Petition — National Labor Relations Board v. Baylor University Medical Center

;: Micpach ee , . 4

wo "FB = GSO 4 Lwcrer roe, e, rene

re

Gu the Suprenwe Court of the United States

OCTOBER TERM, 1978

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

BAYLOR UNIVERSITY MEDICAL CENTER

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. MCCREE, JR.,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

JOHN S. IRVING,

General Counsel,

National Labor Relations Board,

Washington, D.C. 20570.

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

BAYLOR UNIVERSITY MEDICAL CENTER

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of certio-

rari to review the judgment of the United States

Court of Appeals for the District of Columbia Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra) is not yet officially reported. The decision and

order of the National Labor Relations Board (App.

C, infra) are reported at 225 NLRB 771.

(1)

2

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on February 14, 1978. On May

5, 1978, Mr. Chief Justice Burger extended the time

for filing a petition for a writ of certiorari to and

including July 14, 1978. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the National Labor Relations Board prop-

erly concluded that a hospital violated Section 8(a)

(1) of the National Labor Relations Act by issuing

and maintaining a rule that prohibits employees dur-

ing nonworking time from soliciting union support

and distributing union literature in all areas of the

hospital to which patients and visitors have access.

STATUTE INVOLVED

The relevant provisions of the National Labor Re-

lations Act, as amended (61 Stat. 136, 73 Stat. 519,

88 Stat. 395, 29 U.S.C. (and Supp. V) 151 et-seq.)

are as follows:

Sec. 7. Employees shall have the right to

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

organizations, to bargain collectively through

representatives of their own choosing, and to en-

gage in other concerted activities for the purpose

of collective bargaining or other mutual aid or

protection, and shall also have the right to re-

frain from any or all such activities * * *.

3

Sec. 8. (a) It shall be an unfair labor prac-

tice for an employer—

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guar-

anteed in section 7;

STATEMENT

Baylor University Medical Center (the “Hospital’’)

is a nonprofit health care institution.’ In June 1975,

the Hospital promulgated a rule limiting solicitation

and distribution of literature, which, in relevant part,

provided (App. C, infra, p. 39a):

Solicitation of employees of Baylor University

Medical Center by other employees or distribu-

tion of literature between employees is prohibited

during work time and/or in work areas. The

term “work areas” includes patient care floors,

hallways, elevators or any other area, such as

laboratories, surgery or treatment centers, where

any type of service is being administered to or

on behalf of patients and also includes any areas

where persons visiting patients are likely to be

disturbed. Service to our patients and their visi-

tors includes not only primary and acute medical

care, but food service and psychological support.

The effect of this rule was to bar employee solicitation

and distribution of literature inside the Hospital, ex-

* The National Labor Relations Act was amended, effective

August 25, 1974, to extend its coverage to nonprofit health

care institutions. 88 Stat. 395.

4

cept in a few small employee locker rooms (App. A,

infra, pp. 2a-3a; Tr. 356-358, 646).°

Upon charges filed by the Union (a local and dis-

trict council of the Laborers International Union),

the Board concluded that the Hospital’s no-solicita-

tiou/no-distribution rule violated Section 8(a)(1) of

the Act, 29 U.S.C. 158(a)(1), to the extent that it

prohibited union solicitation and literature distribu-

tion by employees during nonworking time in areas

of the Hospital to which patients and visitors have

access, but which are not immediate patient care

areas. In reaching this conclusion, the Board followed

its decision in St. John’s Hospital and School of Nurs-

ing, Inc., 222 NLRB 1150, where it had held that,

while a hospital may lawfully ban employee solicita-

tion and distribution, even during nonworking time,

in immediate patient care areas—such as the patients’

rooms, operating rooms, and places where patients

receive treatment—a ban on that activity in other

ares to which patients and visitors have access was

invalid absent a showing by the hospital that such a

ban was necessary to avoid a disruption of patient

care (App. C, infra, pp. 30a-3la, 39a-4la). The

Board ordered the Hospital to “[r]Jescind its rules

restricting the areas in which employees may solicit

While there are approximately 3,700 employees at the

Hospital, the locker room areas available for solicitation and

distribution of literature contain no more than 350 lockers

(App. A, infra, p. 3a, n. 4; Tr. 646). “Tr.” references are

to the stenographic transcript of the testimony before the

Administrative Law Judge.

5

on behalf of a labor organization during the employ-

ees’ nonworking time insofar as it applies to other

than immediate patient care areas, and prohibiting

distribution of union literature during employees’

nonworking time in nonworking areas of its opera-

tions or on its outside premises” (App. C, infra, pp.

31a, 63a). |

The court of appeals denied enforcement of the

Board’s order (App. A, infra). Agreeing with the

Tenth Circuit, which had declined to sustain the

Board’s St. John’s decision,’ the court held that the

Board’s policy as to the permissible scope of no-

solicitation/no-distribution rules in health care insti-

tutions was “both contrary to congressional purpose

and outside the Board’s area of expertise * * *”

(id. at 7a).

Accordingly, the court concluded that a ban on

solicitation in the Hospital’s corridors was justified

not only because of the “likelihood that congestion and

commotion would result from such solicitation,” but

also because ‘“[w]herever in the hospital an emotion-

ally 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’ (App. A, infra, p. 15a).

As to the cafeteria and vending machine areas, the

court stated (id. at 16a):

While we held that [the Hospital’s] ban on so-

liciting in the hospital’s corridors was justified

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

Labor Relations Board, 557 F. 2d 1868 (C.A. 10).

6

due to the “special circumstances” of a hospital

environment, we hold that a similar proscription

covering its cafeteria and vending area is justi-

fied because these areas are not materially “spe-

cial” or different from other restaurants and

shops."*!

Judge Leventhal dissented from the court’s decision

insofar as it sustained the Hospital’s ban against

solicitation and distribution of literature in the cafe-

teria and vending areas. He would have upheld the

Board’s determination that “hospital cafeterias and

vending machines” do not “present the same consider-

ations as warranted the exception wrought for ordi-

nary commercial restaurants” (App. A, infra, pp.

26a).

REASONS FOR GRANTING THE WRIT

In Beth Israel Hospital v. National Labor Relations

Board, No. 77-152, decided June 22, 1978, this Court

held that the Board’s policy, as enunciated in St.

John’s, supra—“which requires that absent * * * a

* The Board has held that employee solicitation on the selling

floor of a retail store or in the dining area of a public restau-

rant may be barred even during the employees’ nonworking

time, since such activity would tend to interfere with the

primary purpose of the operation, which is to serve customers.

See Marriott Corp., 2283 NLRB 978; McDonald’s of Palolo,

205 NLRB 404; Marshall Field & Co., 98 NLRB 88, enforced

as modified, 200 F. 2d 875 (C.A. 7). In St. John’s, supra,

22 NLRB at 1150-1151, n. 8, the Board concluded that a similar

restriction was not warranted in a hospital eating facility,

because the main function of the hospital is patient care and

therapy and such functions are not performed in hospital

eating facilities.

7

showing [of a substantial threat of harm to patients]

solicitation and distribution be permitted in the hos-

pital except in areas where patient care is likely to

be disrupted”—was a permissible “construction of

the Act’s policies as applied to the health-care indus-

try by the 1974 amendments” (slip op. 15). The

Court further held that the Board had reasonably

applied that policy in concluding the hospital there

had violated the Act by barring employee solicitation

and literature distribution in the hospital cafeteria,

which was used primarily by employees but also by

patients and visitors. In so holding, the Court re-

jected the argument that the Board was required to

apply to hospital eating facilities the same rule that

it applies to public restaurants (slip op. 21-22).

Insofar as the court below held that the Hospital

was justified in proscribing employee solicitation in

its cafeteria and vending machine areas because

“these areas are not materially ‘special’ or different

from other restaurants and shops” (swpra, p. 6), its

decision is directly contrary to this Court’s decision

in Beth Israel. Moreover, the holding of the court

below that the Hospital was justified in proscribing

such solicitation in other patient access areas was

based, in part at least, on its rejection of the Board’s

St. John’s policy( supra, p. 5), which was generally

approved by this Court in Beth Israel.

In these circumstances, the judgment of the court

below should be vacated and the case should be re-

manded for reconsideration in the light of this Court’s

decision in Beth Israel. Since the Court in Beth Is-

rael, while generally approving the Board’s St. John’s

policy, emphasized that the Board should apply that

policy in each hospital case with due regard for ‘‘the

importance of the employer’s interest in protecting

patients from disturbance” (slip op. 20),° it is appro-

priate that this reconsideration be performed by the

Board in the first instance. Cf. Lutheran Hospital of

Milwaukee, Inc. v. National Labor Relations Board,

No. 77-1289, order eniered June 26, 1978, vacating a

judgment enforcing a Board order similar to the one

at issue here, and remanding the case to the court of

appeals for reconsideration in the light of Beth Israel.*

CONCLUSION

The petition for a writ of certiorari should be

granted, the judgment of the court of appeals should

be vacated, and the case should be remanded to that

* The Court explained (slip op. 20-21):

While outside of the health care context, the availability

of alternative means of communication is not, with re-

spect to employee organizational activity, a necessary

inquiry, * * * it may be that the importance of the em-

ployer’s interest here demands use of a more finely cali-

brated scale. For example, the availability of one part of

a health-care facility for organizational activity might be

regarded as a factor required to be considered in evaluat-

ing the permissibility of restrictions in other areas of the

same facility.

“The Board intends to request the Seventh Circuit to re-

mand Lutheran Hospital to it so that it can perform the recon-

sideration task initially in that case also.

9

court with directions to remand it to the Board for

reconsideration in the light of Beth Israel Hospital v.

National Labor Relations Board, No, 77-152, decided

June 22, 1978.

Respectfully submitted,

Wane H. McCreg, JR.,

Solicitor General.

JOHN S, IRVING,

General Counsel,

National Labor Relations Board.

JULY 1978.

—————

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1940

BAYLOR UNIVERSITY MEDICAL CENTER, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Argued October 27, 1977

Decided February 14, 1978

Robert W. Smith, with whom Bowen L. Florsheim

was on the brief, for petitioner,

Paul J. Spielberg, Deputy Assistant General Coun-

sel, National Labor Relations Board, with whom John

S. Irving, General Counsel, Carl L. Taylor, Associate

General Counsel, National Labor Relations Board,

were on the brief, for respondent.

Before LEVENTHAL, MACKINNON and WILKEY, Cir-

cuit Judges.

2a

Opinion for the court filed by Cirewit Judge Mac-

KINNON.

Opinion filed by Circuit Judge LEVENTHAL, concur-

ring in part and dissenting in part.

MACKINNON, Circuit Judge: The Baylor Univer-

sity Medical Center (‘Baylor’) petitions for review

of an order of the National Labor Relations Board

(“Board”) and the Board makes a cross-application

for enforcement of its order. Our jurisdiction is con-

ferved by section 10 (f) of the National Labor Re-

lations Act, 29 U.S.C. §160(e), (f). The Hearing

Examiner conducted an extensive hearing on a com-

plaint issued by the Board ' charging, inter alia,’ that

Baylor’s no-solicitation and no-distribution rule (“the

no-solicitation rule’’)* was overly broad and an “un-

fair labor practice” in violation of section 8(a) (1)

of the National Labor Relations Act, 29 U.S.C. § 158

(a)(1). The gravamen of the Board’s complaint was

that this rule prohibited solicitation by employees

during their non-working time and barred all forms

‘The hearings in the consolidated cases No. 16-CA-5888,

16-CA-6050, and 16-CA-6206 were held on November 4, 5, 6,

1975.

