Petition for Writ of Certiorari — Brockton Hospital v. National Labor Relations Board

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Supreme Coun, US.

0 4

O2 504 SEP 25 2002

GFMBSE OF THE CLERK

No. -

In The

Supreme Court of the United States

BROCKTON HOSPITAL,

Petitioner

Vv.

NATIONAL LABOR RELATIONS BOARD and

MASSACHUSETTS NURSES ASSOCIATION

On Petition For Writ Of Certiorari

To The United States Court Of Appeals For The

District Of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Arthur Murphy, Esq.

Counsel of Record

Geoffrey P. Wermuth, Esq.

MURPHY, HESSE, TOOMEY &

LEHANE, LLP

300 Crown Colony Drive, Ste. 410

Quincy, MA 02269-9126

(617) 479-5000

QUESTIONS PRESENTED

In March-May, 1997, employee/ union member

nurses distributed literature at entrances to Petitioner’s

community hospital, supposedly only to union members,

as part of the union’s state-wide “Safe Care Campaign. “

The literature featured newspaper article copies headlined

“A shortcut that killed a patient”, “A feeding tube in

wrong hands leads to death”, “A catastrophe waiting to

happen” and “A mistake leads to baby’s death.” The

Hospital offered to print mailing labels so the union could

mail the materials; the union rejected the alternative.

The issues presented are:

1. Whether the Board’s presumptions that generally

prevent a hospital from barring literature

distribution outside of “work areas” and

solicitation outside of “immediate patient care

areas” are rational given the increased acuity and

vulnerability of hospital patients and changes in

health care since this Court last addressed these

issues in Beth Israel Hospital v. NLRB, 437 U.S. 483,

98 S.Ct. 2463 (1978) and NLRB v. Baptist Hospital,

Inc., 442 U.S. 773, 99 S.Ct. 2598 (1979).

y Whether a hospital must show actual harm to

patients in order to bar distribution of literature or

solicitation outside work or immediate patient care

areas.

2. Is the above-described distribution of literature,

which makes no reference to any labor dispute,

protected concerted activity under Section 7 of the

National Labor Relations Act, 29 U.S.C. sec. 157.

RULES 14.1 AND 29.6 STATEMENT

Petitioner is Brockton Hospital, a non-profit

corporation under Massachusetts law which operates an

acute-care community hospital in Brockton,

Massachusetts. The National Labor Relations Board is the

federal governmental agency charged with enforcement of

the National Labor Relations Act, 29 U.S.C. sec. 150 et seq.

(the “ Act”). The Massachusetts Nurses Association is a

labor organization under the Act and representative of the

registered nurses employed by the Petitioner; it was the

charging party before the Board and an intervenor in the

Circuit Court below. ,

Petitioner has no parent companies nor does any

publicly held company own more than 10% of petitioner’s

stock.

TABLE OF CONTENTS

Petition for a Writ of Certiorari

Opinions Below

Basis for Jurisdiction

Statutory Provisions Involved

Statement of the Case

1. Facts Of The Alleged Unfair Labor

Practices

A. The Vestibule

Ps The Changing Face Of Healthcare

And Hospital Patients

A. Patients Generally Are Sicker

And More Vulnerable Than In

The Past

em ai nts attain ine Yh

B. The Level Of Trust Between Patient

6-8

And Healthcare Provider Is Important

To Patient Outcomes

: ... Increased Stress And Anxiety

Contribute To Adverse Health

Effects

Deleterious Effects On Patients

And Their Providers

lil

D. The Union’s Literature Would Have

8-9

10-11

TABLE OF CONTENTS (Cont.)

3. The Rulings Below 11

Reasons for Granting the Writ 12-22

I. Review Is Warranted Because The

Provision Of Health Care Has Changed

Dramatically Over The Past 20 Years,

And The Board’s Presumptions And

Distribution/Solicitation Rules For

Hospitals Have Not 12-16

Il. Review Is Warranted Because The Board

And Court Below Appeared To Require The

Hospital To Demonstrate Actual Harm To

Patients In Order To Justify Stricter Bans On

Distribution 16-18

II. Review Is Warranted Because The

Scare Tactics Used By The Union

Should Not Be Considered Protected

Concerted Activity Under The

National Labor Relations Act

In A Hospital Environment 18-22

Conclusion 22

Appendix A A 1-51

Appendix B B 1-13

COURT RULES

Supreme Court Rule 29.6 ii

et 1

—_.

—_s

Supreme Court Rule 14.1(f)

TABLE OF AUTHORITIES

STATUTES

28 U.S.C. §1254(1) 1

29 U.S.C. §157 1-2, 18-

29 U.S.C. §158(a) 2

CASES

United States Supreme Court Cases

Beth Israel Hospital v. NLRB,

437 U.S. 483, 98 S.Ct. 2463 (1978) Passim

Eastex, Inc. v. NLRB,

437 U.S. 556, 98 S.Ct. 2505 (1978) 18-19

NLRB v. Baptist Hospital, Inc.,

442 U.S. 773, 99 S.Ct. 2598 (1979) Passim

NLRB v. Local 1229, International

Brotherhood of Electrical Workers

(Jefferson Standard),

346 U.S. 464, 74 S.Ct. 172 (1953) 19-20

Circuit Courts of Appeal Cases

Brockton Hospital v. NLRB,

294 F.3d 100 (D.C.Cir. 2002) 1

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dite: 04)

TABLE OF AUTHORITIES (Cont.)

Office and Professional Employees

International Union v. NLRB,

981 F.2d 76 (2nd Cir. 1992)

Sierra Publishing Co. v. NLRB,

889 F.2d 210 (9th Cir. 1989)

National Labor Relations Board Cases

Baptist Hospital,

223 NLRB 344 (1976)

Brockton Hospital,

333 NLRB No. 165 (2001)

Doctors’ Hosp. of Staten Island,

325 NLRB 730 (1998)

Ford Motor Company,

221 NLRB 663 (1975)

Greyhound Lines, Inc.,

251 NLRB 1638 (1980)

San Juan Hotel Corp.,

289 NLRB 1453 (1988)

Sierra Publishing,

291 NLRB 540 (1988)

St. John’s Hosp.,

‘222 NLRB 1150 (1976)

Vii

19-20

20-21

TABLE OF AUTHORITIES (Conit.)

Other Authorities

California Health Care: Sicker Patients,

Fewer Rns, Fewer Staffed Beds,

(September, 1999), Institute for

Health & Socio-Economic Policy

1998 Data Compendium,

Health Care Financing Administration

Vili

ee ee ee eee eee

PETITION FOR A WRIT OF CERTIORARI

Petitioner Brockton Hospital (the “ Hospital”)

respectfully requests that this Court issue a writ of

certiorari to review the decision of the Court of Appeals

for the District of Columbia Circuit, which affirmed in

relevant respects the decision and order of the National

Labor Relations Board.

OPINIONS BELOW

The decision of the National Labor Relations Board

(including the decision of the Administrative Law Judge),

333 NLRB No. 165 (2001), is reproduced in the Appendix

at A 1. The decision issued by the Court of Appeals, 294

F.3d 100 (D.C.Cir. 2002) is reproduced in the Appendix at

B1.

BASIS FOR JURISDICTION

The judgment of the Court of Appeals was entered

on June 28, 2002. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

29 U.S.C. §157 provides that:

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 engage in other

concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and

shall also have the right to refrain from any or all

such activities except to the extent that such right

may be affected by an agreement requiring

membership in a labor organization as a condition

of employment as authorized in section 8(a)(3)

[section 158(a)(3) of this title].

29 U.S.C. §158(a) provides that it shall be an unfair

labor practice for an employer, inter alia:

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

in the exercise of the rights guaranteed in Section 7

[section 157 of this title].

STATEMENT OF THE CASE

The Petitioner, Brockton Hospital (“Hospital”), is

an acute care hospital located in Brockton, Massachusetts;

The Intervenor, the Massachusetts Nurses Association

(“MNA” or “Union”), has been the bargaining

representative of the nurses employed by Brockton

Hospital since 1980. A 16-17

1. Facts Of The Alleged Unfair Labor

Practices.

On March 20, 1997, the MNA sponsored a

literature distribution campaign at three entrances to

Brockton Hospital - in a glass-enclosed vestibule at the

Hospital’s main entrance, at the Emergency

Room/ Outpatient Entrance, and at the “B.K.B.” entrance

to the Hospital. Id. At 18-19. Once a week on Thursdays,

for a period of ten weeks, off-duty nurses, some dressed in

the Hospital uniforms, distributed literature at 7:00 a.m.,

3:00 p.m. and 11:00 p.m. Id. The MNA coordinated the

distribution as part of its state-wide “Safe Care

EEO ESE 0

Campaign,” a political campaign that the Union initiated

in an attempt to garner public support for legislative,

administrative, and regulatory initiatives. A 17; J.App.,

Vol. II at 845.’

The literature distributed was in large part copies

of newspaper articles containing such shocking and

sensational headlines as “A shortcut that killed a patient”,

“A feeding tube in wrong hands leads to death”, “A

catastrophe waiting to happen” and “A mistake leads to

baby’s death.” A 20-21; B 2-3; J.App., Vol. II at 845-908.

Beyond the headlines the literature focused on horror

stories - from other hospitals - of patient death and injury

due to allegedly unsafe care. Id.

The distribution campaign “became very visible to

the public eye” according to the union. J.App., Vol. II at

845-908. The commencement of this distribution coincided

with a visit by the Massachusetts Department of Public

Health and then-Massachusetts Governor William Weld.

J.App., Vol. II at 1049-50. Significantly, the MNA

purposely chose throughout its campaign not to distribute

at the Hospital’s “Employee Entrance” which is used

exclusively by employees, including many nurses; the

MNA was pleased that their activities “made an

impression”. J.App., Vol. I at 355, 369-70, 741-743; Vol. Il

at 1050.

Off-duty nurses distributed multiple copies of the

literature to their co-workers. J.App., Vol. I at 244-245. In

Citations made to the “J.App.” in this section of

the petition refer to the Joint Appendix before the

Circuit Court for the District of Columbia. Some

of the facts relevant to this case did not expressly

make their way into the Administrative Law

Judge’s opinion or that of the Board.

addition, they placed the literature in nurses’ mailboxes on

nursing units and distributed the literature in the Hospital

cafeteria, as they had planned. J.App., Vol. 1 at 239; Vol.

II at 1048-49. Hospital personnel found the literature in

various locations throughout the Hospital over the course

of the MNA’s campaign. A 22-23; J.App., Vol. I at 430, 539-

540. The Hospital President testified that the distribution

generated a good deal of discussion with staff, who

reported that patients were wondering what was going on,

and that the Hospital had to develop and implement a

communications plan to share with patients what was

going on. J.App., Vol. I at 430.

In response to the Union’s campaign, the Hospital

requested that the MNA refrain from distributing this

literature at the entrances to the Hospital. A 20; J.App.,

Vol. II at 915. The Hospital offered to provide the MNA

with mailing labels, as the Hospital has done in the past,

so that the MNA could mail this literature to its members,

but the MNA refused. A 22. The MNA subsequently

resumed distribution in the vestibule area of the lobby for

the remainder of its campaign. A 20.

A. The Vestibule.

The Hospital considers the vestibule a part of the

main lobby. The ALJ stated from the bench that it was

“obvious” to him that the lobby was a work area. J.App.,

Vol. Il at 387. :

The vestibule is a glass-enclosed area bounded by

two sets of glass double doors and having partial glass

walls on its sides looking into the lobby of the Hospital. A

23. Both sets of doors are occasionally left open,

depending on the weather, and were installed as a means

of climate control for the lobby area. J.App., Vol. I at 336,

383. The vestibule is approximately fifteen feet wide and

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ten feet in length. J.App., Vol. lat 1093. The Hospital

maintains benches in the vestibule for the comfort of

patients, their families and visitors, as well as for

employees. A 23.

The vestibule is located at the main entrance to the

Hospital and is in continuous use beginning at 6:00 a.m.

and continuing throughout the day. A 23; J.App., Vol. I at

388, 658-59, 739-40. Patients and their families frequent

the vestibule. For example, Transitional Care Unit patients

may leave the inpatient unit and often sit on the benches

in the vestibule. Id. At 660-62. Similarly, psychiatric

patients, accompanied by Hospital staff, often utilize

benches immediately outside of the vestibule. Id. at 395,

594-596.

Approximately 85% of all discharged patients exit

the Hospital through the vestibule. Id. at 543-44, 704.

Discharges through the vestibule occur at all hours of the

day, though typically between 9:00 a.m. and 11:00 p.m. Id.

at 552. Transport staff regularly assist patients to and wait

with them in the vestibule upon discharge. -A 23.

In the Spring of 1997, the lobby was the only

waiting area for family members of surgical patients.

J.App., Vol. I, 658, 675. It is a common occurrence for

doctors, often dressed in surgical garb, to confer with

patients’ families in the lobby area after surgical

procedures regarding the patients’ pene. J.App., Vol.

I at 639-40, 658, 675, 705.

The first floor of the Hospital encompasses

numerous areas where both inpatients and outpatients

receive medical treatment, are diagnosed, or are

administered medical tests. Id. at 321-329. Hospital staff

transporting inpatients to treatment areas on the first floor

travel through the lobby; similarly, outpatients often travel

through the vestibule and the lobby to reach treatment

areas. Id. at 322, 328, 541.

2. The Changing Face Of Healthcare And

Hospital Patients

A. Patients Generally Are Sicker And

More Vulnerable Than In The Past ;

All the witnesses testifying on the issue stated that

hospital patients generally are sicker - or more “acute” -

than in the past, including the Union’s main witness

regarding the “Safe Care Campaign,” Ms. Francis. A 17- }

18. Some of the literature handed out by the union also

supported this claim statistically. For example, in General

Counsel Exhibit 10(b), in part the results of a survey of

nurses, 76.7% of reporting nurses reported more or much

more patient acuity in just the past year (1995 to 1996).

J.App., Vol. II at 849. As Ms. Francis, an associate director :

for labor relations of the union, testified: :

When patients are admitted to the hospital under

the managed care system, they must be extremely

ill. Frequently, when the come in, they have many i

systems that are failed, it is not just - you don’t

come in and just have an appendix, if you do

you're in and out the door in one day, many more

surgeries are done on an outpatient basis, okay,

things have changed dramatically, in the last five

years. A patient who is extremely ill requires more

attention from the registered nurse and as a result

of that, the nurse is tied up more at the bedside

when it’s possible to be there, than normally, we

would be used to in a hospital situation, the last

five years have been very, very difficult. In

addition to that, aside from the patient acuity and

the need for the nurse to be there, there is a

constant turnover of patients because under

managed care, you must get in and get out as fast

as possible and frequently, patients are sent home,

not the hospital’s fault, but patients are sent home

sooner than they need to be, into home care

situations that also require support, nursing

support, and they come back through the door

much faster, so we’re starting with a sicker

population to begin with.

J.App., Vol. I, 79-80; A 18.

A 1999 study by the Institute for Health & Socio-

Economic Policy further documents the increasing acuity

of in-patient admissions. In a study of patient acuity data

encompassing 18,200,000 discharges in California in 1993-

1997, the Institute found that “[a]verage patient acuity

levels rose between 1993 through 1997, from an average of

1.69 to an average of 1.79 on a four-point scale.” California

Health Care: Sicker Patients, Fewer Rns, Fewer Staffed Beds, at

3, 10-11 (September, 1999). The Report also found that

“[a]cuity levels are projected to increase 30% by the year

2025 - from an average of 1.75 (high Minor rating) to more

than 2.5 (mid Moderate rating).” Id.

