N.L.R.B. v. Florida Medical Center, Inc.
| Decision Date | 17 July 1978 |
| Docket Number | No. 77-2538,77-2538 |
| Citation | 576 F.2d 666 |
| Parties | 98 L.R.R.M. (BNA) 3144, 84 Lab.Cas. P 10,708 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA MEDICAL CENTER, INC., d/b/a Lauderdale Lakes General Hospital, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Michael Winer, Supervisor, Anne Andrews, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl Taylor, Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
James S. Bramnick, Miami, Fla., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, Chief Judge, and THORNBERRY and CLARK, Circuit Judges.
This is a complicated and acrimonious dispute arising out of an employee attempt to introduce unionization into a hospital. Pursuant to section 10(e) of the National Labor Relations Act, the petitioner N.L.R.B. seeks to enforce its order finding that respondent Florida Medical Center, which did business as Lauderdale Lakes General Hospital, violated sections 8(a)(1) and (3) of the Act by maintaining and enforcing an overbroad no solicitation rule, threatening employees with reprisal for union activities, and discharging certain employees because of their protected, concerted union activities.
Lauderdale Lakes General Hospital is a 287-bed proprietary facility. In 1974 the hospital hired Bridget Kelly as a graduate nurse. Kelly alleged that when hired she was told that she would receive an automatic wage increase at six months and at one year of employment. Although Kelly received a twenty cent an hour raise when her status changed to registered nurse, she did not receive the expected raise at the end of six months. In September the hospital posted a notice that wage increases would be given on a merit basis. Concluding that she would not receive the automatic raise promised her, Kelly initiated a petition in the form of a letter addressed to the Chief Administrative Officer of the hospital, Dr. Dauer. Kelly circulated the petition in the hospital and gained approximately seventy-five signatures. At one point Kelly showed the petition to the director of nursing services. She also told the director that she had initiated the petition because of the change in wage policy. Although the director declined to read the petition, she knew of its contents from Kelly's explanation. She asked Kelly to stop circulating the petition and proceed through the hospital grievance committee. Kelly was given permission to circulate the petition in the cafeteria and coffee shop only if she would remove her nurses' cap. She circulated the petition in the cafeteria. After she was off duty she returned to the hospital to solicit employees who were clocking out. She was asked to leave, but continued to solicit employees outside of the hospital. The petition was never actually presented to Dr. Dauer.
In October Kelly contacted the Seafarers Union in New York and invited some fellow employees to her home for a meeting with union representatives. Six employees were present and signed union authorization cards. One employee, Carolyn Stern, took some union cards for distribution. Kelly alleged that in mid-October Dr. Dauer told her that she was "playing with dynamite" and that he could have narcotics placed in her car at any time. In late October Kelly was called into a counseling session with two supervisors. The two counselors gave Kelly a form which recommended a fifteen day probationary period on the ground that her attitude was poor. Kelly accused the supervisors of counseling her on orders from Dr. Dauer after one supervisor suggested that her change in attitude resulted from her union involvement. During a further heated exchange she referred to Dr. Dauer as a "Mafia director." The supervisors prepared a memorandum of the interview and sent it to an associate administrator who gave it to Dr. Dauer. The hospital claimed that Dr. Dauer was asked whether the charge was true and vigorously denied it. Two days later Kelly was called into Dauer's office, charged with making the "Mafia" remark and summarily fired. A hospital employee escorted her to collect her belongings and then out of the building. Kelly claimed that she was concerned because she had not been able to complete her narcotics entries before she left the building and that she remained in the hospital parking lot to request that another employee re-enter the building and complete the report. Two hospital administrators came into the parking lot and told her to leave. She refused. The administrators called the police, who arrested Kelly. She was taken to the police station, charged with trespassing, and photographed. The charges were eventually dropped.