* Baylor has complied with the NLRB order in every respect

except for the portion relating to the no-solicitation and no-

distribution rule.

‘The no-distribution aspect of Baylor’s rule will not be dis-

cussed per se. If solicitation can be banned, so a fortiori may

distribution, raising as it does the additional problems of litter

and general cluttering, see Stoddard-Quirk Mfg. Co., 188

NLRB 615, 620-621 (1962).

3a

of solicitation and distribution in any areas of the

hospital complex where services were administered to

patients or where visitors might be disturbed, thereby

effectively eliminating solicitation and distribution in

all parts of the hospital buildings except for a small

employees’ locker room.‘ The full rule provided:

Solicitation of patients or visitors by anyone on

Baylor University Medical Center property is

strictly prohibited. Solicitation of employees of

Baylor University Medical Center by non-em-

ployees or the distribution of literature, pamph-

lets, or other material, by non-employees on Bay-

lor University Medical Center property is pro-

hibited.

Solicitation of employees of Baylor University

Medical Center by other employees or distribution

of literature between employees is prohibited dur-

ing work time and/or in work areas. The term

“work areas” includes patient care floors, hall-

ways, elevators or any other area such as labora-

tories, surgery or treatment centers, where any

type of service is being administered to or on

behalf of patients and also includes any area

where persons visiting patients are likely to be

disturbed. Service to our patients and their

visitors includes not only primary and acute med-

ical care, but, as you all know, food service and

psychological support.

Unauthorized sales and solicitation of orders

for any type of product or service to anyone on

* This locker room contains no more than 350 lockers, where-

as there ave some 3,700 employees at Baylor.

4a

Baylor University Center premises are pro-

hibited.’

The Board’s order, which fully adopted the recom-

m¢é..ded decision of the Hearing Examiner,’ required

° This rule was “clarified” on June 21, 1975 by the posting

of the following rule:

Solicitation of patients or visitors by anyone for any

purpose on Baylor University Medical Center property

is strictly prohibited. Solicitation of employees of Baylor

University Medical Center by non-employees or the dis-

tribution of literature, pamphlets or other material, by

non-employees on Baylor University Medical Center prop-

erty is prohibited.

Unauthorized sales and solicitation of orders for any

type of product or service to anyone on Medical Center

Premises are prohibited.

Solicitation of employees at Baylor University Medical

Center by other employees or distribution of literature

between employees is prohibited during work time or in

work areas. Th? term “work area” includes patient care

floors, hallways, elevators, conference rooms and places

where employees confer on business, or any other area

such as laboratories, surgery or treatment centers, where

any type of service is being administered to or on behalf

of patients and also includes any areas where persons

visiting parents may be disturbed. Service to our patients

and their visitors includes not only primary and acute

medical care, but also food service and psychological sup-

port.

The Hearing Examiner had both rules before him in consider-

ing the case.

*The NLRB—Fanning, Penello and Walther members—

said nothing in their decision except that “the Board has con-

sidered the record and the attached decision in light of the

exceptions and briefs and has decided to affirm the rulings,

finding and conclusions of the [Hearing Examiner] and to

adopt his recommended order.” J.A. at 27.

5a

the hospital to cease and desist from enforcing this

rule and to rescind any restriction on employees’ so-

licitation other than in “immediate patient care

areas.” ' In light of the general rule that solicitation

cannot be proscribed during non-working time nor

distribution during non-working time in non-working

areas," the Board—while it recognized the special

circumstances presented by a hospital environment

to the extent of conceding that Baylor could prohibit

solicitation at all times within “immediate patient

care areas” ’—invalidated any ban on solicitation in-

sofar as it applied to most of (1) the corridors, (2)

to the cafeteria and (3) vending machine areas. The

exclusion of these parts of the hospital from the per-

missible scope of the hospital’s no-solicitation rule is

the main point of contention between the parties.

We find that the record evidence compels the con-

clusion that the situation in Baylor involves unique

* J.A. 27-28.

*See Republic Aviation Corp. v. NLRB, 324 U.S. 793

(1945); D’Yourville Manor, Lowell, Mass. v. NLRB, 526 F.2d

8 (1st Cir. 1975).

* The Hearing Examiner adopted the language of the NLR

in its St. John’s Hospital and School of Nursing, Inc., 222

NLRB No, 182, 91 LRRM 1833 (1976):

We recognize that the primary function of a hospital is

patient care and that a tranquil atmosphere is essential

to the carrying out of that function. In order to provide

this atmosphere, hospitals may be justified in imposing

somewhat more stringent prohibitions on solicitation then

[sic] are generally permitted.

J.A. at 21.

6a

circumstances which justify a broad proscription on

solicitation and distribution. In its resolution of this

case the NLRB has not adequately discharged its

responsibility to effectuate congressional policy,’

which unquestionably has been concerned to avoid dis-

ruptions in hospitals. We adopt petitioner’s conten-

tion that it is not an unfair labor practice to bar

solicitation in Baylor’s corridors. Furthermore, we

feel that a strong line of authority arising in contexts

other than that of health care facilities establishes

the validity of the no-solicitation rule in the cafeteria

and vending area.

The Hearing Examiner evidently felt compelled to

limit Baylor’s proscriptions on solicitation as he did

because of the Board’s recent decision in St. John’s

Hospital and School of Nursing, Inc., 222 NLRB No.

182, 91 L.R.R.M. 1333 (1976), enforced in part and

denied in part, 557 F.2d 1868 (10th Cir, 1977)."

However, this decision subsequently was denied en-

forcement by the Tenth Circuit after the NLRB

order in this case was issued, St. John’s Hospital and

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

Cir. 1977). 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 “imme-

Cf. NLRB v. Truck Drivers Local Union #449, 353 U.S.

81, 97 (1957); Phelps Dodge Corp. v. NLRB, 313 U.S. 177

(1941).

“The Hearing Examiner commented: “The Board’s de-

cision in the St. John’s case is controlling here.” J.A. at 22.

Ta

diately” involved in patient care,” the Board’s overly

restrictive position on the valid extent of no-solicita-

tion rules in medical facilities must nevertheless be

overturned as insensitive both to the unique conditions

found in an acute general hospital and to the declared

intent of Congress.

In reviewing an order by the NLRB, courts must:

accept its determinations if they are supported by

“substantial evidence,” *’ and give considerable def-

erence to the Board’s interpretation of the terms of

the NLRA.” In this case, however, we find that the

Board’s decision is both contrary to congressional

purpose and outside the Board’s area of expertise,”

and accordingly entitled to little of the deference

2 See, e.g., St. John’s Hospital and School of Nursing v.

NLRB, 557 F.2d 1368, 1872-78 (10th Cir. 1977) (‘This dis-

tinction between strictly patient care areas and other patient

access areas based on the relative conditions of the patients

frequenting those areas find no support in the record... .

Moreover, this distinction is difficult of application at best and

indeed has been rejected by the Board in a similar context as

‘specious.’ ”’).

18 NLRB v. Pipefitters, 429 U.S. 507 (1977); S. H. Camp &

Co. v. NLRB, 160 F.2d 519 (6th Cir. 1947); 29 U.S.C. § 160

(e), (f) (1970).

4 NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266, quoting

NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963) ; Phelps

Dodge Corp. v. NLRB, supra note 10.

15 St. John’s Hospital and School of Nursing v. NLRB, supra

note 12, 557 F.2d at 1878 (“. . . the Board’s own percep-

tions 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/management

relations.’’)

8a

traditionally accorded to NLRB actions.’ While we

are not at liberty to deny enforcement to an order

of the Board merely because we would have favored

a different result,’’ we feel no hesitation in denying

enforcement to the instant order.

The Corridors

The legislative history of the NLRA as it applies

to voluntary, non-profit hospitals * reveals an unmis-

takable solicitude for the peaceful functioning of

these institutions, even at some expense to employee’s

right to organize.” It was not until 1974 that such

institutions—which employ some 55% of all hospital

workers—were included within the NLRA, and in the

course of amending the scope of the Act’s coverage

Congress clearly evinced its belief that these facilities

presented special problems which mandated a dif-

1° Cf, NLRB v. Universal Camera Corp., 190 F.2d 429, 432

(2d Cir. 1951) (Frank, J., concurring); Winter, Judicial

Review of Agency Decisions: The Labor Board and the Court,

1968 Sup. CT. REV. 53-69.

* Brooks v. NLRB, 538 F.2d 260, 261 (9th Cir. 1976);

NLRB v. Walton Mfg. Co., 369 U.S. 404, 405 (1962).

* The amendments to the NLRA which brought voluntary

non-profit hospitals under the scope of the NLRA are con-

tained in Public Law 938-360, 88 Stat. 8395 (July 26, 1974).

” See generally, Vernon, Labor Relations in the Health

Care Field Under the 1974 Amendment to the NLRA: An

Overview and Analysis, 70 Nw. U.L. Rev. 202, 202 (1975).

9a

ferent approach to the application of the NLRA than

that taken in other fields.”

Many of the witnesses before the Committee,

including both employee and employer witnesses,

stressed the uniqueness of health care intitu-

tions. There was a recognized concern for the

need to avoid disruption of patient care whenever

possible.

It was this sensitivity to the need for con-

tinuity of patient care that led the Committee

to adopt amendments with regard to notice re-

quirements and other procedures related to po-

tential strikes and picketing.

S. Rep. No, 93-766, 98d Cong., 2d Sess. reprinted in

1974 U.S. Code Cong. & Admin, News, vol. 2, 3946,

3951 (emphasis added).

The Board suggested elsewhere that Congress was

only concerned to prevent the disruptions that would

be caused by actual strikes or picketing,” but we find

no support for such a narrow reading of the congres-

sional purpose.” On the other hand, the clear ex-

pressions of congressional concern for avoiding dis-

ruptions 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

*” The 1974 Amendments included a series of provisions

seeking to discourage strikes and requiring advanced notice of

them, July 26, 1974, Pub. L. 98-860, § 1(b)-(e), 88 Stat. 395,

396 (codified at 29 U.S.C. § 158(d), (g) (Supp. V 1975)).

*1 See, e.g., St. John’s Hospital and School of Nursing,

supra note 12, 557 F.2d at 1874.

22 See generally, id.

10a

between preventing possible sources of disruptions

in hospitals and protecting employees’ right to or-

ganize."" Moreover, it seems clearly preferable in re-

solving any doubts as to how best to accommodate

these conflicting interests to err on the side of protect-

ing the patients—to whom irreparable injury might

be done—rather than on that of a labor organization

which can at worst suffer a brief, albeit unjustified

delay.”

The interested parties should be particularly in-

clined to avoid possible sources of disruption in the

case of a hospital as large and congested as Baylor.