In two other key findings, the Institute found that

“the Major-acuity rating (the second most severe rating)

has increased a full 2.2% while the Extreme acuity rating

(the most severe rating) has increased by about 1%. This is

an increase of 3% in the more serious acuity ratings.” Id.

Finally, “Minor acuity ratings decreased from 52.3% of all

California patient discharges to 46.5% for a 5.8% drop.” Id.

Put somewhat more coarsely, sicker people go into the

hospital, and sicker people come out, trends which

according to the institute are expected to continue for at

least the next 20 years.

This information is consistent with other available

data. For example, average length of patient stay in

community hospitals has decreased from 7.8 days in 1973

to 6.2 days in 1996. 1998 Data Compendium, Health Care

Financing Administration, at 73. This decrease correlates

with a dramatic increase in the number of outpatient

visits, from 173,000,000 in 1973 to 440,000,000 in 1996. Id.

Moreover, the 65+ year old population of the United States

has risen steadily from 1990 through 1997, id. at 51, and is

expected to almost double between the years 1995 and ~-

2025, from approximately 51,000,000 to approximately

92,000,000 individuals. Id. at 52.

As a result of this dramatic change in healthcare

delivery, the public has developed an increasingly

negative perception of the quality of care, and questions

whether the delivery of quality patient care is of primary

importance. J.App., Vol. I at 498-99.

B. The Level Of Trust Between

Patient And Healthcare Provider Is

Important To Patient Outcomes

During the same time period that the delivery of

healthcare has undergone such dramatic changes, the

medical community has come to realize even more acutely

that effective patient care involves numerous variables

beyond discrete medical procedures. A 11, 46-47; J.App.,

Vol. I at 485-489. One important variable is the level of

trust between the patient and the healthcare provider. Id.

The level of trust between the patient and the healthcare

provider is important to the patient’s ultimate medical

outcome because the level of credibility that a provider

possesses directly correlates to the level of communication

between the patient and the provider. Id. When there is a

positive trust level, the patient will likely be more

forthcoming about the extent, severity and symptoms of

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an illness, as well as any concerns that the patient may

harbor. Id. Complete and accurate information enables

healthcare professionals to make a more accurate

assessment about the nature of the illness and the

prescribed course of treatment. Id. At the same time, the

patient is more likely to adhere to a prescribed treatment

regiment when he or she trusts the medical professionals.

Id. |

C. Increased Stress And Anxiety

Contribute To Adverse Health

Effects

Another significant variable in patient care is the

level of stress and anxiety that patients experience. A 11,

46-47; J.App., Vol. I at 485-499, 572-599. Empirical studies

have established a direct correlation between increased

levels of stress and anxiety on the one hand, and

deteriorating health on the other. Id. Stress can also

negatively impact a patient’s immune system, thereby

increasing recuperation time and susceptibility to illness

and complications. Id. Finally, stress and anxiety have

been found to exacerbate illnesses. Id.

Finally, a patient’s overall emotional and

psychological condition can have a profound effect on his

or her ability to recover from an illness or medical

condition. Id. The patient’s emotional and psychological

condition of a patient also is, to an important extent,

dependent upon the level of support the patient receives

from family and friends during times of crisis. Id. To the

extent those individuals express fear, doubt or stress about

the patient’s condition, ability to recover or quality of care,

those emotions can negatively impact the patient's

emotional state and, consequently, his or her recovery

abilities. Id.

D. The Union’s Literature Would

Have Deleterious Effects On

Patients And Their Providers

The medical experts (acknowledged as such by all

parties) unanimously agreed that healthcare providers’

responsibilities to their patients extend well beyond the

immediate clinical care administered to patients, and

requires that they provide a sheltering, nurturing

environment that promotes trust and remains as free from

stress and anxiety as possible. A 21. All three experts

agreed that if patients were exposed to the literature

distributed by the union at the Hospital, that literature

would have a deleterious effect upon the patients’ medical

well-being and their overall health. Id.;J.App., Vol. I at

490-93, 579-582, 698-99. This literature would necessarily

create stress and anxiety in these patients regarding the

quality and effectiveness of the care that they would

receive at Brockton Hospital, exacerbating the already

extremely stressful situation of entering or being admitted

to a hospital to undergo either medical tests and/or

treatment. Id. Also, the literature could exacerbate the

decreasing levels of trust in healthcare providers, thus

causing deleterious effect on the overall care provided to

patients at the facility. Id.

The experts further agreed that, although the

literature does not specifically mention Brockton Hospital,

patients, their families and visitors would logically

conclude that the inadequate and unsafe conditions at

hospitals described in this literature existed at Brockton

Hospital; this is because the literature is qualitatively

different from articles appearing in their normal context,

such as a newspaper, as it was specifically excerpted,

copied and distributed at the Hospital. J.App., Vol. I at

624-25, 747-53. Moreover, in the hands of patients’

families and visitors, this literature could have deleterious

effects upon the health of patients as the stress, anxiety

and emotional state of those individuals is conveyed to the

patient with whom they are in contact. Id. at 577-78, 700-

701. Finally, this type of literature could have deleterious

effects on the patient through the health care provider to

whom it had been handed, because that nurse should be

transmitting confidence to the patient, and recent exposure

to such information could compromise that confidence. A

21; J.App., Vol. I at 581.

Thus it is undisputed in this case that the

population admitted to acute care community hospitals in

this day and age is much more acutely ill, and is allowed

fewer days of in-patient treatment which naturally results

in discharged patients being sicker when discharged than

was the case when both Beth Israel and Baptist Hospital

were decided in the late 1970s. Enhanced awareness of the

recovery process also indicates that an atmosphere of

peace and quiet is even more important than previously

believed.

3. The Rulings Below

The Board found that the Petitioner violated

Section 8(a)(1) of the Act by (1) barring literature

distribution at the three entrances and (2) maintaining

“overly broad” distribution and solicitation bans in it

policies and employee handbook. A 1-4. The Board also

found that the distributor’s conduct was protected

concerted activity under the Act. A 1, 24. The Circuit

Court of Appeals for the District of Columbia affirmed the

Board's rulings in relevant part. B 2-13.

REASONS FOR GRANTING THE WRIT

I. Review Is Warranted Because The Provision Of

Health Care Has Changed Dramatically Over The

Past 20 Years, And The Board’s Presumptions

And Distribution/Solicitation Rules For

Hospitals Have Not.

The Board’s intransigence in adapting to the

dynamic environment of health care, together with its total

lack of expertise in the medical arena, have contributed to

a situation in which the Board holds that a hospital cannot

bar the distribution of scandalous and shocking literature

in areas which patients and their families frequent.

Petitioner respectfully suggests that this result is not the

result of a rational interpretation of the Act.

Even in Beth Israel v. NLRB, 437 U.S. 483, 98 S.Ct.

2463 (1978) and NLRB v. Baptist Hospital, 442 U.S. 773, 99

S.Ct. 2598 (1979), this Court was unanimous only in the

judgment, not in the underlying rationale, which was

badly splintered in both cases. Some justices believed that

all distribution/ solicitation should be banned in hospitals.

All Justices agreed, however, that to be supportable a

presumption cannot rest on grounds which are irrational.

More important, however, is the admonition to the Board

made in Beth Israel and strongly reiterated in Baptist

Hospital, imposing an obligation on the Board to be

particularly cognizant of the distribution/ solicitation

issues arising in the health care environment.

It also should be noted that Baptist Hospital

expressly involved union organizing, and Beth Israel

appears to have involved organizing. Here, however, this

is not a situation where the union was attempting to gain a

foothold in the institution, but a situation where the union

already represents employees and the parties had a

collective bargaining agreement in place.

In Beth Israel, this Court upheld the Board’s

presumption that healthcare facilities may lawfully ban

employee solicitation and distribution only in “immediate

patient care areas.” 487 U.S. at 495, 507; see also Baptist

Hosp., 442 U.S. at 779 (“[t]he scope of the Board’s

presumption depends upon the definition of the phrase

‘immediate patient care areas’”). However, the Court also

noted that:

[The] Board [bears] a heavy continuing

responsibility to review its policies concerning

organizational activities in various parts of

hospitals. Hospitals carry on a public function of

the utmost seriousness and importance. They give

rise to unique considerations that do not apply in

the industrial settings with which the Board is

more familiar. The Board should stand ready to

revise its rulings if future experience demonstrates

that the well-being of patients is in fact in jeopardy.

~ Beth Israel Hosp., 437 U.S. at 508. This Court subsequently

offered further guidance in this area:

The Board, in reviewing the scope and application

of its presumption, should take into account that a

modern hospital houses a complex array of

facilities and techniques for patient care and

therapy that defy simple classification. Patients not

undergoing treatment at the moment are cared for

in a variety of settings -- recovery rooms, intensive-

care units, patients’ rooms, wards, sitting rooms,

and even corridors, where patients are often

encouraged to walk, or to visit with their families.

Baptist Hosp., 442 U.S. at 790, n. 16.

In fact, the majority in Baptist Hospital stated that

“{i]t must be said, however, that the experience to date

raises serious doubts as to whether the Board’s

interpretation of its present presumption adequately takes

into account the medical practices and methods of

treatment incident to the delivery of patient-care services

in a modern hospital.” Baptist Hospital, 442 U.S. at 790.

Under the Board's current presumption/ policy, as

articulated by the ALJ, the Hospital may ban literature

distribution only in work areas, regardless of the effect on

patients (or potential effect on patients) of literature

distribution in other areas, unless the Hospital can show

an actual deleterious impact on patients. A-?.

In more than twenty years of experience since the

Court’s command in Beth Israel, supra, the Board has not

altered its restrictive interpretation of the definition of

“immediate patient care areas.” In 1976, the Board first

defined “immediate patient care areas,” by illustration

only, to include areas, “such as patients rooms, operating

rooms, places where patients receive treatment, such as x-

ray and therapy areas.” St. John’s Hosp., 222 NLRB 1150

(1976). To date, that restrictive interpretation has

remained remarkably static. See, e.g., Doctors’ Hosp. of

Staten Island, 325 NLRB 730 (1998) (defining immediate

patient care areas as the Board initially determined in St.

John’s Hosp.).

Only to the extent this Court has forced its hand

has the Board expanded its interpretation of “immediate

patient care areas.” See Baptist Hosp., 442 U.S. at 788 (“The

evidence of record in this case and other similar cases

does, however, cast serious doubt on a presumption as to

hospitals so sweeping that it embraces solicitation in the

corridors and sitting rooms on floors occupied by

patients.”). In his dissent in the present case, Board

Member Peter J. Hurtgen accurately described the Board’s

failures in this area:

My colleagues states that the balance struck by the

Board in this are in of the law has stood the test of

time. That is certainly true in the sense that the

Board has declined to abandon or modify the

presumptions at issue. However, the question is

whether the times have changed so that the Board

should reevaluate its policies, just as the Supreme

Court has suggested it should...I believe that the

Board should do so.

A 12.

Moreover, “immediate patient care areas” are an

artificial creation of a Board with no expertise in the

medical field. Patient care is a much broader concept than

discreet medical procedures or treatments. Patients need

peace of mind throughout the entire institution, and the

sicker patients of 2002 need peace of mind even more than

the patients of 1979. They need it when they walk in, they

eed it while they are there, and they need it on their way

out. It is the whole environment of the hospital which is

important, and it is a Board fiction to carve out one or

another small discrete area and say that there can be

distribution here but not there, solicitation here but not

there.

The Hospital submits that restrictions on

solicitation/ distribution should be presumptively lawful

in all areas of a hospital's premises to which patients and

their families or friends have regular access.

Therefore. the Petitioner believes that it is time this

Court revisited the issue of union distribution and

solicitation in acute-care hospitals, and that it is

appropriate in this day and age to allow a hospital! to bar

union literature distribution and solicitation in any

hospital area to which patients have access or are present

with any reasonable degree of regularity. In Beth Israel,

after all, one of the critical facts was that use attributable

to patients of the cafeteria in question was less than 1.7%.

437 U.S. at 490. The Court plainly indicated that heavy

patient use or presence would have dictated a different

result in that case. Id. at 502 (“It is of critical significance

that only 1.56% of the cafeteria’s patrons are patients.”)

II. Review Is Warranted Because The Board And

Court Below Appeared To Require The Hospital

To Demonstrate Actual Harm To Patients In

Order To Justify Stricter Bans On Distribution

In Baptist Hospital, this Court upheld a no-

solicitation/ distribution rule applicable to patient sitting

rooms and corridors although the ALJ, in the first instance,

found that the testimony by physicians regarding the

possible disturbance of patients “was directed to possible

effects of union campaigns and was given pursuant to

certain hypothetical questions.” Baptist Hospital, 223 NLRB

344 (1976). According to this Court, a hospital bears the

burden of proving only that “solicitation may adversely

affect patients.” Baptist Hospital., 442 U.S. at 782 (emphasis

supplied).

Here, the Hospital presented the same type of

evidence, included expert witnesses accepted by both the

union and the General Counsel as experts, but both the

Board and the Court effectively ruled that because there

was no evidence any patient actually received the

distributed literature, the Hospital somehow had failed to

carry its burden. A 1, 22, 28; B 4-7.

This result is in direct contravention of this Court's

requirement in Baptist Hospital., 442 U.S. at 782, that the 2

Hospital need only show that the conduct at issue may

adversely affect patients. The Court of Appeals below

appeared to apply a different standard, that a hospital

must show a “likelihood of patients being disturbed.” B 5-

6. Yet the undisputed testimony, the ALJ's finding, the

Board’s ruling and the Court below’s ruling, all agreed

that exposure of this literature to patients would be

harmful to patients. But then the ALJ, the Board and the

Court below went on effectively to rule that the Hospital

still had not carried its burden under Baptist Hospital

because here there was no evidence of actual receipt of the

distributed material by a patient.

Moreover, even if the union did attempt to limit

distribution, the very nature of a small, congested

community hospital means that everyone knows there is

something going on by the front door, employees and

patients ask questions of management, and the literature

floats around the institution.

Literature in fact was found scattered in many

places throughout the Hospital, and patients were asking

what was going on. Thus the fact of the distribution had

been brought to patients’ attention. To quell patients’

curiosity about what was going on, the Hospital had to

develop and implement a communication plan for patients

so they would know what was going on, futher

emphasizing the union’s distribution.

The result in this case should not be allowed to

stand, for both this Petitioner and for every other Hospital

in the country. To require the Petitioner, or any other

healthcare facility, to await actual harm (or at least actual

exposure) to a patient before it may lawfully prohibit

distribution or distribution activities is both senseless and

dangerous, and certainly is not dictated by the Act nor is a

rational interpretation of the Act. This is a decision badly

in need of review by this Court.

Thus the Petitioner respectfully requests that its

petition be granted.

ate Se 8 eed a ag

III. | Review Is Warranted Because The Scare Tactics

Used By The Union Should Not Be Considered

Protected Concerted Activity Under The National

Labor Relations Act In A Hospital Environment.

The Board and Circuit Court's ruling that it is

protected concerted activity to distribute materials of the

nature discussed in this case at the main entrance of an

acute-care community hospital is a perversion of the Act,

and certainly not a rational interpretation of it.

A union cannot distribute anything it wants and

seek shelter behind the protections of §7 of the Act. There

are limits. In fact, the Act itself is very specific. Section 7

protects employees' right

to engage in. . . concerted activities for the purpose

of collective bargaining or other mutual aid and

protection.

