Petition — Lutheran Hospital of Milwaukee, Inc. v. National Labor Relations Board

Supreme Court, U. &

| FILED

| MAR 14 1978

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED S

October Term, 1977

No. 2271289

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LUTHERAN HOSPITAL OF MILWAUKEE, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

| Respondent.

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PETITION FOR WRIT OF CERTIORARI :

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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James C. Mallien

David E. Jarvis

Darryl S. Bell

780 North Water Street

Milwaukee, Wisconsin 53202

Attorneys for Petitioner

OF COUNSEL:

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 273-3700

TABLE OF CONTENTS

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QUESTION PRESENTED. . ..csccccccescces

STATUTORY PROVISIONS INVOLVED....

STATEMENT OF THE CASE..............

REASONS FOR GRANTING THE WRIT....

1. THE DECISION BELOW DIRECTLY

CONFLICTS WITH DECISIONS OF THE

COURTS OF APPEAL FOR THE TENTH

AND DISTRICT OF COLUMBIA CIR-

2. THIS COURT HAS GRANTED CER-

TIORARI IN A CASE YET TO BE HEARD

ON ORAL ARGUMENT WHICH OM ITS

FACTS PRESENTS ONLY A PORTION OF

THE COMPLETE ISSUE OF THE PERMISSI-

BLE SCOPE OF NO-SOLICITATION/DIS-

TRIBUTION RULES ISSUED BY HEALTH

CARE INSTITUTIONS; THE CASE AT BAR,

ON THE OTHER HAND, FACTUALLY

RAISES THE ENTIRE ISSUE...............

3. THE BOARD’S RULING IN ST. JOHN’S

PRESENTS A NUMBER OF SIGNIFICANT

ISSUES IN THE ADMINISTRATION OF

THE NATION’S LABOR LAWS............

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TABLE OF AUTHORITIES CITED

Cases

A.T. & S.F. Mem. Hosp., Inc.,

234 NLRB No. 65, 97 LRRM 1314 (1978). ...

Baptist Hospital, Inc.,

223 NLRB 344 (1976), rvw pending (6th Cir.)

Tl MET iSenndvacevebbekhsssesedecs

Baylor Univ. Medical Center v. NLRB

F.2d , Dkt. No. 76-1940 (D.C. Cir.

Feb. 14, 1978), BNA Daily Labor Report No.

Pt. SS SS re

Goldblatt Bros., Inc.,

OF Pe IR wv n.ncccececcenanesese

Guyan Valley Hospital, Inc.

a ee ns ns a cccenennee

Marshall Field & Co.,

98 NLRB 88, (1952), modified and enforced,

ry ) w& boo jly Lo Ae

Lutheran Hospital of Milwaukee, Inc. v. NLRB,

564 F.2d 208 (7th Cir. 1977) enf. granted in

part and denied in part....................

May Dept. Stores Co.,

59 NLRB 976, (1944), modified and enforced,

154 F.2d 533 (8th Cir.), cert. denied 329 U.S.

i idcsendenwhnnbuedesessounesses

McDonald’s Corp.,

Ps oc.oc cd connevccesees

Page

6,7,9,15,17

14

13

14

1,5,6,9,

12,16

14

14

NLRB vy. Beth Israel Hosp., Inc.

554 F.2d 477 (ist Cir. 1977), cert. granted,

No. 77-152, 46 U.S.L.W. 3446 (Jan. 17, 1978)

NLRB v. Summit Nursing Convalescent Home,

472 F.2d 1380 (6th Cir. 1973)...............

St. John’s Hospital and School of Nursing, Inc.,

222 NLRB 1150, (1976), enf. granted in part

and denied in part, 557 F.2d 1368 (10th Cir.

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St. Peter’s Medical Center

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Statutes

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National Labor Relations Act, as amended,

29 U.S.C. Section 151, ef. seg. (1977).......

Articles

R. Epstein, ‘“‘Guide to NLRB Rules on

Solicitation and Distribution,’’ 49

Hospitals, J.A.H.A. 43 (1975)...........

W. Emanuel & A. Klein, ‘‘Solicitation Rules

Will Need Revision,’ Jd. at 47.............

Legislative History

Senate Report (Labor and Public Welfare Com-

mittee) No. 93-766, Apr. 2, 1974 [To accom-

pany S. 3203], 93d Cong., 1974 U.S. Code

Cong. & Ad. News 3946. ............00005.

8,9,15

9,13

3,5,6,7,8,9,

10,12,13,14,

15,17,18

2,4,7,10,

13,14,16,18

16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

LUTHERAN HOSPITAL OF MILWAUKEE, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Lutheran Hospital of Milwaukee, Inc. (‘‘Hospital’’)

respectfully prays that a writ of certiorari issue to review the

final judgment and order of the United States Court of Ap-

peals for the Seventh Circuit entered in this proceeding on

December 19, 1977.

OPINIONS BELOW

The October 5, 1977 opinion of the United States Court

of Appeals for the Seventh Circuit is reported at 564 F.2d 208

and is reproduced in the Appendix at pages 21-40 B. The

May 27, 1976 decision and order of the National Labor Rela-

tions Board (‘‘Board’’) is reported at 224 NLRB 176 and is

reproduced in the Appendix at pages 41-73.

2.

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was dated and entered on December 19,

1977, granting in part and denying in part enforcement of the

Board’s May 27, 1976 order. On December 1, 1977, the Court

of Appeals denied Petitioner’s motion for leave to file a peti-

tion for rehearing in banc instanter. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Did the National Labor Relations Board properly con-

clude that it was unlawful for the Hospital to ban union

solicitation and literature distribution in areas such as the

hallways and lounges in patient wards, the elevators and

Stairways which connect the patient wards, the chapel, and

the lounge in which family members await the results of

surgery?

STATUTORY PROVISIONS INVOLVED

The applicable provisions of the National Labor Rela-

tions Act, as amended (29 U.S.C. § 151 et seq.) (‘‘Act’’) are

set forth in the Appendix at pages 19-20.

STATEMENT OF THE CASE

Petitioner Hospital is a nonprofit, 425-bed general

hospital located in Milwaukee, Wisconsin, which employs ap-

proximately 850 persons. On September 30, 1974, Local

1199W of the National Union of Hospital and Health Care

Employees RWDSU AFL-CIO (‘‘Union’’) began a campaign

to organize 450 to 500 of the Hospital’s employees. An elec-

tion petition was never filed although the campaign con-

tinued for approximately nine months. The Union did,

however, file two charges against the Hospital alleging that it

had committed unfair labor practices. Two complaints were

/.

issued by Respondent and were consolidated for hearing

before Administrative Law Judge Paul Bisgyer. In summary,

the complaints alleged that the Hospital engaged in three

coercive interrogations of employees; coerced employees by

sending them a letter asking that they inform the Hospital of

harassment by union pamphleteers; promulgated and main-

tained in effect since April 25, 1975, an ‘‘overly broad’’ no-

solicitation/distribution rule which prohibited such activity

in any area of the Hospital to which patients and visitors had

access; and discriminatorily enforced an earlier version of the

rule. The hearing was held on June 19, 1975 and Judge

Bisgyer issued his recommended decision and order on

February 27, 1976.

Judge Bisgyer found that the Hospital had enforced its

earlier no-solicitation/distribution rule in an even-handed

manner and that it had not been discriminatorily enforced.

Judge Bisgyer also found one of the interrogations lawful. He

did find that the Hospital violated the Act in the other two in-

stances of interrogation, by sending the letter and by issuing

the revised no-solicitation/distribution rule. Judge Bisgyer

noted that such rules were presumed invalid under traditional

Board precepts if they prohibited solicitation during non-

working time or prohibited distribution in nonwork areas

during nonworking time. To the extent that such activity oc-

curred in patient and visitor access areas, the Hospital’s rule

did both and hence was unlawful.

In its May 27, 1976 decision and order, the Board af-

firmed and adopted in all respects Judge Bisgyer’s recom-

mended decision and order. In a footnote, the Board stated

that subsequent to Judge Bisgyer’s decision, it held in Sv.

John’s Hospital and School of Nursing, Inc., 222 NLRB 1150

(1976) that no-solicitation/distribution rules which prohibit

such activity in all areas of health care institutions to which

patients and visitors have access, other than immediate pa-

tient care areas, are presumed to be unlawful. Thus, unless

the area of the institution were deemed to be an ‘immediate

patient care area,’’ the Board’s traditional rules relating to

solicitation and distribution would continue to apply. Relying

upon its St. John’s decision, the Board upheld Judge

Bisgyer’s decision relating to the Hospital’s rule.

-4-

The Seventh Circuit, which had jurisdiction pursuant to

29 U.S.C. § 160(f), granted partial enforcement of the

Board’s order. The court rejected the Board’s findings that

the Hospital coercively interrogated its employees. The court

affirmed the Board’s finding relating to the union harassment

letter and also enforced the order based upon the finding that

the no-solicitation/distribution rule was overly broad.

The rule reads:

‘*We receive numerous requests from various per-

sons, groups and organizations to be allowed to

solicit patients or employees for various causes, or

be allowed to distribute books, pamphlets, etc.

throughout the hospital. These are a source of an-

noyance to the patients, as well as disruptive to our

routines. This had led us to adopt a rule pro-

hibiting members of the public from doing any

soliciting or any distributing of material on

hospital premises at any time. Outside of working

hours an employee becomes a member of the

public, and the foregoing rules will apply.

During working hours, employees should not

solicit or distribute written matter for any purpose

in any part of the hospital during working time.

(‘Working time’ applies not only to the employee

doing the soliciting, but includes the person being

solicited.) During the non-working time of

employees’ working hours, solicitation is permitted

only in non-patient and in non-public areas of the

hospital, and distribution of written material is

limited to non-work areas and non-patient areas

and non-public areas."’

as

4

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DIRECTLY CON-

FLICTS WITH DECISIONS OF THE COURTS OF AP-

PEAL FOR THE TENTH AND DISTRICT OF COLUM-

BIA CIRCUITS.

The decision below adopted the holding and reasoning

of the Board in St. John’s Hospital and School of Nursing,

Inc., 222 NLRB 1150 (1976) to the effect that rules restricting

solicitation and distribution in areas of a health care institu-

tion, other than immediate patient care areas, presumptively

are invalid. The Tenth Circuit, however, recently denied en-

forcement of the Board’s order in Sf. John’s to the extent

that it allowed solicitation and distribution in those areas to

which patients and visitors had access. St. John’s Hospital

and School of Nursing, Inc. v. NLRB, 557 F.2d 1368 (10th

Cir. 1977).

There can be no doubt that the decision below directly

conflicts with the Tenth Circuit decision. The Seventh Circuit

stated:

**‘Both petitioner and the General Counsel...

agree that the outcome. . .turns on whether we ac-

cept the Board’s holding in S/. John’s. . . . Since

the rule promulgated by the employer-hospital in

St. John’s was virtually identical to the rule at issue

here, we shall treat the Board’s reasoning in S/.

John’s as directly applicable to this case."’ 564 F.2d

at 213 (footnote omitted).

Thereafter the Seventh Circuit relied upon the Board’s opi-

nion in St. John’s to sustain the Board’s position in the in-

stant case. The Seventh Circuit specifically approved ‘‘the

distinction the Board has now drawn between hospitals and

retail stores or restaurants’’ as well as ‘‘the Board’s conclu-

sion that special circumstances rebutting its usual presump-

tions with respect to solicitation and distribution exist in the

immediate patient care areas of the hospital but do not exist

ouside of those locations. . . ."’ 564 F.2d at 214, 215-16.

&

The Tenth Circuit, on the other hand, expressly rejected

the holding and the reasoning of the Board in St. John’s. For

example, the court stated:

‘*Although not controlling, when this factor [alter-

native means of communication available for

solicitation and distribution] is considered in con-

junction with the expressed congressional concern

for protecting ‘patient care’ wherever possible, the

conceded fact that solicitation may be unsettling to

patients, and the absence of any record evidence to

support a distinction between the sensibilities of

bedridden vis-a-vis ambulatory patients we are

compelled to conclude that the balance struck by

the Board is unsupported and unreasonable... .

We therefore deny enforcement of the Board’s

order insofar as it would perm solicitation in pa-

tient access areas.”’ 557 F.2d at 1375.

The Seventh Circuit recognized that its decision in the in-

stant case directly conflicted with that of the Tenth Circuit.

According to the court below, ‘*[s]ince petitioner’s rule is in-

valid under the usual presumptions, we must disagree with

the Tenth Circuit [in St. John’s} and enforce the Board’s

decision in this case.”’ (footnotes deleted) 564 F.2d at 216.

The court also noted that the opinion was circulated among

all judges in regular active service and that a majority of the

active members ‘‘did not vote to grant that this conflict with

the Tenth Circuit be reheard en banc. Judges Pell, Tone and

Bauer voted to grant that this matter be reheard en banc.”’

564 F.2d at 216 n.8.

The District of Columbia Circuit also recently rejected

the Board’s St. John’s decision. In Baylor Univ. Medical

Center v. NLRB, ___. F.2d ___, Dkt. No. 76-1940 (D.C.

Cir. Feb. 14, 1978), BNA Daily Labor Report, No. 33, Feb.

16, 1978 at D-1, the court denied enforcement of the Board’s

order based on its finding that the Medical Center’s no-

solicitation/distribution rule was overly broad in violation of

Te

Section 8(a)(1) of the Act. That rule, like the one in the case

at bar, essentially prohibited solicitation and distribution in

any area to which patients and the public had access. The

District of Columbia Circuit did not cite the Seventh Circuit

opinion below. It did, however, expressly reject the Board’s

St. John’s holding and approve the reasoning of the Tenth

Circuit in that case. The District of Columbia court stated:

**The Hearing Examiner evidently felt compelled

to limit Baylor’s proscriptions on solicitation as he

did because of the Board’s recent decision in Sv.

John’s... . We agree with the Tenth Circuit that

even were it possible - which it manifestly is not -

to determine with any confidence and rationality

which areas in a hospital are and which are not ‘im-

mediately’ involved in patient care, the Board’s

overly restrictive position on the valid extent of no-

solicitation rules in medical facilities must never-

theless be overturned as insensitive both to the

unique conditions found in an acute general

hospital and to the declared intent of Con-

gress.""-BNA Daily Labor Report, No. 33 at D-2

(Feb. 16, 1978). (citations and footnotes omitted).

It is apparent, therefore, that the opinion of the District

of Columbia Circuit conflicts with the opinion below. The

District of Columbia opinion expressly adopted the reasoning

of the Tenth Circuit in St. John’s while the Seventh Circuit

opinion below expressly rejected it.

While the Medical Center did introduce evidence relating to

noise and overcrowding in the hallways to support its rule, it ap-

pears that the District of Columbia court would have reached the

same result even without such evidence. The court stated:

**It is not only the likelihood that congestion

and commotion would result from such soli-

citation, but also the inherently disturbing

effect of interjecting undertones of labor

disputes into a situation where sick persons

are totally dependent on the unflagging

(Footnote continued)

Traditionally this Court has exercised its discretionary

jurisdiction to resolve conflicts such as those which now exist

between the courts of appeal. Petitioner respectfully requests

that this Court do so in this case so as to settle with certainty

this significant issue of labor law which affects the nation’s

health care institutions, their patients and employees.