In total admissions, Baylor is the seventh largest

hospital of the nation’s 5,000 “acute care” private

and charitable hospitals, fourth largest in surgical

procedures, and second in bed capacity. It employs

over 3,700 individuals to maintain its 1,125 beds and

care for the 44,000 inpatients who are admitted there

each year, There was testimony before the Hearing

Examiner that some 15,000-20,000 persons entered

28 No-solicitation rules have long been analyzed in terms of

balancing the property rights of the employer and the organi-

zational rights of the employees, see, e.g., NLRB v. United

Steelworkers of America, 357 U.S. 357 (1957); NLRB v. The

Babcock and Wilcox Co., 351 U.S. 105 (1956). In this case,

it is not the non-profit employer but rather its patients whose

interests are in conflict with those of the employees.

** See St. John’s Hospital and School of Nursing, swpra note

12, 557 F.2d at 1871 (“A cautious judgment in such regard

must note that error in such judgment may cause irreparable

damage to patients, and thus to the public, while error in the

other direction can be salvaged by the Board under proper

use of its overall expertise in labor matters.’’)

lla

the hospital each day * and that the passageways and

corridors were “as crowded as the main streets of

downtown Dallas.” * It is remarkable that conditions

at Baylor are not more chaotic than they are; cer-

tainly the imposition of any additional sources of po-

tential disruption should only be required reluctantly

and after a far more detailed analysis that the NLRB

devoted to this particular case.”

Although respondents make much of Baylor’s his-

tory of alleged anti-union bias,” there is no indication

that its no-solicitation rule was in any way discrimi-

natory or directed against efforts at unionization.”

*6 Petitioner’s Brief at 10-11.

*° Testimony of Mr. Howard M. Chase, Associate Executive

Director of Baylor, J.A. at 161.

** See NLRB v. Beth Israel Hospital, 554 F.2d 477, 482

(1st Cir. 1977), cert. granted, 46 U.S.L.W. 3446, 3453 (U.S.

January 17, 1978).

*® Respondent’s Brief at 4-6.

*°Compare NLRB v. Stowe Spinning Co., 336 U.S. 226

(1949) ; Bonwit Teller, Inc. v. NLRB, 197 F.2d 640 (2d Cir.

1952), cert. denied, 345 U.S. 905 (1958). Respondent points

out that Baylor does allow solicitation for the United Fund

and the American Cancer Society, as well as holding an oc-

casional bake sale and benefit fair (a program designed to

acquaint the employees with the benefits available to them).

Respondent’s Brief at 20-21; J.A. 173-181. The fact that

Baylor permits such activities while banning other forms of

solicitation does not, however, indicate illicit discrimination on

the part of petitioner, as the solicitations which are permitted

are manifestly non-disruptive and carefully controlled (the

Cancer Society solicitation, for example, consisted only of a

note included in each employee’s paycheck) J.A. at 174,

Testimony of Mr. Howard Chase. These solicitations are

l2a

The hospital takes a variety of other precautions

against excess noise and crowding. For example, all

employees are required to leave their work areas when

they take their breaks from work,” and the hospital

has maintained a ban on all forms of solicitation for

some fifteen years “—long before there was any move-

ment to unionize at Baylor.

The importance of preventing crowding and disrup-

tion in the hospital corridors cannot be seriously de-

bated. Experienced witnesses testified of the extent

to which congestion in the corridors impedes the oper-

ation of the medical staff and annoys patients and

visitors.” Quick and unimpeded passage through the

hallways was shown to be imperative to the efficient

operation of the hospital and to the success of certain

of its emergency services, such as the cardiac arrest

unit.“ The hallways serve not only as passageways

part of a normal hospital operation and all lack the emotion-

ally disturbing aspect of union solicitation in that they could

not conceivably raise fears in patients or visitors that they

might not receive the best possible health care.

“” J.A. at 312, testimony of Linda Hiatt, Director of Nurses

in Truett Hospital (one of Baylor’s wings).

“ J.A. at 155, Testimony of Mr. Howard Chase.

J.A. at 169-170, Testimony of Mr. Jack Hays, Administra-

tor of the Department of Physical Medicine, J.A. 298; Testi-

mony of Linda Hiatt, J.A. at 3138.

“’ J.A. at 182, Testimony of John Hicks, Administrator of

Jonsson Hospital (one of Baylor’s wings); J.A. 217, Testi-

mony of William Rohloff.

13a

for patients, visitors, doctors, and medicine,* but also

as viewing rooms for the nursery * and storerooms for

a variety of hospital equipment which must be avail-

able at a moment’s notice.” There was also testimony

that a great deal of the physical therapy undertaken

at Baylor actually took place in the corridors,” and

that for many departments the corridors served as the

only available waiting room.“ It is in large measure

true, as petitioner insists,” that virtually every func-

tioning part of an acute general hospital is involved

in patient care,“ and that at Baylor the corridors seem

to serve as much as additional all-purpose rooms than

merely as hallways.’ On the record before us, it is

patently unreasonable that the Board would require

that solicitation be permitted in the corridors in view

of the additional congestion and disruption which it

would involve.

3% J.A. 1938-194, Testimony of John Hicks; J.A. 159-160,

Testimony of Howard Chase.

** J.A. 161, Testimony of Howard Chase.

%6 J.A. 310, Testimony of Linda Hiatt.

** J.A, 285-286, Testimony of Jack Hays.

** J.A. 265, Testimony of Dr. A. D. Sears, M.D. at Baylor.

*® Petitioner’s Brief at 10-18.

“© See generally, NLRB v. Beth Israel Hospital, swpra note

27, 554 F.2d at 482-83 n.6 (“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 the nurse’s desk on a floor where patients

reside be a ‘patient-care area?’ Would the waiting room in

the emergency ward?’’)

*1 J.A. 159-160, Testimony of Mr. Howard Chase.

l4a

Baylor could, as respondent suggests,“ impose a

general, “evenhanded” proscription on noise and

loitering in the corridors rather than specifically ban-

ning solicitation. To suggest this alternative, how-

ever, would only exalt form over substance, as there

are very few activities besides solicitation and dis-

tribution that could plausibly take place in hospital

corridors and result in greater crowding and noise.

Moreover, if the NLRB is willing to concede that such

a broad rule might be justified by the special charac-

teristics of a hospital (thereby preempting the ques-

tion of the no-solicitation rule), it is hard to see why

it insists that a no-solicitation rule also would not be

justified. By rule Baylor prohibits solicitation because

it is the most probable potential recurrent cause of

disruption in the corridors. Furthermore, solicitation

has a disruptive force quite apart from its contribu-

tion to noise level and overcrowding. There was evi-

dence at the hearing that witnessing solicitation tends

to undermine both patients’ and visitors’ confidence in

the hospital.** Having to confront the worry that em-

ployees might reduce their standards of service as

part of a labor dispute seems an unnecessary and

undesirable additional source of anxiety for persons

already hard-taxed emotionally.“ And the thought

*? Respondent’s Brief at 20 n.15.

** J.A. 348, Testimony of Dr. A. D. Sears; J.A. at 209, Testi-

mony of Dr. John Goodson, M.D. at Baylor.

“ J.A. at 209, Testimony of Dr. John Goodson; J.A. at 255-

256, Testimony of Joseph Gross, Director of Department of

Pastoral Care at Baylor.

l5a

that matters affecting one’s life and death are per-

ceived in terms of wage increases and coffee breaks by

those responsible for one’s well-being fully justifies

the very upsetting concern that patients and those

close to them were shown to have about such activi-

ties.** It is not only the likelihood that congestion

and commotion would result from such solicitation,

but also the inherently disturbing effect of interject-

ing undertones of labor disputes into a situation

where sick persons are totally dependent on the un-

flagging assistance of others that are major factors

contributing to the disruptive effect of solicitation.

Wherever in 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.

[I]t must be remembered that Respondents fa-

cility is not a manufacturing plant, it is a hos-

pital. And it is in the nature of hospitals that

certain of the working areas (hallways, elevators,

stairs, patient’s rooms, gift shops, etc.) are neces-

sarily open to the use of patients and visitors. ...

Further, the hospital services ill individuals who,

in their weakened condition may readily be up-

set if they overhear antiunion-prounion argu-

ments....

Guyan Valley Hospital, 198 NLRB 107, 111 (1972).

It is surprising that the NLRB changed its own

established viewpoint on this matter so utterly, and

J.A, 255, Testimony of Joseph Gross.

l6a

we find its now repudiated analysis more appropriate

than its present position in the instant case.

II

The Cafeteria and Vending Areas

The cafeteria and vending areas of Baylor present

a considerably different problem from that of the cor-

ridors. With regard to the Board’s determination that

solicitation must be allowed in the hospital’s cafeteria

and vending area—the other main point of disagree-

ment between the parties—we also overturn the

Board’s ruling, but do so for a reason virtually the

inverse of that which led us to deny enforcement of

its invalidation of Baylor’s no-solicitation rule as it

applied to the corridors. While we held that Baylor’s

ban on soliciting in the hospital’s corridors was justi-

fied due to the “special circumstances” of a hospital

environment, we hold that a similar proscription cov-

ering its cafeteria and vending area is justified be-

cause these areas are not materially “special” or dif-

ferent from other restaurants and shops. We find the

reasoning of the Tenth Circuit in St. John’s Hospital

and School of Nursing v. NLRB, supra, to be per-

suasive:

As to “other patient access areas such as cafe-

terias, gift shops, and the like,” we conclude that

even if it is conceded these areas are not directly

related to the Hospital’s primary function of

providing patient care, the Hospital nevertheless

maintains the same commercial interests in these

17a

facilities as are held by the management of re-

tail stores and restaurants located in other types

of establishments. Since there is no question

that the Hospital would be entitled to prohibit

solicitation and distribution in all public access

areas of its cafeteria and gift shop were they

located anywhere outside the Hospital premises,

Marriott Corp. (Children’s Inn), 223 NLRB No.

141; McDonald's Corp., 205 NLRB No. 78, we

conclude that the Hospital does not lose that right

simply because its public cafeteria and gift shop

are part of a hospital complex rather than a

shopping mall or drive-in restaurant.

557 F.2d at 1875.

Of course, there is not as much medical importance

in maintaining the quietness or non-congestion of

areas ordinarily as fay removed from direct patient

care as a public cafeteria or vending area,” but such

areas in a hospital are not totally devoid of medical

significance. Respondent is correct in pointing out

that these places are likely to be emotionally disturb-

ing even if solicitation is prohibited. Such arguments,

despite the attention paid to them in the parties’

** There is no significant issue of impeding passage through

the cafeteria or vending area though this might vary depend-

ing upon its location within a hospital. Those patients who

venture to these places cannot legitimately expect that the

same artificially restorative atmosphere created for them in

the rest of the hospital will be sustained, though they can ex-

pe t that some consideration will be given to such needs and

that such areas will have the same protection against commo-

tion and disturbance as similar areas outside hospitals.

18a

briefs," are, however, irrelevant to our analysis. The

same exigencies of good medical care that require

allowing the prohibition of solicitation in hospital

corridors may or may not justify the same proscrip-

tion in a particular hospital cafeteria, but we hold

that whether or not a restaurant or shop is in a hos-

pital, its proprietor can bar solicitation on the

premises.

The line of precedent in both court and NLRB de-

cisions permitting blanket no-solicitation rules in res-

taurants and shops is long and unequivocal.“ The

essential rationale of these cases has been that as the

success of such enterprises depends on attracting

customers and thus on the cogeniality of the atmos-

phere in their premises,” it is reasonable to prohibit

practices which tend to disturb or annoy.”