29 U.S.C. §157. That is all it protects. Activity outside of

the §7 description is not protected and employer action

based on unprotected activity thus cannot form the basis

of an unfair labor practice.

This Court has held that the "mutual aid and

protection" clause - at its maximum reach - protects

employees who "seek to improve terms and conditions of

employment or otherwise improve their lot as employees

through channels outside the immediate employee-

employer relationship." Eastex, Inc. v. NLRB, 437 U.S. 556,

565, 98 S.Ct. 2505, 2512 (1978). In Eastex, employees

circulated a newsletter which criticized a Presidential veto

of a minimum wage increase and advocated against a state

right-to-work constitutional provision. This Court

ultimately upheld the Board and ruled that the newsletter

was a protected activity because the topics implicated the

employees' interests as employees. "Few topics are of such

immediate concern to employees as the level of their

- wages," noted the Court, reasoning that a rise in the

minimum wage may impact negotiated settlements. Id.,

437 U.S. at 569-570. Opposition to a state constitutional

right-to-work provision also was an attempt to protect the

employees' interests as employees, since it impacted on

whether shops could be open or closed. Id.

Yet the Eastex Court also noted that "some

protected activity bears a less immediate relationship to

employees' interests as employees than other such

activity," and that the relationship becomes so attenuated

at some point that "an activity cannot fairly be deemed to

come within the ‘mutual aid or protection' clause." 437

U.S. at 567-568. Thus even Eastex limited "mutual aid and _

protection" to activity that would "improve [employees']

lot as employees." 437 U.S. at 566-567; accord NLRB v.

Local 1229, International Brotherhood of Electrical Workers

(Jefferson Standard), 346 U.S. 464, 476-477, 74 S.Ct. 172, 178-

179 (1953)(circulation of handbills that criticized the

quality of the employer's television broadcasts was not

protected concerted activity).

As the 2nd Circuit subsequently noted:

... the Board may not broaden Section 7 to protect

activities which have no bearing on the

employment relationship. The entire Act revolves

around the protection of workers' efforts to better

their working conditions through collective action.

Nothing in the Act can be understood without

keeping this central point in mind. ...the Act does

not protect any "union activity" engaged in by an

— 19

employee if it is unrelated to the terms and —

conditions of employment. Although this

discussion seems obvious, it is clear that the Board

ignored this commonsensical approach to the Act

in this case.

Port at ee ee ss,

Office and Professional Employees International Union v.

NLRB, 981 F.2d 76, 82 (2nd Cir. 1992); see also Ford Motor

Company, 221 NLRB 663 (1975)(distribution of a purely

"political" newsletter was beyond the bounds of activity

envisioned by the mutual aid or protection clause).

Moreover, where such conduct makes “no

reference to the union, to a labor controversy or to

collective bargaining” by “purport[ing] to speak . . . in the

interest of consumers and the public at large,” such

conduct is unprotected. Jefferson Standard, 346 U.S. at 471-

72; see also, e.g., Sierra Publishing Co. v. NLRB, 889 F.2d

210, 217 (9th Cir. 1989), enf'ing 291 NLRB 540 (1988) (letter

protected as it was “unambiguously” related to a labor

dispute;-written on union letterhead, signed by union

members, and referred to failed contract negotiations); San

Juan Hotel Corp., 289 NLRB 1453 (1988) (Leaflet protected

as it was addressed “to all employees” and referred

specifically to abuses “against us employees” and to

“wages’ ).

The rhetoric and hyperbole associated with labor

disputes will be protected if such an express link exists

because those “who receive appeals for support in a labor

dispute will filter the information critically so long as they

are aware it is generated out of that context.” Sierra Publishing

Co., 889 F.2d at 217 (Emphasis added). Moreover, where

“the natural and foreseeable consequences of [a

communication’s] issuance [is] that it would serve as a

communication to the public . . . the preparation and

issuance of that document must be analyzed in that light.”

See Greyhound Lines, Inc., 251 NLRB 1638 (1980).

The literature distributed by the union at Brockton

Hospital had nothing to do with the terms and conditions

of employment of Brockton Hospital nurses. It was in

express furtherance of the union’s state-wide political

“Safe Care Campaign.” J.App., Vol. II at 845. It began on

the very day of the Governor's planned visit, and

obviously was calculated to generate publicity and

_ discussion and to make an impact, as union members

gleefully acknowledged it did. J.App., Vol. II at 1050, 1052

(“Plus we became very visible to the public eye... “)

None of the literature asserted any labor dispute,

or any issue that the union had with the Petitioner. There

is no claim that any of the disasters outlined in the

literature ever happened at the Hospital. There was no

evidence that the distributors themselves were instructed

by the union to inform the recipients that this material was

in preparation for negotiations, though some may have

done so of their own accord. A bargaining unit member

handed this material with no explanation would have no

idea what it was for or about other than disparaging the

Hospital.

The Board and Circuit Court's interpretation of the

Act is not rational and does not further the goals of the

Act. An interpretation of law that allows union

distribution of reprinted newspaper articles with

headlines like “A shortcut that killed a patient”, “A

feeding tube in wrong hands leads to death”, “A

catastrophe waiting to happen” and “A mistake leads to

baby’s death,” at the front door of the local community

hospital needs to be reviewed and rethought. It appears

that the Board has lost some perspective in this situation,

and has inappropriately balanced the Section 7 rights of

the Hospital’s employees with the rights of its patients by

using a brick on the one hand and a feather on the other.

Petitioner does not believe that the Board and the

Circuit Court are correct in their interpretations of this

Court's cases dealing with the far reaches of “ protected

concerted activity.” The type of union activity in this case,

conducted in a hospital environment, ought not to be

countenanced under the Act. If the Board’s distribution

and solicitation rules must be different in the health care

area, as this Court already has dictated, then the rules

governing what conduct is permissible in and around a

hospital similarly ought to be different, and more

restrictive.

The Petitioner urges this Court to impose some

order and clarity - and sanity - on the outer limits of

protected concerted activity under the National Labor

Relations Act.

CONCLUSION

For all the foregoing reasons, Petitioner

respectfully requests that its petition for a writ of certiorari

be granted.

Respectfully submitted.

Arthur Murphy, Esq.

Counsel of Record

Geoffrey P. Wermuth, Esq.

MURPHY, HESSE, TOOMEY & LEHANE, LLP

44 Farnsworth Street, 2" Floor

Boston, MA 02210

(617) 479-5000

Counsel for Petitioner

September 26, 2002

APPENDIX A

National Labor Relations Board

Brockton Hospital and Massachusetts Nurses Association.

Cases 1-CA-35136 and 1-CA-35875

May 11, 2001

DECISION AND ORDER

By Chairman Truesdale and Members Hurtgen and Walsh

On March 25, 1999, Administrative Law Judge Martin J.

Linsky issued the attached decision. The General Counsel

and the Respondent filed exceptions and supporting

briefs, answering briefs, and reply briefs.[1]

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in

light of the exceptions and briefs and has decided to affirm

the judge’s rulings, findings,[2] and conclusions[3] as

modified and to adopt the recommended Order as

modified.[4]

1. For the reasons stated by the judge, we agree that the

Respondent violated Section 8(a)(1) by prohibiting the

distribution of union literature in the vestibule adjacent to

its front lobby.[5] The General Counsel has excepted to the

judge’s failure to address a separate complaint allegation

that the Respondent prohibited such distributions

anywhere on its premises. In support of this exception, the

General Counsel cites testimony by employees Terry

A-1

Corcoran, Rinette Nadeau-Bates, Barbara Cooke, and

Carolyn Anderson that they were told, by supervisors and

agents of the Respondent, that they could not distribute

their literature on hospital property. This testimony was

disputed by the Respondent's witnesses, who testified that

they only directed employees to stop distributing the

disputed literature in the vestibule.

The judge did not explicitly address this complaint

allegation in his decision. However, the judge did note

that there was a question in this case whether the nurses

had “been told that they could not distribute the literature

on Hospital premises.” After noting the existence of this

issue, the judge proceeded to find that Nurse Manager

McArthur told Corcoran and Nadeau-Bates to “’cease and

desist’ from handing out literature in the front vestibule.”

(Emphasis added.) Likewise, the judge found that the

Respondent's president, Goodman, told Cooke and

Anderson “that they could not distribute literature in the

vestibule” without a court order. (Emphasis added.) In

these circumstances, we find that the judge implicitly

credited the testimony of the Respondent's witnesses over

that of the General Counsel’s witnesses with respect to this

issue.[6] Accordingly, in the absence of any credited

testimony that the Respondent banned all distribution of

the disputed literature on its premises, we shall dismiss

this complaint allegation.

2. The judge found, inter alia, that the Respondent violated

Section 8(a)(1) by maintaining an overly broad no-

solicitation/no-distribution policy in its 1994 Associate

Handbook. That policy, in full, provides that

Associates shall not canvass, solicit, or distribute

literature for any purpose during an associate’s

working time or the working time of the associate

A-2

a was r

at whom such activity is directed.

Working time is defined as those periods in which

an associate is scheduled or assigned for duty. It

does not include authorized lunch time.

Canvassing, soliciting or distributing literature

may not occur at any time in patient rooms, halls

and corridors used by patients, treatment areas,

patient lounges and other areas where patients

receive treatment.

Canvassing, soliciting or distributing literature on

hospital premises by non-associates is prohibited.

In his decision, the judge addressed only the first two

paragraphs of this policy. The judge found that this

language was overly broad because it does not specifically

exclude breaktimes from the definition of working time.

We do not agree with this finding.

In Our Way, Inc.,[7] the Board held that a rule

against solicitation or distribution of literature during

“working time” is presumptively lawful, and will not be

condemned as ambiguous merely because the term

“working time” is not expressly defined for employees.

Thus, the term “working time” “connotes periods when

employees are performing actual job duties, periods which

do not include employees’ own time such as lunch and

break periods.” [8] In Jay Metals,[9] the Board found that

the employer’s rule prohibiting solicitation and

distribution of literature during “working time” was

lawful even though the employees took short breaks as

their work schedule permitted and were paid for their

lunch and breaktime. The Board recognized that,

A-3

[t]o the extent, however, that the Respondent

releases employees from their duties for lunch or

other breaks, it would be inconsistent with Our

Way to infer that the Respondent's no

solicitation/no distribution rule would apply to

such periods —or that employees might reasonably

think that it did— merely because employees are

paid for such periods or because the breaks are

informally scheduled and may not overlap with

the breaks of other employees.[10]

Consistent with these principles, we find that, under the

circumstances of this case, the Respondent's employees

likewise would not reasonably believe that the prohibition

against solicitation or distribution of literature during

“working time” would apply to break periods merely

because the policy specifically excludes “authorized lunch

time” but does not also specifically mention “breaktimes.”

As noted above, the judge addressed only the first

two paragraphs of this policy in his decision. In agreement

with the General Counsel’s exceptions, we hold that the

third paragraph of the policy is overly broad insofar as it

prohibits any solicitation or distribution of literature in

“halls and corridors used by patients.” The judge found

that substantially identical language, in the Respondent's

Administrative Policy Manual, violated Section 8(a)(1)

because its blanket prohibition extends beyond immediate

patient care areas.[11] We adopt this finding, for the

reasons stated by the judge, and we find the similar

prohibition, in the Associate Handbook, against

solicitation or distribution of literature in “halls and

corridors used by patients” likewise violates Section

8(a)(1).

Our dissenting colleague acknowledges that the

Respondent's no-solicitation/no-distribution policies are

A-4

—

unlawful under well-established precedent. The dissent

argues that the Board should overrule that precedent and

allow hospitals to prohibit solicitation and distribution “in

areas where patients, their families, and visitors spend a

substantial amount of time.” In the dissent’s view, such

prohibitions — including the Respondent's policies set

forth above —are presumptively lawful because

solicitation or distribution of literature in those areas could

interfere with a hospital's ability to care for its

patients.[12]

We adhere to the Board’s established precedent.

Under that precedent, a hospital’s prohibition of

solicitation or distribution of literature in immediate

patient care areas, even during employees’ nonworking

time, is presumptively lawful.[13] Restrictions on

solicitation, during nonworking time, or distribution of

literature, during nonworking time and in nonworking

areas, however, are presumptively unlawful even with

respect to areas that may be accessible to patients.[14] The

Supreme Court has upheld these presumptions as

consiste[15] and we find no support in the record of this

case for departing from these well-settled principles.

We stress that what is at issue is the facial validity

of the Respondent's policies. As set forth above, the

Associate Handbook and the revised Administrative

Policy Manual ban any solicitation or distribution of

literature in areas beyond those which the Board has

found to be immediate patient care areas. On its face, the

revised Administrative Policy Manual would even place

off limits all areas of the hospital used by patients,

however infrequently, including the Respondent's gift

shop and cafeteria and its vestibule area. The Board has,

with court approval, consistently found that such

sweeping limitations on employees’ Section 7 rights are

facially unlawful.[16] Our colleague appears to concede

A-5

that the Respondent's policies would be presumptively

unlawful under his approach as well.[17] |

We of course agree with our colleague that an

“atmosphere of serenity” is a desirable goal in the hospital

setting. The Board’s presumptions regarding restrictions

on solicitation and literature distributions by hospital

employees reflect a careful consideration of the interests of

patients, as balanced against the interest of employees to

exercise their Section 7 right “effectively to communicate

with one another regarding self-organization at the

jobsite.” [18] As the Supreme Court has recognized,

Here, as in many other contexts of labor policy,

“[t]he ultimate problem is the balancing of the

conflicting legitimate interests. The function of

striking that balance to effectuate national labor

policy is often a difficult and delicate

responsibility, which the Congress committed

primarily to the National Labor Relations Board,

subject to limited judicial review.” [19]

The balance struck by the Board has stood the test of time,

and we are not persuaded that there is any need to

reexamine that balance for the purpose of deciding this

case.

3. For the reasons stated by the judge, we agree that the

Respondent violated Section 8(a)(1) by removing a

handwritten notice posted by employee Wendy Baron on

her locker concerning an upcoming union meeting at

Baron’s home.[20] The judge additionally found that the

Respondent violated Section 8(a)(1) when Supervisor

Carla McRae told Baron that the handwritten notice was

“unprofessional.” Contrary to the judge, we find no

evidence to support a finding that this comment

A-6

reasonably tends to interfere with, restrain, or coerce

employees in the exercise of their Section 7 rights. Baron

testified that McRae told her that she should have had the

notice professionally prepared and then submitted it to

McRae, or Supervisor Sue Davis, who would determine

whether, and where, it could be posted. Viewed in context,

we find that this comment refers only to the fact that the

notice was handwritten, rather than professionally

prepared, and cannot reasonably be construed as a

characterization of Baron’s union activities as

unprofessional.[21] While McRae’s opinion concerning the

appearance of Baron’s notice may have been gratuitous, as

the judge found, there is no basis, under the circumstances

of this case, for concluding that it thereby violated Section

8(a)(1).[22]

Amended Conclusion of Law

Substitute the following for Conclusion of Law 3(d).

“(d) When it discriminatorily enforced a policy of

removing union notices from a nurse’s locker while

permitting other material to be posted on nurses’ lockers.”

ORDER

The National Labor Relations Board adopts the

recommended Order of the administrative law judge as

modified below and orders that the Respondent, Brockton

Hospital Brockton, Massachusetts, its officers, agents,

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

the Order as modified.

1. Substitute the following for paragraph 1(d).

(d) Discriminatorily enforcing a policy of removing union

meeting notices from nurses’ lockers while permitting

other material to be posted on nurses’ lockers.”