2. THIS COURT HAS GRANTED CERTIORARI IN

A CASE YET TO BE HEARD ON ORAL ARGUMENT

WHICH ON ITS FACTS PRESENTS ONLY A PORTION

OF THE COMPLETE ISSUE OF THE PERMISSIBLE

SCOPE OF NO- SOLICITATION / DISTRIBUTION

RULES ISSUED BY HEALTH CARE INSTITUTIONS;

THE CASE AT BAR, ON THE OTHER HAND, FAC-

TUALLY RAISES THE ENTIRE ISSUE.

This Court recently granted the petition for certiorari fil-

ed in NLRB v. Beth Israel Hospital, 554 F.2d 477 (ist Cir.

1977), cert. granted, No. 77-152, 46 U.S.L.W. 3446 (Jan. 17,

1978).

Both Beth Israel and the case at bar raise the issue of the

permissible scope of no-solicitation/distribution rules in

health care institutions. Both cases turned on the willingness

of the respective courts of appeal to give judicial approval to

the Board’s St. John’s decision. The cases are

distinguishable, however, in that Beth Israel factually is

limited to a narrower aspect of the issue than is the case at

bar. In Beth Israel, the Board’s complaint challenged only the

validity of that portion of the no-solicitation/distribution

rule which applied to the cafeteria and coffee shop. The First

Circuit, therefore, carefully limited its opinion:

(Footnote | continued)

assistance of others that are major factors

contributing to the disruptive effect of

solicitation. Wherever ir. the hospital an

emotionally vulnerable group of patients

and their visitors may be present, we feel

that unique considerations come into play

which justify an otherwise overly broad no-

solicitation rule.’” BNA Daily Labor Report,

No. 33 at D-4 (Feb. 16, 1978).

2 On A oe ane

-9-

**We thus make plain that we interpret the Board’s

decision and order as adjudicating no more than

the status of the cafeteria and coffee shop.’’ 554

F.2d at 482.

This difference with Beth Israel also was noted by the

Seventh Circuit when it stated:

**In this case, unlike Beth Israel, the full scope of

St. John’s was called into question because peti-

tioner prohibited solicitation and distribution in all

areas to which the public and patients have access.

Therefore, we are unable to confine our holding to

locations such as cafeterias and coffee shops.’’ 564

F.2d at 216.

As this Court recognized by its grant of certiorari in Beth

Israel, the permissible scope of no-solicitation/distribution

rules in health care institutions is a matter of significant con-

cern in the administration of the nation’s labor laws.

However, many institutions, including the Hospital, have

issued rules regulating solicitation and distribution which ap-

ply in areas of the institution in addition to the cafeteria and

coffee shop. Indeed, a review of the rules described in the re-

cent cases indicates quite clearly that the typical no-solicita-

tion/distribution rule applies at leasi to all places in the in-

stitution to which patients and visitors have access. See, e.g.

Baylor Univ. Medical Center v. NLRB, supra; St. John’s

Hospital and School of Nursing, Inc. v. NLRB, supra; NLRB

v. Beth Israel Hospital, supra; NLRB v. Summit Nursing

Convalescent Home, 472 F.2d 1380 (6th Cir. 1973); A.T. &

S.F. Mem. Hosp., Inc., 234 NLRB No. 65, 97 LRRM 1314

(1978); St. Peter’s Medical Center, 223 NLRB 1022 (1976);

Baptist Hospital, Inc., 223 NLRB 344 (1976), rvw. pending,

(6th Cir.) No. 76-1675. All these rules are presumed invalid

under the Board’s St. John’s holding.

a

-10-

A decision by this Court in Beth Israel will not necessari-

ly resolve fully the issue of the permissible scope of no-

solicitation/distribution rules. As indicated, Beth Israel fac-

tually is limited to the validity of a ban on solicitation and

distribution in a cafeteria and coffee shop. The case,

therefore, does not bring before this Court a key concept in

the Board’s St. John’s opinion, that is, what are ‘‘immediate

patient care areas’’? According to the Board, solicitation and

distribution which otherwise would have to be permitted can

be prohibited in immediate patient care areas. As discussed

infra, at page 15, none of the courts of appeal which reviewed

the Board’s S‘. John’s holding - including the court below -

could define which areas were ‘‘immediate patient care

areas’’ and which were not. This ambiguity is a major failing

in the Board’s ruling. However, despite this difficulty of

definition, a strong argument can be made that Beth Israel’s

cafeteria and coffee shop were not ‘‘immediate patient care

areas.’’ Thus, Beth Israel could be limited to its facts in ac-

cordance with traditional judicial principles, in which event

this key aspect of the St. John’s decision would not be

reached. On the other hand, the case at bar presents this

Court with an opportunity to rule definitively on the entire

scope of the Board’s St. John’s ruling and thereby bring

stability to this unsettled area of the law.

3. THE BOARD’S RULING IN ST. JOHN’S

PRESENTS A NUMBER OF SIGNIFICANT ISSUES IN

THE ADMINISTRATION OF THE NATION’S LABOR

LAWS.

The scope of no-solicitation/distribution rules which is

permissible under the Act is an issue of recent origin. Volun-

tary, nonprofit health care institutions were not covered by

the Act until 1974. Pub. L. No. 93-360, 88 Stat. 395. As a

result of this extension of the Act, many health care institu-

tions, including the Hospital, reviewed their personnel

policies and practices to insure that they were in compliance

with the newly applicable legal principles. A major area of

concern was solicitation and distribution. Because of their

-—~ me ee

ee

te anlar

Status as eleemosynary institutions, many hospitals historical-

ly permitted on-premises charitable solicitations. Often these

drives raised funds for the hospital and related services. Act-

ing out of a concern for their patients, however, these same

institutions frequently banned other types of direct solicita-

tion and distribution especially where patients and visitors

were present. This potential conflict with the traditional no-

solicitation/distribution rules developed by the Board did not

go unnoticed. The periodicals soon contained articles analyz-

ing the problem and making suggestions for compliance with

the law in light of the special circumstances existing in health

care institutions. One such suggestion was that health care in-

stitutions develop no-solicitation/distribution rules similar to

that issued by the Hospital. See, e.g., R. Epstein, ‘‘Guide to

NLRB Rules on Solicitation and Distribution,’’ 49 Hospitals,

J.A.H.A. 43 (1975); W. Emanuel & A. Klein, ‘‘Solicitation

Rules Will Need Revision,’’ /d. at 47.

The response of the Hospital to these legal developments

probably was typical. Its rule is a carefully drafted effort to

protect the statutory rights of its employees to freely and ef-

fectively engage in self-organizational activities while at the

same time recognizing that the Hospital is a special work

place. Unlike any factory, office, or other commercial

establishment, the Hospital is engaged in the treatment of

sick people. Their care is the Hospital’s raison d’etre.

Therefore, solicitation and distribution of any kind - not just

union activity - is not permitted in those areas where patients

and their visitors are present.

The conclusion of the court below that the Hospital’s

rule was unlawful was based upon the following two assump-

tions about the nature of a hospital, its employees and pa-

tients: (1) Hospital employees do not act in their professional

capacities except when they are in immediate patient care

areas; and (2) Patients and visitors do not expect employees

who are not in an immediate patient care area to act in a pro-

fessional manner. According to the court:

-12-

‘*(T]he primary function of a hospital is to provide

health care, and the areas of a hospital outside of

immediate patient care areas are by definition not

locations where the hospital’s primary function is

carried out or where the public deals with the

employees in their professional capacity.’’ 564

F.2d at 214 (emphasis added) (footnotes deleted).

The opinion below cited no authority for its highly ques-

tionable ‘‘definition.’’ To the contrary, there was no support

in the record for those assumptions nor did the Board in Sv.

John’s have any such supporting evidence. The assumptions,

furthermore, do not comport with common experience.

The Seventh Circuit ruled that the Hospital must allow

solicitation and distribution in such areas as the hallways and

small sitting lounges in the patient wards and the lounge in

which family members await the results of surgery and have

post-operative discussions with the surgeon. This result is

mandated, according to the court below, because when

Hospital employees are in those areas they are not acting in

their ‘‘professional capacities’’ and patients and visitors

would not expect the employees to be so engaged. This con-

clusion follows because those areas are not immediate patient

care areas and, by ‘‘definition,’’ are neither locations where

the Hospital’s primary function is carried out nor where the

public deals with employees in their professional capacities.

Thus, according to the court, if a patient were sitting in a

lounge in the patient ward next to her room, her expectation

would be that nurses she encountered therein would not be on

duty and would not treat her in a professional manner.

Similarly, if the family of a patient undergoing open heart

’ surgery were awaiting the results in the special lounge provid-

ed by the Hospital for such occasions, employees who were in

the lounge would not be engaged in their professional

capacities nor would the family members expect them to be so

engaged. In both places, employees could be engaged in a

heated discussion about union organization and, according to

the court, neither the patient nor the family members would

be justified in looking askance at such activity. Indeed, they

i,

should be told that such activity hgs the stamp of approval of

the Board and the Seventh Circuit.

To arrive at this odd result, the Board, with the approval

of the court below, had to ignore two important lines of ex-

isting precedent. First, prior to 1974, the Board had conclud-

ed that proprietary health care institutions (which already

were subject to the Act) were sufficiently different from other

businesses so as to warrant special consideration with respect

to the permissible scope of no-solicitation/distribution rules.

In Guyan Valley Hospital, Inc., 198 NLRB 107 (1972), the

Trial Examiner, in an opinion adopted by the Board, upheld

a no-solicitation rule which was otherwise presumptively in-

valid simply because of the special circumstances present in a

hospital. Nevertheless, the Board abandoned thig precedent,

without explanation, after the 1974 amendments.

Second, prior to the 1974 amendments, the Board had

well-established rules relating to the permissible scope of no-

solicitation/distribution rules in retail stores and restaurants.

* No claim could be made that the Hospital’s rule did not permit

its employees to engage in the free and robust exercise of their Sec-

tion 7 right to organize. It was stipulated that the Hospital provides

lockers to all employees and most use them on a daily basis. Three

to four hundred Hospital employees utilized the main cafeteria

each day. Lounge and break areas exist on almost every floor of the

Hospital. Solicitation and distribution are permitted in all these

areas. Solicitation also is allowed in all work areas where patients

and visitors are not allowed as well as in the parking lots and

Hospital grounds. Thus, it is obvious that each employee could

freely solicit and distribute literature and be solicited and receive

literature a number of times each day.

Before the Tenth Circuit in St. John’s, the Board conceded that

NLRB v. Summit Nursing Convalescent Home, 472 F.2d 1380 (6th

Cir. 1973), upholding a rule prohibiting solicitation and distribu-

tion in all public and patient access areas, and Guyan Valley ac-

curately represented the state of the law prior to the 1974 amend-

ments. 557 F.2d at 1374.

-14-

In both instances, employers were accorded greater leeway in

terms of the permissible scope of such rules than were

employers who operated factories and other types of com-

mercial establishments. See, e.g., May Dept. Stores Co., 59

NLRB 976, modified and enforced, 154 F.2d 533, cert.

denied 329 U.S. 725 (1946); Marshall Field & Co., 98 NLRB

88, modified and enforced, 200 F.2d 375 (7th Cir. 1953).

Goldblatt Bros., Inc., 77 NLRB 1262 (1948); McDonald’s

Corp., 205 NLRB 404 (1973). The reason for these holdings

was to protect the employer’s interest in not exposing

customers to potentially disturbing union solicitation.

Once again, the Board failed to follow these precedents

in the case of public cafeterias and gift shops located in health

care institutions. The Board simply asserted that these

precedents were no longer applicable because it now conclud-

ed that the main function of a store is selling while the basic

function of a health care institution is patient care. St. John’s

Hospital and School of Nursing, Inc., 222 NLRB at 1150-51

n.3.

The Board’s St. John’s holding and the opinion below

are based on false assumptions about the nature of health

care institutions and they represent an unexplained departure

from existing precedents. They also raise other significant

issues in the administration of the Act. For example, the

Board distinguished between the medical characteristics of

patients in ‘‘strictly patient care areas’’ and those in ‘‘patient

access areas’’ such as cafeterias and lounges. According to

the Board, union solicitation ‘‘might be unsettling’’ to the

former and therefore could be banned. However, as to the

latter group, the Board concluded:

‘*'W]je do not perceive how patients would be af-

fected adversely by such activities. On balance, the

interests of patients well enough to frequent such

areas do not outweigh those of the employees to

discuss or solicit union representation.’’ 222 NLRB

at 1150, 1151.

-15-

The Board’s conclusions about the medical character-

istics of ambulatory and nonambulatory patients was not

based on any record evidence and is a medical judgment

clearly outside the Board’s traditional area of expertise. To

allow the Board to make such medical judgments would set a

dangerous precedent. As the Tenth Circuit noted:

**We are therefore compelled to conclude that the

ultimate factual inferences on which the Board’s

distinction was based were not drawn from the

record evidence but rather from the Board’s own

perceptions of modern hospital care and the

physical, mental, and emotional conditions of

hospital patients-areas outside the Board’s

acknowledged field of expertise in labor manage-

ment relations.”’ §57 F.2d at 1373.

Another significant issue presented by the Board’s Sv.

John’s decision and the decision below involves the

workability of the dichotomy between ‘‘immediate patient

care areas’’ and other working areas in a health care institu-

tion. The practicality of this rule is open to serious question.

The court in Beth Israel noted:

**We would add that a phrase like ‘immediate

patient-care areas’ is far from self-defining given

the complexity of a major metropolitan hospital.

Would a waiting area by a nurse’s desk on a floor

where patients reside be a ‘patient-care area?’

Would a waiting room in the emergency ward?’’

554 F.2d at 482-83 n.6.

The majority opinion below attempted to meet this pro-

blem by inviting the health care institutions of this nation and

* Similarly, the Tenth Circuit described the distinction as ‘‘dif-

ficult of application at best... .’’ 557 F.2d at 1373 while the

District of Columbia Circuit called it ‘‘manifestly’’ impossible to .

distinguish the two categories. BNA Daily Labor Report, No. 33 at

D-2. Judge Jameson in his concurring opinion below expressed

similar reservations.

-16-

the Board to engage in litigation to clarify the issue. Accord-

ing to the court below:

‘*(T}his clarifying process can take place under the

rubric of the Board’s decision in St. John’s as

future litigation fleshes out a definition of ‘im-

mediate patient care areas.’’’ 564 F.2d at 216.

In view of the workload problems of the Board as expressed

in recent congressional testimony on H.R. 8410 and S. 1883

(the labor law reform bill) and the all-too-well known

backlog in the courts of appeal, this invitation to the health

care industry and the Board to engage in protracted litigation

is startling.

In enacting the 1974 health care amendments to the Act,

Congress was well aware of the uniqueness of health care in-

stitutions and that their special problems mandated that a dif-

ferent approach be taken in the application of the Act than

had been taken in other industries. For example, Senate

Report 93-766 contains a number of examples of the congres-

sional awareness of the uniqueness of the health care in-

dustry:

**In the Committee’s deliberations on this measure,

it was recognized that the needs of patients in

health care institutions required special considera-

tioninthe Act. . .

Many of the witnesses before the Committee, in-

cluding both employee and employer witnesses,

stressed the uniqueness of health care institutions.

There was a recognized concern for the need to

avoid disruption of patient care wherever

possible.’’ 1974 U.S. Code Cong. & Ad. News,

3946, 3948, 3951.

5 See, e.g., 1 BNA Labor Relations Rept. 96 LRR 225-26 (Nov.

21, 1977) (Remarks of Chmn. Fanning).