** See Respondent’s Brief at 22-24; Petitioner’s Brief at 26-

28.

‘* See, e.g., Marshall Field & Co. v. NLRB, 200 F.2d 375

(7th Cir. 1952, amended 1953); NLRB v. May Department

Store Co., 154 F.2d 583 (8th Cir.), cert. denied, 329 U.S. 725

(1946) ; Marriott Corporation, 228 NLRB No. 141, 92 LRRM

1028 (1976) ; McDonalds of Palolo, 205 NLRB 404, 84 LRRM

1816 (1978).

** See Marshall Field & Co. v. NLRB, supra note 48; May

Department Store, supra note 48; Goldblatt Bros., Inc., 77

NLRB 1262, 1263-64 (1948).

* The cases in general assume that solicitation will be

disruptive and approach no-solicitation rules from the per-

spective of whether or not employees’ right to organize

requires that the attendant disruption be tolerated, see, e.g.,

Marshall Field & Co. v. NLRB, supra note 48.

19a

Respondents suggest that the precedents involving

commercial establishments are inapposite here because

—unlike such institutions—hospitals do not risk los-

ing their “customers” due to the irritation of solicita-

tion.” While the principal business of retail establish-

ments is attracting customers, a hospital’s main con-

cern—it is argued—is patient care, and its shops and

cafeterias are no more than peripheral to its main

operation. To the extent that this argument has any

force whatsoever, it is wholly misplaced in this con-

text. Whether or not patients and their visitors have

choice about whether or not to use the hospital, they

certainly have a choice about whether or not to use

its cafeteria and vending machines. The cafeteria and

vending area must still compete to attract the busi-

ness of the hospital’s patients. That a hospital is not

“principally” in the restaurant business does not mean

that it is not concerned that the restaurants which it

does operate should be as attractive and profitable as

possible. Public cafeterias in hospitals are operated as

a convenience to its patients and their visitors and

there is no justification for saddling them with re-

strictions, not applicable to cafeterias generally, that

might from time to time compel them to operate at a

loss. Assuming arguendo that a disturbance in the

cafeteria would not significantly impede the hospital’s

health care, Baylor still has an independently valid

interest in the profitable and orderly operation of its

commercial food services which justifies barring solici-

tation in its restaurants.

* Respondent’s Brief at 22-24.

20a

It does not appear from the record, but it may be

the case, that Baylor operates its cafeteria and vend-

ing machines as a non-profit service, so that in this

respect it differs somewhat in its objectives from those

of the usual restauranteur. Nevertheless, in provid-

ing its services, it has much the same interest, albeit

non-financial, that any owner does in making his

facilities as pleasant as possible. Whether the motive

is monetary enrichment or enriching the overall qual-

ity of the hospital environment, employers who oper-

ate establishments whose raison d’etre is their pleas-

antness are justified in imposing otherwise overbroad

no-solicitation rules. It is not the goal of making

money, but of running a facility whose primary goal

is to be attractive that supports the special treatment

accorded to restaurants in this regard.

III

Conclusion

We recognize that the instant appeal in some ways

presents a harder case than did the facts of the St.

John’s decision by the Tenth Circuit, in that Baylor

has significantly fewer “employees only facilities”

than did St. John’s Hospital and Nursing School.”

Consequently, the extent to which the opportunity for

union organization may be reduced by restricting

solicitation to areas to which neither patients nor

* St. John’s Hospital had an employees-only cafeteria in

which it was estimated that 80% of the employees ate. There

were also “numerous” other employees only areas such as

lounges and locker rooms, 557 F.2d at 1875.

2la

visitors have access may be greater than that sanc-

tioned by the Tenth Circuit. We are, however, by no

means confronted here with a situation in which there

are no alternative channels through which the em-

ployees can communicate for purposes of organization.

Where no such channels are available, an employer

may be forced to permit solicitation where he other-

wise could legitimately ban it.” Perhaps in different

circumstances a hospital would be compelled to allow

solicitation in its cafeteria or even in some of its corri-

dors. As regards the situation at Baylor, however,

petitioner has testified that its rule does not apply to

any area outside the hospital buildings,“ and it is

apparent that the hospital’s parking lots, lawns and

gardens supply an excellent forum for solicitation.

These areas are heavily used by employees, many of

whom eat their meals and take their breaks there.”

Thus, despite the paucity of indoor areas available

for solicitation, it is by no means the case—particu-

larly in light of the mild climate in Dallas, which

makes the outside areas available virtually all year ™

—that the process of labor organizing would be cru-

58 See, e.g., Republic Aviation Corp. v. NLRB, supra note

8, 324 U.S. at 799; NLRB v. Lake Superior Lumber Corp.,

167 F.2d 147 (6th Cir. 1948).

5 J.A. at 129-180, Testimony of Howard Chase. Non-

employee solicitors were barred from all Baylor property un-

der its rule.

55 J.A. at 324-325, Testimony of Mr. Howard Chase.

8¢ J.A. at 8324, Testimony of Mr. Howard Chase.

22a

cially disadvantaged by limiting solicitation, for the

most part, to the out-of-doors.

The mere fact that there are alternative channels

available would not, of course, alone justify an other-

wise illegal no-solicitation order, but at least when

such channels are open, an employer need not modify

an otherwise justifiable no-solicitation rule.” The in-

stant case may be somewhat harder than St. John’s,

but not so much so that the principle developed there

must be abandoned because the employees are

“uniquely handicapped in the matter of self-organiza-

tion and concerted activity.” * We do not find that

the minor added inconvenience of having to solicit in

outdoor areas outweighs our congressionally directed

solicitude to avoid disruptions in hospitals.

In conclusion, we note that before its St. John’s

ruling, the NLRB and the courts both agreed that the

special circumstances presented by health care facili-

ties demanded that they be treated differently from

The Board insists that the availability of alternative

avenues of employee communication are irrelevant until

the hospital has rebutted the presumptive illegality of its

no-solicitation rule, see Respondent’s Brief at 24-28; NLRB

v. Magnavox Co. of Tennessee, 415 U.S. 322, 326-27 (1974).

This is a correct reading of the law, but as we find that

“special circumstances” of the hospital environment have

more than rebutted any such presumption, the Board’s argu-

ment is without force in this particular case.

* Marshall Field & Co. v. NLRB, supra note 48, 200 F.2d

at 381.

23a

other industries under the NLRA.” An agency is, of

course, free to alter its policies,” but the remarkably

meager evidence available to the NLRB in the St.

John’s decision” suggests that in reversing its earlier

policies the Board in this instance may have had in-

adequate exposure to the special considerations in-

volved in assessing the proper scope of labor solicita-

tion in health facilities. It is true that one recent case

has upheld the rule announced in St. John’s NLRB

order, NURB vy. Beth Israel Hospital, 554 F.2d 477

(1st Cir. 1977) cert. granted, 46 U.S.L.W. 3446, 3453

(U.S. January 17, 1978), but even there the court

was highly critical of applying this rule in broad

terms and insisted on a case by case balancing test

weighing the particular circumstances in individual

hospitals as they came before the Board. The First

Circuit emphasized that hospitals present “unique

°° See, e.g., Summit Nursing and Convalescent Home, 472

F.2d 1380 (6th Cir. 1973); Shorewood Manor Nursing Home,

217 N.L.R.B. No. 85, 89 L.R.R.M. 1087 (1975) (Penello,

dissenting); Guyan Valley Hospital, 198 NLRB 107 (1972).

* NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 347-52

(19538).

"The St. John’s case was submitted to the NLRB on

six stipulations and no evidence was presented on the ques-

tion of how distribution or solicitation would affect patients.

Petitioner’s Brief at 20.

* Petitioner aptly suggests that the First Circuit in rely-

ing on the NLRB ruling in St. John’s Hospital could not

have realized how scant the evidence on which that decision

was based had been. Petitioner’s Supplemental Reply Brief

at 6.

24a

considerations that do not apply in industrial set-

tings” and that “the Board should stand ready to re-

vise its rulings if future experience demonstrates that

the well-being of patients is in fact jeopardized.” “

In this case we feel that petitioner has adequately

demonstrated that the well-being of patients and visi-

tors and the operation of the hospital would be jeop-

ardized by allowing solicitation in the corridors and

wherever else patients or visitors have access.

There is no need for further examination of the

conditions at Baylor. Accordingly, we do not exercise

our option to remand to the NLRB. Instead, we grant

enforcement of its order only insofar as it covers those

provisions unrelated to petitioner’s no-solicitation rule

and deny enforcement as to the remainder.

So ordered.

** 554 F.2d at 481,

25a

LEVENTHAL, Circuit Judge, conewrring in part and

dissenting in part: The majority denies enforcement

of a Board order invalidating the hospital’s ban

against solicitation and distribution of literature in

the hospital corridors, cafeteria and vending areas.

I concur in the majority opinion insofar as it applies

to the hospital corridors. I cannot agree, however,

that a rule barring these activities in the cafeteria

and vending areas has been shown to be equally de-

fensible. Since the Supreme Court will soon address

this issue in another case,’ I will confine myself to a

few brief remarks.

The general principle, established in Renmublic Avia-

tion® and other cases posits that rules prohibiting

union solicitation on the employer’s property during

nonworking time are presumptively unreasonable and

discriminatory. That rule is subject to an exception

relied on by the majority, which develops the legality

of no-solicitation rules in ordinary restaurants and

shops.* The rationale of these cases, as the majority

notes, is the crucial importance of a congenial at-

mosphere to the success of the business. That is the

justification of the exception.

*NLRB v. Beth Israel Hospital, No. 76-1318 (1st Cir.

April 29, 1977, cert. granted sub nom. Beth Israel Hospital

v. NLRB, 46 U.S.L.W. 8446, 8458 (S.Ct. Jan. 17, 1978).

In Beth Israel, the First Circuit granted enforcement to that

part of a Board order requiring the hospital to rescind its

rule against distribution and solicitation in the hospital cafe-

teria and coffee shop.

* Republic Aviation Corp. v. NLRB, $24 U.S. 798 (1945).

*See majority opinion at 14-17 supra.

26a.

The case at bar—hospital cafeterias and vending

machines—does not present the same considerations

as warranted the exception wrought for ordinary com-

mercial restaurants. Their role and context is not the

main business of a hospital but an ancillary con-

venience—making refreshment available to staff and

visitors (and to patients free to leave their rooms).

The hospital cafeteria and vending areas are not in

direct competition with ordinary restaurants for this

trade. The time and place utility of a hospital cafe-

teria gives it advantages for custom not bestowed by

the food and ambience.

To be sure, the hospital has a legitimate interest in

a congenial atmosphere in its cafeteria—but it is not

the kind of live-or-die imperative that must be given

recognition even though it undercuts the rights of

employees protected by the general Republic principle.

The distinction I have delineated is reinforced, I

think, when it is viewed in conjunction with the hos-

pital’s ban on solicitation in direct patient care areas

and closely related locations, including corridors that

are likely to be used for or involved in patient care,

the central purpose of the hospital. I join the major-

ity in upholding this aspect of the hospital’s rule. But

if, out of necessity, the law permits curtailment of

employee rights (union activities) in certain sensitive

areas, is there not a fairly correlative expectation of

a certain receptivity to those rights and activities in

other hospital locations?