A-7

2. Substitute the following for paragraphs 2(a) and (b),

respectively.

(a) Rescind the unlawful portions of its Administrative

Policy Manual, its Associate’s Handbook, the May 7, 1997

memorandum of Cheryl Barrows, and any other written

directives which prohibit solicitation during non-working

time in nonpatient care areas of the hospital and/or which

prohibit distribution during nonworking time in

nonworking, nonpatient care areas of the hospital.

(b) Rescind the unlawful portions of the confidentiality

clause in its Associate Handbook.”

3. Substitute the attached notice for that of the

administrative law judge.

Dated, Washington, D.C. May 11, 2001

John C. Truesdale, Chairman

Dennis P. Walsh, Member

(seal) National Labor Relations Board

Member Hurtgen, dissenting in part.

My colleagues conclude that the Respondent

violated Section 8(a)(1) of the Act by prohibiting

solicitation or distribution of literature in any halls,

corridors, or other areas used or accessed by patients,

families, or visitors. I disagree in substantial part.

The judge aptly summarized the current state of Board law

regarding the places of solicitation and distribution in

hospitals:1

In summary, therefore, an employer may ban

solicitation in “immediate patient care areas” but

not working areas. However, in the case of

distribution, the employer's rights broaden to

A-8

ek Ned ent SB PELE

permit a ban in both working areas and

“immediate patient care areas.” If an employer

bans distribution or solicitation in a non-work,

non-immediate patient care area, it bears the

burden of proving that such prohibition is

necessary to avoid patient disruption.

In my view, these principles are premised on an overly

narrow concept of how hospitals provide treatment and

care to their patients. | would revise the Board’s principles

to allow prohibitions of solicitation and distribution in

areas where patients, their families, and visitors spend a

substantial amount of time.

In Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978),

the Supreme Court upheld the Board’s presumption that a

hospital may lawfully prohibit solicitation and

distribution in immediate patient care areas and in areas

where it can show that such a ban is necessary to avoid

disrupting care or disturbing patients. In doing so, the

Court stated:

[The] Board [bears] a heavy continuing

responsibility to review its policies concerning

organizational activities in various parts of

hospitals. Hospitals carry on a public function of

the utmost seriousness and importance. They give

rise to unique considerations that do not apply in

the industrial settings with which the Board is

more familiar. The Board should stand ready to

revise its rulings if future experience demonstrates

that the well-being of patients is in fact in jeopardy.

Id. at 508.

In NLRB v. Baptist Hospital, 442 U.S. 773 (1979), the

Court specifically questioned the Board’s presumption

A-9

that a ban on solicitation in corridors and sitting rooms is

unlawful. The Court did not resolve the issue because it

found that the presumption was rebutted in that case.

However, the Court's language is instructive. The Court

said:

Because the evidence presented by the Hospital in

this case is sufficient to rebut the Board's

presumption as applied to corridors and sitting

rooms on patients’ floors, we need not here decide

the rationality of this portion of the Board’s

presumption, nor undertake the task of framing the

limits of an appropriate presumption regarding the

permissibility of union solicitation in a modern

hospital. Indeed, the development of such

presumptions is normally the function of the

Board. It must be said however, that the experience

to date raises serious doubts as to whether the

Board's interpretation of its present presumption

adequately takes into account the medical practices

and methods of treatment incident to the delivery

of patient-care services in a modern hospital.

Id. at 789.

The Court also said:

The Board, in reviewing the scope and application

of its presumption, should take into account that a

modern hospital houses a complex array of

facilities and techniques for patient care and

therapy that defy simple classification. Patients not

undergoing treatment at the moment are cared for

in a variety of settings — recovery rooms, intensive-

care units, patients’ rooms, wards, sitting rooms,

and even corridors, where patients are often

A-10

encouraged to walk, or to visit with their families.

In terms of result reached, the Baptist Hospital Court found

a ban lawful in areas where patients visit with families

and friends and where the patients’ families and friends

confer with doctors. Id. at 784. See also Intercommunity

Hospital, 255 NLRB 468 (1981) (solicitation ban lawful in

lobby used by staff for conferring with family and friends

of patients).

Consistent with the Court’s pronouncements and

in light of current concepts of medical care, I have

reviewed current NLRB principles. As set forth below, I

am persuaded that hospital patients benefit from an

atmosphere of serenity and well being, and their friends

and loved ones can help the healing process if they are

secure in the knowledge that the hospital offers such an

atmosphere.

The record evidence shows the changing nature of

health care, a change that is attributable in part to the

prominent role now played by health maintenance

organizations and managed care facilities. As the

Respondent points out, there is a heightened awareness on

the part of medical professionals that: the level of trust

between a patient and a medical professional is an

important element in the success (or failure) of treatment;

increased levels of stress and anxiety in patients are linked

to deteriorations in their health; and, the overall emotional

and psychological state of a patient can greatly affect the

patient's ability to recover from illness.

I believe that union organizational campaigns often

involve controversy, heated debate, and talk of strikes and

industrial strife. Indeed, it is for this reason that hospitals

can ban union activity in areas of immediate patient care.

My difference with my colleagues is that | would permit a

ban in other areas as well. In this regard, the Board should

A-I1

take into account, and give due weight to, the fact that

hospitals provide care to patients in more locations than

those circumscribed by what the Board calls “immediate

patient care areas.” The Board should also recognize that

conduct affecting families and visitors of patients can

affect the state of mind, and therefore the well being, of

patients. In light of its unique setting, and the extremely

high stakes involved (often literally a matter of life or

death), I would presumptively allow a hospital to enforce

most of the prohibitions at issue here. | also note that, in

the instant case, the material distributed was replete with

hospital “horror stories” likely to prove extremely

upsetting to any patients, families, or visitors who

encounter them.

My colleagues state that the balance struck by the

Board in this area of the law has stood the test of time.

This is certainly true in the sense that the Board has

declined to abandon or modify the presumptions at issue.

However, the question is whether the times have changed

so that the Board should reevaluate its policies, just as the

Supreme Court has suggested it should. As explained

above, I believe that the Board should do so.

I wish to stress that my position does not unreasonably

restrict Section 7 communications among employees.

There are myriad opportunities for such communications.

For example, employee break areas, cafeterias, and

vestibules offer ample opportunities for such activity. In

addition, employees can, of course, converse away from

the hospital, as well as in parking areas as they come to

and from work. Given these alternative means of

communication, I believe that, on balance, the extremely

important interest of patient welfare outwefghs the

interest of granting additional areas for employee

communication.

Consistent with my views set forth above, I would

A-12

find presumptively unlawful a prohibition of solicitation

and distribution in the vestibule and in the cafeteria. As

set forth above, | would presumptively permit a

prohibition on solicitation and distribution “in areas

where patients, their families and visitors spend a

substantial amount of time.” The vestibule is not such a

place. It is essentially a place where people pass through

from one place to another. Similarly, a hospital cafeteria is

ordinarily a place that is used on a transient basis, i.e., a

place to which families and other visitors can go briefly

while at the hospital visiting patients. In addition, the

cafeteria is generally open to the general public, just as any

eating establishment would be. Accordingly, | would

presumptively permit solicitation and distribution to occur

there.

In view of the above, some of Respondent's

policies may be presumptively unlawful. For example, the

revised Administrative Policy Manual bars solicitation and

distribution in “areas used by patients, families or

visitors.” To the extent that this covers the cafeteria and

vestibule, the policy would be presumptively unlawful.2

Dated, Washington, D.C. May 11, 2001

Peter J. Hurtgen, Member

National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered

us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

A-13

To organize

To form, join, or assist any union

To bargain collectively through representatives of their

own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

We will not promulgate or maintain overly broad no-

solicitation or no-distribution rules.

We will not promulgate or maintain overly broad

confidentiality rules.

We will not refuse to permit employees to distribute

literature concerning terms and conditions of employment

to other employees in nonworking, nonpatient care areas

of the hospital during the nonworking time of the

employees involved.

We will not enforce rules regarding solicitation,

distribution, and the posting of materials within the

facility in a discriminatory manner.

We will not in any like or related manner interfere with,

restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

We will rescind the unlawful portions of our

Administrative Policy Manual, our Associate Handbook,

the May 7, 1997 memorandum of Chery]! Barrows, and any

other written directives which prohibit solicitation during

nonworking time in nonpatient care areas of the hospital

and/or which prohibit distribution during nonworking

time in nonworking, nonpatient care areas of the hospital.

We will rescind the unlawful portions of the

“confidentiality policy” in our Associate Handbook, which

prohibit our employees from discussing wages, hours, or

other terms and conditions of employment with each other

or with their collective-bargaining representative.

A-14

Brockton Hospital

ALJ DECISION

A. Susan Lawson, Esq., for the General Counsel.

Arthur Murphy, Robert H. Morsilli, and David Powilatis,

Esqs. (Murphy, Hesse, Toomey & Lehane), of Boston,

Massachusetts, for the Respondent.

Jack J. Canzoneri, Esq., of Newton, Massachusetts, for the

Charging Party.

DECISION

Statement of the Case

Martin J. Linsky, Administrative Law Judge.

On April 10 and December 3, 1997, a charge and

first amended charge were filed in Case 1-CA-35136 and

on December 12, 1997, a charge was filed in Case

1-CA-35875. The Charging Party in each case was the

Massachusetts Nurses Association (Union) and the

Charged Party was Brockton Hospital (Respondent).

On April 14 and May 20, 1998, the National Labor

Relations Board, by the Regional Director for Region 1,

issued a consolidated amended complaint and

amendment, respectively, alleging that Respondent

violated Section 8(a)(1) and (3) of the National Labor

Relations Act (the Act) when since October 11, 1996, it

maintained an overly broad no-solicitation/no-

distribution policy and an overly broad policy regarding

confidentiality, when on March 20 and 27, 1997, it

prohibited employees from distributing union literature at

the hospital, when on May 7, 1997, it published an overly

broad no-solicitation policy, when it enforced its no-

A-15

posting rule in a discriminatory fashion, and when it gave

its employee, Terry Corcoran, a performance evaluation

with unfavorable comments in it and a reduced score in

some rated areas.

Respondent filed an answer in which it denied it violated

the Act in any way.

Trial was held before me over 8 days between November 2

and 20, 1998.

On the entire record in this case, to include posthearing

briefs submitted by the General Counsel, Respondent, and

the Charging Party and, on my observation of the

witnesses and their demeanor, I made the following

Findings of Fact

I. Jurisdiction

At all material times Respondent, a corporation with an

office and place of business in Brockton, Massachusetts,

has been engaged in the operation of an acute care

hospital.

Respondent admits, and I find, that Respondent meets the

Board’ jurisdictional standards and that it is an employer

engaged in commerce within the meaning of Section 2(2),

(6), and (7) of the Act and is a health care institution

within the meaning of Section 2(14) of the Act.

II. The Labor Organization Involved

Respondent admits, and I find, that the Union is a labor

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

A-16

Ill. The Unfair Labor Practices

A. Overview :

Brockton Hospital, the Respondent, is an acute care

hospital. The Massachusetts Nurses Association, the

Union, is a Union, which represents close to 400 registered

nurses who work at Brockton Hospital. When I refer in

this decision to nurses I mean registered nurses in the unit

and not supervisory nurses, licensed practical nurses, or

nurse aides. Respondent has recognized the Union as the

collective-bargaining representative of its nurses since

approximately 1980.

There are a number of unfair labor practices

alleged in this case and for the most part they concern the

issue of communication between the nurses and their

Union and communications between nurses. In other

words a good deal of this case deals with issues of

solicitation and distribution.

A collective-bargaining agreement between

Respondent and the Union was in effect from October 19,

1994, to October 18, 1997.

B. Distribution of Union Literature by Nurse Employees to

Other Nurse Employees

In the early part of 1997 the Union began what it

called its “safe care campaign.”

On March 5, 1997, the Union held a meeting at the union

hall. All nurses in the unit were invited to attend. The

principal subject matters to be discussed were the “safe

care campaign” and the upcoming negotiations for a new

contract. Approximately 100 of the close to 400 nurses in

the unit attended the meeting and 40 of them volunteered

to help in the “safe care campaign.”

A-17

The union official most connected with the “safe

care campaign” and negotiations for a new contract at

Respondent's facility was Stephanie Craig Francis. A

former nurse, Francis is a full-time empioyee of the Union.

Francis credibly testified that because of managed

care, which is an approach to health care delivery which

places heavy emphasis on efforts to contain costs, changes

were taking place in the nursing profession and in the

health care area generally which heavily impacted on

nurses. Among the trends in the delivery of health care

were the use of nonprofessional staff to do what

traditionally had been done by nurses and the fact that

managed care had the result of getting patients out of the

hospital sooner and that hospital stays for patients were

shorter than they had been heretofore. Francis testified,

and was corroborated by Respondent's president and chief

executive officer, Norman Goodman, that patients in an

acute care hospital as a result of managed care had shorter

stays in the hospital and were sicker. As a result nurses

had to work harder.

Respondent back in 1996 wanted to reduce costs

and there was an agreement reached between Respondent

and the Union for nurses to voluntarily cut their hours. A

number of nurses did. However, the number of patients

did not reduce in number as expected and patients in the

hospital were sicker and in more need of care and as a

result the Union perceived that there would be staffing

shortages and more mandatory overtime. The Union

perceived that these issues would be brought up at

upcoming bargaining sessions for a new collective-

bargaining agreement at Brockton Hospital.

The Union wanted to educate the nurses in the unit

about trends in the nursing field and also to prepare the

nurses for the upcoming negotiations for a new contract

later in the year. These trends were nationwide trends and

A-18

not peculiar to Brockton Hospital or even New England.

Beginning on Thursday, March 20, 1997, and

continuing for the following nine Thursdays nurses

handed out literature at the hospital. The distribution was

done on Thursdays, which was payday. The distributions

were to be done at the three shift changes, i.e., around 7

a.m., 3 p.m., and 11 p.m. For a period of 15 minutes or so

before and for 15 minutes or so after the three shift

changes the nurse volunteers would hand out literature to

incoming and outgoing nurses. The nurses passing out the

literature and those receiving the literature would all be

off duty at the time of the distribution.

The literature was to be offered only to members of

the unit and not to doctors, nurse supervisors, or other

hospital staff. The literature was not to be offered to

patients, family members of patients, friends of patients,

vendors doing business at the hospital, or visitors. If the

nurse distributing the literature knew the person as a

nurse in the unit the nurse could be given the literature. If

the nurse distributing the literature did not know the

person they were to make sure it was a nurse in the unit

before they were to distribute the literature to that person.

The nurses handing out the literature and those receiving

it were all employees of Respondent.

The dates of distribution were:

(1) March 20, 1997 (6) April 24, 1997

(2) March 27, 1997 (7) May 1, 1997

(3) April 3, 1997 (8) May 8, 1997

(4) April 10, 1997 (9) May 15, 1997

(5) April 17, 1997 (10) May 22, 1997

Copies of the literature distributed was received in

evidence as General Counsel’s Exhibit 10(a-k).

Stephanie Craig Francis credibly testified that the

literature was to be distributed just to nurses in the unit by

the unit employee nurses in order to educate the nurses

A-19

about trends in the nursing profession and to prepare the

nurses for upcoming negotiations for a new contract.

Nurses Tina Russell, Barbara Cooke, Carolyn Anderson,

Rinette Nadeau-Bates, Terry Corcoran, and Linda Guild,

all of whom distributed literature, credibly corroborate

Francis as to the reasons for the distribution.