-17-

The Board has argued that the only concern of Congress

related to the prevention of disruptions that would be caused

by actual strikes or picketing. However, this argument was

rejected by the Tenth and District of Columbia Circuits. For

example, the District of Columbia court stated:

*“*(W]e find no support for such a narrow reading

of the congressional purpose. On the other hand,

the clear expressions of congressional concern for

avoiding disruptions in the hospital environment

that we do find in the legislative history encourages

us to give special weight to the needs of patients in

striking a balance between preventing possible

sources of disruptions in hospitals and protecting

employees’ right to organize.’’ Baylor Univ.

Medical Center v. NLRB, BNA Daily Labor

Report, No. 33 at D-3 (Feb. 16, 1978).

The decision below and the Board’s St. John’s ruling fail

to give proper recognition to the expressed congressional con-

cern for the well-being of hospital patients. Rather, they can

and will expose patients to the turmoil which frequently ac-

companies union organizational activity. This would be a

clear defeat of congressional intent.

-18-

CONCLUSION

The issue of the permissible scope of no-solicitation/dis-

tribution rules in the health care industry is one of singular

importance in the administration of the national labor laws.

The Board’s St. John’s holding and that of the court below

highlight several of the significant aspects of this issue. Those

decisions, which represent a sharp and unexplained departure

from pre-1974 precedents, clearly are at odds with the con-

gressional purpose of recognizing the special needs of pa-

tients in health care institutions in the application of the Act.

The Board’s decision and that of the court below also repre-

sent an extremely unsettling and unprecedented venture by

the Board into the area of medical judgments. Finally, both

decisions exalt as a rule of law an unworkable distinction be-

tween ‘‘immediate’’ and other ‘‘patient care areas’’ which, as

even the court below acknowledged, will require protracted

litigation to settle.

Petitioners pray that a writ of certorari be granted to

review the judgment and order of the United States Court of

Appeals for the Seventh Circuit.

DATED: March 10, 1978.

Respectfully submitted,

JAMES C. MALLIEN

DAVIDE. JARVIS

DARRYLS. BELL

780 North Water Street

Milwaukee, Wisconsin 53202

OF COUNSEL: Attorneys for Petitioner

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 273-3700

-19-

Appendix A.

Recevant Statutes.

United States Code, Title 29:

§ 152 — Definitions.

(2) The term ‘‘employer’’ includes any person

acting as an agent of an employer, directly or

indirectly, but shall not include the United States

or any wholly owned Government corporation, or

any Federal Reserve Bank, or any State or po-

litical subdivision thereof, or any person subject

to the Railway Labor Act, as amended from time

to thue, or any labor organization (other than

when acting as an employer), or anyone acting

in the capacity of officer or agent of -such labor

organization.

(14) The term ‘‘health care institution”’ shall in-

clude any hospital, convalescent hospital, health

maintenance orgaiization, health clinic, nursing

home, extended care facility, or other institution

devoted to the care of sick, infirm, or aged per-

son.

§ 157 — Right of employees as to organization, collec-

tive bargaining, ete.

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations,

to bargam collectively through representatives of

their own choosing, arid to engage in other con-

certed activities for the purpose of collective bar-

gaming or other mutual aid or protection, and

shall also have the right to refrain from any or

§ 158

-20-

all of such activities except to the extent that

such right may be affected by an agreement re-

quiring membership in a labor organization as

a condition of employment as authorized in sec-

tion 158(a)(3) of this title.

— Unfair Labor lractices.

(a) It shall be an unfair labor practice for an

employer —

(1) to interfere with, restrain or coerce em-

ployees in the exercise of the rights guaran-

teed in section 157 of this title;

eee

(3) by discrimination in regard to hire or

tenure of employment or any term or condi-

tion of employment to encourage or discour-

age membership in any labor organization. .. .

BEST GOPY AVAILABLE —

ae

-21-

Appendix B.

LUTHERAN HOSPITAL OF MILWAU-

KEE, INC., Petitioner,

v.

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 76-1688.

United States Court of Appeals,

Seventh Circuit.

Argued April 6, 1977.

Decided Oct. 5, 1977.

Before SWYGERT and SPRECHER, Circuit Judges,

and JAMESON, Senior District Judge.

SWYGERT, Circuit Judge.

In this case petitioner Lutheran Hospital of Milwaukee,

Inc. seeks review of a decision by the National Labor Rela-

tions Board (‘‘the Board’’). The Board found that petitioner

violated section 8(a)(1) of the National Labor Relations Act

by: (1) interrogating employees about union activities; (2)

sending a letter to all employees which had the effect of in-

viting them to report union organizational activities to the

hospital’s personnel director; and (3) maintaining a rule pro-

hibiting employees from soliciting union support or

distributing union literature in all areas of the hospital to

which patients and visitors have access. We hold that peti-

tioner’s interrogation of employees did not constitute an un-

fair labor practice, but we otherwise grant enforcement of the

Board’s order.

1. The Honorable William J. Jameson, United States Senior

District Judge for the District of Montana, is sitting by designation.

-2?-

I

Petitioner is a nonprofit 425-bed general hospital located

in Milwaukee, Wisconsin which employs approximately 850

workers. On September 30, 1974, Local 1199W of the Na-

tional Union of Hospital and Health Care Employees

RWDSU AFL--CIO (‘‘the union’’) began an effort to

organize 450 to 500 of the hospital employees. The organiza-

tional campaign continued through the succeeding months.

The union filed two complaints against petitioner with

the Board, contending that petitioner had committed a

number of unfair labor practices during the course of the

organizational campaign. The two complaints were heard on

a consolidated record before an administrative law judge,

who reached a decision and issued an order on February 27,

1976. The Board affirmed the administrative law judge’s

decision on May 27, 1976. 224 N.L.R.B. No. 36.

Petitioner now seeks review of the Board’s decision_in-

sofar as it held that petitioner violated section 8(a)(1). ~ It

2. Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.

§ 158(a)(1), provides: .

(a) It shall be an unfair labor practice for an

employer——

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of

this title;

29 U.S.C. § 157, which is section 7 of the Act, provides:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain co!-

lectively through representatives of their own choosing,

and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or pro-

tection, and shall also have the right to refrain from any

or all of such activities except to the extent that such

right may be affected by an agreement requiring

membership in a labor organization as a condition of

employment as authorized in section 185(a)(3) of this ti-

tle.

‘ _

-23-

does not dispute the administrative law judge’s findings of

fact, but contends that the judge and the Board drew er-

roneous conclusions on the basis of those findings. We shall

state the facts as they become relevant to our review of the

Board’s decision.

The administrative law judge found that the interroga-

tion of employees by supervisors constituted unfair labor

practices in two cases.

In the early part of December 1974, Maryanne Krenke, a

surgical technician and a member of the union’s organizing

committee, was on a break in the hospital’s coffee room. She

was drinking coffee with Housekeeping Supervisor William

Fisher, which she frequently did. In the course of a social

conversation, Fisher, who was not Krenke’s supervisor, ask-

ed her whether she had attended a union meeting held earlier

that day or whether a union meeting had been held that day.

Krenke replied that she did not know if there had been such a

meeting, although one had actually been held. Fisher then

asked Krenke how many cards were signed, how many

employees were involved in the union, and when an election

would be held. When Krenke replied that she did not know

the answers to those questions, Fisher remarked that it could

not be a good union if she did not know anything about it.

This evoked Krenke’s response that, as he was a supervisor,

she could not discuss union matters with him, and that

federal law prohibited him from questioning her about the

union. Fisher thereafter refrained from asking Krenke ques-

tions about the union.

The administrative law judge concluded that Fisher’s in-

terrogation of Krenke violated section 8(a)(1) because Fisher

neither explained the need for such information to Krenke

nor minimized the coercive impact of the questioning by giv-

ing Krenke assurance that reprisals would not be taken for

employee involvement in the union.

-24-

Again in December 1974, Ward Clerk Marion Jackson

was bringing some papers to the labor and delivery room

when she met Nursing Supervisor Francis Krupo. Krupo, ap-

parently referring to the union’s organizing committee, asked

Jackson: ‘‘Who was [the] head of the committee?’’ Jackson

replied that she did not know what committee Krupo was

talking about. Krupo then stated that he thought she knew,

ending the conversation.

The administrative law judge found that Krupo’s inquiry

violated section 8(a)(1). He concluded that Jackson might

well have drawn the inference that the identity of the leader

of the organizing committee would be used to undermine the

organizational campaign, particularly because Krupo gave no

reason why he wanted the information and there was no

evidence demonstrating a legitimate need for it.

[1] We cannot agree with the administrative law judge’s

conclusions with respect to either incident. This court has

held on a number of occasions that an employer’s interroga-

tion of an employee will not violate section 8(a)(1) unless the

questions asked, viewed in context, would reasonably induce

in the employee the fear of reprisal or the anticipation of a

reward. NLRB v. Sachs, 503 F.2d 1229, 1235 (7th Cir. 1975);

Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1115 (7th

Cir. 1973); Utrad Corp. v. NLRB, 454 F.2d 520, 525 (7th Cir.

1972). Sax v. NLRB, 171 F.2d 769, 772 (7th Cir. 1948). In ex-

amining the employer’s conduct to determine whether this

test was satisfied, we have noted that ‘‘courts have not con-

sidered isolated remarks or questions, which did not in

themselves contain threats or promises, and where there was

no pattern or background of union hostility, as coercion of

the employees and as a violation of Section 8(a)(1).’’ John S.

Barnes Corp. v. NLRB, 190 F.2d 127, 130(7th Cir. 1951).

{2] We are convinced that neither Krenke nor Jackson

should have feared reprisal for union activities as a conse-

-25-

quence of the questions that were asked of them. First,

neither Fisher nor Krupo made threats or promises about

what would happen if an employee participated in the union’s

organizational campaign. Second, in each case the questioner

was not the supervisor of the questioned employee and

therefore was not in a position to immediately discipline the

employee. Third, there was no evidence that either employee

had reason to believe that the supervisor questioning her had

authority to speak for the hospital. See Utrad Corp., 454

F.2d at 524. Finally, the record does not show that any antiu-

nion animus contained in the supervisors’ questions was part

of a pattern of hostility by petitioner toward the union. In-

stead, the questions appear to have been isolated remarks.

Fisher stopped asking questions when Krenke asked him to

do so, and never broached the subject again. Krupo did not

pursue his interrogation of Jackson but instead went on his

way without waiting for an answer to his question. The

isolated character of both incidents reinforces our conviction

that they were not coercive within the meaning the section

8(a)(1). :

Ill

[3] The administrative law judge also found that a letter

sent by the hospital’s personnel director to all of its

employees on January 30, 1975 violated section 8(a)(1). The

letter stated:

TO ALL EMPLOYEES:

A number of employees have reported that

they are being pressured to sign Union cards. Some

are told that they will have to join a Union if they

want to continue to work here.

You should know that——

——No one will have to join a Union as

a condition of employment at the

Hospital.

——No one will have to pay dues to a

Union as a condition of employment at

the Hospital.

-26-

——The Hospital will continue to pay

wages and benefits that compare

favorabably with those of any other

hospital in the Milwaukee area,

regardless of Union or non-Union af-

filiation.

——You don’t have to put up with

pestering or pressure to join.

Please let me know if you are bothered. I will

do my best to see that the law is observed.

The director testified that he sent the letter because fif-

teen or twenty employees stopped him in the hallway and

complained that unidentified ‘‘people out on the sidewalk’’

were forcing union literature and cards on them, and that

they resented being pressured. He further testified that,

although he suggested to the complaining employees that they

tell those ‘‘people’’ to leave them alone, the employees in-

sisted that the hospital reply to the union’s leaflets, take a

position with respect to the union, tell the union organizers to

stop bothering employees, and advise the employees of their

rights.

The administrative law judge concluded that the letter

was an invitation to employees to report union solicitation by

fellow employees to the director. He found that petitioner’s

**declared interest in being informed of the identity of union

solicitors can reasonably be expected to instill fear in

employees of the consequences of union advocacy and

thereby deter and restrain them for exercising their statutory

rights.’’ He rejected petitioner’s explanation for sending the

letter, noting that no complaining employee testified about

an unhappy experience with the ‘‘people on the sidewalk’’

and that petitioner had not shown a legitimate need for the

information sought in the letter.

We enforce this aspect of the Board’s decision. We agree

with the administrative law judge that the letter, which was

-217-

sent by an official who clearly represented the hospital’s

management, invited employees to report the names of union

organizers to the director. The letter in no way distinguished

between organizing activities that are statutorily protected

and conduct that is illegal in asking employees to report cases

of ‘‘pestering or pressure to join.’’ It would have been

reasonable for an employee who received the letter to draw

the inference that any organizational activity on behalf of the

union would be reported to the director and that the iden-

tified participants in the organizational campaign would be

punished.

The explanation which petitioner offers for sending the

letter——that it was in response to the request of complain-

ing employees——does not justify the coercive effect which

the letter produced. First, the absence of testimony from

complaining employees that they had been bothered by illegal

union activity undermines petitioner’s argument that it had to

act to protect its employees’ rights. Second, even if the peti-

tioner had a responsiblity to protect its employees from being

illegally coerced by the union while walking on the sidewalks,

it could have taken whatever steps ‘‘to see that the law is

observed’’ that it intended to pursue immediately upon

receiving the complaints. In our judgment the purpose of the

letter was to intimidate potential partici; 2nts in the organiza-

tional campaign rather than to protect the rights of the

employees, and it therefore constituted an unfair labor prac-

tice.

IV

Finally, the administrative law judge concluded that

petitioner violated section 8(a)(1) by promulgating the

following rule on April 25, 1975:

During working hours, employees should not

solicit or distribute written matter for any purpose

in any part of the hospital during working time.

(‘‘Working time’’ applies not only to the employee

doing the soliciting, but includes the person being

-28-

solicited.) During the nonworking time of

employees’ working hours, solicitation is permitted

only in non-patient and in non-public areas of the

hospital, and distribution of written material is

limited to non-work areas and non-patient areas

and non-public areas. (Emphasis in original.)

The administrative law judge found that the rule was

void for vagueness because it did ‘‘not describe with suffi-

cient clarity the particular areas where employees may or may

not engage in union solicitation and distribution during their

non-working time.’’ Since the rule was impermissibly vague,

he reasoned, it deterred employees from exercising their

organizational rights because they feared that they would un-

wittingly commit violations. The judge alternatively held that

the rule was invalid apart from problems of ambiguity

because it imposed ‘‘restrictions on union solicitation and

distribution during an employee’s non-working time and in

nonwork areas beyond those normally permissible under

established law.’’ He recognized that a broad prohibition of

solicitation and distribution might be valid under special cir-

cumstances——if solicitation and distribution in the areas in

question would interfere with hospital operations or adverse-

ly affect patient care——but found that petitioner had failed

to demonstrate that these special circumstances were present.

[4] On appeal both parties have dealt primarily with the

validity of the second conclusion reached by the ad-

ministrative law judge——that the rule was an impermissibly

broad prohibition of solicitation and distribution——rather

than with the judge’s initial holding that the rule was void for

vagueness. Since the Board affirmed all of the judge’s conclu-

sions, however, we must first decide whether the rule is too

vague to be understood before examining its substantive

scope.