In my view the statute does not fairly contemplate

that a hospital can confine its employees to the closets,

27a

and deny them protection in the places most natural

for talk that is not patient-related, by leaning on the

exception wrought for commercial enterprises to en-

sure survival.

The Board acted reasonably and with sufficient

basis in the record when it concluded that solicitation

in such locations as cafeterias and vending machines

would not significantly undercut the therapeutic func-

tioning of the hospital. It is only in the most general

and non-critical sense that “patient care” is rendered

in these areas. They are basically retreats, where

patients, staff, and visitors may withdraw from im-

mediate contact with patient care areas. They are

natural places for employees to talk about matters of

mutual concern such as unions.

I respectfully dissent from that portion of the ma-

jority opinion which holds that the Board was not

authorized to protect such talk in these cafeteria and

vending areas.

28a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1977

No. 76-1940

BAYLOR UNIVERSITY MEDICAL CENTER, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

BEFORE: Leventhal,* MacKinnon and Wilkey, Cir-

cuit Judges.

JUDGMENT

THIS CAUSE came on to be heard upon a peti-

tion filed by Baylor University Medical Center, to

review that portion of an order of the National Labor

Relations Board issued against said Petitioner, its

officers, agents, successors, and assigns, insofar as

said order invalidated the no-solicitation/no-distribu-

tion rule of the Medical Center, and upon a cross-

application filed by the National Labor Relations

Board to enforce such portion of said order. The

Court heard oral argument of respective counsel on

October 27, 1977, and has considered the briefs and

transcript of record filed in this cause. On February

14, 1978, the Court, being fully advised in the pre-

* For the reasons stated in his opinion concurring in part

and dissenting in part, Circuit Judge Leventhal does not ap-

prove this judgment except as to form.

=.

29a.

mises, issued its decision denying enforcement of the

relevant portion of the Board’s Order. In conformity

therewith it is hereby

ORDERED AND ADJUDGED by the United

States Court of Appeals for the District of Columbia

Circuit that the petition to review is hereby granted,

that the relevant portion of the order of the National

Labor Relations Board being reviewed is set aside,

and that the cross-application of the National Labor

Relations Board to enforce its order insofar as this

order invalidated Baylor University Medical Center’s

no-solicitation/no-distribution rule be, and it is here-

by, denied.

/s/ Harold Leventhal

HAROLD LEVENTHAL

Circuit Judge

United States Court of Appeals for

the District of Columbia

/s/ George E. MacKinnon

GEORGE E. MACKINNON

Circuit Judge

United States Court of Appeals for

the District of Columbia

/8/ Malcolm R. Wilkey

MALCOLM R. WILKEY

United States Court of Appeals for

the District of Columbia

ent

[Judge Entered February 14, 1978; Filed May 18,

1978]

80a’

APPENDIX C

FPW

D—1499

Dallas, Tex.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Cases 16-CA-5888

16-CA-6050

16-CA-6206

July 29, 1976

BAYLOR UNIVERSITY MEDICAL CENTER

and

LABORERS INTERNATIONAL UNION OF NORTH AMER-

ICA, LOCAL UNION No. 648; AND NORTH CENTRAL

TEXAS LABORERS DISTRICT COUNCIL, LABORERS’ IN-

TERNATIONAL UNION OF NORTH AMERICA, AFL-

CIO

DECISION AND ORDER

On April 29, 1976, Administrative Law Judge John

P. von Rohr issued the attached Decision in this pro-

ceeding. Thereafter, the Respondent filed exceptions

and a supporting brief, and the Charging Party filed

a reply brief.

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

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its au-

thority in this proceeding to a three-member panel.

The Board has considered the record and the at-

tached Decision in light of the exceptions and briefs

3la>

and has decided to affirm the rulings, findings, and

conclusions of the Administrative Law Judge and to

adopt his recommended Order.*

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby

orders that the respondent, Baylor University Medi-

cal Center, Dallas, Texas, its officers, agents, succes-

sors, and assigns, shall take the action set forth in

the Administrative Law Judge’s recommended Order.

Dated, Washington, D.C.

John H. Fanning, Member

John A. Penello, Member

Peter D. Walther, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

2 Respondent’s motion for oral argument is hereby denied.

In our judgment the record, including exhibits and briefs,

adequately presents the issues and the positions of the parties.

32a

JD-270-76

Dallas, TX

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case Nos. 16-CA-5888

16-CA-6050

16-CA-6206

BAYLOR UNIVERSITY MEDICAL CENTER

and

LABORERS INTERNATIONAL UNION OF NORTH AMER-

ICA, LOCAL UNION No. 648, AFL-CIO; AND NoRTH

CENTRAL TEXAS LABORERS’ DISTRICT COUNCIL,

LABORERS INTERNATIONAL UNION OF NORTH AMER-

IcA, AFL-CIO

Ronald K. Hooks and Steven Carsey, E'sqs.,

for the General Counsel.

Robert W. Smith und Robert B. Cook, Jr., Esqs.,

for the Respondent.

Marvin Menaker, Esq.,

for the Charging Party.

DECISION

Statement of the Case

JOHN P. von ROHR, Administrative Law Judge:

Upon charges, duly filed, the General Counsel of the

National Labor Relations Board, by the Regional Di-

33a

rector for the Sixteenth Region (Fort Worth, Texas),

issued consolidated complaints against Baylor Uni-

versity Medical Center, herein called the Respondent,

alleging that it had engaged in certain unfair labor

practices in violation of Section 8(a)(1) and (3) of

the National Labor Relations Act, as amended, herein

called the Act. The Respondent filed answers denying

the allegation of unlawful conduct alleged in the com-

plaints.

Pursuant to notice, a hearing was held before the

undersigned in Dallas, Texas, on June 23, 1975, and

November 4, 5 and 6, 1975. Briefs were received

from the General Counsel, the Respondent and the

Charging Party on December 15, 1975, and they have

been carefully considered.

Upon the entire record in this case, and from my

observation of the witnesses, I hereby make the fol-

lowing:

Findings of Fact

I. The Business of the Respondent

Baylor University Medical Center is a Texas cor-

poration, with its principal office and place of business

located in Dallas, Texas, where it maintains and op-

erates a non-profit hospital. During the 12 months

1 The complaint in Case No. 16-CA-5888 issued on April 18,

1975, based upon 2 charge filed on January 31, 1975. The

complaint in Case No. 16-CA-6050 issued on July 31, 1975,

based upon a charge filed on May 6, 1975. The complaint in

Case No. 16-CA-6206 issued on October 20, 1975, based upon

a charge filed on September 4, 1975.

SL eS ee ae eT:

84a

preceding the hearing herein, Respondent purchased

goods or services valued in excess of $50,000 from

points and places outside of the State of Texas. The

parties concede, and I find, that Respondent is en-

gaged in commerce within the meaning of Section

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

II. The Labor Organization Involved

Laborers International Union of North America,

Local Union No. 648, AFL-CIO; and North Central

Texas Laborers’ District Council, Laborers Interna-

tional Union of North America, AFL-CIO, herein

called the Union, is a labor organization within the

meaning of Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. The No-Solicitation, No-Distribution Rule;

Respondent's Enforcement Thereof

Preliminarily, and as the only background in this

proceeding, it is noted that the Charging Union com-

menced an organizing campaign among Respondent’s

employees in about September or October 1974. At

this time Respondent maintained a no-solicitation, no-

distribution rule which, as set forth in an employee

handbook entitled “Working at Baylor” and under the

Section entitled “Immediate Discharge” stated as

follows:

An employee may be discharged without notice

when his presence constitutes a significant prob-

lem to the Medical Center or when he engages

willfully in conduct which is detrimental to the

35a

welfare of the Medical Center. The following are

examples of causes for immediate discharge:

7. Engaging in any type of sales or solicita-

tion activity, any distribution of litera-

ture, or other commercial activity among

patients, visitors, employees or others on

or adjacent to the hospital property with-’

out written adminstration approval.

Thelma Goolsby, a clerical, was one of Respondent’s

employees to become active in the organizational cam-

paign. It is undisputed that on December 2, 1974, she

was summoned to the office of Gary Robinson, the Ad-

ministrator of Truett Hospital.? Robinson testified

that he spoke to her at this time because earlier that

day he had received a report that she had “handed

an envelope with union cards” to another employee to

distribute and that this had occurred while both “al-

legedly were on duty.” Concerning this conversation,

Robinson related that he asked Goolsby if she had

been soliciting in any way, to which she replied “Well,

it wasn’t on company time.” He then showed her the

employee handbook and referred her to the rule cited

above. Quoting Robinson, he testified further “I just

gave her some examples and told her that if she, in-

deed, was soliciting that it could be grounds for termi-

nation in the future.” *

* Truett Hospital is one of five hospitals which constitute

the Baylor University Medical Center.

* Goolsby testified that she distributed union leaflets and

union authorization cards during this period, but that this

was done either in the cafeteria or in the area of the parking

lot during her nonworking time.

36a

Approximately 2 weeks later, Goolsby had a con-

versation with James Reedy, an Assistant Unit Man-

ager at Truett, Reedy asked if he had correctly ob-

served her and another employee handing out litera-

ture on a sidewalk outside the hospital. When Goolsby

confirmed that she had, Reedy asked why she would

engage in this activity after Robinson had already

called her down to the office and spoken to her about

Respondent’s no-solicitation rule. Goolsby responded

that she had handbilled on her own time, and further,

that the Federal Government gave her the right to

unionize if she so desired. According to Goolsby,

Reedy thereupon “asked me why would I give them

something to put their finger down on me after I had

been told of the solicitation rule, and that whoever

told me about the Federal Government rule that they

should go back and read it again.” *

That Respondent intended to enforce the aforenoted

no-solicitation, no-distribution rule is further reflected

in a letter to the Truett employees dated December 23,

1974. I set forth this letter in its entirety not only

because it reflects Respondent’s policy with regard to

the rule, but also because its antiunion tone is rele-

vant background to the termination of Barbara Mose-

ley, whose discharge is also at issue herein. The letter

stated as follows:

The above conversation is set forth in accordance with the

‘credited testimony of Goolsby. Insofar as Reedy’s version of

this conversation differs with that of Goolsby, from my ob-

servation of the witnesses, I do not credit it.

37a

TO: ALL PATIENT SERVICE EMPLOYEES,

TRUETT HOSPITAL

As you probably know, there is an effort to union-

ize some of our employees. Several employees

have asked our advice on this matter.

We believe that a union would not be in the best

interests of employees or of the institution.

—Patient care requires teamwork among all

employee groups. Union tactics could in-

terrupt patient care. Their real leaders

are outsiders and do not understand the

loyalty we have to each other and to

patients.

—Each employee’s right to deal directly with

his employer on his individual needs and

interests is a precious thing. With unions,

the uecisions would be made through law-

yers and negotiators, which would be un-

satisfactory both to the employee and to

the Medical Center.

—Baylor regularly reviews wages and bene-

fits and has increased them every year for

many years. In this, it has been a leader

among hospitals. In 1974, wages were in-

creased twice and another holiday was

added.

The union has stressed the legal rights of em-

ployees to join unions under new Federal law.

The law also protects the rights of individual em-

ployees who do not wish to join.

