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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1105

## Text

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.

ll

A

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

iV

COURT RULES

Supreme Court Rule 29.6 ii

et 1
—_.
—_s

Supreme Court Rule 14.1(f)

4

TABLE OF AUTHORITIES
STATUTES
28 U.S.C. §1254(1) 1
29 U.S.C. §157 1-2, 18-
21
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

vi

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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

16

14

20

20-21

20

20

14

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

IO

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.

3

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

Sang aulla ce tl cit tae tela SA

Beet ASA eta aaah KO any iOS Ried ENA

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

ps SRA Catt det iecatee RARE EAS

EGE Ae TE lS a RE See ith CA MTR DANE

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’

10

|

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.

11

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

12

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.

13

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

14

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

15

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

16

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.

17

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

18

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.”

20

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.

21

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

22

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

ee

—

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

i
:

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

Ee

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

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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

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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.

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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

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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

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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

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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.”

(c) When it refused 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.

(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.”

(c) Refusing 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.

(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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0500%3A1. Public record. Not legal advice.