On March 20 and 27, 1997, the nurses distributing

literature in the front vestibule of the main entrance to the

hospital were told they could not distribute literature at

that location. Indeed they may have been told that they

could not distribute the literature on Hospital property.

On March 20, 1997, it was Nurse Manager Michelle

McArthur who told nurses Terry Corcoran and Rinette

Nadeau-Bates that they must “cease and desist” from

handing out literature in the front vestibule.

On March 27, 1997, it was Respondent's president

and chief executive officer, Norman Goodman, who told

nurses Barbara Cooke and Carolyn Anderson that they

could not distribute literature in the vestibule and he

added “without a court order.” Both Cooke and Anderson

testified that Goodman said the literature couldn’t be

distributed without a court order and Goodman couldn't

recall if he said that or not but admits that he said they

could not distribute the literature.

Distribution in the vestibule was permitted by

Respondent for the remainder of the 10-week campaign

but Respondent persisted in its position that nurses can

not distribute literature in the vestibule.

The literature consisted of compilations of articles

from nursing journals, newspapers, and magazines. The

articles address the issues of the adverse effect on patients

caused by downsizing and restructuring of nursing staff

and the use of nonprofessional employees giving the care

and treatment that used to be the sole province of nurses.

The literature distributed contained selected

A20

articles from newspapers with headlines such as “A

shortcut that killed a patient,” “A feeding tube in wrong

hands leads to death,” “A castrophe waiting to happen,”

“Tale of 2 hospitals, Children’s undertakes reorganization

similar to a plan that failed in Dallas,” “Hospitals are

replacing nurses with lesser-trained, lower-paid aides.

Will patients pay the price?” “Who’s watching? Hospitals

are left on their own in setting standards for aides,” “A

mistake leads to baby’s death,” “Nurses take to the courts

in fight with hospital’s cost-cutting,” and “Protecting

Patients, curing the ills that cost cuts cause.” None of the

articles mentioned Brockton Hospital by name and it is

agreed by all the parties to this litigation that the articles

did not refer to Brockton Hospital as being the hospital

where any of the mishaps in the articles happened.

Respondent called three witnesses who credibly

testified that if patients or their families saw these articles

they could become upset and anxious and it could

undermine the trust that should exist between a patient

and the medical staff treating the patient and could impact

adversely on the patient. The three witnesses were Dr.

David Leiman and Dr. Burton Polansky, who are on staff

at Brockton Hospital, and nurse consultant and former

nurse Anne Cavanaugh who does not work at Brockton

Hospital but is a consultant. All three reviewed the

literature that was distributed and said it could impact

adversely on patients and family and Dr. Leiman went on

to say it could upset even the staff at the hospital.

The articles in the literature that was distributed

came from nursing journals available to the nurses and

from newspapers or magazines available to the general

public.

The record reflects that Respondent does not censor the TV

watched in the hospital by patients and visitors nor does it

censor newspapers which contain articles such as the ones

A2l

contained in the literature distributed by the nurses nor

does it censor the nurses bringing into the hospital

professional nursing journals which contain articles

similar to the ones in the literature distributed by the

nurses at Brockton Hospital. Indeed the hospital gift shop

itself sells newspapers and magazines containing articles

similar to those distributed and a cart is pushed through

the hospital and patients and visitors can buy newspapers

and magazines from the cart that sometimes carry the

same types of articles distributed by the nurses.

Respondent suggested that the Union mail the

literature to the nurses and Respondent would furnish free

mailing labels. The Union wanted to hand deliver the

literature rather than mail it to the nurses because handing

it to the nurses would involve interpersonal contact and

there would be a greater chance that the nurse would read

the material handed him or her than read material

received in the mail at home.

Although witnesses for Respondent testified that

they would not want this literature to fall into the hands of

_ patients or their families there was not a shred of evidence

that any patient or family member saw any of this

literature. Robert Nolet, Respondent's director of

environmental sErvices, testified that one of his staff,

Donna O’Connor, who did not testify, gave him some of

the literature which, according to Nolet, O'Connor

claimed to have picked up in the lobby. The lobby contains

couches and chairs and is used by patients and family and

visitors. However, there was evidence from Nolet that the

lobby was frequently policed by the cleaning staff and

there was no evidence any patient or family or visitors

ever picked up and read or even saw the literature. The

nurses did not distribute literature in the lobby but did in

the vestibule, which leads into the lobby.

The hospital received no compiaints about the

A22

literature from any patient or family member of a patient

or any visitor to the hospital.

Cheryl Barrows, Respondent's director of human

resources, credibly testified she was given copies of the

distributed literature gathered by nurse managers in the

nurses’ locker rooms and lounge areas which were off

limits to patients, family members, and visitors.

There was no evidence that any patient was ever disturbed

or inconvenienced by the distribution of this literature.

The literature was handed out at three locations,

i.e., at the front entrance of the hospital and inside the

vestibule, outside the rear entrance of the hospital also

called the BKB entrance, or Barbara Keith Building

entrance, and the Emergency/Outpatient entrance. All

distribution was done outside the hospital except the

distribution in the front vestibule. The front vestibule is a

self-contained area between the lobby and the outside

entry at the front of the hospital. There are a pair of

automatic doors heading into the vestibule from the

outside and another pair leading into the lobby of the

hospital.

Respondent argues that the vestibule is a work

and/or patient care area. A security guard is posted in the

lobby and can look into the vestibule. The guard on

occasion will walk through the vestibule or stand in it but

he will also patrol areas outside the hospital such as the

parking lots. The vestibule contains two benches on which

patients, family, visitors or staff are permitted to sit.

Outside the vestibule are some more benches where

patients, family, visitors or staff can sit. When a person is

discharged from the hospital a member of the

transportation department will take the patient by

wheelchair through the vestibule and to the curb outside

the hospital and help the patient into the car taking the

patient home. Discharges are fairly common but not

A23

constant. There are virtually no discharges at the time of

the first and third shift changes, i.e., 7 a.m. and 11 p.m.

Respondent also claims that doctors sometimes

chat with a patient’s family member in or just outside the

vestibule.

There is also a fire alarm in the vestibule, which is

periodically serviced.

None of these activities could be called patient care

activities. The vestibule and the other areas where the

literature was distributed are not operating rooms or

patient rooms. They are simply not patient care areas and

not even work areas as that phase would be commonly

understood as further discussed below. Interestingly

enough Respondent was unaware that nurses distributed

literature outside the BKB or rear entrance or outside the

Emergency /Outpatient entrance. The nurses did not

distribute literature by the ambulance bay to the

emergency entrance.

The subject matter of the literature that was

distributed clearly involved issue of terms and conditions

of employment and even if some of the literature touched

on political issues it was appropriate and lawful material

to be distributed by the Union to the employees it

represents. See, e.g., Eastex Inc. v. NLRB, 437 U.S. 556

(1978), where the Supreme Court agreed with the Board

that a company violated Section 8(a)(1) of the Act by

prohibiting distribution of a newsletter which urged

employees to write their legislators to oppose

incorporation of the state “right-to-work” statute into a

revised state constitution, criticized a presidential veto of

an increase in the federal minimum wage, and urged

employees to register to vote and “defeat our enemies and

elect our friends.” Clearly the literature distributed at

Brockton Hospital concerned terms and conditions of

employment. Section 7 rights encompass “mutual aid or

A24

protection” and reducing the number of nurses by using

non professionals to do their work and the whole issue of

sicker patients and its impact on nurses are matters of

working conditions critical in importance to nurses.

Board precedent establishes the scope of an

employer's right to promulgate rules limiting the rights of

employees in soliciting and distributing materials at the

workplace. The Board’s rules in that regard may be

summarized as having three key aspects, as follows.

First, an employer is permitted to restrict employees from

soliciting or distributing while working (on worktime) to

the extent that the employer enforces such prohibition on

an even-handed basis for all types of distribution and

solicitation. Thus, absent discriminatory enforcement, an

employer is within its rights under the Act to require that

all solicitation and distribution occur while an employee is

not on worktime. St. John’s Hospital, 222 NLRB 1150 (1976);

Beth Israel Hospital, 223 NLRB 1193 (1976), enfd. 554 F.2d

477 (1st Cir. 1977), affd. 437 U.S. 483 (1978) (applying and

upholding the Board’s rule as established in St. John’s

Hospital); NLRB v. Baptist Hospital, 442 U.S. 773, 778 fn. 8

(1979) (same).

Second, in the context of hospitals, an employer is

presumptively allowed to ban solicitation and distribution

in—what the Board and Courts refer to as— immediate

patient care areas, “such as patients’ rooms, operating

rooms, and treatment rooms as areas of immediate patient

care.” Baptist Hospital, 442 U.S. at 780 (quoting St. John’s

Hospital, 222 NLRB at 1150). An upshot of this is that if a

union in a hospital setting wishes to engage in solicitation

or distribution in “immediate patient care areas” it bears

the burden of proving that such access should reasonably

be granted to its members or that the rule at issue is

enforced discriminatorily against union activity. St. Jolin’s

Hospital, 223 NLRB 1193.

A25

Third, the Board has established different rules

with respect to solicitation and distribution in so-called

“working areas.” On the one hand, an employer is

presumptively permitted to ban distribution (but not

solicitation) in “working areas,” and a union may establish

the right to distribute in a working area only if it proves

that such access should reasonably be granted or that the

distribution ban is enforced discriminatorily against union

activity. On the other hand, an employer is presumptively

prohibited from banning solicitation in working areas, and

an employer who imposes such a restraint does so

unlawfully unless it proves that its banning of solicitation

in working areas was necessary to avoid patient

disruption.

In summary, therefore, an employer may ban

solicitation in “immediate patient care areas” but not

working areas. However, in the case of distribution, the

employer's rights broaden to permit a ban in both working

areas and “immediate patient care areas.” If an employer

bans distribution or solicitation in a nonwork,

nonimmediate patient care area, it bears the burden of

proving that such prohibition is necessary to avoid patient

disruption.

The front vestibule and the area outside the front entrance

are not “immediate patient care areas.” Again, the

distribution was by members of the unit all of whom were

employees of Respondent to other unit employees only.

Near the BKB or rear entrance was a gazebo where

patients and staff could smoke since the interior of the

hospital itself was a smoke free zone. Needless to say, the

area where patients and staff smoked is not an “immediate

patient care area.”

Board precedent has long held that merely because

a work function or functions occur in a given space does

not render that space a “work area” within the meaning of

A26

the Board’s rules regarding distribution. Rather, the Board

has looked at the quality and quantity of work, which

occurs in the area at issue, and examines whether the work

is more than de minimus and whether it involves

production. Thus, for example, in United States Steel Corp.,

223 NLRB 1246 (1976), the Board considered whether an

entire facility and grounds could be considered a work

area and found that it could not.1 Also, in United States

Steel Corp. the Board considered whether an area was a

“work area” within the meaning of the Act by virtue of,

inter alia, the presence of guards patrolling the area, and

other nonproduction workers such as janitors performing

work in such area and held that these duties, performed in

such area, did not render it a “work area” within the

meaning of the Act, reasoning as follows:

The Respondent raises the additional point that

because nonproduction employees, such as janitors

and security workers, perform some tasks in

nonwork areas; these locations are converted into

working areas for the purpose of banning

distributions. In National Steel Corporation, [173

NLRB 401 (1968), enfd. 415 F.2d 1231 (C.A. 6,

1969)], under a similar statement of facts, the

existence of security guards did not convert the

parking lot, streets, passageways, and sidewalks

into working areas as Respondent contends. In

primarily nonworking areas the element of

protecting the production process is not present.

Whether employees are distributing literature or

doing other nonwork functions like washing up,

loitering, or eating, on their own time in areas

designated for these purposes makes no difference

to production or the tasks performed by employees

in these nonwork areas. Respondent's contention that

A27

all its property is a work area is a contention that can be

asserted by every company, thus effectively destroying

the right of employees to distribute literature. Some

work tasks, whether it be cleaning up, maintenance, or

other incidental work, are performed at some time in

almost every area of every company. [Emphasis

added.]

Board precedent in the context of hospitals establish a

similar stance, rejecting the notion that a space is an

“immediate patient care area” or even a “work area”

merely because there is the limited activity of transporting

patients through a doorway, upon discharge. See Medical

Center Hospitals, 244 NLRB 742 (1979).

The Board has not given a comprehensive

definition as to what constitutes an “immediate patient

care area,” Baptist Hospital, 442 U.S. at 780, but in St. Jolin’s

Hospital, 222 NLRB 1150 (1976), enfd. granted in part and

denied in part 557 F.2d 1368 (10th Cir. 1977), the Board

held that immediate patient care areas are not just

anywhere in the Hospital where a patient happens to

appear but rather, more narrowly, areas “such as the

patients’ rooms, operating rooms, and places where

patients received treatment, such as x-ray and therapy

areas.” 222 NLRB at 1150.

Other Board precedent has found that the front

entrance and lobby areas of hospitals are not immediate —

patient care areas or work areas. NLRB v. Harper Grace,

Inc., 737 F.2d 576 (6th Cir. 1984) (front entrance); NLRB v.

Southern Maryland Hospital Center, 293 NLRB 1209 (1989),

enfd. in relevant part 916 F.2d 932 (4th Cir. 1990) (front

entrance); Eastern Maine Medical Center, 658 F.2d 1 (1st Cir.

1984) (lobby); and Albert Einstein Medical Center, 245 NLRB

140 (1979) (vestibule near cafeteria).

Applying the foregoing to the instant case, it may

A28

iiceeteniemeepeaneecineeitaietaniiiintiaitaiiiiitiiiiiil ial

easily be concluded that neither the front vestibule nor the

area outside the admitting/ outpatient entrance nor the

area outside the rear or bKB entrance are work areas or

immediate patient care areas and distribution of literature

can not be prohibited.

C. Overly Broad No-Solicitation and No-Distribution

Policy Contained in Respondent's “ Associate Handbook”

and “Administrative Policy Manual”

It is alleged in the complaint that Respondent

maintained an overly broad no-solicitation/no-

distribution policy in both its “ Associate Handbook” and

its “Administrative Policy Manual.” The “ Associate

Handbook” was adopted in September 1994 and continues

in effect through the trial in this case.

The nurses in the unit are called “ Associates” and

on page 17 of the Associates Handbook, in evidence as

General Counsel's Exhibit 12, is the following language:

Associates shall not canvass, solicit or distribute

literature for any purpose during an associate's

working time or the working time of the associate

at whom such activity is directed.

Working time is defined as those periods in which

an associate is scheduled or assigned for duty. It

does not include authorized lunch time.

This language is overly broad because it does not

specifically exclude from the definition of working time

“break times.” Accordingly, maintaining such a rule was a

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

Respondent maintained since September 1995 an

“Administrative Policy Manual” which contained, in

A29

pertinent part, the following language:

Associates

Associates are prohibited from canvassing,

soliciting, or distributing literature to other

associate [sic].”

This part of the Administrative Policy Manual is in

evidence as General Counsel's Exhibit 11. Again, the

nurses in the unit are called associates and the above-

quoted language is overly broad since it would purport to

prohibit distribution of union literature one unit employee

to another in nonwork areas and non-patient care areas

and purports to prohibit soliciting on nonworking time

such as during lunch or during breaks and the

maintaining of such an overly broad policy is a violation

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

The Respondent attempted to remedy the

unlawfulness of the solicitation and distribution policy

contained in its Administrative Policy Manual by revising

the policy, which was in force at the time the complaint

issued. However, the revision dated June 30, 1997, and

entitled “Solicitation of Associates” remains overly broad.