3. The quoted language is the second paragraph of a rule entitled

‘*Solicitation & Distribution of Material’’ which was printed in the

employee handbook. The first paragraph of the rule is not relevant

to this case.

-29-

We do not find the language of the rule to be so am-

biguous that its promulgation constituted a violation of sec-

tion 8(a)(i). In most cases an employee would be able to

discern whether a given location was a ‘‘public area’’ or a

**patient area’’ and would therefore know whether solicita-

tion or distribution was permitted. And although there might

be borderline cases where the applicability of the rule was

uncertain, we are convinced that the number of these uncer-

tain situations would be small enough that the rule would not

significantly deter employees from exercising their organiza-

tional rights for fear of unwittingly defying the hospital’s

policy.

We therefore turn to a determination of whether the

rule’s scope violates the statute. In affirming the findings and

conclusions of the administrative law judge, the Board added

in a footnote:

Subsequent to the Administrative Law Judge’s

Decision in this*case, the Board, in St. John’s

Hospital and School of Nursing, Inc., 222 NLRB

No. 182 (1976), held that a no-solicitation, no-

distribution rule which prohibits all solicitation

and distribution in all areas to which patients and

visitors have access, other than immediate patient

care areas, is unlawful. Accordingly, we find, in

agreement with the Administrative Law Judge,

that the Respondent herein violated Sec. 8(a)(1) of

the Act by maintaining an overly broad no-

solicitation, no-distribution rule which prohib’« all

solicitation and distribution during an employee’s

non-working time in all nonwork areas where

visitors of the public might be present. 224 NLRB

No. 36, at 176.

Both petitioner and the General Counsel for the Board agree

that the outcome of this part of the case at bar turns on

whether we accept the Board’s holding in St. John’s, which is

the leading case in this area and was a unanimous decision by

-30-

the entire Board. Since the rule promulgated by the

employer-hospital in St. John’s was virtually identical to the

rule at issue here, “ we shall treat the Board’s reasoning in Sv.

John’s as directly applicable to this case.

In St. John’s the Board began its analysis by stating the

general rule that an employer may not prohibit solicitation of

union support during nonworking time or distribution of

union literature during nonworking time in nonworking

areas. The general rule is applicable unless an employer affir-

matively demonstrates that special circumstances require

greater restrictions. See P.R. Mallory & Co. v. NLRB, 389

F.2d 704, 709-10 (7th Cir. 1967); Stoddard-Quirk Mfg. Co.,

138 NLRB 615 (1962). Since the hospital’s rule, in prohibiting

solicitation and distribution in areas to which patients and

visitors had access, limited solicitation during nonworking

time and distribution during nonworking time in nonworking

areas, it was presumptively unlawful.

The Board then recognized that the hospital was

justified in imposing more stringent limitations on solicita-

tion than are generally permitted because a hospital requires a

tranquil atmosphere in order to carry out its primary function

of patient care. The Board therefore found that the prohibi-

tion of solicitation in strictly patient care areas, such as pa-

tients’ rooms, operating rooms, and places where patients

receive treatment, was justified because patients in those

areas require quiet and peace of mind.

The Board also found, however, that the hospital’s

restrictions on solicitation and distribution in areas to which

patients and visitors have access, but which are not im-

mediate patient care areas, were not similarly justified. It

reasoned that the possibility of a disruption in patient care

resulting from the exposure of visitors to solicitation and

4. The only difference between the two cases is that in St. John’s

the hospital prohibited solicitation in employee-only working areas

as well as in areas to which the public and patients have had access.

-31-

distribution would be remote. It further held that patients

would not be adversely affected by solicitation and distribu-

tion in areas such as cafeterias and lounges and that, in any

case, the interests of patients well enough to frequent such

areas were Outweighed by the interests of employees in

discussing union representation.

The Court of Appeals for the Tenth Circuit has recently

denied enforcement of the Board’s decision. St. John’s

Hospital & School of Nursing, Inc. v. NLRB, 557 F.2d 1368

(10th Cir. 1977). The court refused to accept the Board’s

distinction between patients who are well enough to visit such

areas as cafeterias and lounges and other patients, holding

that there was no evidence that ambulatory patients are better

able to withstand the unsettling effects of solicitation than

patients who are confined to their rooms. It also rejected the

Board’s basic dichotomy between immediate patient care

areas and other areas to which patients have access on the

ground that “‘it is unreasonable to conclude that [the] adverse

effects of union solicitation will occur in some patient access

areas but not in others.’’ Finally, it stated as an alternative

holding that the hospital had the right to prohibit solicitation

and distribution in areas such as cafeterias and gift shops,

which are not directly related to the function of patient care,

because a cafeteria or a gift shop which was not part of a

hospital would have the right to prohibit organizational ac-

tivities in locations to which the public had access.

The petitioner in this case mounts its primary challenge

to the Board’s decision on the basis of the argument which

the Tenth Circuit in St. John’s accepted as an alternative

holding: that the Board may not place greater restrictions on

hospitals than it places on retail stores and restaurants. As

petitioner notes, the Board has for many years permitted

department stores to prohibit solicitation on the selling floor

and in other public areas at any time. Marshall Field & Co.,

98 NLRB 88 (1952), modified and enforced, 200 F.2d 375

(7th Cir. 1953); May Department Stores Co., 59 NLRB 976

-32-

(1944), modified and enforced, 154 F.2d 533 (8th Cir.), cert.

denied, 329 U.S. 725, 67 S.Ct. 72, 91 L.Ed. 627 (1946). The

Board has more recently allowed restaurants to prohibit

solicitation and distribution in areas with which the public

regularly comes into contact. Marriott Corp., 223 NLRB No.

141 (1976); McDonald’s Corp., 205 NLRB 404 (1973). The

rationale for the relaxation of the presumptions which the

Board applies to the ordinary workplace is that in retail stores

or restaurants the rancor which may accompany solicitation

and distribution might destroy the employer’s rapport with

its customers, causing a serious disruption of its business.

Petitioner argues that there is no reason to suppose that

a patient or a visitor in a hospital would be any less upset by

the controversy which can surround a discussion of whether

employees should form a union than a member of the public

in a retail store or a restaurant. It contends that the special

circumstances in retail stores and restaurants which rebut the

ordinary presumptions with respect to solicitation and

distribution are equally present in a hospital, and that the

Board’s distinction between the two settings is wholly ar-

bitrary. In support of this reasoning, it points out that prior

to St. John’s the Board rejected such a distinction and per-

mitted hospitals to prohibit solicitation and distribution in

public areas. See Shorewood Manor Nursing Home, 217

NLRB 55 (1975); Guyan Valley Hospital, Inc., 198 NLRB

107 (1972).

In our judgment the distinction the Board has now

drawn between hospitals and retails stores or restaurants is

far from arbitrary. A retail store’s or a restaurant’s primary

function is selling merchandise. The sales floor of a store and

the public area of a restaurant are where either business car-

ries out the sale of merchandise, and are also where the public

deals with the employees in their professional capacity. Thus,

insofar as union organizational activities create an abnormal

atmosphere on the sales floor or in public areas, they in-

terfere with the employees’ job performance and disrupt the

store’s or restaurant’s performance of its primary function.

-33-

By contrast, the primary function of a hospital is to pro-

vide health care, and the areas of a hospital outside of im-

mediate patient care areas are by definition not locations

where the hospital’s primary function is carried out or where

the publi¢ deals with the employees in their professional

capacity.- Thus, while organizational activities conducted

outside of immediate patient care areas might create an ab-

normal atmosphere where they took place, they would rot in-

terfere with the employees’ job performance and therefore

could not disrupt the hospital’s performance of its primary

function.

[5] Moreover, even if we agreed with petitioner’s conten-

tion that the Board’s decision in St. John’s was inconsistent

with its holdings with respect to retail stores and restaurants,

we would not be free to deny enforcement on this ground. It

is the Board’s function to determine the applicability of the

National Labor Relations Act to working conditions in a par-

ticular industry in light of the special conditions present in

that industry, and it is not our role to ‘‘insure an abstract and

academic consistency in Board decisions’? which draw

distinctions between various industries. NLRB v. Deaton,

Inc., 502 F.2d 1221, 1228 (Sth Cir. 1974), cert. denied, 422

U.S. 1047, 95 S.Ct. 2665, 45 L.Ed.2d 700 (1975). See also

NLRB v. Weingarten, 420 U.S. 251, 266, 95 S.Ct. 959, 43

L.Ed.2d 171 (1975). If the individual decision of the Board

which is before us for review is supported by substantial

evidence and based on correct legal reasoning, we must en-

force it.

[6] Nor can we deny enforcement simply because the

Board in St. John’s reversed its previous position. The Board

is free to disregard its own precedents in light of its

cumulative experience and changing industrial practices. We-

ingarten, 420 U.S. at 265-67, 95 S.Ct. 959.

5. Hospital employees who work in the cafeteria are an exception

to this statement. However, they constitute only a small portion of

the total number of hospital employees.

-34-

Petitioner also challenges the Board’s decision in this

case on the basis of the primary ground relied upon by the

Tenth Circuit for denying enforcement in St. John’s: that the

Board’s conclusion, that the interests of patients well enough

to frequent areas such as cafeterias and lounges is outweighed

by the interests of employees in those areas, is erroneous

because it is based on the faulty assumption that ambulatory

patients are better able to endure any unsettling effects of

solicitation and distribution than patients who are confined

to their rooms. We agree with petitioner and the Tenth Cir-

cuit that this distinction is unsound. In many cases am-

bulatory patients are far sicker than confined patients. For

example, it is implausible to suppose that a person with

leukemia who is able to walk to the cafeteria is better able to

accept stress than a person confined to his bed with a frac-

tured leg. Thus, if the Board’s decision rested on this reason-

ing alone, it could not be upheld.

However, the Board also based its decision on the

ground that patients in general are not adversely affected by

organizational activities in areas of a hospital such as

cafeterias and lounges. In our judgment this conclusion is

correct. We cannot believe that patients and their visitors

who are present in these areas are likely to become ‘‘unset-

tled’’ upon exposure to organizational activities conducted by

employees. Labor unions are common entities in this coun-

try, and only an extraordinary patient would be so dismayed

at witnessing an attempt to form one that his health would ac-

tually become impaired.

Moreover, the Board’s recognition that solicitation or

distribution might be unsettling in immediate patient care

areas does not undermine its holding that these activities

would not be disturbing outside those locations. Solicitation

or distribution might be undesirable in immediate patient

care areas for two reasons. First, there is an obvious need in

such areas for quiet. Since organizational activities can

arouse intense emotion and create heated arguments, their

prohibition, along with the prohibition of all other potential-

-35-

ly noisy activities, is sensible. Second, these areas are the

location where employees perform the function of patient

care. The turmoil that could be created by solicitation or

distribution might interfere with the employees’ performance

of their jobs, undermining the provision of that care.

. But these factors are not present outside of immediate

patient care areas. Patients and visitors do not require ab-

solute quiet in cafeterias and lounges. And as we observed

earlier, employees in those locations are not acting in their

professional capacity,® so that organizational activities can-

not interfere with their job performance or with the provision

of patient care. Thus, a typical patient or visitor would be in-

different to solicitation or distribution conducted outside of

immediate patient care areas. This is true not because a pa-

tient is ‘‘well’’ enough to leave his room, but because the con-

duct of employees in locations such as cafeterias or lounges is

irrelevant to the ordinary patient.

[7] We hold that the Board’s conclusion, that special cir-

cumstances rebutting its usual presumptions with respect to

solicitation and distribution exist in the immediate patient

care areas of a hospital but do not exist outside of those loca-

tions, is both logical and just. Since petitioner’s rule is invalid

under the usual presumptions,’ we must disagree with the

6. Again, cafeteria workers are an exception. See note 5 supra.

7. We are unpersauded by petitioner’s final argument that it

ought to be able to prohibit solicitation or distribution in all public

areas even in the absence of special circumstances because there are

a number of nonpublic areas on the hospital grounds in which these

activities would be permitted. ‘‘The availability of one channel of

communications does not permit the employer to block other chan-

nels without good reason.’’ National Steel Corp. v. NLRB, 415

F.2d 1231, 1233-34 (6th Cir. 1969).

i,

Tenth Circuit® and enforce the Board’s decision in this case.

We note that the Court of Appeals for the First Circuit

has also recently reviewed a Board decision based on Sv.

John’s. In NLRB v. Beth Israel Hospital, 554 F.2d 477 (ist

Cir. 1977), the court enforced the Board’s order enjoining an

employer-hospital from prohibiting distribution and severely

limiting solicitation in the hospital’s cafeteria and coffee

shop, to which both employees and the public had access.

The court concluded that the discussion of union activities in

the cafeteria and coffee shop would not sufficiently upset am-

bulatory patients and their visitors to justify the hospital’s

rule. It declined, however, to approve the Board’s St. John’s

doctrine with respect to all other locations to which patients

and visitors have access, stating that the scope of the area in

which it would be permissible for a hospital to prohibit

solicitation and distribution should be determined by future

litigation. 554 F.2d at 481-83.

We do not find our decision in this case to be in conflict

with Beth Isreal. In this case, unlike Beth Israel, the full scope

of St. John’s was called into question because petitioner pro-

hibited solicitation and distribution in ail areas to which the

public and patients have access. Therefore, we are unable to

confine our holding to locations such as cafeterias and coffee

shops. But we agree with the First Circuit that the rationale

supporting the Board’s decision in St. John’s is strongest with

respect to these areas, and that further litigation will be

necessary to determine in exactly which areas of a hospital

solicitation and distribution may be forbidden. In our judg-

ment, however, this clarifying process can take place under

the rubric of the Board’s decision in St. John’s as future

8. This opinion has been circulated among all judges in regular

active service. A majority of the active members did not vote to

grant that this conflict with the Tenth Circuit be reheard en banc.

Judges Pell, Tone and Bauer voted to grant that this matter be

reheard en banc.

-37-

litigation fleshes out a defintion of ‘‘immediate patient care

areas.’’ This phrase is far from being unambiguous, and it

will be open to hospitals to demonstrate that a particular area

is functionally given over to patient care.

The order of the Board is in part granted enforcement

and in part denied enforcement.

JAMESON, District Judge, concurring.

I concur fully in Parts 1, II and Ill of Judge Swygert’s

well considered opinion and in most of Part IV.

I agree that petitioner’s rule limiting solicitation and

distribution of materials to ‘‘non-work areas and non-p.ttient

areas and non-public areas’’ is overly broad. On the other

hand, I think the Board’s order permitting solicitation in

“‘otner than immediate patient care areas’’ likewise is unduly

broad, if not ambiguous.

While I question the wisdom and necessity of requiring a

hospital to permit solicitation in public cafeterias, lounges,

and gift shops, ! I recognize that the Board’s findings and in-

terpretation of the Act are entitled to considerable deference

in light of the Board’s ‘‘ ‘special function of applying the

general provisions of the Act to the complexities of industrial

life’ . . . and its special competence in this field’’. NLRB v.

Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968

(1975), quoting NLRB vy. Erie Resistor Corp., 373 U.S. 221,

236, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963).

On this basis, I agree with the holding of the First Circuit

in NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977),

1. Solicitation and distribution are permitted in employee locker

rooms and adjoining lounges and restrooms; in the main cafeteria,

utilized only by employees (from 300 to 400 a day); in employee

lounge and break areas on almost every floor of the hospital; and in

employee parking lots.

