Capital Medical Center, (2016)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
Capital Medical Center and UFCW Local 21. Case
August 12, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA
On July 17, 2014, Administrative Law Judge Eleanor Laws issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief. The General Counsel filed an answering brief.
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 exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order.3
This case involves allegations that the Respondent unlawfully interfered with informational picketing by offduty employees at the Respondent’s nonemergency entrances.4 The judge found that the Respondent violated Section 8(a)(1) by attempting to prevent the off-duty employees from picketing, threatening the employees with discipline and arrest for engaging in picketing, and summoning the police to the scene. We agree with the judge, for the reasons she states and those set forth below.
The Respondent is an acute care hospital. The Union, UFCW Local 21, has been the certified collectivebargaining representative of the Respondent’s technical
1 No exceptions were filed to the judge’s recommended dismissal of allegations that the Respondent unlawfully denied employees access to its property to engage in handbilling or other nonpicketing activity.
2 The Respondent 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.
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) of the Act by threatening the employees with discipline and arrest for engaging in picketing activity, we do not rely on the judge’s statement that “Arland felt threatened by Bunting.”
3 In adopting the judge’s recommended remedy, we do not rely on her citation to Teamsters Local 25, 358 NLRB 54 (2012).
We shall substitute a new notice to conform to the violations found by the judge and to the Board’s standard remedial language.
4 For purposes of this decision, we assume arguendo that the employees’ activity constituted picketing within the meaning of the Act.
employees for about 14 years. The parties’ collectivebargaining agreement expired on September 30, 2012, and in September, the Respondent and the Union began bargaining for a successor contract. As of May 2013, a new agreement had not been reached. Frustrated with the state of the negotiations, the Union and some of the employees planned to engage in informational picketing and handbilling on May 20, 2013, the day before a scheduled bargaining session. The goal of the activity was to educate the public and encourage the Respondent to discuss some key issues and settle on a contract. On May 9, the Union provided the Respondent with a notice, pursuant to Section 8(g) of the Act, of its intent to engage in picketing and handbilling on May 20. The activity was scheduled to take place from 6 a.m. to 6 p.m.
The employees decided to distribute handbills at two entrances: the main lobby entrance of the hospital and the physicians’ pavilion entrance.5 The handbillers were instructed to stand to the sides of the doors, not to block entrances, and to avoid emergency entrances and any areas that could impede patient care.
On the morning of May 20, a group of picketers gathered on the public sidewalk adjacent to the hospital driveway.6 At 6 a.m., 20–25 employee picketers dispersed to different locations on the public sidewalk. Until about 4 p.m., no picketing took place at the hospital entrances. From 6 a.m. until about 2 p.m. there were two off-duty employees handing out handbills at the front lobby entrance, two doing the same at the physicians’ pavilion entrance, and others carrying picket signs on the sidewalk bordering the hospital. Between about 3:30 and 4:15 p.m., about 50–60 employees picketed and
5 The handbills stated:
OUR PATIENTS MATTER
We are the health care providers who care for patients at Capital Medical Center.
Right now, we are in contract negotiations with our employer, but wanted to let you know that we are having difficulty reaching a compromise. Management continues to refuse to fix problems that leave us short-staffed and cause us to miss our breaks and meals. In addition, they have been unwilling to support fair wage increases.
We have already voted down a prior offer from management and are back in negotiations.
Supporting hospital workers means standing up for the middle class values that respect the dignity of hard work. This includes fair wages, fair benefits, and dependable hours.
6 The picket signs were two feet by three feet, and stated “Capital Medical Center Workers” at the top and “Informational Picket, UFCW 21” at the bottom. The signs also contained phrases such as: “Fair Wages,” “Fair Contract Now,” and “Respect Our Care.”
handbilled on the sidewalk. The Respondent did not attempt to interfere with this activity.
At about 4 p.m., unit employees Gina Arland and Derek Durfey went to the main lobby entrance with handbills and picket signs. Arland stood about 10–12 feet from the entrance and Durfey stood to her right, farther away from the entrance. Durfey held two picket signs and did not speak with any patients or visitors. Arland tried to remain in line with the outside pillars alongside the entryway, and went past the pillars only when she was handing a handbill to someone. Arland initially attempted to hand out handbills while holding a picket sign, but she ultimately ceased handbilling because she found it too cumbersome. Afterwards, she just held the picket sign. Neither employee patrolled, chanted, or blocked the entrance. The employees were simply standing in the vicinity of the hospital entrance, holding picket signs with the messages “Respect Our Care” and “Fair Contract Now.”
At around 4 p.m., Heather Morotti, the Respondent’s director of human resources, received a report that employees were picketing adjacent to the front lobby entrance. Security Manager Bruce Hillard, accompanied by several security guards, approached the employees. Hillard told Arland she was welcome to stay at the doorway with handbills, but she was not permitted to stand on hospital property with her picket sign. He politely asked her to leave and she politely declined. This scenario repeated itself several times during the next hour.
Morotti and Glenn Bunting, an attorney who was the hospital’s lead bargaining negotiator, followed behind Hillard the third or fourth time he approached the picketers. Bunting told Arland she could be on the property with leaflets but not with her sign. At that point, Durfey went to the sidewalk to get Jenny Reed, the union official who was in charge of the activity. Reed went to the main entrance, accompanied by fellow union representative Cathy MacPhail. Reed expressed her belief that the employees had the right to picket by the entrance, and after a brief conversation outside, Bunting asked Reed and MacPhail to come inside to Morotti’s office. There, Bunting told Reed and MacPhail that the employees needed to leave, and stated that they could face discipline if they remained.
In reply, Reed told Bunting and Morotti that the Union’s attorney, James McGuinness, had told her the employees had the right to picket outside the hospital doors. Bunting called McGuinness and expressed his disagreement. Bunting told McGuinness that if they could not resolve the situation, the Respondent’s options were to discipline the employees or call law enforcement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After the phone call, Morotti consulted with the Respondent’s CEO and they decided they would not issue discipline, but would call the police at 5 p.m. if the picketers were still present near the entrances.
Shortly after the meeting and phone call, Bunting and Morotti returned to the hospital entrance, and Bunting told Arland that she should not be there. Arland recalled being told that she, not the Union, could get in a lot of trouble.7 Durfey and union steward (and employee) Allison Zassenhaus, who had been handbilling near the pavilion entrance, heard Bunting mention calling the police. Durfey returned to the sidewalk after Arland told him that he should leave. At that point, Zassenhaus took Durfey’s picket sign.
Bunting and Morotti went back inside. At 4:59 p.m., James Sen, a hospital security officer, called the Olympia Police Department. At 5:11 p.m., Olympia Police Department Patrol Sergeant Dan Smith arrived at the hospital. Bunting and Morotti came out and told Smith they wanted the picketers removed from the hospital’s premises. Smith spoke to Reed, who told him they were almost done picketing for the day and asked if he was going to arrest anyone. Smith went back and talked to Bunting and Morotti, and told them he could not force the picketers to leave because they were not being disruptive and they were not blocking doors or preventing people from entering the hospital. He encouraged the parties to resolve their differences. Because the picketing was scheduled to end at 6:00 p.m., and that time was approaching, the picketers...
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