Respondent's Exhibit 27. In this version, “ Associates are

prohibited from canvassing, soliciting, or distributing

literature to other associates in any areas as defined above

for any purpose during the associate’s working time or the

working time of the associate at whom such activity is

directed.” Under the Policy section, the following

language appears: “Solicitation or distribution of literature

may not occur at any time by associate or outside person

in patient rooms, hallways, corridors and areas used by

patients, families or visitors, patient lounges, any areas

where patients receive treatment, or any work areas.”

A30

While it is true that a hospital may prohibit all solicitation

in “immediate patient care areas,” even when the

employees involved are not on working time, this policy

fails by prohibiting solicitation in any work areas, rather

than just those, which are “immediate patient care areas.”

Employees who are not on working time may engage in

solicitation in work areas, provided the work area is not an

“immediate patient care area.” Also, to the extent that the

policy prohibits solicitation or distribution in “hallways,

corridors, and areas used by patients, families, or visitors,”

it is overly broad. If the hallway, corridor, or area used by

patients, families or visitors is not deemed an “immediate

patient care area,” then solicitation cannot be banned. If

the hallway, corridor, or area used by patients, families, or

visitors is not a work area, then distribution cannot be

banned.

Although there is no evidence that any employee

was disciplined for violating these policies in the Associate

Handbook or Administrative Policy Manual it is clear that

such policies in the context of the unfair labor practices in

this case should be rescinded.

The Associate Handbook is furnished to each new nurse

and the Administrative Policy Manual is maintained at

several locations in the hospital to include nursing

stations.

D. Unlawful Confidentiality Clause in Respondent's

“Associate Handbook”

The Associate Handbook adopted in September

1994 and continuing in effect contained the following

clause at page 17 in General Counsel's Exhibit 12:

Confidentiality

A31

Associate must respect the patient's right to

privacy and respect the confidentiality of

information regarding patients, associates, or

hospital operations. Information concerning

patients, associates, or hospital operations should

not be discussed either inside or outside the

hospital, except strictly in connection with hospital

business.

This confidentiality clause is overly broad since it

would prohibit nurses from discussing hours, wages, and

other terms and conditions of employment with each other

or their union representatives unless they are doing so

“strictly in connection with hospital business.” On its face

it is at least ambiguous. Is a discussion between nurses or

with their union representative on whether or not to

pursue a grievance over a policy at work a discussion

“strictly in connection with hospital business” or not?

The confidentiality clause is ambiguous.

Although there was no evidence that any employee

was ever disciplined for violating this rule it would have a

tendency to cause nurses who read it to believe it

restricted his or her right to discuss hours, wages, and

other terms and conditions of employment.

Obviously Respondent can promulgate a rule

which respects the right of privacy of its patients but

should not promulgate a rule which inhibits employees in

the exercise of their rights under Section 7 of the Act

which rights include the right “to self-organization, to

form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose

of collective bargaining or other mutual aid or protection.”

The confidentiality clause could be amended by

adding to it the following language “ Nothing in this

A32

eS ——— ee

confidentiality clause should be interpreted to interfere

with the rights of associates under Section 7 of the

National Labor Relations Act” or by adding language that

the confidentiality clause “does not restrict employees in

their right to discuss hours, wages, and other terms and

conditions of employment.”

The maintaining of the confidentiality clause in its

present form is a violation of Section 8(a)(1) of the Act. See

Pontiac Osteopathic Hospital, 284 NLRB 442, 465-466 (1987),

and Indian Hills Care Center, 321 NLRB 144, 155 (1996),

where language similar to that in the instant case was

found unlawfully overbroad because it could be construed

to prohibit employees from discussing hours, wages, and

other terms and conditions of employment.

E. May 7, 1997 Memo Regarding Solicitation

As noted above the distribution of literature by

nurses to fellow nurses in the unit began on March 20,

1997, and continued for 10 weeks.

On May 7, 1997, nurse Tina Russell, a member of

the unit who was active in the Union, received a memo

from Respondent's director of human resources Chery]

Barrows.

Barrows’ memo provided, in pertinent part, as follows:

We have asked you not to distribute literature

where patients access the building, and our

position is that such distribution is prohibited and

inappropriate. However, we have not taken steps

to stop your handbilling. This does not change our

position. Since the activity has continued, we want

to reiterate our position. We do not allow

solicitation of any nature in areas accessed by

patients, their families, or visitors. The lobby

A33

functions as a patient waiting area. We restrict any

activity that is disruptive to patients, family

members, and visitors. Any activity that

undermines the confidence of the patients that

come to Brockton Hospital is not in the best interest

of our patients or the community. Our concern is

for our patients. They should be able to seek and

obtain care in a friendly environment where the

sole concern is for their well being.

The prohibition of solicitation of any nature “in areas

accessed by patients, their families, or visitors” is

overbroad.

Respondent may lawfully prohibit solicitation in

immediate patient care areas or in work areas where it can

be demonstrated that the solicitation will be disruptive to

patient care or disturbing to patients. The blanket

prohibition of solicitation in areas merely accessed by

patients and their families, or visitors, including the lobby,

is overly broad and violative of Section 8(a)(1) of the Act.

See Beth Israel Hospital v. NLRB, supra.

F. Incident Involving Posting of Union Literature in

August 1997

The collective-bargaining agreement in effect from

October 19, 1994, to October 18, 1997, contained the

following language in article VI:

The Hospital will provide space on a bulletin board

for posting notices of Association meetings for

nurses covered by the Agreement. Copies of such

notices shall be submitted to Vice President of

Human Resources or his designee prior to their

being posted.

A34

In or about August 1997 nurse Wendy Baron

posted a handwritten notice of a union meeting on her

locker. Her locker is in one of the nurses’ locker rooms and

entry into the locker room is limited to staff only. The

union meeting was to be held at another nurse’s home and

was a meeting just for the 16 nurses in that medical unit

and not a union meeting for the close to 400 nurses who

work at the hospital.

It is uncontested that Administrative Coordinator

Carla McRae, an admitted supervisor and agent of

Respondent, removed the notice of the union meeting and

left the following note for Baron in her mail slot in the

locker room:

Hi Wendy, Union business postings are not to be

posted randomly on lockers. You can with my or

Susan's permission post notices on the bulletin

board.

Susan is another nurse supervisor.

As a result of McRae removing the notice and

Baron not knowing she had done so because Baron was off

work for several days after posting the notice of the union

meeting and as a result knowledge of the meeting did not

get circulated among the nurses and only 4 of 16 nurses

attended the meeting and two of them were Baron and the

nurse at whose house the meeting was to be held.

When Baron spoke with McRae after reading

McRae’s note to her McRae told Baron that with respect to

the Union notice that it was just “slapped together” and

that union notices should be put together more

“professionally.”

It is conceded by all parties to the litigation that the

practice at the hospital was that union meeting notices

could be posted in the locker room but the person posting

A35

it needed permission from management. This is consistent

with the collective-bargaining agreement. However, the

credible and uncontradicted testimony of numerous nurse

witnesses was that all sorts of material was posted on

lockers without prior permission and were not removed

by management, e.g., girl scout cookie sales, school fund

raising notices, pictures, all types of announcements,

letters from patients, etc.

It would be unlawful for Respondent to permit all

manner of postings on lockers without management

permission and require management permission only with

regard to union postings. That is the case here and hence I

find a violation of Section 8(a)(1) of the Act. See Lassen

Community Hospital, 278 NLRB 370 (1986).

The offense was compounded by management in

the person of McRae telling a union activist that her note

was unprofessional. It is none of management's business

how professional or unprofessional the notice looks and

whether it is typed or handwritten. If the union meeting

notice contained obscene language that would be a

different story but it did not.

The allegations in the complaint regarding the removal of

the notice and the demeaning comments of McRae to

Baron were not contained in any charge alleging the

conduct as unlawful. These allegations should be

dismissed unless I find that they are closely related to the

charges that were timely filed. It is my conclusion that,

under the rationale of Redd-I, Inc., 290 NLRB 1115 (1988),

they are closely related and the allegations will not be

dismissed as untimely within the meaning of Section 10(b)

of the Act. They are closely related because the entire case

involves the issues of communications between the Union

and the unit members and among unit members and all of

the allegations allegedly occurred in 1997 in the months

preceding negotiations for a new collective-bargaining

A36

agreement. I do not find that the Union clearly and

unmistakably waived any right with respect to this matter

by agreeing to the contract language spelled out above

because the notice posted by Baron was not a full

association meeting but just for a small group and the

thrust of the contract language was the duty of

Respondent to provide a place for the Union to post union

meeting notices.

G. Unfavorable Comments and Ratings in Performance

Evaluation of Terry Corcoran

In June 1997, Terry Corcoran, a nurse in the

bargaining unit who had handed out literature beginning

in March 1997, received her annual performance appraisal

from her nurse manager Mary Christian.

Corcoran had worked at Brockton Hospital for 10

years and had over the years received an overall rating of

“2,” i.e., meet expectations, and had received a two in all

rated categories.

In June 1997, Corcoran again received an overall rating of

two, i.e., meets expectations, but received a three, i.e.,

needs improvement, in the categories of “may perform

work of a higher level in preparation for increased

responsibilities” and “may be assigned additional

responsibility in absence of Nurse Manager.” Nurse

Manager Mary Christian wrote in the following language

“has difficulty performing charge duties.”

In addition in the comment section of the

performance evaluation form Christian wrote, “Terry is a

24°/wk RN on A4. She is motivated and knowledgeable

concerning her role. Her transition from B3 (Resp.) to A4

(a larger unit w ortho/resp. focus) has moved along well.

Terry is committed to her profession yet does not always

display behavior supportive of the department. Investing

A37

time to work within the system, exploring issues from all

sides could be of benefit.”

On March 20, 1997, Corcoran was involved in an

incident with management when she was handing out

literature in the vestibule of the hospital. Administrative

coordinator Michelle McArthur told Corcoran to “cease

and desist” from handing out the literature. McArthur’s

impression of the encounter in the vestibule is more

benign than Corcoran’s impression. Nurse Renette

Nadeau-Bates supports Corcoran’s version of a somewhat

angry confrontation between Corcoran, who was insisting

on the right to distribute the literature, and McArthur’s

insistence that she not do so and indeed, “cease and

desist” from doing so. I found all women credible but note

that based at least on my observation of Corcoran’s

demeanor when she testified before me that she can

became a little emotional. It is the contention of the

General Counsel that Corcoran’s encounter with

management when Corcoran was engaged in the

protected concerted activity of lawful distribution of

literature prompted the lower evaluation but I don’t agree.

A number of other witnesses who were active for

the Union and had encounters with management over the

distribution of literature did not receive lower evaluations

from Christian, e.g., Tina Russell and Barbara Cooke.

In addition, Mary Christian, who evaluated

Corcoran, credibly denied that Corcoran’s union activities

had anything to do with the evaluation.

Christian gave Corcoran two “threes” (needs

improvement) because of Corcoran’s difficulty in

performing charge nurse duties.

It is uncontested that Corcoran told Christian that

she (Corcoran) did not like being a charge nurse, i.e., a line

nurse who is in charge of the floor during a shift. Christian

credibly testified that registered nurses who worked 40,

A38

32, or 24 hours a week, Corcoran was a 24-hour-a-week

nurse, were all called upon periodically to be the charge

nurse. It is also undisputed that one day when Corcoran

had charge duty it was quite busy and Corcoran had a

breakdown on the floor. Corcoran broke down in tears and

had to see Christian. Corcoran cried again in front of

Christian and Christian counseled Corcoran and told her

that they should look at the problem and fix it. Based on

Corcoran’s breakdown and all evidence points to the

breakdown occurring in the rated period, it was not

unreasonable to write that she had “difficulty performing

charge duties” as Christian wrote.

The other comments on the evaluation were

prompted by Christian’s belief that Corcoran did not

participate on enough hospital committees and Corcoran

agreed she did not participate on committees because she

was going to college. There was also an incident after

Corcoran’s encounter with McArthur in the hospital

vestibule when Corcoran said, “here comes the Gespato”

referring to nurse supervisors Kim Walsh and Michelle

McArthur. Corcoran didn’t even remember saying the

words but Walsh and McArthur testified she said it and

active union member Barbara Cooke confirmed that

Corcoran said it. Even Corcoran believes she said it after

Cooke corroborated it for her sometime before the trial in

this case.

Based on the testimony of Cooke I believe that Corcoran

said, “here comes the Gestapo” but didn’t intend for

Walsh and McArthur to hear it. However, I credit Walsh

and McArthur when they testified that they heard it and

thought it was intended for them to hear it. Suffice it to say

Walsh told Christian about the incident prompting

Christian to consider it in her comments on the evaluation.

Christian also credibly testified that Corcoran

complained about the merger of two units at the hospital

A39

(B3 and A4) without, in Christian’s opinion, offering any

concrete proposals. This was also taken into account when

Christian prepared the evaluation. Suffice it to say I credit

Christian’s testimony that Corcoran’s union activity was

not a factor in the evaluation she gave Corcoran.

In 1998 Corcoran received all “2s” (meets

expectations). In addition, this lower evaluation in 1997

did not result in Corcoran losing any money or hours and

in any way jeopardized her job security or nursing career

with Brockton Hospital.

I find that the Act was not violated when Corcoran

received the evaluation she received.

Remedy

The remedy in this case should include a cease-and-desist

order, the posting of an appropriate notice, and the

revocation of certain overly broad written policies of

Respondent.

Conclusions of Law

1. The Respondent, Brockton Hospital, is an employer

engaged in commerce within the meaning of Section 2(2),

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

2. The Union, Massachusetts Nurses Association, is a labor

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

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

(a) When it promulgated and maintained overly

broad no-solicitation/no-distribution rules in its

“Administrative Policy Manual” and “ Associate

Handbook.”

A40

(b) When it promulgated and maintained an overly

broad confidentiality rule in its “ Associate

Handbook.”

distribute literature concerning terms and

conditions of employment to other employees in

nonworking, nonpatient care areas of the hospital

during the nonworking time of the employees

involved.

(d) When it discriminatorily enforced a policy of

removing union notices from a nurse’s locker while

permitting other material to be posted on nurses’

lockers and when it told an employee that a union

meeting notice was “unprofessional.”

4. The unfair labor practices committed by Respondent

effect commerce within the meaning of Section 2(6) and (7)

of the Act.

On these findings of fact and conclusions of law and on

the entire record, I issue the following recommended2

ORDER

The Respondent, Brockton Hospital, Brockton,

Massachusetts, its officers, agents, successors, and assigns,

shall

1. Cease and desist from

(a) Promulgating and maintaining overly broad no-

solicitation / no-distribution rules in its “ Administrative

Policy Manual” and “ Associate Handbook.”

A4l

(b) Promulgating and maintaining an overly broad

confidentiality rule in its “ Associate Handbook.”

concerning terms and conditions of employment to other

employees in nonworking, nonpatient care areas of the

hospital during the nonworking time of the employees

involved.

(d) Discriminatorily enforcing a policy of removing union

meeting notices from nurses’ lockers while permitting

other material to be posted on nurses’ lockers and telling

employees that a union meeting notice was

unprofessional.

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

restraining, or coercing its employees in the exercise of

their Section 7 rights.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Rescind the unlawful portions of the “Administrative

Policy Manual,” “ Associate Handbook,” May 7, 1997

memorandum of Cheryl Barrows and any other written

directives which prohibit solicitation or distribution

during nonworking time in nonworking, nonpatient care

areas of the hospital.