-38-

enforcing the Board’s order enjoining the employer-hospital

from prohibiting distribution and limiting solicitation in the

hospital’s cafeteria and coffee shop to which both employees

and the public have access. The court there, however, re-

jected the Board’s argument that the enforcement order

should extend to all non-patient care areas.” As the court

noted (Note 6):

[A] phrase like ‘‘immediate patient-care area’’ is far

from self-defining given the complexity of a major

metropolitan hospital. Would a waiting area by the

nurse’s desk on a floor where patients reside be a

‘“*patient-care area’’? Would the waiting room in the

emergency ward? 554 F.2d at 482-83.

In most modern hospitals there are many small visiting

rooms or lounges in the vicinity of patients’ bedrooms, where

patients visit with relatives and friends. Are these ‘‘immediate

patient-care areas’ 93

While I would prefer a more limited enforcement of the

Board’s order, I concur in the court’s opinion, recognizing as

Judge Swygert has noted, that further litigation will be

necessary to determine in exactly which areas of a hospital

solicitation and distribution may be forbidden. As the court

stated in Beth Israel Hospital, supra:

2. The court concluded that the order of the Board ‘‘fairly ob-

viously was intended to regulate only’’ the cafeteria and coffee

shop.

3. As petitioner argues, it is difficult to explain ‘‘why a patient

with a broken toe in the X-ray room would be adversely affected by

union solicitation but a heart attack victim, sitting in the lounge

talking to his wife, would not be.”’

-39-

‘(The Board bears] a heavy continuing responsibility to

review its policies concerning organizational activities in

various parts of hospitals. Hospitals carry on a public

function of the utmost seriousness and importance.

They give rise to unique consideration that do not apply

in the industrial setting with which the Board is more

familiar. The Board should stand ready to revise its rul-

ings if future experience demonstrates that the well-

being of patients is in fact jeopardized.’’ 554 F.2d at

481.

—JD-123-% 40 A-

PS NOTICE TO

“> EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

NATIONAL LABOR RELATIONS BOARD BOARD, Respondent.

LUTHERAN HOSPITAL OF MILWAUKEE,

INC., Petitioner,

/

.

4 /.

4

LNs

v.

WE WILL NOT coercively interrogate employees concerning employees’

union syapathies ead activities, meetings held by Mational Union of No 16-1688

Bospital end Health Care Eaployees Local 119%, RWDBU-AFL-CIO, the .

quaber of cards signed by employees for the named Union, the number

of eaployees involved ia that Union, and the ideatity of the head

of that Union's organizing committee.

WE WILL MOT invite or request employees to report to us union United States Court of Appeals,

solicitation by fellow employees or their other organizational

activities. For the Seventh Circuit

WE WILL MOT promulgete, asiatain ia effect and eaforce any rule

Chicago, Illinois 60604

or regulation which prohibits employees from engaging in union & ’

solicitation in the hospital during nomorking time or froe

engaging in the distribution of union literature in aoaqwork eress

in the hoepital, unless special circumstances and needs of the

hoepitel require euch restri.tions.

December 1, 1977

‘WE WILL SOT in any like or related asnner interfere with, restreia,

er coerce eaployees in the exercise of their right to self-

orgenisation, to form, join or assist the ebove-named Union or eny

other labor organization, to bargain collectively through Before

representatives of their own choosing, to engage in concerted

activities for the purpose of collective bargaining or other

mutual aid or protection, o: to refrein from eny and all euch

activities except to the extent thet such ae may be affected Hon. Luther M. Swyegert,

agreement i weubership in « lebor organisation es « R A

ceeditien of euplopanat a2 avthortans ty Setter Ote)(3) of the Circuit Judge

act.

WE VILL forthwith: resciad ovr cule promulgated oa or about April 25,

1975 to the exteut that it prohibits ovr employees during their

noaverking time from selicitiag in our hospital on behalf of «

labor organization or from distributing vation litereture in the

momvork areas in the hespitel.

The court issued its opinion in this case on October 5,

1977; any petition for rehearing must have been filed by Oc-

tober 19, 1977. See Fed. R. App. P. 40(a); Seventh Circuit

Rule 16(c). Petitioner tendered a petition for rehearing with a

—_ ane ates suggestion for rehearing in banc and filed a motion to have it

filed instanter on November 25, 1977, or thirty-seven (37)

days late. No previous request for an extension of time had

been made. An affidavit by one of petitioner’s three at-

torneys states that he had been ill and that ‘‘certain unusual

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED SY ANYONE financial ae oe required ves special financial ar-

Thes notice must remem posted jor 60 consecutwe days from the date of posting and must not be sitered. defeced. rangements to ¢ fecuate this appeal.

or covered Gy any thay eaterias. Any questions cenewraing Gus with it be Grectec

to the Goard’s Ofhce, Commerce Buildiag - 2ad Fleer, 744 us wocth Leh Bevect " Gilveukes”

Wiscoasia $3203, Telephone (414) 224-3866.

— Mee 8

-40 B-

Aside from the fact that petitioner’s two other attorneys

have not filed affidavits to excuse their apparent lack of

diligence, petitioner’s counsel has not shown good cause why

the court should, in its discretion, enlarge the time prescribed

by the applicable rules. Fed. R. App. P. 26(b). Counsel’s

reference to ‘‘special financial arrangements’’ does not ex-

plain why he failed to request an extension within the time

allowed under the rules. Circuit Rule 8(a). If counsel was ill,

surely co-counsel could have prepared a timely motion for ex-

tension until he had recovered. The court will not condone

such lack of diligence by permitting the untimely filing of this

petition for rehearing. Accordingly,

IT IS ORDERED that the petitioner’s motion for leave

to file its petition for rehearing in banc instanter is hereby

DENIED.

IT IS FURTHER ORDERED that the motion of the

American Hospital Association for leave to file a brief as

amicus curiae is also hereby DENIED.

-40 C-

United States Court of Appeals

For the Seventh Circuit

219 South Dearborn Street

Chicago, Illinios 60604

Thomas F. Strubbe

Clerk ~

312-435-5850

December 19, 1977

Mr. Elliott Moore

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

Mr. James C. Mallien

780 North Water Street

Milwaukee, Wisconsin 53202

Re: Appeal No. 76-1688 - Lutheran Hospital of Milwaukee,

Inc., Petitioner, vs. National Labor Relations Board,

Respondent.

Gentlemen:

Enclosed please find a certified copy of the final judg-

ment order entered by the court this date in the above-entitled

appeal.

Sincerely,

/s/ Thomas F. Strubbe

Thomas F. Strubbe

Clerk

TFS/pnn

Enclosure

cc: George F. Squillacote, Director, Region 30, National

Labor Relations Board, 2nd Floor Commerce Building,

744 North 4th Street, Milwaukee, Wisconsin 53203

-40 D-

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LUTHERAN HOSPITAL OF )

MILWAUKEE, INC., )

)

Petitioner, )

)

v. ) No. 76-1688

)

NATIONAL LABOR RELATIONS )

BOARD, )

)

Respondent. )

JUDGMENT

Before: SWYGERT and SPRECHER, Circuit Judges, and

JAMESON, Senior District Judge.*

THIS CAUSE came on to be heard upon a petition filed

by Lutheran Hospital of Milwaukee, Inc., to review an order

of the National Labor Relations Board issued against said

Petitioner, its officers, agents, successors, and assigns, on

May 27, 1976, and upon a cross-application filed by the Na-

tional Labor Relations Board to enforce said Order. The

Court heard argument of respective counsel on April 6, 1977,

and has considered the briefs and transcript of record filed in

this cause. On October 5, 1977, the Court being fully advised

in the premises, handed down its decision granting in part

and denying in part enforcement of the Board’s said order. In

conformity therewith, it is hereby

ORDERED AND ADJUDGED by the Court that the

Petitioner, Lutheran Hospital of Milwaukee, Inc., of

Milwaukee, Wisconsin, its officers, agents, successors, and

assigns, shall:

*The Honorable William J. Jameson, United States Senior

District Judge for the District of Montana, is sitting by

designation.

-40 E-

1. Cease and desist from:

(a) Inviting and requesting employees to report to it

union solicitation by fellow employees or their other

organizational activities.

(b) Promulgating, maintaining in effect and enforc-

ing any rule or regulation which prohibits employees from

engaging in union solicitation in the hospital during non-

working time and from engaging in the distribution of union

literature in nonwork areas in the hospital, unless special cir-

cumstances and needs of the hospital require such restric-

tions.

(c) In any like or related manner interfering with,

restraining, Or coercing employees in the exercise of their

right to self-organization, to form join of assist National

Union of Hospital and Health Care Employees Local 1199W,

RWDSU-AFL-CIO, or any other labor organization, to

bargain collectively through representatives of their own

choosing, to engage in concerted activities for the purpose of

collective bargaining or other mutual aid or protection, or to

refrain from any and all such activities except to the extent

that such right may be affected by an agreement requiring

membership in a labor organization as a condition of employ-

ment, as authorized by Section 8(a)(3) of the Act.

(hereinafter called the Act)

2. Take the following affirmative action which the Board

has found necessary to effectuate the policies of the Act:

(a) Forthwith rescind its rule promulgated on or

about April 25, 1975 to the extent that it prohibits its

employees during their nonworking time from soliciting in its

hospital on behalf of a labor organization or from

distributing union literature in the nonwork areas in the

hospital.

-40 F-

(b) Post at its hospital in Milwaukee, Wisconsin, the

attached notice marked ‘‘Appendix.’’ Copies of said notice,

on forms provided by the Regional Director for Region 30, of

the National Labor Relations Board (Milwaukee, Wisconsin)

after being duly signed by the Petitioner’s authorized

representative, shall be posted by the Petitioner immediately

upon receipt thereof, and be maintained by it for 60 con-

secutive days thereafter in conspicuous places where notices

to employees are customarily posted. Reasonable steps shall

be taken to insure that said notices are not altered, defaced or

covered by any other material.

(c) Notify the aforesaid Regional Director, in

wirting, [sic] within 20 days from the receipt of this Judgment

what steps the Petitioner has taken to comply herewith.

IT IS FURTHER ORDERED that cost be appropriately

apportioned between the parties.

/s/_ Luther M. Swygert

Circuit Judge, United States Court

of Appeals for the Seventh Circuit

Pil NOTICE TO

ae,

POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER, AS MODIFIED, OF THE NATIONAL LABOR RELATIONS BOARD

Size. _—— 4 —_—_—_ -_

J) W7asv6 _—-

ENPLOYEES

AN AGENCY OF THE UNITED STATES GOVERNMENT

* WE WILL WOT invite or request eapleyees te report te us vaion

solicitation by fellow eaployees or their other orgaenizet ional

activities.

WE VILL MOT promulgete, asintein in effect and eaforce any rule

or regulation which prohibits employees from engegiag in union

solicitetion in the hospite] during nomworking tiee or froe

engeging in che distribution of union literature is nomork areas

in the hospital, unless special circumstances and needs of the

hoepiteal require euch restrictions.

WE WILL NOT in any like or releted aanner interfere with, restrain,

or coerce employees in the exercise of their right to self-

orgenisation, to forse, join or essist the sbove-nased Union or any

other labor organization, to bargain collectively through

representatives of their own choosing, to engage in concerted

activities for the purpose of collective bergeining or other

mutuel eid of protection, or to refrain frow any and ell such

activities except to the extent thet such right asy be affected

by an agreement requiring seabership in « lebor orgenizetion as a

condition of employwent as suthorised by Section 8(8)(3) of the

act.

WE VILL forthwith reecind our rule promulgeted on or about April 25,

1975 to the extent thet it prohibits our employees during their

nomvorking time from soliciting in our hospital on behelf of «

lebor orgenizatjion or from distributing union litereture in the

nonwork areas in the heepital.

LUTWERAN HOSPITAL OF MILWAUKEE, IWC.

Deted by

(Represent at ive) ~fitle)

ee |

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED 8Y ANYONE

ean apamnere (eth pane. Apatite tetrad deteced.

any other materia questens concernmng Gus notte or “th

tothe Board sOMice, Commerce Building - 2nd Floor, Jes North Ath Street, Milusukeess

Wiecoesia $3203, Telephone (414) 224-3866.

PL or.

| BEST COPY AVAILABLE

-4l-

Appendix C. —

JPW

224 NLRB No. 36 D--1234

Milwaukee, Wis.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

LUTHERAN HOSPITAL OF MILWAUKEE, INC.

and Cases 30--CA--3082 and |

30-C A-3267

NATIONAL UNION OF HOSPITAL AND

HEALTH CARE EMPLOYEES LOCAL 1199W

RWDSU---AFL--CIO

DECISION AND ORDER

On February 27, 1976, Administrative Law Judge Paul

Bisgyer issued the attached Decision in this proceeding.

Thereafter, the Respondent filed exceptions and a supporting

brief.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this proceeding

to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and brief and has decided

224 NLRB No. 36

-42-

to affirm the rulings, findings, ; and conclusions of the Ad-

ministrative Law Judge and to adopt his recommended

Order.

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Ad-

ministrative Law Judge and hereby orders that the Respon-

dent, Lutheran Hospital of Milwaukee, Inc., Milwaukee,

Wisconsin, its officers, agents, successors, and assigns, shall

take the action set forth in the said recommended Order.

Dated, Washington, D.C. May 27, 1976.

Howard Jenkins, Jr., Member

John A. Penello, Member

Peter D. Walther, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

l Subsequent to the Administrative Law Judge’s Decision in

this case, the Board, in St. John’s Hospital and School of Nursing,

Inc., 222 NLRB No. 182 (1976), held that a no-solicitation, no-

distribution rule which prohibits all solicitation and distribution in

all areas to which patients and visitors have access, other than im-

mediate patient care areas, is unlawful. Accordingly, we find, in

agreement with the Administrative Law Judge, that the Respon-

dent herein violated Sec. 8(a)(1) of the Act by maintaining an over-

ly broad no-solicitation, no-distribution rule which prohibits all

solicitation and distribution during an employee’s nonworking time

in all nonwork areas where visitors or the public might be present.

-43-

JD-123-76

Milwaukee, WI

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

DIVISION OF JUDGES

LUTHERAN HOSPITAL OF MILWAUKEE, INC.,

and Cases 30-CA-3082

30-CA-3267

NATIONAL UNION OF HOSPITAL AND

HEALTH CARE EMPLOYEES LOCAL 1199W

RWDSU - AFL-CIO

James E. Ford, Esq., for the

General Counsel.

Quarles & Brady, by David E.

Jarvis, Esq., of Milwaukee, WI,

for the Respondent.

Ms. Joanne D. Ricca, Staff

Representative, of Milwaukee,

WI, for the Charging Party.

DECISION

Statement of the Case

PAUL BISGYER, Administrative Law Judge: Case

30-CA-3082, with all the parties represented, was heard on

June 19, 1975, in Milwaukee, Wisconsin, on the complaint of

-44-

JD-123-76

the General Counsel issued on April 29, 1975, I and the

answer of Lutheran Hospital of Milwaukee, Inc., herein call-

ed the Respondent. In issue is the question whether the

Respondent interfered with, restrained and coerced its

employees in the exercise of their self-organizational rights

and thereby violated Section 8(a)(1) of the National Labor

Relations Act, as amended, “ by various acts of interrogation

concerning employee union activities and sympathies; by

distributing a letter among the employees soliciting informa-

tion regarding the identity of other employees engaged in

union activity; by discriminatorily implementing and enforc-

ing a no-solicitation, no-distribution rule because of the ad-

vent of the Union; and by threatening an employee with

discharge for distributing union literature and authorization

cards in violation of that rule. At the close of the hearing, the

General Counsel and the Respondent argued their position

orally and subsequently filed supporting briefs.

