in the
demonstration which took place on May 23, 1978.
We have completed our investigation and have
found your conduct to be in violation of Article
XIII, Section I of the Collective Bargaining Agree-
ment and the Hospital's Rules of Conduct (False
Statements: Employees must not make vicious, false
or malicious statements about employees of the
Hospital. Undesirable Conduct: Undesirable con-
duct or conduct unbecoming a St. Joseph Hospital
employee). This is to notify you that you are hereby
suspended for a period of 2 weeks.
However, in view of the unique circumstances pre-
sented in this case and your overall work record at
the Hospital, the serving of the suspension is being
suspended. The disciplinary action will however be
entered in your personnel file. You are also put on
notice that in the future any such violation of this
Article could result in discharge."
Article XIII is the "No-Strike Clause" of the contract
which provides, in section I:
Both the Union and the Hospital recognize the
nature of the service furnished by the Hospital, and
the importance of its responsibility to render con-
tinuous service to the public, and that nothing
should interfere to prevent the Hospital from pro-
viding this continuous service. The parties further
recognize that procedures have been provided in
this agreement for settlement of grievances. There-
fore, during the life of this Agreement the Union
shall not cause or permit its members to cause nor
shall any member of the Union or any bargaining
unit employee, take part in any strike, sympathy
strike, slowdown, interference of patient care or
stoppage of the Hospital's operations or picket the
Hospital (because of a labor dispute with the Hospi-
tal).
Under the provisions of article VII of the contract
captioned "Rules and Discipline," the Respondent has
the right to adopt, revise, and enforce rules and regula-
tions. Article VII also gives the Union the right to dis-
cuss, protest, and grieve over the rules under procedures
set out therein, but not to prevent their adoption.
Thereafter, at the June 7 meeting, there was some dis-
cussion of the factors considered by Vogler in reaching
this decision, as set out in the letter.
On June 8, Clanton filed a written grievance, contend-
ing that her suspension violated the contract. Employer
did not respond and a grievance appeal was filed by
Clanton on June 13. A third-step grievance meeting was
held on June 20.
At the June 20 grievance meeting Vogler and Greg
Knuth, the Employer's wage and hour manager, repre-
sented the Employer, while Joseph McManus, director
of organizing for Council 25, Dennis Owens, staff lepre-
S II is undisputed that Clanton's suspension was never served
sentative of Council 25, and Carr were there for the
Union.
McManus requested that the disciplinary action be re-
moved from Clanton's file and Vogler declined.
McManus asked why Clanton had been singled out for
disciplinary action, since others had been involved,
namely, Langford and Bergeron. Vogler responded that
he had no evidence that either of those individuals was
involved in organizing or promoting the activity. Vogler
also denied the suggestion that any standard of conduct
was being imposed on Clanton as a union officer, noting
that Bergeron and Langford also were union officials.
While McManus and Owens testified that Vogler com-
mented that Clanton was singled out for disciplinary
action because she was a union leader, I credit the cor-
roborated testimony of Vogler and Knuth, that Vogler
did not so state, particularly in view of McManus' limit-
ed recollection of this meeting.
In responding to inquiry about the basis for the disci-
plinary action taken against Clanton, Vogler stated that
Clanton's activity in organizing and promoting the activ-
ity of May 23 violated the no-strike and picketing provi-
sions of the contract, the pertinent provisions of which
are set forth above, and that her organizational activity
was disclosed by the UAW newsletter as well as inter-
views given to the media on May 23; second, that she
had violated the hospital "Rules of Conduct" relating to
"False Statements" and "Undesirable Conduct" by the
article appearing in the UAW newsletter of May 10 bear-
ing her name.
Vogler testified in the following exchange:
Q. In your letter of June 7th, you mentioned two
rules. One rule is vicious, false or malicious state-
ments and the other-and that is entitled undesira-
ble conduct. Is it your testimony that the one state-
ment in the letter about threatening to jail the union
rep. was the only statement that you refer to in
both of those contexts.
A. Yes.
Q. You had reference to nothing else?
A. As I pointed out the last paragraph which was
a call to arms for the picketing, it was also talked
about as being something I was troubled with in the
letter. It was the statement about threatening to jail
the union representative of the hospital that I felt
was particularly malicious.