Since we are convinced of the negative impact of

unions on our employees and patients, we will

exercise all of the rights an employer has under

88a

the Federal law. For several years, the Medical

Center has had a policy against solicitation or the

distribution of non-authorized literature on hos-

pital premises by anyone. The new Federal law

does not change this policy. Contacting employees

at work is a violation of it and we hope that

employees will not be misled into such violations.

You are encouraged to contact your supervisor

or me directly if anyone pressures you to sign

anything or interfers with your right not to

join. You can count on our keeping this in con-

fidence.

It is undisputed that on June 21, 1975, Respondent

promulgated the following additional no-solicitation,

no-distribution rule.’

Solicitation of patients or visitors by anyone

on Baylor University Medical Center property is

strictly prohibited. Solicitation of employees of

Baylor University Medical Center by non-em-

ployees or the distribution of literature, pam-

phlets or other material by non-employees on

Baylor University Medical Center property is

prohibited.

Unauthorized sales and solicitation of orders

for any type of product or service to anyone on

Medical Center premises are prohibited.

‘The allegation that Respondent “promulgated” this rule

is admitted in Respondent’s answer. While the record is not

clear on the subject, presumably the rule was reduced to

writing and posted and/or distributed to its employees. There

is no showing that the original rule set forth in the employee

handbook was ever revoked.

a ae

39a

Solicitation of employees of Baylor University

Medical Center by other employees or distribu-

tion of literature between employees is prohibited

during work time and/or in work areas. The

term “work areas” includes patient care floors,

hallways, elevators or any other area, such as

laboratories, surgery or treatment centers, where

any type of service is being administered to or

on behalf of patients and also includes any areas

where persons visiting patients are likely to be

disturbed. Service to our patients and their visi-

tors includes not only primary and acute medical

care, but food service and psychological support.

B. Conclusions as to the Rule

and Its Enforcement

It is well settled that the rule initially set forth in

the employee handbook which prohibits solicitation

and distribution of literature on the premises by any-

one is invalid on its face. Although citation of au-

thority is hardly required, see, for example, Swmmit

Nursing and Convalescent Home, et al, 196 NLRB

279, and authorities cited therein.

Insofar as the rule promulgated by Respondent on

June 21, 1975, is concerned, this rule is substantially

the same as that found to be unlawful in St. John’s

Hospital and School of Nursing, Inc., 222 NLRB

No. 182. Respondent in this case raises the same

contention raised by the employer in the St. John’s

case, namely, that the nature of a hospital is such

that they are justified in maintaining broad no-

solicitation, no-distribution rules. Recognizing that

40a

solicitation in certain areas in the hospital may be

justified, but finding that the rule in question was

unlawful in that it prohibited all solicitation and dis-

tribution in all areas to which patients and visitors

have access, the Board stated as follows:

We recognize that the primary function of a

hospital is patient care and that a tranquil atmos-

phere is essential to the carrying out of that

function. In order to provide this atmosphere,

hospitals may be justified in imposing somewhat

more stringent prohibitions on solicitation then

are generally permitted. For example, a hospital

may be warranted in prohibiting solicitation even

on nonworking time in strictly patient care areas,

such as the patient’s rooms, operating rooms, and

places where patients receive treatment, such

as x-ray and therapy areas. Solicitation at any

time in those areas might be unsettling to the

patients—particularly those who are seriously

ill and thus need quiet and peace of mind. Con-

sequently, banning solicitation on nonworking

time in such areas as described above would seem

justified in hospitals and to the extent that

Respondent’s rule prohibits such activity in those

areas is valid.

Respondent’s broad restrictions, however, are

not justified by these considerations insofar as

they apply to other areas. As to the restriction

in visitor access areas other than those involved

in patient care, the possibility of any disruption

in patient care resulting from solicitation or dis-

tribution of literature is remote. As to the re-

strictions in patient access areas such as cafe-

terias, lounges, and the like, we do not perceive

4la

how patients would be affected adversely by such

activities. On balance, the interests of patients

well enough to frequent such areas do not out-

weigh those of the employees to discuss or solicit

union representation. [Footnote omitted]

The Board’s Decision in the St. John’s case is con-

trolling here.” Accordingly, I find that by promulgat-

ing and maintaining an unlawful no-solicitation, no-

distribution rule to the extent that it prohibits all

solicitation and distribution on Respondent's property

and in hospital areas other than immediate patient

care areas, Respondent violated Section 8(a)(1) of

the Act.

C. Surveillance

A union meeting was held at the Dr. Martin Luther

King Center, Dallas, Texas, on or about August 27,

1975, The meeting was conducted by a paid organizer

of the Charging Union, with employees of Respond-

ent in attendance.

It is undisputed that this meeting was also at-

tended by Robert C. Felder, the Administrator of the

Pulmonary Services Department and a supervisor

within the meaning of the Act. Employee Thelma

Goolsby testified that near the outset of the meeting

she saw Felder enter the room with another man and

pick up some union literature which was displayed

on a table near the entrance. Felder and the other

* See also the recently decided Baptist Hospi

smital, Inc., case,

2238 NLRB No. 34. Both of these cases were decided subse-

quent to the hearing and filing of briefs herein.

42a

individual then took a seat near the back. Felder

remained for 15-30 minutes and then departed.

Felder explained his presence at the meeting by tes-

tifying that as he was driving home around 4:30 p.m.,

he heard an announcement over the radio that there

would be “a big hospital workers meeting at Martin

Luther King Center at 7:00 p.m.” He said that the

reason he attended the meeting was because “it was

advertised as a Health Care Workers’ meeting and I

am a Health Care Worker.” He further asserted

that he was not aware that the meeting was in fact

a union meeting until this was made clear from the

remarks of the organizer when she addressed the

meeting and that he left the meeting at this point.

Felder conceded that for some time prior to the

meeting he was aware of the organizational campaign

among Respondent’s employees and that he had also

seen various union handbills and literature, including

union authorization cards, which were distributed to

the employees. He also conceded that at the meeting

he recognized Goolsby and two other Respondent em-

ployees in attendance.

I cannot conceive that Felder was so naive as to not

suspect that the meeting concerning which he heard

the announcement was anything other than a union

meeting. I do not credit his testimony to the contrary.

In any event, assuming arguendo that he did not

know the purpose of the meeting, it hardly seems that

it should take him 15-20 minutes to find out. From

my observation of the witnesses, and in consideration

of the entire circumstances involved, I am persuaded

43a

that Felder was primarily motivated to attend the

meeting for reasons proscribed by the Act, namely,

to engage in surveillance, I find that by such conduct,

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

D. The Discharge of Barbara M oseley

Barbara Moseley was hired by Respondent on Feb-

ruary 1 or 2, 1975, as a special accounts collection as-

sistant. Her principal duties involved the reviewing

and posting of discounts for physicians, clergymen

and Baylor Hospital employees and to review accounts

with bad debt charges. Respondent’s rules provide

that all employees are hired on a probationary basis

for a period of 3 months, Moseley was terminated at

the end of her probationary period; i.e., on May 1,

1975.”

After learning about the organizational activity in

April, Moseley presented herself to representatives of

the Union and let it be known that she wished to

become an organizer. The Union promptly accepted

her services but advised her that, in accordance with

its policy, Respondent should be apprised of this role.

Accordingly, Moseley signed a form letter provided by

the Union. This letter, bearing the date indicated,

was sent to Respondent by the Union and stated as

follows:

" All dates hereinafter refer to the year 1975.

44a

04/11/75

GENTLEMEN:

We the undersigned are members of the Laborers’

International union of North America, AFL-CIO,

and are actively engaged in building a union at

BAYLOR UNIVERSITY MEDICAL CENTER.

This letter is to inform you that we intend to do

our job, as we have in the past, with no inter-

ference with our duties. However, we are cogni-

gant of our rights under federal law, which —

grants us the right to be members of the union

and work in its behalf without threats of dis-

charge or intimidation from management.

It should not be presumed from out activities

on the behalf of the union that we have animosity

toward our supervision or management. It is

our opinion that our rights as employees are best

served when we bargain collectively with our

employer.

Very Truly Yours,

Barbara Moseley

EW

ec: Mr. Edwin Youngblood,

Regional Director National Labor Relations

Board

The above letter was received by Respondent on

Monday, April 14. In mid-afternoon of the same date,

April 14, Moseley was summoned to the personnel

office. She was there greeted by Allan Sutton, the

Director of Business Services; Elvis Bates, the Direc-

tor of Personnel Services; and David Reynolds, Mose-

ley’s supervisor, who is the Manager of Discharged

45a

Patients Accounts. Bates began by handing Moseley

the following letter and asking her to read it:

Dear Mrs. Moseley :

This is to confirm that Baylor University Medi-

cal Center has a policy concerning distribution

of literature and solicitation of employees. You

are advised that solicitation of employees and/or

distribution of literature to them by you during

your work time and their work time, or in the

Business Office, is prohibited.

We have confirmation that you have violated

this rule, Be advised that any further violation

of it will be grounds for immediate termination

in accordance with Baylor policies. If you have

any questions about the meaning of this warning

please discuss them with me. ;

Cordially yours,

[Elvis E. Bates, Director

Personnel Services]

Upon reading the letter, Moseley inquired as to the

nature of the solicitation which prompted the charge

that she had engaged in any such activity. Bates re-

plied that he was not obliged to reveal the source.

When Moseley repeated the question and asked what

type of literature she was supposed to have distrib-

uted, Bates answered, “Well, you know.” Moseley

rejoined, simply, that she was aware of Respondent’s

no-solicitation rule. Bates thereupon stated, “Well,

we want you to be the best employee that you can.”

At this point, Reynolds spoke up to say, “Well, I don’t

46a

see any problem with her work.”* Moseley finally

asked if they had not been informed by the Union

of her intent to work on its behalf. Bates stated “Oh,

you signed the letter” and then asked “When did you

sign it?” Moseley replied that she had done so on the

preceding Friday. Bates thereupon ended the discus-

sion with the statement, “Well, I don’t feel we have

anything further to talk about.” However, as Moseley

was leaving the office, Reynolds asked if she would

give him the letter which she had received from Bates.

Moseley declined, stating that she wished to retain it.”

For the apparent purpose of explaining the reason

for calling in Moseley on this particular date, Re-

spondent called Karen Hopkins to testify on its behalf.

Hopkins, an employee, holds the position of accounts

counsellor. On direct examination, Hopkins testified

that around 1 p.m. on April 14, she went to Moseley’s

office to see employees Lee Cooksie and Lois Ford, who

also worked there, about business. At that time, she

said, Moseley stopped her, asked if she was interested

in the Union, and handed her three pieces of union

literature. Hopkins’ testimony on cross-examination

was more enlightening. In the first place, on cross she

could not give any valid reason for pinpointing the

date of this incident as being April 14. Significantly,

in her pre-trial affidavit, given 4 months earlier, she

® Credited testimony of Moseley. Moseley impressed me as

being a truthful witness.

® Although Reynolds denied that he asked for the letter, I

do not believe that Moseley fabricated the above testimony and

I credit it.