On August 12, 1975, the Union filed another unfaif

labor practice against the Respondent in Case 30-CA-3267

and a complaint based thereon was issued by the General

I The complaint in Case 30-CA-3082 is based on a charge filed

on March 18, 1975 by National Union of Hospital and Health Care

Employees Local 1199W, RWDSU - AFL-CIO, herein called the

Union. A copy of this charge was duly served on the Respondent

the next day by registered mail.

2 Section 8(a)(1) of the Act makes it an unfair labor practice

for an employer ‘‘to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 7.’’ Insofar as perti-

nent, Section 7 provides that ‘‘[e]mployees shall have the right to

self-organization, to form, join or assist labor organizations, to

bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of collec-

tive bargaining or other mutual aid or protection. . . .”’

3 A copy of this charge was served on the Respondent by

registered mail on August 13, 1975.

-45-

JD-123-76

Counsel on September 30, 1975, alleging that on or about

April 25, 1975 the Respondent, in violation of Section 8(a)(1)

of the Act, promulgated and maintained in force and effect

an invalid no-solicitation, no-distribution rule to replace the

rule involved in Case 30-CA-3082, in that the revised rule

prohibits employees {rom participating in union activities on

nonworking time in nonworking areas. In its answer, the

Respondent admits the promulgation and maintenance of the

revised rule but denies its illegality under the Act. On motion

of the General Counsel, opposed by the Respondent, the

undersigned Administrative Law Judge issued a telegraphic

order on October 24, 1975, reopening the record in Case

30-CA-3082 and consolidating that proceeding and Case

30-CA-3267. “ On January 5, 1976, the parties, in lieu of a

further hearing on the newly created issue, executed a

Stipulation which provides that the Stipulation, the record in

Case 30-CA-3082, the pleadings in Case 30-CA-3267, and the

stipulated exhibits shall constitute the entire record in the

consolidated cases. The Stipulation is approved; the

stipulated exhibits are received in evidence; and the con-

solidated record is closed. On January 30, 1976, the General

Counsel and the Respondent filed additional briefs in support

of their respective positions regarding the validity of the

revised rule.

Upon the entire consolidated record, and from my

observation of the demeanor of the witnesses, and with due

consideration being given to the arguments advanced by the

parties, | make the following:

Findings and Conclusions

I. The Business of the Respondent

4 On the same date, the General Counsel’s Motion for Judg-

ment on the Pleadings was denied.

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JD-123-76

The Respondent is a nonprofit 5 Wisconsin corporation

engaged in the operation of a hospital at Milwaukee, Wiscon-

sin, and as such is and has been at all material times a ‘‘health

care institution’’ as defined in Section 2(14) of the Act. Its an-

nual gross revenue from its Milwaukee operation exceeds

$100,000. In the conduct of its hospital, the Respondent pur-

chases goods and supplies valued in excess of $25,000 which

are shipped directly to the hospital from points outside

Wisconsin.

The Respondent admits, and I find, that it is an

employer engaged in commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

Il. The Labor Organization Involved

It was stipulated, and I find, that the Union is a labor

organization within the meaning of Section 2(5) of the Act.

Ill. The Alleged Unfair Labor Practices

A. Introduction; the Advent

of the Union

The Respondent employs approximately 850 employees

at its 425-bed hospital which occupies two and a half square

blocks. About September 30, 1974, the Union launched a

drive to organize some 450 to 500 of the Respondent’s

employees by distributing among them on the sidewalk in

front of the entrances to the hospital during shift changes

leaflets to which were attached cards to be filled out and

returned to the Union if they were interested in further infor-

mation. As a result of the employee response, the Union held

5 In accordance with the Respondent’s request, unopposed by

the General Counsel, the record is corrected to show that the

Respondent is a nonprofit institution.

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JD-123-76

its first organizational meeting on October 17, 1974 at its of-

fices where the employees were informed of the benefits of

unionization to be achieved through contract negotiations

with the Respondent. Membership dues were also discussed

and additional union literature was passed out. Another

meeting was held a few weeks later at the Union’s office at

which an employee organizing committee was formed to

assist in the Union’s drive and the employees were instructed

with respect to their statutory rights and the distribution of

organizational material in the hospital during nonworking

time and in nonwork areas. In furtherance of this effort,

employee organizers were given at this meeting union

authorization cards, fact sheets, magazines and other cam-

paign material, which they thereafter distributed among their

coworkers. Other employee meetings were subsequently held

by the Union. Apparently, as of the time of the hearing in this

case, the Union’s campaign did not generate sufficient sup-

port to warrant filing a petition for a representation election.

However, an unfair labor Practice charge was filed by the

Union on March 18, 1975, ~ charging the Respondent, which

admittedly has been aware of the Union’s drive since its in-

ception, with engaging in unlawful conduct to impede the

Union’s organizational effort. We turn to a consideration of

these alleged unlawful acts and the conclusions to be derived.

B. The Alleged Interference, Restraint

and Coercion

1. Interrogation of Employee Krenke by

Housekeeping Supervisor Fisher

In the early part of December 1974, Maryanne Krenke, a

surgical technician and a member of the Union’s organizing

committee, was on a break in the coffee room, drinking cof-

fee with Housekeeping Supervisor William Fisher, as she fre-

6 Unless otherwise indicated, all dates refer to 1975.

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JD-123-76

quently did. Another female technician, Sidney Rose, was

also present. In the course of a social conversation, Fisher,

who was not Krenke’s supervisor, asked her whether she had

attended a union meeting held earlier that day or whether a

union meeting had been held that day. Krenke replied that

she did not know if there had been such a meeting, although

one had actually been held. Continuing with his inquiries,

Fisher then asked Krenke how many cards were signed; how

many employees were involved in the Union; and when an

election would be held. When Krenke replied that she did not

know the answers to those questions, Fisher remarked that it

couldn’t be a good union if she did not know anything about

it. This evoked Krenke’s response that, as he was a super-

visor, she could not discuss union matters with him, and that

the Federal law prohibited him from questioning her abouy

the Union. Fisher thereafter refrained from such conduct.

1 find that Fisher’s interrogation of Krenke, no matter

how well-intentioned, violated Section 8(a)(1) of the Act. Not

only did Fisher fail to explain the need for such information

to Krenke or Rose, the other employee who was present, but

also he gave no assurance that reprisals would not be taken

7 The foregoing findings are based on Krenke’s credible

testimony, which Fisher agreed reflected ‘‘basically’’ what had oc-

curred on this occasion, although he thought the incident occurred

in January 1975. Fisher further testified that he asked those ques-

tions because he was ‘“‘just inquisitive as a friend.’’ Fisher also

testified to an earlier episode in the coffee room in the first part of

December 1974 when Krenke, in his presence, handed an employee

a union card to fill out. At that time, a nonemployee stranger told

Krenke that it was not right for her to solicit on ‘company time.’’

Krenke, however, replied that she was on a break and that

therefore her solicitation was permissible. Fisher thereupon ex-

pressed his agreement with the stranger that Krenke should not be

doing this. He further testified that he, nevertheless, did not report

this card incident to management because he ‘‘didn’t want Mary

[Krenke] to get into trouble.’’ Clearly, the Act sanctions union

solicitation on an employee’s nonworking and free time in a non-

work area.

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JD-123-76

for employee involvement or interest in the Union so as to

minimize the necessary coercive impact of such questioning.

Indeed, Fisher himself understood how information regar-

ding union activity could be misused by management. Thus,

he testified that, when he witnessed Krenke solicit an

employee to sign a union card a few weeks before and he

criticized her for doing so, he nevertheless did not report her

to management lest she ‘‘get into trouble,’’ despite the fact

that the solicitation had actually occurred on her free time in

a nonwork area, the coffee shop, and therefore was permissi-

ble activity. Nor does the fact that the inquiries were made in

the Gpurse of a friendly conversation sanitize the interroga-

tion g Which is otherwise prohibited by Section 8(a)(1) of the

Act.

2. Interrogation of employee Jackson

by Nursing Supervisor Krupo

In December 1974, while Marion Jackson, a ward clerk,

was bringing some papers to the labor and delivery room she

met Nursing Supervisor Francis Krupo who asked her who

was the head of the committee, apparently referring to the

Union’s organizing committee. Jackson answered that she

did not know what committee Krupo was talking about.

Krupo, in turn, stated that he thought she knew and on this

note the conversation ended with both going their separate

ways. — Although other employees were in this area, the con-

versation was evidently not overheard.

8 Rex Disposables, Division of DHJ Industries, Inc., 201

NLRB 727, 730; Monroe Manufacturing Co., Inc., 200 NLRB 62.

9 C&E Stores, Inc., 221 NLRB No. 218, 2-3; John H. Swisher

& Son, Inc., 211 NLRB No. 114, JD 6-7, cf. Murcole, Inc. , 204

NLRB 228, 234.

10 Jackson subsequently joined the Union and the organizing

committee, becoming active on its behalf.

JD-123-76

Such an attempt to learn the identity of the leader of the

organizing committee might well suggest that the inquiry was

prompted by more than idle curiosity and that the informa-

tion thus obtained would be improperly used to undermine

the lawful exercise by employees of their organizational

rights. This is particularly so here where Krupo gave no

reason to Jackson why the information was sought and no

evidence appears demonstrating a legitimate need for it. Ac-

cordingly, I find that Krupo’s inquiry was a form of in-

terference, restraint and coercion of an employee proscribed

by Section 8(a)(1) of the Act.

3. The Respondent’s January 30, 1975 letter

On January 30, the Respondent distributed to employees

along with their paychecks the following letter prepared and

signed by Personnel Director Richard J. Torstenson:

TO ALL EMPLOYEES:

A number of employees have reported that

they are being pressured to sign Union cards. Some

are told that they will have to join a Union if they

want to continue to work here.

You should know that --

--No one will have to join a Union as a

condition of employment at the

Hospital.

--No one will have to pay dues to a

Union as a condition of employment at

the Hospital.

--The Hospital will continue to pay

wages and benefits that compare

1! Rex Disposables, supra, 729.

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JD-123-76

favorably with those of any other

hospital in the Milwaukee area,

regardless of Union or non-Union af-

filiation.

--You don’t have to put up with pester-

ing Or pressure to join.

Please let me know if you are bothered. I will

do my best to see that the law is observed.

Explaining the circumstances surrounding the issuance

of this letter, Torstenson testified that some 15 or 20

employees stopped him in the hallway and complained that

““people out on the sidewalk,’’ whom they did not identify by

name, were forcing union literature and cards on them and

that they resented being pressured. Torstenson further

testified that, although he suggested to the complaining

employees that they tell those ‘‘people”’ to leave them alone,

the employees insisted that the Respondent reply to the

Union’s leaflets; take a position with respect to the Union;

tell those ‘‘people’’ to leave them alone and not bother them;

and advise the employees of their rights. However, no com-

plaining employee furnished testimony at the hearing regar-

ding their alleged unhappy experience with these **people.”’

There can be little doubt that in the closing paragraph of

the letter the Respondent, in effect, invited employees to

report to Personnel Director Torstenson union solicitation by

fellow employees and their related activities, whether or not

these activities occurred during their free or working time or

in work or nonwork areas. Indeed, as Torstenson himself

testified, this letter was prompted by employee complaints of

union solicitation and distribution of union literature which

union supporters engaged in on the public sidewalk in front

of the hospital. Certainly, the information sought by the

Respondent was broad enough to encompass employee

organizational activities protected by Section 7 of the Act.

Moreover, the Respondent’s declared interest in being in-

-§2-

JD-123-76

formed of the identity of union solicitors can reasonably be

expected to instill fear in employees of the consequences of

union advocacy and thereby deter and restrain them from ex-

ercising their statutory rights. Contrary to the Respondent’s

contention, the fact that the Respondent euphemistically

couched the conduct of union advocates in terms of pressur-

ing, pestering and bothering employees does not render the

invitation to inform on union solicitors any less coercive. Nor

has the Respondent demonstrated, in justification of its ac-

tion, a legitimate need for the information to prevent a

disruption of hospital operations.

Accordingly, I conclude that the invitation to inform on

employees indicated in the Respondent's letter to employees

violated Section 8(a)(1) of the Act.

4. The Respondent’s alleged discriminatory

enforcement of its no-solicitation, no-

distribution rule; the alleged discharge

threat to employee Jackson if she

violated the rule

From 4967 until about April 25, 1975, when its rule was

revised, the Respondent had the following posted no-

solicitation, no-distribution rule in effect at its hospital:

Unauthorized distribution of literature, written or

printed matter of any description in working areas

on hospital premises during working time and the

unauthorized solicitation or collecting of contribu-

12 Bank of St. Louis, 191 NLRB 669, 673, enfd. 456 F.2d 1234

(C.A. 8); Poloron Products of Mississippi, Inc., 217 NLRB No.

114, JD7.

13 The validity of the revised rule is the subject of the subse-

quent complaint issued in Case 30-CA-3267 and consolidated with

the earlier proceeding which will be later discussed.

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JD-123-76

tions for any purpose whatsoever is strictly pro-

hibited according to Lutheran Hospital policy.

The complaint acknowledges the existence of that rule but

does not challenge its validity. 4 Instead, it alleges that on

March 14 the rule was discriminatorily implemented and en-

forced ‘‘because of the advent of union organizational ac-

tivities,’’ and that on that date employee Jackson was

threatened with discharge if she violated the rule. Essentially,

it is the General Counsel’s position that the discriminatory

application or enforcement of the rule is established by the

fact that acts of nonunion related solicitation and distribu-

tion of literature were tolerated at the hospital, while the rule

was strictly enforced against union activity, citing only the

Jackson episode.

In support of this theory, the General Counsel presented

the following testimony: Both during working and break

14 Because the validity of the rule is not in issue in this case, I

make no comment in that regard. Also concedely not in issue in this

case is the version of the rule, as set forth in the Respondent’s

Employment Relations Policy Manual, a copy of which is

customarily given to employees at the time of their hiring. The

manual makes it an offense, subject to discipline and ultimate

discharge, for an employee to engage in-- :

7. Soliciting or collecting contributions for any pur-

pose whatsoever on Hespital time.

7+

10. Distribution of literature, written or printed

matter of any description on Hospital property without

permission from the Personnel Director.

According to the testimony of Personnel Director Richard Torsten-

son, the phrase ‘‘Hospital time’’ means working time and the

phrase ‘‘Hospital property”’ refers to the Hospital building itself.

“5+ JD-123-76

time, employees have taken up money collections among

themselves for employees who werg sick or hospitalized or

suffered a death in the family. There is no evidence,

however, that these collections were made in the presence of

supervisors or with their knowledge or consent. In the past

spring, a Sunshine Club was also fo at a unit staff

meeting, chaired by Supervisor La Rose “~ for the purpose of

creating a fund derived from employee contributions to be

used for birthday, marriage and other gifts for employees in

that unit. A notice was subsequently posted on a bulletin

board to alert employees whether they were current in their

contributions.

Testimony was further adduced to the effect that several

employees had engaged in commercial activities. Thus, one or

two employees had been taking orders for Avon products

during working and free time. However, the testimony does

not indicate that any supervisors were present on these occa-

sions. There is testimony, on the other hand, that Avon

caialogs were available for such purposes at various places in

the hospital. ‘ncluding nurses’ stations, and thus presumably

within the knowledge of supervisory nurses stationed there.