Q. So is it true that when you charged Mrs.
Clanton with a false statement as undesirable con-
duct, you were talking about the same statement?
A. Yes.
McManus made it clear at this meeting that the Unions
intended to press for the arbitration of Clanton's griev-
ance and the meeting ended on that note.
On June 27, Clanton filed an unfair labor practice
charge (Case 7-CA-15304) alleging her suspension as an
8(a)(3) violation. The charge was withdrawn on July 25,
however, this suspension was ultimately alleged in the in-
stant case as an unfair labor practice charge on a some-
what different theory. Upon the filing of the unfair labor
practice charge by Clanton, the Respondent took the po-
698
ST. JOSEPH HOSPITAL CORPORATION
sition that it was no longer obliged to process the griev-
ance, since, under the contract, electing to pursue the
unfair labor practice charge resulted in barring relief
under the grievance procedures of the contract. The
Union has persisted in seeking arbitration despite the Re-
spondent's position. An arbitration swas set for December
4, to determine whether or not the suspension is arbitra-
ble and, if so, to determine the grievance on its merits.7
B. Discussion and Analysis
1. Activity of May 23
It is the position of the General Counsel and the Em-
ployer that the May 23 activity described by the Unions
as a "demonstration" was in reality picketing in violation
of Section 8(g) of the National Labor Relations Act.'
The Unions take the position that the activity of May
23 was merely a demonstration designed to promote em-
ployee support for Council 25 in a representation elec-
tion scheduled for May 26. The record herein discloses
that the participants, involving from 5 to 50 individuals,
walked in groups along the sidewalks surrounding the
hospital and that they carried placards bearing various
legends. In my opinion, she activity engaged in by the
Unions on May 23 clearly constitutes picketing as pro-
scribed in Section 8(g) of the Act. District 1199. National
Union of Hospital and Health Care Employees. R WDSU,
' Sec 5 of article V (Cirievance Procedure) reads:
Any Agreement reached between Management and the Union is
binding on all workers affected The sole remedy ausaliable to an)
employee for ans alleged breach of this Agreement shall he pursuant
to the Grievance Procedure, provided. hocwever, that nothing herein
shall prevent an emplosyee from electing to pursue a legal or statu-
tory remedy providing such election will bar any further or subse-
quent proceedings for relief under the Grievance Procedure
; Sec 4 of art Vi lArhitration) reads
Powers of the 4rhitreator The Arbitrator shall hae nlo power Ito add
to, subtract from, alter, or modify any of the terms of this Agree-
ment or any of the functions or responsibilities of the parties to this
Agreement. He shall have no power ioi estabhlish wage scales or
change any wage
He shall have no power to substitute his judgement for that of the
Hospital as to the reasonableness of any such practice, polic). or
rule, unless such policy, practice, or rule is in siolation of a specific
Article and Section of this Agreement His powers shall be limited
to deciding whether the Hospital has violated the express Articles
and Sections of this Agreement, it being understood that any matter
not specifically set forth herein remains within the reserved rights of
the Hospital It is further specifically understood that the Arbitrator:
a. Shall have no power to substitute his discretion for the Hospital's
discretion in cases where the Hospital is given discretion by this
Agreement
b. He shall have no power to rule on any claim or complaint for
which there is another remedial procedure or forum established bh
law or regulation
a Sec. 8(g) provides:
A labor organization before engaging in any strike, picketing. or
other concerted refusal e1-.work at an) health care institution shall.