47a

stated, “I don’t remember the date when this oc-

curred.” Furthermore, in the affidavit she also stated,

“No one put me up to seeing if Moseley was working

for the Union. I just did it on my own.” In the latter

connection, Hopkins conceded that upon entering

Moseley’s office it was she, Hopkins, who brought up

the subject of the Union. She said she did this by

asking Cooksie what she thought about the Union. It

was at this point, she then testified, that Moseley

spoke up and asked her if she was interested in know-

ing about the Union; and at this point Moseley handed

her the literature. Furthermore, it is interesting to

note, as Hopkins conceded, that upon receiving the

literature she promptly went to the office of Ray

Gwinn, the Accounts Manager who is on the same

supervisory level as Reynolds, and gave him the litera-

ture. Hopkins conceded that she was on her working

time when she brought up the subject of the Union

and that she was aware that this was against the

rules. She also conceded that on other occasions she

would turn over union literature to Gwinn and that

she and Gwinn would discuss the Union during work-

ing hours.

If Respondent sought to show through the testi-

mony of Hopkins that Moseley was confronted and

warned by three Respondent officials on April 14 be-

cause she allegedly solicited Hopkins on that day, it

failed its purpose. Not only was Hopkins’ testimony

inconsistent with her pre-trial affidavit, but she was

also less than forthright in giving her testimony on

direct examination. In short, I do not credit her testi-

45a

mony that on April 14, Moseley broached her about

the Union. To the contrary, I credit the testimony of

Moseley that she did not pass out any literature prior

to April 14. Moreover, it is not without significance

that two of the principals on that day, namely Bates

and Sutton, were not called as witnesses by Respond-

ent to give an explanation for their calling in Moseley

on April 14. As for Reynolds, who was called, he

indicated only that it was Bates who decided to call

Moseley in. As to the purported reason for Bates tak-

ing this action, Reynolds testified merely that, “Mr.

Bates did indicate that he had received notification

that Ms. Moseley had violated Baylor’s solicitation

rule and he wanted to make sure she understood this

rule and this policy.”

As previously noted, Respondent received a letter

notifying it of Moseley’s affiliation with the organiz-

ing campaign on April 14. Although the parties did

not stipulate as to the time of day the letter was

received, it is noteworthy that Moseley was not called

to the office until mid-afternoon of that date. Upon

the entire record in this, and in the light of the dis-

cussion set forth above, including the absence of any

testimony or credible explanation by the Respondent

witnesses involved for taking this action, I am per-

suaded and find that this action was prompted en-

tirely by Respondent’s receipt of the letter in question

on that date.”

1% T do not construe the testimony alluded to by Respondent

at TR 126 and 319 as indicative that Respondent did not, in

fact, receive this letter prior to calling Moseley to the office.

49a

Continuing with the chronology of events, it was on

the next day, April 15, that Reynolds prepared a

highly critical report concerning Moseley’s work per-

formance, More will be said about this in the suc-

ceeding section of this Decision. This report, which

Reynolds said he retained in his files, was not shown

or discussed with Moseley. It reads as follows:

On Monday, March 17, 1975, the weekly data

processing run of DA Accounts (Debit Balance)

was received as usual by me, and I noticed

an unusual large number of accounts on the run.

There were approximately 80 accounts rather

than the usual four or five.

Upon scrutinizing the accompanying state-

ments, I discovered that about 75 of the debit

balances had been created by erroneous postings

by Mrs. Moseley on March 15, 1975. I had a

conference with Mrs. Moseley on March 17, 1975,

at which time I carefully reviewed her errors

with her, and instructed her on the proper cor-

rective turn-around which I wanted accomplished

during the week.

However, on Monday, March 24, 1975, upon

receiving the weekly data processing run of DA

Accounts (Debit Balances), I noticed that none

of the errors had been corrected by Mrs. Moseley,

as I had thoroughly instructed her the previous

Monday, I again had a conference with Mrs.

Moseley, this time on March 24, 1975, at which

time I questioned her as to why she had not ac-

complished the turn-around as I had instructed

her. She had no answer—or rather, said th

didn’t know why. i

50a

Therefore, I again carefully instructed her on

how to properly correct the errors she had made

on March 15, 1975. I even filled out a sample

Accounts Receivable Memo form for her to use

as a guideline in her corrections,

Sure enough, on Monday, March 31, 1975, a

review by me of the weekly data processing run

of DA Accounts revealed that only half of the

errors had been corrected. I again had a con-

ference with Mrs. Moseley, at which time I ex-

pressed my dissatisfaction and disappointment

over her failure to perform the turn-around as I

had twice explicitly instructed her to do so. She

again had no answer as to why only part of the

accounts had been corrected. Again, I gave her

instructions on how to properly correct the errors

she had made on March 15, 1975.

On Monday, April 7, 1975, a review by me of

the weekly data processing run of DA Accounts

revealed that all but about 10 of the errors had

been corrected. I repeated the instruction session

once again with Mrs. Moseley, who again had

no explanation as to why some of the accounts

had not been turned around by her.

On Monday, April 14, 1975, there still ap-

peared one account which was handled erron-

ously by Mrs. Moseley on March 15, 1975, which

still had not been corrected as she had been in-

structed by me, not once, but on three different

occasions.

For Mrs. Moseley to take an entire month

to accomplish a corrective turn-around which

could and should have been done in only a matter

of minutes, indicates to me a lack of aptitude and

an unwilling attitude to perform her assigned

bla

duties. The foregoing is a classic exam

ple of sub-

standard work performance which would indicate

that Mrs. Moseley does not have the potential for

being a good employee on a long-term basis.

[David D. Reynolds]

Moseley was terminated on May 1, 1975. Called

before Sutton and Reynolds, Sutton at this time

handed her the following letter,

Dear Mrs. Moseley:

You will recall that when you were selected for

Baylor employment as a Collection Assistant in

the Discharged Patient Accounts Office, you were

advised that for all employees the first three

months of employment is a probation period.

The probation policy is set forth also in Baylor’s

— information handbook, Working at Bay-

r.

Your overall duty performance in your position

has been less than satisfactory over this proba-

tionary period for reasons that have been b

to your attention. rought

This is notice that your emplo i

yment with Baylor

University Medical Center will be terminated

at the end of your duty schedule on May 1, 1975.

Sincerely,

[Allen D. Sutton]

. A rather lengthy conversation ensued at this time

in which Moseley essentially protested the basis for

52a

her discharge. When she finally asked if the decision

to discharge her was influenced by her union activi-_

ties, Sutton replied that he was not at liberty to dis-

cuss the matter and that he considered the discussion

closed.

E. Respondent’s Defense; Conclusions as to Moseley

As indicated in Sutton’s May 1 letter to Moseley, it

is Respondent’s contention that Moseley was termi-

nated at the end of the 90-day probationary period

because her work performance had been less than

satisfactory. Upon consideration of all the facts and

the entire circumstances discussed below, I do not

eigen of the assertion that Moseley was not a

satisfactory employee, Respondent introduced 15 ex-

hibits (Respondent Exhibits 6 through 20) which con-

sist of patient account records showing errors for

which Moseley was purportedly responsible. However,

it was conceded that eight of these documents, since

they were in the nature of computerized running ac-

counts, were not printed, and hence not available to

Reynolds, until after Moseley had been terminated.

Accordingly, and as Reynolds conceded, his decision

to recommend Moseley’s termination was not, and

could not be, predicated upon consideration of what-

ever these documents purported to show. In short,

these documents were not uncovered by Respondent

until some point after Moseley’s termination and un-

doubtedly were sought out in preparation for the

proceeding herein. I therefore can but regard them

58a

as of little probative value in assessing the motive for

the termination. The records which fall into this

category consist of Respondent Exhibit 9, 11, 12, 18,

14, 15, 16, 17, 18 and 19,

I turn now to the exhibits which reflect purported

errors made by Moseley prior to her termination.

Preliminarily, it is noted that Respondent’s billing

statements and related data are prepared and issued

by means of a complicated system of code numbers

which are first entered into a manually operated key-

punch system and then fed into a computer. There

are 7,000 such transactions fed to the keypunch daily.

Although Moseley was responsible for initially deter-

mining the correct code numbers, her function did not

include operation of the keypunch or of the com-

puterized data processing system. According to Rey-

nolds, there are a combination of digits which make

up between 300 and 400 financial classification codes,

alone, The first of the exhibits, Respondent Exhibit 6,

is a patient billing statement which reflects, inter alia,

an entry stating “Routine Employee Exam.” Accord-

ing to Reynolds, this was an error and should have

read “Address Correction.” The error was caused

because Moseley used the wrong code number and this

was entered manually into the keypunch system, re-

sulting in the entry stated." The exhibits reflect that

two such mistakes were made on April 18, 1975.

There is no evidence that the recipients of the two

statements made any complaint and it is obvious that

“ The code used was 38-7868. It should have been 38-7898.

54a

there was no monetary loss sustained by either Re-

spondent or the hospital. Respondent Exhibit 7 con-

sists of four statements reflecting mistaken entries of

employee discounts. These are statements of employee

patients who are entitled to a discount, the payments

being made by payroll deductions. As I interpret it,

two of the documents reflect credit balances because

of the payroll deduction entries instead of one. The

other two reflect similar irregular credits or deduc-

tions, but they were corrected before being sent out.

Respondent Exhibit 8 is the billing statement of a

nurse. As I interpret Reynolds’ testimony, it appears

that she was credited with a nurse’s discount whereas,

since she was married to a doctor, she was entitled to

a doctor’s discount, which was somewhat higher. In

any event, the difference amounted to $5.10 and was

credited to the nurse’s account by the refund clerk

2 weeks later. Reynolds said the error had been

called to Moseley’s attention and should have been

corrected by her 2 weeks earlier. Concerning this

type of mistake, Reynolds on cross-examination con-

ceded that “Others [employees] have made similar

errors, yes.” Respondent Exhibit 10 is a statement

to a doctor. After reflecting one insurance payment

and two Blue Cross payments, the statement shows a

current balance due of $4.91. The error consisted in

a failure to give a physician’s discount, which would

have resulted in no balance being due. Additionally,

Moseley rubberstamped the bill “Your insurance com-

pany paid its portion of this statement. The balance

is your responsibility. Please remit.” Reynolds testi-

55a

fied that this stamp should not have been placed on the

statement because it is the hospital’s policy not to use

this stamp on the statements of physicians.

Respondent Exhibit 20 requires a fuller discussion.

This exhibit consists of records of bad debt accounts.

Although Reynolds’ testimony was not technically

clear on the point, as best I understand it, the bad

debt accounts should not reflect a debt balance or a

credit balance. “They’re written off,” he said, “to

bad debt in the account from an audit viewpoint as a

zero balance.” In any event, this exhibit reflects that

in the month of March 1975, 80 such accounts incor-

rectly reflect a debt balance rather than a zero bal-

ance. Significantly, these errors came to Reynolds’

attention on March 17, 1975, Moseley conceded that

at this time Reynolds came to her and asked why “we

would make such a large mistake.” However, Moseley

testified that she explained to Reynolds that she had

followed the notes pertinent to the subject left by her

predecessor, Rita Carpenter.” According to the unre-

futed testimony of Moseley, Reynolds called Carpenter

and Carpenter agreed that the notes were in error.

In any event, Moseley was instructed as to the correct

procedure and she proceeded to correct the errors.

Moseley testified that in so doing, she came in on her

own time and made the corrections in one day. Rey-

nolds testified that all the corrections were not made

* Moseley was hired to replace Carpenter when Carpenter

indicated that she was permanently retiring to have a child,

Carpenter remained on the job to help train Moseley for a

period of 5 weeks.