An employee testified that the last time she had seen an Avon

catalog in the hospital was about 1% months before the hear-

ing, while another employee testified that she had noticed

such booklets around the hospital between 1972 and 1974 but

that she had never been asked by anyone to buy Avon pro-

ducts. According to Personnel Director Torstenson, when he

recently learned that employee Vitalie was engaged in pro-

moting Avon products at the hospital he directed her to stop

it.

1S Employee Jackson testified to an occasion 3 or 4 years ago

when a collection was taken up by employees in her section for a

gift for a supervisor who was leaving to get married.

16 However, other than her title, no evidence of La Rose’s

supervisory authority or duties was presented at the hearing.

-.$5-

JD-123-76

In addition, there is testimony by employee Jackson that

certain unidentified kitchen workers have offered for sale to

employees small dolls and purses and that this witness herself

had sold nuts in the hospital. Here, too, the evidence does not

indicate whether this activity was observed by supervisors or

whether it was engaged in during working time. Employee

Krenke, a union activist, testified that the past March she had

taken orders from her coworkers for Coventry Jewelry and in

that connection had placed brochures and order forms in the

coffee shop where she told the girls to fill out the order

forms. Krenke further testified that she would pick the orders

up before work or during lunch time.

Moreover, Irene Milass, a switchboard operator, whose

work area is in the lowest level in the hospital building gave

testimony that Beth Fohr, who had since left the

Respondent’s employ, had taken orders from employees for

Vanda cosmetic products. However, Milass did not indicate

where this occurred and whether it was on working or free

time. She also testified that Vanda booklets were on a table at

Milass’ work location ‘‘off and on’’ until January or

February pf 1975 and that, although her supervisor, Joan

Moore, “* had a desk in that area, Moore never directed the

removal of those booklets. However, it appears that the Van-

da booklets were removed under unspecified circumstances at

least a month after they were placed there. Milass also

credibly testified that on one occasion in February or March

1975, Moore brought into the hospital some bars of candy

which her son was selling in connection with a high school

promotion drive for funds to purchase sports equipment and

that she sold the candy to several employees. However,

Milass did not observe Moore enter any other areas in the

hospital to sell the candy.

17 However, no testimony concerning Moore’s duties or super-

visory authority was furnished.

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JD-123-76

Another employee, Rex Hutchinson, testified to a

demonstration of Amway products which a nurse conducted

in March or April 1975 during working time for two or three

employees in a small room used for staff conferences. This

room was about 15 to 20 feet from the nurses’ station where

Supervisor La Rose had her desk. At the time of the

demonstration, the door to the room was closed and no

evidence was adduced that any supervisor was aware of it.

Other testimony was adduced that Supervisor Grobe

once a year has displayed for sale on her desk several cans of

candy in connection with a fund drive for American

Operating Room Nurses’ Association. Finally, there is

testimony that the Respondent itself posted a notice on the

bulletin board, with copies distributed among the employees,

offering used hospital furniture and other items for sale to

employees.

Personnel Director Torstenson, whose function it is to

enforce the no-solicitation, no-distribution rule, testified

that, whenever a violation of the rule is called to the attention

of the Personnel Department, the employee guilty of such

conduct is directed to refrain from that activity. However,

since complainants are usually reluctant to identify the

violators, there have been few instances when the violator has

been spoken to. One of the instances where he had spoken to

an offender of the rule involved Vitalie mentioned above.

Torstenson also testified that, whenever literature not per-

taining to the hospital is found in the building, it is removed.

In addition, Torstenson alluded to occasions when insurance

agents, merchandising outlets and real estate companies have

been denied lists of, and access to employees at the hospital

18 Testimony was also adduced that about 3 years ago, an

employee had sold Girl Scout cookies in the coffee shop, locker

room and cafeteria during break time and that another employee at

one time had brought into the coffee shop a fashion catalog and

solicited orders from employees.

Si.

JD-123-76

for solicitation purposes. Moreover, he testified to a recent

incident when he ordered an employee to remove petitions

she had placed at various work stations to allow the

astronauts to carry a bible with them on their mission.

Similar treatment was accorded to religious literature which

was brought into the hospital by Seventh Day Adventists and

other individuals. Torstenson also testified that he had put a

halt to the sale in the hospital of tickets to charities and other

events. However, he testified, the hospital permits United

Fund pledge cards to be distributed among the employees

once a year, and the Women’s Auxiliary to post a notice on

the bulletin board announcing a benefit event it was running

for the hospital.

According to Torstenson, the foregoing policy has been

uniformly pursued since prior to the appearance of the Union

and supervisors have been under instruction to see that the

rule is observed. In answer to specific questions put to him on

the witness stand, he credibly testified that without contradic-

tion that he had never heard of the Sunshine Club or the Am-

way demonstration until the hearing in this case; nor was he

aware that any supervisor had ever violated the rule.

Except for the Jackson episode presently to be discussed,

there is no evidence that the Respondent ever talked to,

reprimanded or otherwise disciplined any employee for

engaging in union organizational activity in violation of the

hospital’s no-solicitation, no-distribution rule, although it is

clear that union supporters have conducted such activity dur-

ing their free, nonworking time in nonwork areas such as the

cafeteria, coffee shop, and other places where employees take

their breaks. Indeed, Jackson, who was a member of the

Union’s organizing committee, admitted that on occasions

other than the one in question, she also discussed the Union

with employees while she and they were working under the

belief that it was not against hospital policy to do so. The

events leading up to the Torstenson’s interview of Jackson,

which is alleged to constitute a discriminatory application of

the rule, are these:

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JD-123-76

On March 5, while Helen Daniels, a pharmacy techni-

cian, was stocking medica! supplies in a utility room away

from regular pharmacy station, a registered nurse, Eckert,

who was also performing one of her duties there, asked

Daniels when she had come back to her job, which she had

left several years ago. Eckert then informed her of the

employees’ efforts to bring a union into the hospital to help

them secure better working conditions. In the course of this

conversation, Jackson entered the room; made some remarks

which Daniels did not hear; and departed. Shortly thereafter,

Jackson returned and, as Daniels was reaching into a cabinet,

Jackson put two union cards in Daniels’ pocket, requesting

her not to say anything about this occurrence as she (Jackson)

was not supposed to engage in such activity while working.

Jackson thereupon left.

When Daniels returned to the pharmacy, which was her

official station, she reported this incident to Sister Gladys,

her supervisor and director of pharmacy services and, at the

latter’s request, handed over the union cards she had received

from Jackson. However, Daniels did not tell Sister Gladys

that Jackson had put pressure on her to join the Union, nor

that Jackson had warned her that she was required to join the

Union to work there, which Jackson manifestly did not do.

Daniels also mentioned the Eckert conversation but did not

identify Eckert by name since she did not know it at the time.

Subsequently, Sister Gladys relayed Daniels’ report to Per-

sonnel Director Torstenson, who did not act on this informa-

tion at that time.

19 The foregoing findings reflect Daniels’ testimony, which |

credit. Jackson testified to a conversation she had had prior to the

pharmacy incident, which will be presently discussed. It is not clear

whether or not Jackson’s testimony relates to the event recited in

the text above. According to Jackson, at one time when Daniels

came to Jackson’s work area and both were working, Jackson ask-

ed her if she was interested in the Union but, as she recalled, no

union literature was handed out.

-§9-

JD-123-76

The next day, March 6, while on her lunch hour,

Jackson entered a small room in the pharmacy section of the

hospital and, in the presence of Patricia Brusky, a staff phar-

macist, handed Daniels a rolled-up union magazine contain-

ing a union card and other pieces of union literature for her

to read and departed. The entire incident lasted a second or

two. Clearly, the room was a work area, and whether or not

Daniels was actually working at this time or only talking to

Brusky, ~~ Daniels was on duty and not on her own free time.

After Jackson left the room, Daniels reported this incident to

Sister Gladys and again, at Sister Gladys’ request, gave her

the union material she had received from Jackson. Daniels

did not inform Sister Gladys that Jackson had forced her to

take the union material.

About a week later, Torstenson, who had also been ap-

prised by Sister Gladys of the latter incident, interviewed

Daniels and Brusky concerning that occurrence and the one

on March 5. Acting on the advice of the Respondent’s at-

torney, Torstenson gp or about March 14 summoned

Jackson to his office. ~* He opened the interview by inform-

ing her that he had received reports that she had passed out

leaflets and cards to an employee and that he did not know

whether or not she was then on duty or whether this conduct

occurred in a work or nonwork area or whether the employee

20 in view of my disposition of the issues in this case, it is un-

necessary to resolve the conflicting testimony in this respect.

21 Torstenson testified that for several months he had been

aware of Jackson’s involvement in the Union’s organizational cam-

paign, as well as the involvement of other employees, and that it is

not his practice to prevent such activity so long as it is not con-

ducted in work areas and employees are not bothered while they are

working. Jackson admitted discussing the union with employees,

not only in the cafeteria, snack bar, coffee shop and classroom, but

also while employees were working. She, however, denied

distributing union literature to employees while they were engaged

in the performance of their duties.

-60-

JD-123-76

who was given the material was working at that time.

Torstenson then reminded Jackson of the Respondent’s rule

or policy concerning the distribution of literature of any type

and solicitation which was designed to protect employees, pa-

tients and visitors from being ‘‘unduly pestered.’’ Jackson

readily admitted that she had passed out union literature but

added that it was done on her own time during breaks and her

lunch hour, as well as before and after work, and that she was

fully aware that she was not supposed to engage in such ac-

tivity during working time or in work areas. Torstenson ex-

pressed his gratitude for her comments since he had conflic-

ting reports and he preferred giving her the benefit of any

doubt. The interview ended with Torstenson pointing out

that, under the Respondent’s rule, the distribygjon of

literature on an employee’s working time or hours, ““ could

possibly result in discharge. However, Jackson was not

personally reprimanded for violating the rule.

The General Counsel contends that the foregoing

evidence establishes that on March 14, the Respondent

22 ‘The terms ‘‘working time’’ and ‘‘working hours’’ were used

interchangeably by the witnesses in their testimony. However,

viewing Torstenson’s conversation with Jackson in its entirety, |

find that Torstenson’s remarks were not intended to, and did not,

convey the idea that the Respondent’s then current rule prohibited

union solicitation during an employee’s free time or that it barred

the distribution of union literature in nonwork areas during non-

working time. Cf. Essex International, Inc., 211 NLRB No. 112,

3-6; and The Contract Knitter, inc. , 220 NLRB No. 30, 5-7.

23 The foregoing findings are based on a composite of Jackson’s

and Torstenson’s testimony, which I find reflect what probably oc-

curred at the interview. During this interview, Torstenson also

mentioned his experiences with unions. It is unimportant to the

issues here presented to determine whether Torstenson stated to

Jackson that he had ‘‘come up against twelve unions”’ since his

association with the hospital and that the unions were unable to get

in, as Jackson testified, or whether Torstenson told her that he had

had a good relationship with them, as he testified.

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JD-123-76

discriminatorily enforced and applied its no-solicitation, no-

distribution rule because of the advent of the Union and on

that occasion unlawfully threatened employee Jackson with

discharge if she violated the rule. i do not agree.

As noted above, the Union initiated its organizational

campaign approximately 6 months before March 14 at a time

when the no-solicitation, no-distribution rule had been in ex-

istence for 7 years. During the 6-month period supporters of

the Union freely and generally in a manner not prohibited by

the rule engaged in union solicitation and the distribution of

union literature inside and outside the hospital. Indeed,

although Personnel Director Torstenson learned that Jackson

had given employee Daniels union cards in a work area and

the next day had handed her union material in another work

area, in violation of the rule, he simply discussed the matter

with her in his office, accepted her assertion that she

customarily confined her union activity in the hospital to her

own nonworking time and in nonwork areas and only

reminded her that a violation of the rule could lead to

discharge. Clearly, Jackson was not reprimanded for her con-

duct. In these circumstances, it can hardly be inferred that the

Respondent was prompted discriminatorily to enforce the

rule because of the appearance of the Union at whe hospital or

that it disparately applied the rule to Jackson, “" particularly

since the record is absolutely devoid of any evidence that

employees were permitted to engage nh antiunion activity in

the hospital in disregard of the rule.

The General Counsel, nevertheless, cites various in-

stances of employee solicitation and collection of funds for

nonunion related purposes which had taken place in the

hospital, as described above, to support his claim of

discriminatory enforcement of the rule. However, many of

24 Luxuray of New York Division of Beaunit Corporation, 185

NLRB 100.

25 See The Contract Knitter, Inc., supra, 6.

62- JD-123-76

these episodes of solicitation and collection occurred during

the employees’ free time and in nonwork areas. Moreover,

with respect to other instances of such conduct, it was not

shown that supervisors were present or were aware that sugh

activity was going on during working time or in work areas

or that the activity otherwise interfered with hospital routine.

In the two instances where supervisors sold candy, the sales

were isolated acts which were made in conjunction with an

annual fund raising drive for the benefit of a high school’s

athletic program and a professional nurses’ association. As

for the formation of the Sunshine Club in the course of a

staff meeting and the subsequent posting of a notice on a

bulletin board regarding the employee’s dues standing in that

club, they certainly cannot be viewed as violations of the no-

solicitation rule. Nor is it evidence of discriminatory enforce-

ment of the Respondent’s rule the fact that the Respondent

itself had the occasion to post and circulate in the hospital a

notice offering for sale to its employees used hospital fur-

niture and related items. Undeniably, a no-solicitation rule,

as a general proposition, is not intended to, nor does it

restrict the employes. from engaging in the activity encom-

passed by the rule. “" Also of dubious value as evidence of

discriminatory application of the rule is the fact that Respon-

dent permitted United Fund pledge cards to be distributed

among the employees once a year and the Women’s Auxiliary

26 Serv-Air, Inc., 175 NLRB 801, on remand from 395 F.2d 557

(C.A. 10), where the Board noted that ‘‘even if we were persuaded

th... <he solicitation occurred on work time, there is no evidence

that if -acident came to the attention of management, and hence

it is no sasis for a finding that Respondent permitted it without

retaliatory action.”’

27 See N.L.R.B. v. United Steelworkers of America, CIO

(Nutone Incorporated) et al., 357 U.S. 357, where the Supreme

Court held that it was not an unfair labor practice for an employer

to enforce against employees a no-solicitation rule, in itself con-

cedely valid, while the employer engages in coercive antiunion

solicitation.

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of the hospital to post on bulletin boards an announcement

of a forthcoming event being run for the benefit of the

hospital. Such ‘“‘beneficient acts fall far short of

establishing forbidden discrimination.”’

In short, all things being considered, including the size of

the hospital and its employee staff, management’s efforts to

enforce its rule, and the absence of sufficient proof of

management’s deliberate toleration of nonunion related

solicitations and collections on working time and in work

areas, I find that the General Counsel failed to sustain his

burden of establishing by a preponderance of the evidence

that the Respondent’s no-solicitation, no-distribution rule

was discriminatorily enforced and applied against union

adherents, particularly employe Jackson, in violation of

Section 8(a)(1) of the Act. Accordingly, the relevant

allegations of the complaint in Case 30-CA-3082 will be

dismissed.