not less than 10 days prior to such action, notify the institution in
wnting and the Federal Mediation and Conciliation Service of that
intention, except that in the case of bargaining for all initial agree-
ment following certification or recognition the notice required by
this subsection shall not he given until the expiration of the period
specified in clause (B) of the last sentence of section 8(d) of this Act
The notice shall state the date and time that such action will conm-
mence The notice. once given, mas be extended hby the writtcn
agreement of both parties
AFL-CIO (United Hospitals of Newark), 232 NLRB 443
(1977). 9
The Unions also contend that even assuming that the
activity was picketing, it was not picketing in violation
of Section 8(g). It is undisputed that the Employer's em-
ployees engaged in the picketing only during their off
time and not during their work shifts, and that there was
no disruption of any services with respect either to the
Employer or its suppliers. However, the Board has held
that picketing of a health care institution regardless of
effect is proscribed by Section 8(g). and I am bound by
the Board's holding. Thus, the Board has held that pick-
eting ". .. is proscribed by Section 8(g) even though it
does not result in a work stoppage or other disruption of
the delivery of health services." 0
This record shows that the object of the picketing was
to encourage employees to vote for Council 25 at the up-
coming representation election. According to the Re-
spondent, this was not a "labor dispute," but a "represen-
tation matter" and picketing must involve a "labor dis-
pute" before any 8(g) violation can be found. This con-
tention is based on the theory that, unless this were so,
there would be no purpose to the notice requirement to
the Federal Mediation and Conciliation Service provided
in Section 8(g), since without a "labor dispute" the Fed-
eral Mediation and Conciliation Service will not involve
itself in the resolution of the matter. Whatever merit
there may be in such reasoning, the Board has concluded
that picketing however conducted and for whatever
reason is illegal unless accompanied by proper notice
under the provisions of Section 8(g). The Board has
spoken with unmistakable clarity in ruling that Section
8(g) requires such notice ". .. prior to engaging in any
form of picketing so that the health care institution may
have time to prepare for possible disruptions of patient
care. Such restraint is reasonable and does not result in a
construction of Section 8(g) w'hich is inconsistent with
the first amendment." I
2. Employer's "Rules of Conduct"
The General Counsel contends that the "False State-
ments" portion of the Employer's "Rules of Conduct,"
set out in the complaint and reiterated above, is "per se"
unlawful because it is not limited either as to employees'
worktime or to the Employer's workplace, and because
the Employer may under this rule prohibit an employee
from making statements that are merely false which can
be lawfully made as well as statements which are mali-
cious and may not be lawful.
The Employer contends that the Unions are precluded
from objecting to these rules since the rules were estab-
lished pursuant to contract provisions giving the Union
the right to protest and grieve over them. However,
these provisions do not require union agreement to the
rules prior to implementation. Moreover, the Unions'
failure to grieve concerning these rules do not in my
9 The facts disclose that mo/re than indlsidual actisits was insxolved
since the Utnions, lrgalni;ed. sponsored. and participated in the picketing
anti were responslble for it
1 Diltriot 119i. iupru
oi' I)is/i99r u99U *lpra at 445
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion constitute an agreement by the Unions to their
establishment.
The Employer also argues that whatever the legality
of this rule, as applied to industry generally, there exists
in the health care industry special health care consider-
ations which legitimize such rules because of the possi-
bile disruption to patient care. However, these conten-
tions for establishing an exception to the general rule for
the health care industry are not supported by the record,
and I perceive no compelling reason, absent evidentiary
justification therefor, for carving an exception to the
general principle regarding this type of rule.
The current state of the law regarding such rules is
that statements which are merely false are protected
within the area of concerted activity. Had the rule in
question merely prohibited "malicious" statements as op-
posed to statements which were merely false, a different
question would have been raised. However, since em-
ployees while engaged in concerted activity have a pro-
tected right to make false, misleading, or inadequate
statements, any rule denying these protected rights is
"per se" unlawful. American Cast Iron Pipe Company, 234
NLRB 1126 (1978); El Mundo Broadcasting Corporation,
108 NLRB 1270 (1954).
This conclusion also finds support in William C. Linn
v. United Plant Guard Workers of America, Local 114, et
al., 383 U.S. 53, 62-63 (1966), wherein the Court found,
in a labor management context, that Section 8(c) was de-
signed to protect free debate:
We acknowledge that the enactment of §8(c)
manifests a congressional intent to encourage free
debate on issues dividing labor and management.
And, as we stated in another context, cases involv-
ing speech are to be considered "against the back-
ground of a profound . . . commitment to the prin-
ciple that debate . . . should be uninhibited, robust,
and wide-open, and that it may well include vehe-
ment, caustic, and sometimes unpleasantly sharp at-
tacks." New York Times Co. v. Sullivan, 376 U.S.C.
254, 270 (1964). Such consideration likewise weigh
[sic] heavily here; the most repulsive speech enjoys
immunity provided it falls short of a deliberate or
reckless untruth.