(b) Modify the confidentiality clause in the “ Associate

Handbook” to make it clear that unit employees may

discuss hours, wages, and other terms and conditions of

employment with their fellow employees and

representatives of their union.

A42

-(c) Within 14 days after service by the Region, post at its

Brockton Hospital facility in Brockton, Massachusetts,

copies of the attached notice marked “ Appendix.”3 Copies

of the notice, on forms provided by the Regional Director

for Region 1, after being signed by the Respondent's

authorized representative, shall be posted by the

Respondent immediately upon receipt and maintained for

60 consecutive days in conspicuous places including all

places where notices to employees are customarily posted.

Reasonable steps shall be taken by the Respondent to

ensure that the notices are not altered, defaced, or covered

by any other material. In the event that, during the

pendency of these proceedings, the Respondent has gone

out of business or closed the facility involved in these

proceedings, the Respondent shall duplicate and mail, at

its own expense, a copy of the notice to all current

employees and former employees employed by the

Respondent at any time since March 20, 1997.

(d) Within 21 days after service by the Region, file with the

Regional Director a sworn certification of a responsible

official on a form provided by the Region attesting to the

steps that the Respondent has taken to comply.

‘Dated, Washington, D.C. March 25, 1999

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered

us to post and abide by this notice.

Section 7 of the Act gives employees these rights: <

A443

To organize a

To form, join, or assist any union

To bargain collectively through representatives of their

own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

Section 7 of the Act gives employees these rights.

To engage in self organization;

To form, join, or assist any unions;

To bargain collectively through representatives of their

own choosing;

To act together for other mutual aid or protection;

To choose not to engage in any of these protected

concerted activities.

We will not do anything that interferes with, restrain, or

coerces our employees in their exercise of these rights.

More specifically,

We will not promulgate or maintain overly broad no-

solicitation/no-distribution rules.

We will not promulgate or maintain an overly broad

confidentiality rule.

We will not refuse to permit employees to distribute

literature concerning terms and conditions of employment

to other employees in nonworking, nonpatient care areas

of the hospital during the nonworking time of the

employees involved.

We will not enforce rules regarding solicitation,

distribution, and the posting of materials within the

facility in a discriminatory manner.

We will not tell employees that their union meeting

notices are “unprofessional.”

We will not in any like or related manner interfere with,

restrain, or coerce our employees in the exercise of rights

guaranteed by Section 7 of the Act.

A44

We will rescind the unlawful portions of the

“Administrative Policy Manual,” the “Associate

Handbook,” the May 7, 1997, memorandum of Cheryl

Barrows and any other written directives on which

prohibit solicitation or distribution during nonworking

time in nonworking, nonpatient care areas of the hospital.

Brockton Hospital

[1] The Respondent has requested oral argument. The

request is denied as the record, exceptions, and briefs

adequately present the issues and the positions of the

parties.

[2] The General Counsel has excepted to some of the

judge's credibility findings. The Board's established policy

is not to overrule an administrative law judge's credibility

resolutions unless the clear preponderance of all the

relevant evidence convinces us that they are incorrect.

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the

record and find no basis for reversing the findings.

[3] In adopting the judge’s finding that the Respondent

violated Sec. 8(a)(1) by maintaining an overly broad

confidentiality policy, which is cited at sec. III,D, par. 1, of

his decision, we do not pass on the judge’s suggested

revisions to that policy.

In adopting the judge’s recommended dismissal of the

complaint allegation that the Respondent violated Sec.

8(a)(3) and (1) by its 1997 performance appraisal of

employee Terry Corcoran, in sec. III,G of his decision, we

rely additionally on the undisputed testimony by Nurse

Manager Mary Christian that Corcoran’s overall

evaluation of “meets expectations” was not affected by the

A45

fact that she was rated “needs improvement” in the two

areas of “may perform work of a higher level in

preparation for increased responsibilities” and “may be

assigned additional responsibility in absence of Nurse

Manager,” out of 41 separate evaluation elements.

[4] We have modified the judge’s recommended Order to

more closely reflect the violations found and have issued a

new notice to employees.

[5] The judge also found, and we agree, that the

Respondent violated Sec. 8(a)(1) by prohibiting the

distribution of union literature outside of the BKB and

Outpatient/ Emergency entrance.

[6] Further supporting the judge’s implicit credibility

determinations, the Respondent's May 7, 1997

memorandum to the Union concerning the literature

distributions states that “[w]e have asked you not to

distribute literature where patients access the building.”

(Emphasis added.)

[7] 268 NLRB 394 (1983).

[8] Id. at 395.

[9] 308 NLRB 167 (1992), enfd. 12 F.3d 213 (6th Cir. 1993)

(per curiam).

[10] Id. at 168.

[11] The judge stated, at sec. III,C, par. 7, of his decision,

that the policy, as set forth in the Administrative Policy

Manual, is overly broad because “If the hallway, corridor

or area used by patients, families or visitors is not deemed

A46

an ‘immediate patient care area,’ then solicitation cannot

be banned. If the hallway, corridor or area used by

patients, families or visitors is not a work area, then

distribution cannot be banned.”

[12] Our colleague cites to testimony in this case tending to

show that the nature of health care is changing, and that

patients’ health and medical treatment may be adversely

affected by increased levels of stress and by a lack of trust

between patients and medical professionals. The dissent

asserts, in essence, that patients, their families, and

visitors, must be broadly shielded from “union

organizational campaigns,” which often involve

“controversy, heated debate, and talk of strikes and

industrial strife,” all of which could affect patients’ stress

levels and diminish their trust in their caregivers.

[13] See St. John’s Hospital, 222 NLRB 1150-1151 (1976),

enfd. in part 557 F.2d 1368 (10th Cir. 1977); Eastern Maine

Medical Center, 253 NLRB 224,225-226 (1980), enfd. 658

F.2d 1 (1st Cir. 1981).

[14] Id.

[15] Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).

[16] See NLRB v. Baptist Hospital, 442 U.S. 773, 786-787

(1979) (affirming Board’s order insofar as it found that ban

on solicitation and literature distribution in “any area of

the hospital which is accessible to or utilized by the

public” was unlawful with respect to the hospital's first

floor cafeteria, gift shop and lobbies); Beth Israel Hospital v.

NLRB, supra (rule banning solicitation or distribution of

literature in all public areas violated Sec. 8(a)(1)); Eastern

Maine Medical Center, supra (rule banning solicitation

A47

except during breaktime in nonwork areas was facially

invalid and violated Sec. 8(a)(1)); and St. John’s Hospital,

supra (rule banning solicitation in all areas to which

patients and visitors have access was facially invalid and

violated Sec. 8(a)(1)).

Intercommunity Hospital, 255 NLRB 468, 470-474 (1981),

cited by the dissent, is fully consistent with the principles

articulated above. In that case, the employer maintained a

no-solicitation policy, which provided that

Employees may not solicit or distribute literature,

for any purpose, during working time. Employees

may not solicit or distribute literature, at any time,

for any purpose, in immediate patient care areas.

The Board found that the policy was facially lawful, and

that, in the particular circumstances of that case, the

employer had lawfully applied the policy to its halls and

corridors and to its lobby and waiting room. The Board

was not faced with a sweeping ban on solicitation and

literature distribution of the character present in this case.

Likewise, the Board is not presented, in this case, with the

question of whether the Respondent could lawfully have

applied a facially lawful policy to prohibit solicitation or

distribution of literature in its hallways and corridors. Cf.

Intercommunity Hospital, supra at 472 (halls and corridors

adjacent to patient rooms, operating rooms, x-ray rooms,

and other immediate patient care areas are extensions of

immediate patient care areas in which solicitation

presumptively may be prohibited).

[17] In NLRB v. Baptist Hospital, the Supreme Court

declined to enforce the Board’s order insofar as it

prohibited the Respondent from maintaining rules

restricting solicitation and literature distribution in its

A48

corridors and sitting rooms on patients’ floors. The Board’s

Order in this case does not contain any of the provisions

found objectionable by the Supreme Court in NLRB v.

Baptist Hospital. Accordingly, the Supreme Court's

criticism of that aspect of the Board’s approach to

solicitation and distribution of literature in hospitals, cited

by the dissent, has no bearing on the issues presented in

this case.

[18] Beth Israel Hospital v. NLRB, supra, 437 U.S. at 491. See

also St. John’s Hospital, supra, 222 NLRB at 1151 (“[o]n

balance, the interests of patients well enough to frequent

such areas do not outweigh those of the employees to

discuss or solicit union representation’ ).

[19] Beth Israel Hospital v. NLRB, supra at 501 (quoting

NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957)).

[20] We do not, however, adopt the judge’s statement that

all of the parties conceded that the practice at the hospital

was that union meeting notices could be posted in the

locker room but that the person posting it needed

permission from management. The Respondent's

Administrative Policy Manual provides that employees

must obtain approval from the Respondent's management

before posting information on department bulletin boards

or common area bulletin boards. However, and consistent

with the position of the General Counsel and the Union,

the testimony credited by the judge clearly establishes

that, in practice, “all sorts of material was posted on

lockers without prior permission and were not removed

by management.”

As discussed in the judge’s decision, art. VI of the

1994-1997 collective-bargaining agreement between the

Respondent and the Union provided that the Respondent

A49

“will provide space on a bulletin board for posting notices

of Association meetings for nurses covered by the

Agreement. Copies of such notices shall be submitted to

Vice President of Human Resources or his designee prior

to their being posted.” Pursuant to this clause, the

Respondent provided the Union with access to a bulletin

board in its cafeteria. The judge found, and we agree, that

neither the plain language of this clause nor the record

evidence concerning the parties’ practice under the clause

supports the Respondent's contention that the clause has

any applicability to the posting of union meeting notices,

by individual employees, on an employee’s locker in

employee locker rooms.

[21] Baron testified that she understood McRae’s comment

as a reference to the fact that the notice was handwritten.

[22] In light of our finding that this complaint allegation

should be dismissed on the merits, we do not pass on the

judge’s finding that the allegation, which was not

contained in any timely charge, was not uritimely under

Sec. 10(b) of the Act because it was closely related to a

timely charge under the principles set forth in Redd-I, Inc.,

290 NLRB 1115 (1988).

1 This case does not involve the separate issue as to the

times for solicitation and distribution.

2 My colleagues suggest that I concede that the

Respondent's policies would be presumptively unlawful

under my approach. However, as explained above, I do so

only to the extent that those policies would bar solicitation

and distribution in the cafeteria and vestibule.

1 The Board held:

A50

Respondent contends first that all property at the

South Works and Gary Works constitutes a work

area from which distribution of literature may be

properly prohibited. The General Counsel counters

that this contention is wrong based on the fact that

the property consists of thousands of acres, which

include large parking areas, roadways, walkways,

and open spaces between the various structures on

the land. The buildings themselves contain

lockerrooms, restrooms, lunchrooms, and vending

machine areas. Such places have been found by the

Board to be nonwork areas. See Plant-City Steel

Corporation, [138 NLRB 839 (1962), enfd. 331 F.2d

1231 (6th Cir. 1964)] (parking lots, street

passageways, and sidewalks on plant premises

very similar to Respondent's found to be

nonworking areas); and Rockingham Sleep Wear,

Inc., [188 NLRB 698] (1971)] (production area used

as a lunchroom found to be a nonwork area during

lunch break).

United States Steel Corp., supra at 1247.

2 If no exceptions are filed as provided by Sec. 102.46 of

the Board’s Rules and Regulations, the findings,

conclusions, and recommended Order shall, as provided

in Sec. 102.48 of the Rules, be adopted by the Board and all

objections to them shall be deemed waived for all

purposes.

3 If this Order is enforced by a judgment of a United States

court of appeals, the words in the notice reading “Posted

by Order of the National Labor Relations Board” shall read

“Posted Pursuant to a Judgment of the United States Court

of Appeals Enforcing an Order of the National Labor

Relations Board.”

A5|

APPENDIX B

BROCKTON HOSPITAL v NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2002 Decided June 28, 2002

No. 01-1219

Brockton Hospital,

Petitioner

National Labor Relations Board,

Respondent

Massachusetts Nurses Association,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Arthur P. Murphy argued the cause for petitioner. With

him on the briefs were Gregory J. Walsh and Robert H.

Morsilli.

James M. Oleske, Jr., Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and David

S. Habenstreit, Supervisory Attorney. Anne M. Lofaso,

Attorney, entered an appearance.

Jack J. Canzoneri was on the brief for intervenor.

Before: Ginsburg, Chief Judge, and Rogers and Garland,

Circuit Judges.

B-1

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Brockton Hospital petitions for

review of a Decision and Order of the National Labor

Relations Board holding that the Hospital violated §

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

158(a)(1), by preventing the Massachusetts Nurses

Association (the Union) from distributing literature to its

members at entrances to the Hospital, maintaining

overbroad solicitation, distribution and confidentiality

policies, and removing from the door of a nurse's locker a

notice announcing a union meeting. The Board has cross-

applied for enforcement of its order and the Union has

intervened in support of the Board. We deny the petition

and grant the cross-application for enforcement except

with respect to the alleged but uncharged unfair labor

practice stemming from the removal of the meeting notice.

I. Background

The Union has represented the registered nurses at

Brockton Hospital, an acute care facility, for over 20 years.

In anticipation of the October, 1997 expiration of the

Union's collective bargaining agreement with the Hospital,

the Union began early in that year what it called a "safe

care campaign," part of which involved the distribution of

literature to nurses in the bargaining unit. The literature,

as described by the Board, consisted largely of articles

addressing "the adverse effect on patients caused by

downsizing and restructuring of nursing staff and the use

of nonprofessional employees giving the care and

treatment that used to be the sole province of nurses."

Brockton Hosp. and Mass. Nurses Ass'n, 333 N.L.R.B. No. 165

at 7 (2001). The Hospital reasonably characterizes the

literature as containing "shocking and sensational

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headlines" and focusing upon "horror stories of patient

death and injury due to allegedly unsafe care" at hospitals

other than Brockton.

For ten consecutive Thursdays beginning March

20, 1997 off-duty nurses distributed this literature to other

nurses in the vestibule at the front entrance to the

Hospital, at the rear entrance, and at the

Emergency / Outpatient entrance. The Hospital stopped

distribution in the vestibule on the first two occasions but

thereafter allowed it while making clear its view that it

could lawfully prohibit the practice. In August, 1997 a

Hospital supervisor removed from a nurse's locker a

notice of a union meeting, which notice had been posted

without prior permission.

The Union timely filed unfair labor practice

charges concerning the Hospital's interference with the

distribution of literature, as well as its policies limiting

solicitation and distribution and delineating the nurses'

obligations with regard to confidentiality. The General

Counsel thereafter is- sued a complaint alleging that the

Hospital's (1) ban on distribution in the vestibule; (2)

solicitation and distribution policies; (3) confidentiality

policy; and (4) removal of the union notice each violated §

8(a)(1) of the Act. The ALJ so held, Brockton Hosp., 333

N.L.R.B. No. 165 at 10-12, and the Board agreed, adopting

as its own much of the ALJ's reason ing, id. at 1-3.

II. Analysis

The court reviews the Board's decision

deferentially. We uphold its findings of fact if they are

supported by substantial evidence, see United States Testing

Co. v. NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998), and abide its

interpretation of the Act if it is reasonable and consistent

with controlling precedent, see Local 702, Int'l Bhd. of Elec.

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Workers v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000).