56a

until about a month. Moseley testified, however, that

after the mistake was uncovered and the problem

solved, nothing further was said to her about the

matter.”

I turn now to my conclusions. It is, of course, well

settled that the Board may not substitute its judg-

ment for that of any employer in determining whether

an employee’s work performance, or whatever other

reason is, in the employer’s view, a justifiable ground

for termination. I should not attempt to do this here.

Nevertheless, in determining whether Moseley was

discharged because of her union activity, as the Gen-

eral Counsel contends, or whether she i» fact was

terminated because she failed to perform her job

properly, as Respondent contends, an assessment of

the evidence in support of the employer’s claims must

be made.

As has been discussed above, the fact that Moseley

did make mistakes during her 3-month period of em-

ployment is not open to question. But this is hardly

surprising. Considering the fact that as a new em-

ployee, her job required that she become familiar with

300-400 financial classification codes, the fact that 90

percent of the 7,000 account transactions are proc-

essed through the Business Department where Mose-

ley worked, and the fact that there are various differ-

ent types of forms and statements involved in the

processing of the accounts, it would appear that cer-

18T shall have further comment below concerning any crit-

icism or warnings given to Moseley during the period prior

to her termination.

57a

tain errors are bound to creep in. But I need not

speculate on the matter, for even Reynolds admitted

this to be true. In this connection, it is noteworthy

that prior, during and after Moseley’s period of em-

ployment, Respondent admittedly had an “ongoing”’

problem with the keypunch operation which submitted

documents to data processing, that this was a factor

which directly affected the efficiency of the work en-

tailed in Moseley’s job, and that it contributed to the

likelihood of errors being made. Moreover, indicative

of the complexity of the work involved, it is significant

to note that after Moseley was terminated, the duties

of her job were assigned to two employees. Although

these employees also performed some other work, Rey-

nolds testified that Moseley’s work was divided be-

tween them because, “. . . it would have put too much

responsibility upon one person, so we shifted it to

someone else.”

Although Reynolds testified that at times he cau-

tioned Moseley to the effect that she was making “too

many mistakes,” he conceded that he did not give her

any warning to the effect that she was not doing her

work properly. Moseley testified that the only time

that Reynolds expressed concern to her about mistakes

were those committed in March as reflected in Re-

spondent Exhibit 20. However, as previously related,

Reynolds subsequently accepted her explanation that

these occurred because of incorrect instructions left

to her by her predecessor. On the entire record, I am

persuaded and find that during her entire period of

employment, Moseley was not subject to any more

58a

criticism than might be expected of any new employee.

In fact, it appears that just the opposite was true, for

Moseley credibly testified that at one point prior to

her termination, Reynolds introduced her to the key-

punch operator as “the crackerjack new employee.” ™

I have previously set forth the memo which Rey-

nolds prepared and placed in Moseley’s personnel file

on April 15. I find incredible Reynolds’ assertion that

the occasion for his taking this action on the very day

following Moseley’s being taken to task by three Re-

spondent officials for allegedly violating an unlawful

no-solicitation rule was just a matter of coincidence.

Indeed, even a cursory reading of that memo impels

the distinct impression that it was prepared as

groundwork for future action.” This is particularly

true when it is considered that the subject matter re-

lated to errors that had occurred in March and had

for the most part long been corrected.” Moreover,

%* Reynolds denied introducing her to the keypunch operator

as a crackerjack employee and said that he could not recall

describing her in such terms to any other supervisor. I do not

believe that Moseley fabricated this testimony, and, as indi-

cated above, I credit her on the point.

1 Reynolds’ memo of April 15 includes the setting forth of

certain conversations which he allegedly held with Moseley

during the period indicated. To the extent that Reynolds did

not give sworn testimony concerning these individual con-

versations, which he largely did not, I do not accept as fact

the accounts of these conversations as stated in the memo.

Reynolds testified that it was not uncommon for Re-

spondent to terminate unsatisfactory employees prior to the

expiration of their probationary period. It might well be

questioned why Respondent did not take similar action with

59a

absent an outside reason, it seems peculiar that Rey-

nolds would take the time to show the memo to his

superior, as he conceded doing, prior to placing it in

Moseley’s file.

Apart from the other violations herein found, Re-

spondent’s union animus was clearly demonstrated

when, upon learning of Moseley’s union activities, it

proceeded to summon her before three high echelon

supervisors and warn her, without apparent provoca-

tion, to comply with its unlawful no-solicitation rule.

This was in rather sharp contrast to its permitting

Karen Hopkins, who was clearly opposed to the Union,

to discuss the current union activity with her super-

visor during working hours.

In sum, and for all the reasons above set forth, I

find that Respondent discharged Moseley because of

her activity in support of the Union and to discourage

union activity among its employees. It thereby vio-

lated Section 8(a)(3) and, derivatively, Section 8

(a)(1) of the Act.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of the Respondent set forth in sec-

tion III, above, occurring in connection with the

operation of Respondent described in section I, above,

have a close, intimate and substantial relationship to

trade, traffic and commerce among the several states

respect to Moseley if in fact her performance were such as

that characterized in Reynolds’ memo.

60a

and tend to lead to labor disputes burdening and

obstructing commerce and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in cer-

tain conduct in violation of Section 8(a)(1) and (3)

of the Act, I shall recommend that Respondent be

ordered to cease and desist therefrom and to take

certain affirmative action, as set forth below, designed

to effectuate the policies of the Act.

It having been found that Respondent discharged

Barbara Moseley in violation of Section 8(a) (3) of

the Act, I shall recommend that Respondent be or-

dered to offer her full and immediate reinstatement

to her former position, or if this position no longer

exists, to a substantially equivalent position, without

prejudice to her seniority and other rights and privi-

leges and to make her whole for any loss of earnings

she may have suffered from the date of her discharge

to the date of Resvondent’s offer of reinstatement.

Backpay shall be computed in accordance with the

formula prescribed in F.W. Woolworth Co., 90 NLRB

289, with interest thereon computed in the manner

and amount prescribed in Jsis Plumbing & Heating

Co., 188 NLRB 716.

In view of the nature and extent of the unfair labor

practices herein found, it will be recommended that

Respondent be ordered to cease and desist from in any

manner infringing upon the rights guaranteed em-

ployees in Section 7 of the Act.

6la

Conclusions of Law

1. Baylor University Medical Center is an em-

ployer 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 engaging in the conduct described in section

III, above, the Respondent has engaged in and is en-

gaging in unfair labor practices within the meaning

of Section 8(a)(1) and (3) of the Act.

4. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

On the basis of the above findings of fact, conclu-

sions of law, and the entire record, and pursuant to

Section 10(c) of the Act, I hereby issue the follow-

ing recommended: ™

ORDER

Baylor University Medical Center, its officers,

agents, successors and assigns, shall:

1. Cease and desist from:

(a) Promulgating, maintaining in effect, enforc-

ing, or applying any rule or regulation prohibiting

"In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor

Relations Board, the findings, conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules

and Regulations, be adopted by the Board and become its

findings, conclusions, and Order, and all objections thereto

shall be deemed waived for all purposes.

62a

employees from soliciting on behalf of any labor or-

ganization during their nonworking time in any area

of its hospitals or on its outside premises other than

immediate patient care areas.

(b) Engaging in surveillance of its employees’

union meetings or activities.

(c) Discouraging membership in Laborers Inter-

national Union of North America, Local Union No.

648, AFL-CIO; and North Central Texas Laborers’

District Council, Laborers International Union of

North America, AFL-CIO, or any other labor organi-

zation by discharging employees or otherwise dis-

criminating in any manner in regard to their hire or

tenure of employment or any term or condition of

employment.

(d) In any other manner interfering with, re-

straining, or coercing its employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action designed

to effectuate the policies of the Act.

(a) Offer Barbara Moseley immediate reinstate-

ment to her former position, or if this position no

longer exists, to a substantially equivalent position,

and make her whole for any loss of pay she may have

suffered by reason of the discrimination against her

in the manner set forth in the section of this Decision

entitled “The Remedy.”

(b) Preserve and, upon request, make available

to the Board or its agents, for examination and copy-

ing, all payroll records, social security payment rec-

ords, timecards, personnel records and reports, and

all other records necessary to analyze the amount of

backpay due under the terms of this Order.

(c) Rescind its rules restricting the areas in which

employees may solicit on behalf of a labor organiza-

tion during the employees’ nonworking time insofar

as it applies to other than immediate patient care

areas, and prohibiting distribution of union literature

during employees’ nonworking time in nonworking

areas of its operations or on its outside premises.

(d) Post at its hospital facilities in Dallas, Texas,

copies of the attached notice marked “Appendix.” ™

Copies of said notice on forms to be provided by the

Regional Director for Region 16, shall be posted by it

immediately upon receipt thereof and be maintained

by it for 60 consecutive days thereafter in conspicu-

ous places including all places where notices to em-

ployees are customarily posted. Reasonable steps shall

be taken by Respondent to insure that said notices

are not altered, defaced or covered by any other

material.

(e) Notify the Regional Director for Region 16,

in writing, within 20 days from the date of this Deci-

** In the event that the Board’s Order is enforced by a Judg-

ment 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 PURSUANT TO a JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS

BOARD.”

64a

sion what steps Respondent has taken to comply

herewith.

Dated, Washington, D. C.

/s/ John P. von Rohr

JOHN P. VON ROHR

Administrative Law Judge

65a

FORM NLRB-4727 JD-207-76

(9-69)

[SEAL] [SEAL]

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT promulgate, maintain or enforce any

rule or regulation which prohibits our employees from

soliciting on behalf of any labor organization on our

hospital premises or grounds other than immediate

patient care areas during employees’ nonworking

time, or from distributing other than in immediate

patient care areas literature on behalf of any labor

organization in nonwork areas of our hospital, or on

our grounds during their nonworking time.

WE WILL NOT reprimand or warn employees for

engaging in union activities.

WE WILL NOT engage in surveillance of our em-

ployees’ union meetings or union activities.

WE WILL offer Barbara Moseley immediate and full

reinstatement to her former position, or if this posi-

tion no longer exists, to a substantially equivalent

position, without prejudice to her seniority and other

rights and privileges and make her whole for any loss

of earnings she may have suffered by reason of her

unlawful discharge.

66a

WE WILL NOT in any other manner interfere with,

restrain, or coerce employees in the exercise of their

rights guaranteed in Section 7 of the Act.

All our employees are free to become or remain or to

refrain from becoming or remaining members of

Laborers International Union of North America,

Local Union No. 648, AFL-CIO; and North Central

Texas Laborers’ District Council, Laborers Interna-

tional Union of North America, AFL-CIO, or any

other labor organization.

BAYLOR UNIVERSITY MEDICAL CENTER

Dated By

(Representative) (Title)

THIS IS AN OFFICAL NOTICE

AND MUST NOT BE DEFACED BY ANYONE

This notice must remian posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or compliance with its provisions may be directed

to the Board’s Office, Federal Office Building, Rm 8-A-24, 819

Taylor Street, Ft. Worth, TX 76102 (Tel. No. 817 334-2941)

oo. 6. Covennmant paimrine orrice, 1970 2660057 se