In conclusion, I find that the rule captioned "False
Statements" to be per se unlawful as overly broad. 12
3. Clanton's suspension
It is the General Counsel's contention that Clanton
was suspended because she had engaged in the protected
activity of campaigning for the purpose of promoting
support for Council 25 in the May 26 election. The Gen-
eral Counsel concedes, as indeed it must, that the picket-
ing itself was illegal as an 8(g) violation, but contends
that the promotional activity preceding the picketing of
May 23 was not illegal and that it was for this protected
activity that she was unlawfully discharged. The General
Counsel also argues, correctly, that even if the picketing
itself was one of the reason for the suspension at least
12 The rule captioned "Undesirable Conduct" is not alleged as per se
unlawful and no finding is made with respect thereto
one other reason for Clanton's suspension was that she
engaged in protected activity prior to the day of the
actual picketing. ' 3
An examination of this record makes it apparent that
Clanton was suspended, at least in part, because of cer-
tain statements which appear in the May 10 Flint UAW
News, particularly that portion wherein Clanton accused
the Employer of threatening to jail the union representa-
tive at the hospital."4 As noted above, in discussing the
legality of the "False Statements" rule itself, such state-
ments are, in a labor relations context, protected under
the holding in the Linn case. Consequently, since the
Employer in suspending Clanton was acting pursuant to
a rule which was itself "per se" illegal, her suspension
was also illegal in violation of Section 8(a)(3) of the Act,
since she was engaged in the protected activity of at-
tempting to induce employee support for the upcoming
election. Moreover, nothing in this record discloses that
anything said or written by Clanton was in fact, "mali-
cious" so as to be unprotected within the meaning of the
Linn case.
The Employer also contends that since the picketing
was illegal, Clanton's activity in promoting this illegal
act is unprotected activity and that any disciplinary
action taken by the Employer was therefore justified.
The short answer to this contention is that while this po-
sition may be correct theoretically, the undisputed facts
of this case show that Clanton was suspended, at least in
part, for violating a rule which I have concluded is per se
unlawful. This makes her suspension unlawful.
Moreover, the fact that the demonstration being pro-
moted by Clanton turned out to be illegal 8(g) picketing
does not render illegal all of Clanton's activity on behalf
of Council 25 prior to the picketing, in the course of pro-
moting the election.
In summary, I conclude that Clanton was suspended,
in part, pursuant to a rule which is "per se" unlawful and
that her suspension violates Section 8(a)(3) and (1) of the
Act.
4. The refusal to process Clanton's grievance
The General Counsel contends that by refusing to
process Clanton's grievance, the Employer violated Sec-
tion 8(a)(1), (3), (4), and (5) of the Act. The Respondent
contends that under the grievance and arbitration provi-
sions of the contract, recited above, Clanton, having
elected to file an unfair labor practice charge, is thereaf-
ter barred from any further proceedings under the griev-
ance procedures of the contract.
The provisions of the contract are clear. There is no
ambiguity in the language of the contract. The issue is
whether or not the contract provision can be applied by
the Employer to deny Clanton access to the grievance
procedures of the contract. In other words, the question
is whether or not the Respondent violated the Act by
1:1 Well-established Board and court precedent makes it clear that dis-
crimination. even though imposed only in part for a discriminatory
reason, violates the Act In this case, the fact that there may have been
other valid reasons for the suspension is irrelevant
1' As noted earlier, Vogler testified that these remarks violated both
the "False Statements" and "Undesirable Conduct" rules
700
ST. JOSEPH HOSPITAL CORPORATION
enforcing against Clanton a contract provision requiring
an employee to forfeit a contractual right to grieve be-
cause the employee has elected to pursue remedial relief
under the unfair labor practice procedures of the Nation-
al Labor Relations Board. I believe that such a provision
is unenforceable.