The Hospital challenges all the Board's determinations

that it violated § 8(a)(1). That provision makes it an unfair

labor practice for an employer to "interfere with, restrain,

or coerce employees in the exercise of" their § 7 rights,

among others, to "assist labor organizations ... and to

engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection," 29

U.S.C. § 157. Section 7 "necessarily encompasses the right

effectively to communicate with one another regarding

self-organization at the jobsite." Beth Israel Hosp. v. NLRB,

437 U.S. 483, 491 (1978).

A. The prohibition of distribution

A hospital is presumptively allowed to prohibit the

distribution of literature in any work area and to ban

solicitation more narrowly in "immediate patient-care

areas." NLKB v. Baptist Hosp., Inc., 442 U.S. 773, 778-79

(1979). Outside work areas a hospital may ban solicitation

and distribution only as "necessary to avoid disruption of

health-care operations or disturbance of patients." Id. at

779. In this case the Board determined that the Hospital

unlawfully prohibited employees from distributing union

literature in the vestibule and at the other entrances

because those areas are not work or immediate patient

care areas and the Hospital had not demonstrated that the

prohibition was necessary to avoid disruption or

disturbance. See Brockton Hosp., 333 N.L.R.B. No. 165 at 7-

10. The Hospital attacks these conclusions on several

grounds, none of which we find persuasive.

The Hospital's primary contention is that

prohibiting distribution in the vestibule was necessary to

avoid disturbing patients. The Hospital first argues that

the ALJ, whose opinion the Board adopted on this point,

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failed altogether to address this issue. Not quite. The ALJ's

decision could have been more precise, but we agree with

the Board that it is clear enough the ALJ was of the

opinion the Hospital had not shown a likelihood of

patients being disturbed: The AL] acknowledged that the

Hospital's expert witnesses had "credibly testified that if

patients or their families saw these articles they could

become upset and anxious," but went on to find "there was

not a shred of evidence that any patient or family member

saw any of this literature," the Hospital "received no

complaints about the literature," and "[t]here was no

evidence that any patient was ever disturbed or

inconvenienced by the distribution of this literature." Id. at

7-8.

Turning to the merits, the Hospital argues that it

presented evidence the prohibition was necessary, to wit,

the disturbing nature of the literature; the testimony of

three doctors that if patients saw the literature they could

experience stress and become distrustful; the number of

patients that use the vestibule to enter and exit the

Hospital; and the testimony that literature (which may

have been distributed in the vestibule) was left in various

parts of the Hospital. The Hospital's position is that it was

not required to show actual disruption or disturbance, but

only that the distribution "may adversely affect patients,"

quoting Baptist Hosp., 442 U.S. at 782. Finally, the Hospital

asserts the Board failed to consider "the availability of

alternative means of communication," as required by

Baylor Univ. Med. Ctr. v. NLRB, 662 F.2d 56, 63 (D.C. Cir.

1981). The Board and the Union argue that the Board

reasonably concluded the Hospital failed to show a

likelihood of disturbance.

The Board and the Union concede, and we agree,

that the Hospital had to show only a likelihood of, not

actual, disruption or disturbance, see Baptist Hosp., 442 U.S.

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at 781 n.11; but substantial evidence supports the Board's

decision that the Hospital did not meet even this standard.

The Hospital's experts testified that if patients saw or

heard about the content of the literature they would be

upset, Brockton Hosp., 333 N.L.R.B. No. 165 at 7-8; the

Hospital presented no reason, however, to believe patients

were likely to learn of the content of the literature. As the

Board points out, when the Hospital stopped the nurses

from distributing the literature in the vestibule, the nurses

made clear that they intended to distribute it only to

members of the Union - a practice approved by the

Supreme Court in Beth Israel, 437 U.S. at 503 n.23 - and so

they did. As the Board further notes, the Hospital

produced no evidence that any patient or patient's family

ever saw the literature, and there is no evidence of any

complaint by a patient or a patient's relative. In Beth Israel

the Court found the same lack of evidence regarding

patients being disturbed "[e]specially telling." Id. at 502.

Furthermore, the Board reasonably discounted the

significance of the Hospital's evidence that some literature

was found in the lobby and near the cafeteria because "the

lobby was frequently policed by the cleaning staff and

there was no evidence any patient or family or visitors

ever picked up and read or even saw the literature."

Brockton Hosp., 333 N.L.R.B. No. 165 at 8.

We also agree with the Board that the Hospital's

reliance upon Baptist Hosp., 442 U.S. at 782-86 (upholding

solicitation ban in corridors and sitting rooms) and Baylor,

662 F.2d at 65 (indicating that prohibition of solicitation in

cafeteria during specified times may be lawful), is

misplaced. In both cases, as the Board points out, the

hospital presented evidence that the prohibited activity

was likely to disturb patients or to disrupt operations.

Baptist Hosp., 442 U.S. at 784; Baylor, 662 F.2d at 60 n.5, 62.

Finally, although the availability of alternative means of

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communicating with employees is an important

consideration in some cases, see Beth Israel, 437 U.S. at 505;

Baylor, 662 F.2d at 63-64, we agree with the Board that "the

possible availability of alternative areas for distribution of

union literature is of marginal importance when," as in

this case, "the employer has not demonstrated an impact

on patient care." See NLRB v. Southern Md. Hosp. Ctr., 916

F.2d 932, 936 (4th Cir. 1990).

The Hospital also challenges the Board's conclusion

that the vestibule is not a work area. The Hospital points

out that employees assist discharged patients through the

vestibule, janitors clean the area, and a guard is sometimes

stationed there. Here the Hospital relies upon Pikeville

United Methodist Hosp. of Ky. v. NLRB, 109 F.3d 1146 (6th

Cir. 1997), where the court referred to a patient drop-off

area as a work area. In the alternative the Hospital argues

that the vestibule should be considered part of the lobby,

which it contends is also a work area.

The Board in its order correctly relied upon two of

its prior cases for the proposition that cleaning, guarding,

and escorting patients do not a work area make. Brockton

Hosp., 333 N.L.R.B. No. 165 at 9 (citing United States Steel

Corp., 223 N.L.R.B. 1246 (1976), and Medical Ctr. Hosp., 244

N.L.R.B. 742 (1979)). As for the reference in Pikeville to the

contrary, it is unsupported by any analysis - not

surprising, for the matter seems not to have been disputed,

109 F.3d at 1158 - and the same circuit has since held that

an area in which minimal work occurs is not a work area,

see United Parcel Service, Inc. v. NLRB, 228 F.3d 772, 775-77

(6th Cir. 2000) (check-in area where instructions were

sometimes given to drivers was not a work area); accord

Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 472-73 (5th Cir.

2001) (upholding ALJ's determination that entranceway

with desk at which foreman occasionally sat was not work

area). Finally, the Board's decision to treat the vestibule -

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"a self-contained area between the lobby and the outside

entry," Brockton Hosp., 333 N.L.R.B. No. 165 at 8 - as a room

distinct from the lobby was reasonable. The areas were,

after all, separated by glass doors.

The Hospital next contends there is not substantial

evidence that it prohibited the Union from distributing

literature at the rear and Emergency / Outpatient

entrances. The Hospital concedes that it failed to raise this

issue before the Board, see 29 U.S.C. § 160(e) ("No objection

that has not been urged before the Board ... shall be

considered by the court"), but asks the court to consider

the argument because the ALJ did not make clear that he

found the Hospital had prohibited distribution at those

entrances and therefore the Hospital did not argue to the

Board that it had not prevented distribution there.

Although the ALJ's decision is indeed ambiguous, the

Board's decision is not, see Brockton Hosp., 333 N.L.R.B. No.

165 at 1 n.5; yet the Hospital did not seek reconsideration

by the Board. Consequently, the Hospital's argument is

not properly before the court. See Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982).

Next, the Hospital argues that the literature

distributed by the nurses disparaged the Hospital's

services and its distribution was therefore unprotected

pursuant to NLRB v. Local Union No. 1229, Int'! Bhd. of Elec.

Workers, 346 U.S. 464 (1953) (Jefferson Standard). For two

reasons, we cannot agree. First, as the Board pointed out in

its order, "it is agreed by all the parties to this litigation

that the articles did not refer to Brockton Hospital as being

the hospital where any of the mishaps in the articles

happened." Brockton Hosp., 333 N.L.R.B. No. 165 at 7. In

other words, Brockton's services were not expressly

disparaged. Second, insofar as the implication was that the

same problems could occur at Brockton if it downsized its

nursing staff, that inference could be drawn only by the

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Hospital's nurses, not by the public, because the

distribution was limited to the nurses. In these

circumstances the concern underlying Jefferson Standard,

that activity "reasonably calculated to harm the company's

reputation and reduce its income" rather than further

collective bargaining be excluded from the protection of

the Act, 346 U.S. at 471, simply is not present.

Finally, the Hospital contends that the Board has

ignored its "heavy continuing responsibility to review its

policies concerning organizational activities in various

parts of hospitals," Beth Israel, 437 U.S. at 508. According to

the Hospital, that review should have led the Board to

decide that a hospital may presumptively ban solicitation

and distribution in any area "to which patients, their-

families and visitors have regular access." The Board

clearly did appreciate its continuing duty to keep current

its approach to distribution and solicitation in hospitals; it

simply found "no support in the record for departing from

... Well-settled principles." Brockton Hosp., 333 N.L.R.B. No.

165 at 2. Indeed, the Hospital does not even purport to

have provided evidence that solicitation and distribution

in all areas to which patients, their families, and visitors

have access is disruptive or disturbing. Hence, the Board

was not obligated to change its presumptions, and the

Hospital's only defense of its policies limiting solicitation

and distribution must fail.

B. Confidentiality Policy

The Board held that the Hospital's confidentiality

policy was overbroad and therefore unlawful. That policy

states:

"Information concerning patients, associates [that

is, nurses], or hospital operations should not be

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discussed either inside or outside the hospital,

except strictly in connection with hospital

business." Brockton Hosp., 333 N.L.R.B. No. 165 at

10. The Board held the policy overbroad because "it

would have a tendency to cause nurses who read it

to believe it restricted his or her [sic] right to

discuss hours, wages, and other terms and

conditions of employment." /d.

According to the Hospital, the policy "merely

protects the confidentiality of patient information,"

making the Board's decision contrary to this court's

teaching in Aroostook County Reg'! Ophthalmology Ctr. v.

NLRB, 81 F.3d 209, 213 (1996), and the Board's prior

decision in Lafayette Park Hotel, 326 N.L.R.B. 824 (1998).

Not at all. The policy on its face prohibits nurses from

discussing with each other, let alone Union officials,

"information concerning [themselves]," which the Board

argues the nurses could reasonably read to include their

wages, hours, and working conditions - the very stuff of

collective bargaining. The employer in Aroostook, by

contrast, prohibited discussion only of "office business,"

which the court expressly understood not to cover the

wages, hours, and working conditions of employees. 81

F.3d at 212-13. Considering the terms of the confidentiality

policy in this case, the Board reasonably applied the

standard set forth in Lafayette Park, namely, whether a rule

"would reasonably tend to chill employees in the exercise

of their Section 7 rights," 326 N.L.R.B. at 825.

ad Removal of the union meeting notice

The Hospital argues that the General Counsel

lacked authority to include in the complaint the allegation

that removing the notice of a union meeting violated §

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8(a)(1) because the removal was neither the subject of nor

closely related to any unfair labor practice charge filed by

the Union. Section 10(b) of the Act, 29 U.S.C. § 160(b),

gives the Board the power to issue a complaint only when

"it is charged that any person has engaged in or is

engaging in any ... unfair labor practice." The Supreme

Court has interpreted this provision to allow the Board to

prosecute an allegation not charged if it is "related to those

alleged in the charge." NLRB v. Fant Milling Co., 360 U.S.

301, 309 (1959). Subsequently, this court accepted the

Board's position that § 10(b) allows the Board to pursue an

uncharged or untimely charged allegation if it is "closely

related" to a timely charged allegation, which question

turns upon the examination of three factors: whether the

two allegations (1) involve the same legal theory; (2) arise

from the same factual circumstances or sequence of events;

and (3) would elicit similar defenses. See Drug Plastics &

Glass Co. v. NLRB, 44 F.3d 1017, 1020-21 (D.C. Cir. 1995)

(uncharged allegation); Lotus Suites, Inc. v. NLRB, 32 F.3d

588, 590-91 (D.C. Cir. 1994) (uncharged allegation); Ross

Stores, Inc. v. NLRB, 235 F.3d 669, 672 (D.C. Cir. 2001)

(allegation in untimely charge).

The Board concedes that the Union did not charge

the Hospitai with an unfair labor practice involving the

removal of the notice but argues that the removal was _

closely related to the allegation in the timely charge

concerning the Hospital's interference with the

distributions in March, 1997, and in a charge not otherwise

at issue in this petition concerning a negative performance

evaluation given to a certain nurse. We conclude that the

removal of the notice was not legally or factually related to

any charged allegation and that the Board therefore lacked

authority to pursue a complaint about it.

As the Board observes, removal of the notice and

the prohibition of distribution implicate the same section

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of the Act, § 8(a)(1), but the specific legal basis for each

allegation is different. As the Board itself held, the

prohibition of distribution violated the employees' §

8(a)(1) right to distribute union literature in non-work

areas, whereas the removal of the notice violated § 8(a)(1)

only because the Hospital allowed comparable postings

for other causes. See Brockton Hosp., 333 N.L.R.B. No. 165 at

10-11.

Turning to the factual content of the respective

allegations, we note that the distribution and removal

incidents occurred five months apart, cf. G.W. Galloway Co.

v. NLRB, 856 F.2d 275, 280-81 (D.C. Cir. 1988) (allegations

one day apart not factually linked); and there is no

indication that the employee who posted the notice

participated in the distributions or that the supervisor who

removed the notice in August was involved in stopping

the distributions, cf. Ross Stores, 235 F.3d at 671-74 (same

employee, different supervisor, no factual relatedness). As

the Board points out, both incidents occurred as the Union

was rallying its troops for contract negotiations, but "[t]he

coincidence of ... two separate violations during the same

organizing campaign does not of itself create a close

factual relationship." Id. at 674. So, too, with separate

alleged violations during the same pre-bargaining season.

The Board's conclusion that the allegations are closely

related because they both involve "issues of

communications between the Union and unit members

and among unit members," Brockton Hosp., 333 N.L.R.B.

No. 165 at 11, is pitched at too high a level of generality;

two issues may involve such communications and yet be

factually poles apart.

Finally, the Board argues that the Hospital's

defense of its removal of the notice is similar to one of its

defenses of the ban on distribution - namely, there were

alternative channels of communication open to the Union

B42

and the employees - and to one of its defenses of the

negative performance evaluation - to wit, the Hospital had

a non-discriminatory reason for its action. As to the former

asserted similarity, it is a stretch to say that the Hospital

relies upon the availability of "alternative channels of

communication" in defense of its removal of the notice; in

fact the Hospital's defense is that under their collective

bargaining agreement nurses have no right to post notices

on their lockers. Even if the Hospital could be said to raise

alternative channel defenses to both allegations, however,

the alternative channels are not the same, being the

bulletin board as an alternative to the lockers and mail and

other locations as alternatives to the vestibule. As to the

latter claim of similarity, the Board does not even attempt

to show that the non-discriminatory justifications offered

by the employer in this case are in any way similar beyond

being non-discriminatory, which does little to narrow the

field.

III. Conclusion

The Hospital's petition for review is granted with respect

to removal of the union notice but denied in all other

respects. Accordingly, the Board's cross-petition for

enforcement is granted except with respect to removal of

the notice.

So ordered.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.