Carolyn Stern, who worked in the hospital as a phlebotomist, was also discharged and claimed that the discharge resulted from her union activity. Stern's early record at the hospital was good. She came to work in 1973. She had received a merit raise and a recommendation from one of the doctors at the hospital in connection with a community college application. Stern attended the first union meeting at Kelly's home. Thereafter she passed out authorization cards in the hospital. A supervisor told her that she could not pass out union cards at work. She was reprimanded for discussing the union at the hospital and telling other employees to call her at home for more information. The reprimand took place on October 18. From October to February, Stern's union activity continued without incident. In February she was terminated in an incident involving insult to a patient. The patient had become abusive when Stern could not find a vein from which to draw blood. Stern had responded that the patient needed to lose weight, implying that his obesity rather than her ineptitude was the cause of the problem.
The Board found that the hospital had violated sections 8(a)(1) and (3) by maintaining and enforcing an overbroad no solicitation rule, threatening employees and discharging Kelly and Stern. It ordered the hospital to cease and desist from the enforcement of its no solicitation rule and to reinstate Kelly and Stern with back pay. On appeal, the hospital argues that none of those decisions is supported by substantial evidence.
The hospital's no solicitation rule, contained in section c(7) of its Employee's Manual stated:
Employee solicitation of any kind, the collection of funds, group congregating or participating in activity of other than hospital business shall not be carried out on hospital time or property without special permission of the hospital administrator. Hospital time is defined to mean those hours when an employee is paid to work. EXAMPLE: An off-duty employee can only solicit another off-duty employee.
The hospital employer argues first that the no solicitation rule must be interpreted to cover only solicitation during actual working time and in a working area. We disagree. Facially, the rule applies to the hours when an employee is "paid to work" and to all hospital property. The average hospital employee might reasonably interpret the rule to cover non-working time such as rest periods and coffee breaks. Florida Steel Corporation v. N. L. R. B., 529 F.2d 1225, 1230-31 (5 Cir. 1976). 1 With regard to the time during which employees might engage in solicitation, the rule was inherently ambiguous and we construe that ambiguity against the employer. The rule also applied facially to all hospital property. The record indicates that Kelly was permitted to solicit in the cafeteria and coffee shop, but not in the hallway where other employees were clocking out. On the record before us we conclude that these differences were not the result of any hospital policy designed to protect patients from distressing circumstances, but were the result of ad hoc application of the rule by individual supervisors. We think that the facial ambiguity of the rule taken together with the evidence that it was enforced only against the union and that it did not reflect a coherent hospital policy of protection for patients permit a finding that the rule was overbroad. 2 N. L. R. B. v. Central Power & Light Company, 425 F.2d 1318, 1323 (5 Cir. 1970). We do not disregard the concerns evident in St. John's Hospital and Beth Israel by holding this rule overbroad. The hospital is free to restrict solicitation through a rule that impinges employee's organizational rights only insofar as necessary to insure patient welfare. We only hold today that the rule in the present case reflects no such concern and that its breadth and ambiguity must cause it to fall. We therefore enforce the cease and desist order of the Board with respect to the no solicitation rule.
Dr. Dauer's alleged threat to Bridget Kelly occurred under the following circumstances. Kelly had gone to the telephone switchboard to ask the operator to call in a food order for the night shift. John Ralik, a maintenance engineer at the hospital, was also present in the switchboard area. The switchboard room had two doors opposite each other. Kelly was standing in one of the doors, holding a Manila envelope containing reading materials and cigarettes. Dr. Dauer appeared in the opposite door and announced to the three employees that because of thefts he had moved the pharmacy materials to the doctors' lounge. He asked that the employees watch out for suspicious activity and told them that he had hired an undercover agent to work in the hospital. Dauer, either by word or gesture, appeared to be interested in the envelope Kelly was carrying. She asked whether he wanted to see the contents. At this point Dauer made the crucial remark, "Miss Kelly, you're playing with dynamite." Kelly attempted to follow up the statement, but Dauer told her that if she wished to talk, she would have to come into...
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