In substance, the Union and the Employer have
waived for employees access to the grievance procedures
of the contract if an employee elects to file an unfair
labor practice charge. In my opinion, an employee's
right to file an unfair labor practice charge contending
that his 8(a)(1) or (3) rights have been violated cannot be
waived for him by the parties to the contract. I am
aware of the Board and court cases applying the princi-
ple first enunciated in the Collver case.'5 In those cases.
the Board majority took the position that it would defer
to the grievance and arbitration provisions of a contract
even though remedial relief was also available as an
unfair labor practice charge. However, the Board has
specifically rejected the deferral principle where employ-
ees' rights under Section 8(a)(l) and (3) or Section
8(b)(l)(A) and (2) of the Act are involved, and held that
attempts to limit employees' access to the facilities of the
National Labor Relations Board, where such individual
rights are involved, would not he countenanced despite
the existence of the grievance procedure and the con-
tract.
In my opinion, the basic responsibility for enforcing
the National Labor Relation Act rests with the National
Labor Relations Board and where the individual rights
of employees protected thereunder are involved, the
right of access of employees to the procedures of the
Board must remain unimpaired. This contract grievance
provision impairs that right. But how is this so, one may
ask, when the contract does not purport to deny an em-
ployee access to the Board? All the contract does is to
deny an employee access to the grievance procedures of
the contract should he or she elect to utilize the proce-
dures of the Board. Forcing an employee to such an
election, however, requires the employee to pay a price
for doing what the Congress has determined to permit
him to do by denying him the benefits of the contract
grievance procedure if he elects to exercise his legal
right with the Board. He cannot be forced to make such
a choice. An employee's right to use the Board's proce-
dures must be unfettered, and he may not be required to
15 Col/yer Insulated Wire, A Gulf and Western System Co, 192 Nt.RB
837 (1971)-
le Of course Chairman Fanning and Member Jenkins have never ad-
hered to the Collyer principle. Then-Chairman Murphy, in joining them
to reject the Collyer principle in 8(a)(t) and (3) and 8(b)(1)(A) and (2)
type cases. stated in General American Transporroation Corporalion:
In sum. I shall continue to defer to arbitration those cases invols-
ing only contract interpretation issues, as in Ror Rohinson Chevrolel
But I shall not defer to arbitration in those cases which inolve
unfair labor practice allegations affecting individual rights under Sec-
tion 7 of the Act Since the instant case is of the latter type. being
concerned with whether Respondent's motive in discharging em-
ployee Soape was his union or other protected concerted acti',ities, I
find that the matter should not be deferred to arbitration and I agree
with my colleagues' finding that Respondent violated Section 8(a1)(3)
and () by Ihe said discharge [228 NLRB 808, 8131 (1977)]
sacrifice a contractual right in order to exercise it, even
though it is he who makes the election. 7
While the Supreme Court has never passed on the pre-
cise issues raised in the instant case, it has passed on a
similar issue arising under Title VII of the Civil Rights
Act of 1964. The rationale of that case is directly appli-
cable to the instant case. In the Alexander case, " the Su-
preme Court decided that a racial discrimination griev-
ance filed under the contract, which was processed and
rejected by an arbitrator, did not preclude litigation
under Title VII for the same discrimination. The Su-
preme Court concluded that distinctions can and should
be drawn between contractual rights and statutory
rights, even where the facts are the same in both actions.
This concept has greater validity in the instant case
where several reasons have been asserted by the Em-
ployer for Clanton's suspension, some of which are con-
tractual in theory, relating to the no-strike clause of the
contract and work rules, while others are clearly statu-
tory, i.e., organizing illegal picketing under Section 8(g)
of the Act. Since an underlying issue in the grievance
would require a determination as to the legality of the
picketing under Section 8(g), the arbitrator would not be
competent to pass on that aspect since it is extra-contrac-
tual.
It is also significant to note that this is not merely a
question of deferral pending an arbitration, where the au-
thority to review is being retained by the Board. In the
instant case, if it is determined that this contract provi-
sion is valid, the employee will be permanently damaged,
since he will be permanently barred from filing any
grievance under the contract.
In summary, I am persuaded that, by enforcing the
contract to deny Clanton full access to the grievance
procedures of the contract because she had filed an
unfair labor practice charge, the Employer is essentially
imposing a penalty on Clanton for having filed the unfair
labor practice charge, in violation of Section 8(a)(1) and
(4) of the Act. 9
However, I am unable to perceive how the Employer
has refused to bargain with the Union by refusing to
process Clanton's grievance. First, the charge was filed
by Clanton and bargaining relief is unavailable to indi-
vidual charging parties. Second, I am unable to perceive
how the Employer has refused to bargain with the
Unions by refusing to process Clanton's grievance, since
the Employer was simply enforcing a provision of the
contract to which the Unions were party. Under the
clear terms of the contract it was entitled to do this, de-
spite the belated protestations of the Unions that the con-
tract provision in issue should not be enforced.
