noting an employer’s general right to observe non-employee union organizers
How later courts described this case
- noting an employer’s general right to observe non-employee union organizers
Written by the judges who cited it.
The opinion
KEITH, Circuit Judge,
dissenting.
Because I disagree with the majority’s view of the facts and its reliance upon Lechmere, Inc. v. NLRB, — U.S. -, 112 S.Ct. 841 , 117 L.Ed.2d 79 (1992), I must respectfully dissent.
In its opinion, the majority concludes that the hospital’s anti-solicitation rule equally applies to all nonemployees, and therefore, Mr. Gonzalez was not discriminated against because of his efforts to organize employees to form a union. This analysis, however, does not comport with the following facts.
From February to June 1987, Mr. Gonzalez went to the hospital cafeteria every week or two to speak with hospital employees. During this time, the hospital knew that Mr. Gonzalez was present in the cafeteria and that he talked to officers of Local 2568. The hospital, however, did not know that he also was attempting to organize the registered nurses. The hospital did not enforce its anti-solicitation rule against Mr. Gonzalez during this time. In the fall of 1987, Mr. Gonzalez informed the hospital administration that he was organizing the registered nurses. It was at this point that the hospital began monitoring his activities, and ultimately filed a trespass complaint against him. As ALJ Marvin Roth noted,
[T]he Company candidly admits the reason for its actions: “Prior to September 1987, Oakwood had no knowledge of the purpose of Gonzalez’ visits. When Oak-wood finally learned the purpose of Gonzalez’ visits on September 24, 1987, Jenkins personally confronted Gonzalez, and asked him to leave the cafeteria.” (See also Br. 28). The Company’s course of conduct was consistent with this admission. Throughout early 1987 the Company knew of and tolerated Gonzalez’ presence on the possibility that he may have been there in connection with the service and maintenance unit. However as soon as Jenkins learned that Gonzalez was talking to nonunit employees, he immediately took steps to expel him. In sum, the Company sought to deny Gonzalez access to the cafeteria because of the subject matter of his conversations with employees at the dinner table, i.e., organizational activity.
(ALJ opinion, p. 8) (emphasis added).
Although there was an anti-solicitation rule in a manual that was distributed to department heads, there is no evidence that this rule was ever applied before. Furthermore, this rule was not posted anywhere in the hospital. The hospital did not consider Mr. Gonzalez a trespasser until it learned that he was discussing the union with unorganized employees. As the ALJ stated in his opinion,
[T]he Board has held that a hospital may not discriminatorily exclude union organizers from its cafeteria, where the cafeteria is generally open to visitors although primarily intended for and used by employees. Southern Maryland Hospital Center, 276 NLRB 1349 , n. 2 (1985).
(AU opinion, p. 10). Clearly, the selective enforcement of the rule indicates that the hospital engaged in discrimination against union solicitation. Therefore, Mr. Gonzalez was not trespassing.
The majority relies upon Baptist Medical Systems v. NLRB, 876 F.2d 661 (8th Cir.1989), and NLRB v. Southern Maryland Hospital Center, 916 F.2d 932 (4th Cir.1990) for its conclusion that it was lawful to exclude Mr. Gonzalez from the cafeteria. These cases, however, are factually distinguishable from the instant case. First, in neither Baptist Medical Systems or Southern Maryland Hospital Center, did the hospitals allow union organizers to use their cafeterias as long as the organizers did not discuss union membership to unorganized employees. Second, in both cases, the hospitals had well-publicized anti-solicitation rules.
It follows, therefore, that the majority’s reliance upon Lechmere, Inc. v. NLRB, — U.S. -, 112 S.Ct. 841 , 117 L.Ed.2d 79 (1992), is also flawed. The Lechmere Court held that union organizers would be allowed to trespass upon employer’s prop *705 erty only in instances where the employees cannot effectively be reached through other forms of communication. Mr. Gonzalez, however, was not a trespasser. Any determination as to whether, as a trespasser, he had alternative means of communicating with employees is unnecessary. Because the Lechmere Court did not address non-trespassory activity, the majority’s reliance upon its reasoning is misplaced.
Because Mr. Gonzalez was not a trespasser, the hospital's surveillance of him violated Section 8(a)(1) of the National Labor Relations Act. The majority states that because the hospital had the right to exclude Mr. Gonzalez from the cafeteria, it therefore had the right to observe him while he was there. However, this reasoning fails because Mr. Gonzalez was not trespassing in the cafeteria.
There is no evidence that the qnti-solicitation rule was applied in any other context but that of union organizing efforts. Therefore, I would deny the petition for review and grant the NLRB’s application for enforcement of its order, allowing non-employee union members to organize registered nurses in the hospital cafeteria.