5. The alleged illegality of the’ revised

rule (Case 30-CA-3267)

The no-scuicitation, no-distribution rule, which is the

subject of the complaint in Case 30-CA-3267, was first posted

28 Serv-Air, supra; Astronautics Corporation of America, 164

NLRB 623, 627.

29 — Serv-Air, Inc. v. N.L.R.B., 395 F.24 557, 560(C.A. 10).

30 Cf. Serv-Air, Inc., 175 NLRB 801; Astronautics, supra, 625;

The Seng Company, 210 NLRB 936. The cases relied upon by the

General Counsel for a contrary result, such as, Montgomery Ward

& Co., 202 NLRB 978, 979, and Daylin, Inc., Discount Division

d/b/a Miller’s Discount Dept. Stores, 198 NLRB No. 40, are

distinguishable from the present case in that management in those

cases permitted more extensive nonunion related activities to be

conducted in violation of the rule, while it prohibited union

solicitation in order to impede and discourage the employees’

organizational effort.

+ JD-123-76

on April 25, 1975. The rule reflects a revision of an earlier

rule, whose enforcement is considered in the preceding sec-

tion of this Decision, and is the result of a program to revise

the employee handbook entitled ‘‘Working Together’’ begun

in July 1974. The new rule was drafted by the Respondent’s

counsel on the basis of his views regarding legal developments

in the area of no-solicitation, no-distribution rules in the

health care field. As embodied in the employee handbook,

the challenged rule reads, as follows:

Solicitation & Distribution of Material

We receive numerous requests from various per-

sons, groups and organizations to be allowed to

solicit patients or employees for various causes, or

be allowed to distribute books, pamphlets, etc.,

throughout the hospital. These are a source of an-

noyance to the patients, as well as disruptive to our

routines. This has led us to adopt a rule prohibiting

members of the public from doing any soliciting or

any distributing of material on hospital premises at

any time. Outside of working hours an employee

becomes a member of the public, and the foregoing

rules will apply.

During working hours, employees should not

solicit or distribute written matter for any purpose

in any part of the hospital during working time.

(‘‘Working time’’ applies not only to the employee

doing the soliciting, but includes the person being

solicited.) During the non-working time of

employees’ working hours, solicitation is permitted

only in non-patient and in non-public areas of the

hospital, and distribution of written material is

limited to non-work areas and non-patient areas

and non-public areas. (Underlining added.)

Included in the record pursuant to the parties’ Stipulation are

11 large blueprints of the Respondent’s facilities on which are

designated by color code the areas where employees are

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allowed or not allowed, to engage in solicitation and distribu-

tion in accordance with the rule.

Quoting only the underlined portion of the rule, the

complaint alleges that since April 25, 1975 the Respondent in-

terfered with the employees’ statutory rights in violation of

Section 8(a)(1) of the Act ‘‘by promulgating and maintaining

in force and effect an invalid no-solicitation and distribution

rule which prohibits employees from participating in union

organizing activities on nonworking time in nonworking

areas.’’ ~“ The General Counsel contends that the rule is on

its face ambiguous and overly broad and therefore infringes

upon the employees’ organizational rights in violation of Sec-

tion 8(a)(1) of the Act. The Respondent, on the other hand,

urges that the validity of its revised rule may not properly be

judged by the legal principles normally applicable to in-

dustrial plants. Instead, it argues that special consideration

31 Specifically, the Stipulation provides:

4. Areas on the Plans which are shaded with red

lines are nonwork, nonpatient and nonpublic areas in

which employees are allowed to engaged (sic) in solicita-

tion and distribution in accordance with the Rule. Pa-

tients and members of the public (including persons

visiting patients) are not allowed in these areas. Areas

shaded in green are work areas in which neither the

public nor patients are allowed and in which employees

may engage in solicitation in accordance with the Rule.

Unshaded areas are either areas in which the public

and/or patients are present or are unoccupied. No

solicitation or distribution is allowed in the occupied

areas which are unshaded.

32 Although the complaint thus challenges only a part of the

rule, the General Counsel, nevertheless, argues in his brief that the

first paragraph of the rule dealing with the rights of off-duty

employees is also unlawful. Manifestly, that issue is not before me

under the complaint and the Stipulation. In any event, the General

Counsel’s position is of doubtful validity. GTE Lenkurt, Incor-

porated, 204 NLRB 921.

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should be given to the nature of its hospital operations, its

concern with the health and welfare of its patients, and the

presence of the public visiting the patients, and that the

Board should therefore find, as it has done in the case of

retail establishments and other health care institutions, that

these factors outweigh the employees’ organizational rights

and justify the broad scope of the rule.

The Supreme Court has observed that the ‘‘place of

work is a place uniquely appropriate for dissemination of

views concerning the bargaining representative and the

various options open to the employees.’’ ~~ In recognition of

this truism, the Board with court approval, after striking a

balance between the employees’ organizational rights and the

employer’s dpterest in maintaining production, discipline,

and safety, ~~ has evolved a set of principles to govern union

solicitation and the distribution of union literature by

employees on their employer’s premises. Thus, an employer

rule prohibiting union solicitation by employees during work-

ing time is presumptively valid, 5 as is a rule prohibiting the

distribution of union literature in work areas, whether or not

it occurs on working time. If the rules go beyond these

in

33, N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S.

322, 325.

34 Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793,

797-798.

35° Jd. at 803. See Essex International, Inc., 211 NLRB No. 112,

where the Board clarified the distinction between ‘‘working time’’

or ‘‘worktime’’ and ‘‘working hours.’’ It held that a prohibition of

solicitation or distribution during ‘‘working time’’ or ‘‘worktime”’

is valid on its face since it connotes the time spent in the actual per-

formance of job duties and excludes the lunch and break periods,

while ‘‘working hours’’ conveys the idea of business hours which

includes the employees’ free time and therefore the prohibition is

presumptively invalid.

36 Stoddard-Quirk Manufacturing Co., 138 NLRB615.

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JD-123-76

limitations and ban union solicitation by the employees dur-

ing their free time or prohibit their distribution of union

literature in nonwork areas during their nonworking time,

these rules are invalid and constitute an unreasonable impedi-

ment to the employees’ exercise of their Section 7 rights

violative of Section 8(a)(1) of the Act, unless the employer

can demonstrate exceptional circumstances justifying such

broader restrictions.

In applying the foregoing principles, the Board has been

confronted with the special problems that employers

operating retail enterprises experience as a result of

employees coming in contact with the public in the course of

their work. To avoid a possible disruption of business if

employees engage in union activity in the presence of

customers, the Board has sanctioned employer rules which

proscribe union activity in selling greas whether or not

employees are on their own free time. ~° However, the Board

has declined to extend the prohibition against union solicita-

tion by employees during their nonworking time to nonselling

areas, even though customers may be present, where conyjnc-

ing evidence justifying such extension is not adduced. ~~ In

the case of hospitals and other health care institutions, the

Board has similarly indicated an inclination not to apply the

above principles mechanically but to approve no solicitation

and distribution rules which impose additional restrictions on

employees’ organizational rights where unusual cir-

37 The May Department Stores Company, 59 NLRB 976, 981;

Marshall Field & Co., 98 NLRB 88, 92; Two Wheel Corp., d/b/a

Honda of Mineola, 218 NLRB No. 87, 3.

38 Marshall Field & Co., supra, 93-95; see also The May Depart-

ment Stores Company, supra.

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cumstances end special needs are shown to warrant them. 39

As noted previously, the Respondent’s revised rule pro-

vides that ‘‘[djuring the nonworking time of employees’

working hours, solicitation is permitted only in non-patient

and in non-public areas of the hospital, and distribution of

written material is limited to non-work areas and non-patient

areas and non-public areas.’’ Manisfestly, the rules does not

describe with sufficient clarity the particular areas where

employees may or may not engage in union solicitation and

distribution during their nonworking time. There is no

reliable indication in the rule whether, for example,

employees are permitted to engage in this activity in the

cafeteria, refreshment places, restrooms or lounges where

they might be during their free time if a visitor or other

member of the public happened to be present. Indeed, to

define the specific areas where union solicitation and

distribution are permitted or forbidden under the rule, the

Respondent made part of the record in this case 11 blueprints

of the hospital facilities on which numerous such areas are

designated. However, there is absolutely no evidence that this

information was ever conveyed to employees or that they

were otherwise aware of it. Such vagueness and ambiguity in

the Respondent’s newly-adopted rule can have no other than

a deterrent effect on employees who might otherwise desire to

exercise their organizational rights lest they risk discipline for

unwittingly violating the rule. Yet, as the Second Circuit

Court of Appeals had the occasion to observe in a com-

parable situation, ‘‘The true meaning of the rule might be the

subject of grammatical controversy. However, the employees

of respondent are not grammarians. The rule is at best am-

39 Summit Nursing and Convalescent Home, Inc., 196 NLRB

769-770, enforcement denied 472 F.2d 1380 (C.A. 6); Guyan Valley

Hospital, Inc., 198 NLRB No. 28, TXD 11; Cedar Corp., d/b/a

West Side Manor Nursing Home, 203 NLRB 100, 103-104; Harold

R. Bursten and Dr. Robert Bursten, A Partnership, d/b/a

Shorewood Manor Nursing Home & Rehabilitation Center, 217

NLRB No. 55, 4, Member Penello’s separate concurring and

dissenting opinion.

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JD-123-76

biguous and the risk of ambiguity must be held against the

promulgator of the rule rather than against the employees

who are supposed to abide by it.’’ Nor is the ambiguity

weakness in the rule eliminated by the Respondent’s sugges-

tion in its brief that, if the employees have any questions con-

cerning the scope of the rule, they could seek clarification

from their department head or the Personnel Department.

Certainly, such inquiries would reveal the employees’ union

involvement or sympathies which they are undeniably

privileged not to disclose to their employer.

Apart from the ambiguous nature of the rule, there can

be no doubt that the rule imposes restrictions on union

solicitation and distribution during an employee’s nonwork-

ing time and in nonwork areas, beyond those normally per-

missible under established law. “* While the Board recognizes

that a broad no-solicitation, no-distribution rule may be valid

under special circumstances, the record contains no evidence

demonstrating the need for prohibiting such activity in the

specific areas claimed by the Respondent. For example, no

evidence was adduced to show a reasonable probability of in-

terference with hospital operations or efficiency or that the

health and care of patients would be adversely affected, if

union solicitation or distribution occurred during an

employee’s nonworking time in nonwork areas where visitors

or the public might be present. In fact, as previously discuss-

ed, nonunion related solicitation has taken place in the

hospital in the past without any apparent serious disruption

of hospital routine. Plainly, the mere asertion that broad

restrictions on union solicitation and distribution in the

hospital are required can hardly prove the need or justifica-

tion for them.

40 NL.R.B. v. Harold Miller, et al. d/b/a Miller-Charles and

Company, 341 F.2d 870, 874(C.A. 2).

41 See, for example, Summit Nursing and Convalescent Home,

Inc., 196 NLRB 769; Cedar Corp., supra, 104.

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In view of the absence of special circumstances shown by

the Respondent to warrant the restrictions imposed by the

quoted portion of the revised rule and in view of its ambigui-

ty, I find that the rule to that extent is invalid and constitutes

an infringement of the employees’ Section 7 rights and

therefore violates Section 8(a)(1) of the Act.

IV. The Remedy

Pursuant to Section 10(c) of the Act, as amended, it is

recommended that the Respondent be ordered to cease and

desist from engaging in the unfair labor practices found and

like and related conduct and that it take certain affirmative

action designed to effectuate the policies of the Act.

Upon the basis of the foregoing findings of fact and

upon the entire record in the case, I make the following:

Conclusions of Law

1. The Respondent is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning

of Section 2(5) of the Act.

3. By coercively interrogating employees concerning a

union meeting, the number of union cards signed by

employees, the number of employees involved in the Union,

and the identity of the employee head of the Union’s organiz-

ing committee; by inviting employees to report to the person-

nel director union solicitation by fellow employees and their

other organizational activities; and by promulgating and

maintaining in effect an invalid no-solicitation, no-

distribution rule which unduly limits such activity by

employees on behalf of the Union during their nonworking

time in nonwork areas, the Respondent violated Section

8(a)(1) of the Act.

MM.

JD-123-76

4. The aforesaid unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

5. The Respondent did not engage in other conduct

violative of Section 8(a)(1) of the Act, as alleged in the com-

plaint in Case 30-CA-3082.

Upon the foregoing findings of fact, conclusions of law,

and the entire record, and pursuant to Section 10(c) of the

at as amended, I hereby issue the following recommended:

ORDER

The Respondent, Lutheran Hospital of Milwaukee, Inc.,

of Milwaukee, Wisconsin, its officers, agents, successors and

assigns, shall:

1. Cease and desist from:

(a) Coercively questioning employees concerning

employees’ union sympathies and activities, meetings held by

National Union of Hospital and Health Care Employees

Local 1199W, RWDSU-AFL-CIO, the number of cards sign-

ed by employees for the named Union, the number of

employees involved in that Union, and the identity of the

employee head of the Union’s organizing committee.

(b) Inviting and requesting employees to report to it

union solicitation by fellow employees or their other

organizational activities.

42 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.84 of the Rules and Regula-

tions, be adopted by the Board and become its findings, conclu-

sions, and Order, and all objections thereto shall be deemed waived

for all purposes.

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(c) Promulgating, maintaining in effect and enforc-

ing any rule or regulation which prohibits employees from

engaging in union solicitation in the hospital during non-

working time and from engaging in the distribution of union

literature in nonwork areas in the hospital, unless special cir-

cumstances and needs of the hospital require such restric-

tions.

(d) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of their

right to self-organization, to form, join or assist National

Union of Hospital and Health Care Employees Local 1199W,

RWDSU-AFL-CIO, or any other labor organization, to

bargain collectively through representatives of their own

choosing, to engage in concerted activities for the purpose of

collective bargaining or other mutual aid or protection, or to

refrain from any and all such activities except to the extent

that such right may be affected by an agreement requiring

membership in a labor organization as a condition of employ-

ment, as authorized by Section 8(a)(3) of the Act.

2. Take the following affirmative action which is

necessary to effectuate the policies of the Act:

(a) Forthwith rescind its rule promulgated on or

about April 25, 1975 to the extent that it prohibits its

employees during their nonworking time from soliciting in its

hospital on behalf of a labor organization or from

distributing union literature in the nonwork areas of the

hospital.

(b) Post at its hospital in Milwauk , Wisconsin, the

attached notice marked ‘‘Appendix.’’ Copies of said

43 In the event that the Board’s Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice

reading “‘POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read ‘‘POSTED PUR-

SUANT TO A JUDGMENT OF THE UMITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOA.RD.”’

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Aum bee

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JD-123-76

notice, on forms provided by the Regional Director for

Region 30, after being duly signed by the Respondent’s

authorized representative, shall be posted by the Respondent

immediately upon receipt thereof, and be maintained by it for

60 consecutive days thereafter in conspicuous places where

notices to employees are customarily posted. Reasonable

steps shall be taken to insure that said notices are not altered,

defaced or covered by any other material.

(c) Notify the Regional Director for Region 30, in

writing, within 20 days from the receipt of this Order what

steps the Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that the complaint in Case

30-CA-3082 be, it hereby is, dismissed insofar as it alleges

other violations of Section 8(a)(1) of the Act than those

found herein.

Dated, Washington, D. C.

/s/Paul Bisgyer

Paul Bisgyer

Administrative Law Judge