' The Employer's contention that the matter is being processed to ar-
bitration at present is not well taken While it is true that the grievance is
being processed. the Employer is taking the position that the grievance is
no longer arbitrable because the unfair labor practice charge has been
filed Such limited employee access to the grievance procedure is still a
denial of the employee's full access to the Board which should be availa-
ble to him
il .41exander v Gardner-Denver Co., 415 U.S 36 (1974)
ta While no 8(a)(4) allegation is set out in the complaint, the entire
matter was fully litigated and an 8(a)(4) finding is fully warranted I find
it unnecessary to pass on whether or not the Employer's misconduct also
violates Sec 8(a)(3) of the Act, since the remedy would not be affected
701
DECISIONS O()F NATIONAL L.ABOR REI.ATIONS O()ARD
IV. I'H I I FFlC I 01: TiHE UNIAIR I ABOR PRACTICI S
UPON COMMI RCE
The activities of the Unions and the Employer occur-
ring in connection with the Employer's operations de-
scribed in section 1, above, have a close and intimate re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
V. I'HI R EMEDY
Having found that the Unions and the Employer have
engaged in, and are engaging in, certain unfair labor
practices, I shall recommend that they cease and desist
therefrom, and take certain affirmative actions designed
to effectuate the policies of the Act. However, since it
appears that Clanton's saspension was not carried out, no
backpay award will be made herein.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this case I
make the following:
CONCL.USIONS OF LAW
1. St. Joseph Hospital Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By picketing at the premises of St. Joseph Hospital
Corporation without first giving 10 days' written notice
to St. Joseph Hospital Corporation and to the Federal
Mediation and Conciliation Service, the Unions have
violated Section 8(g) of the Act. This conduct affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
4. By publishing, maintaining, and enforcing a rule of
conduct ("False Statements") which unlawfully limits the
right of employees to make statements relating to wages,
hours, working conditions, or other terms and conditions
of employment, the Employer has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
5. By suspending Clanton for having violated the un-
lawful rule ("False Statements"), the Employer discrimi-
nated against Clanton in violation of Section 8(a)(3) and
(1) of the Act.
6. By declining to process Clanton's grievance over
her suspension, because that grievance was the subject
matter of a charge pending before the National Labor
Relations Board, the Respondent violated Section 8(a)(l)
and (4) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 20
A. Respondents Local 2635, American Federation of
State, County and Municipal Employees, AFL-CIO, and
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
Council 25, American Federation of State, County and
Municipal Employees, AFL-CIO, their officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Engaging in any strike, picketing, or other concert-
ed refusal to work at the premises of St. Joseph Hospital
Corporation, or any other health care institution, without
timely notifying, in writing, any such health care institu-
tion and the Federal Mediation and Conciliation Service,
not less than 10 days prior to such action, of that inten-
tion.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Post at its business offices, meeting halls, and all
other places where notices to its members are customar-
ily posted copies of the attached notice marked "Appen-
dix A.""2 Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly
signed by both Unions' authorized representatives, shall
be posted by the Unions immediately upon receipt there-
of, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Unions to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Unions have taken to comply herewith.
[Recommended Order, section B, omitted from publi-
cation.]
be.come its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
21 In the event ihat this Order is enforced by a Judgment of a United
States Court of Appeals, the "lords in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board."
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NAIIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wi.L. NOT engage in any strike, picketing, or
any other concerted refusal to work at the premises
of St. Joseph Hospital Corporation, or any other
health care institution, without timely notifying, in
writing, any such health care institution and the
Federal Mediation and Conciliation Service, not less
than 10 days prior to such action, of that intention.
LOCAL 2635, AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOY-
1.ES, AFL-CIO
COUNCIL 25, AMERICAN FEDERATION OF
STATr, COUNTY AND MUNICIPAL EMPLOY-
FES, AFL-CIO
702