Presbyterian/St. Luke's Medical Center v. N.L.R.B.

• Decision Date: 23 December 1983
• Docket Number: No. 81-2107,81-2107
• Citation: 723 F.2d 1468
• Parties: 115 L.R.R.M. (BNA) 2306, 99 Lab.Cas. P 10,690 PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, St. Luke's Federation of Nurses and Health Professionals, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1468

723 F.2d 1468

115 L.R.R.M. (BNA) 2306, 99 Lab.Cas. P 10,690

PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent St. Luke's Federation of Nurses and Health Professionals, Intervenor.

No. 81-2107.

United States Court of Appeals Tenth Circuit.

Dec. 23, 1983.

Gina Kaiser and Clifton L. Elliott of Elliott, Kaiser & Freeman, Kansas City, Mo., for petitioner.

Jerrold Wohlgemuth, Atty., N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, James D. Donathen, and Allison W. Brown, Jr., Attys., Washington, D.C., on brief), for respondent.

Michael Radzilowsky and Lawrence A. Poltrock of DeJong, Poltrock & Giampietro, Chicago, Ill., adopted brief of respondent, for intervenor.

Before BARRETT, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This case is before us on the petition of Presbyterian/St. Luke's Medical Center (the Center) to review and set aside an order of the National Labor Relations Board (NLRB or the Board) and on the cross-application of the Board for enforcement of its order. The Board found that the Center committed numerous unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (3) (1976) (the Act), and ordered affirmative relief. Based on our review of the record as a whole, we hold that substantial evidence supports the Board's findings and conclusions. Accordingly, we grant enforcement of its order.

I. BACKGROUND

Presbyterian/St. Luke's Medical Center is a multi-facility health care institution with two hospitals in Denver and a third hospital in Aurora, Colorado. The present entity is the result of a July 1979 merger between two formerly separate organizations, St. Luke's Hospital Association and Presbyterian Medical Center. This case involves only the Center's St. Luke's facility, located in Denver.

In July 1979 registered nurses (RNs) and licensed practical nurses (LPNs) at the Center's St. Luke's facility began to discuss union organization. By early September union-authorization card solicitation was underway, and on October 5, St. Luke's Federation of Nurses and Health Professionals (the Union) filed two election petitions with the NLRB. One petition covered RNs; the other covered technical employees, including LPNs. Elections were held January 10, 1980. The RNs voted for union representation and the technical employees voted against it.

During the course of the organizational campaign, the Center engaged in a variety of conduct that prompted the Union to file unfair labor practice charges with the NLRB. The Board issued two complaints which were consolidated and set for hearing before an administrative law judge (ALJ). After six days of testimony, the ALJ determined that the Center had committed a number of unfair labor practices and ordered various types of relief. With a few exceptions, the Board affirmed the rulings, findings, and conclusions of the ALJ. The Board found that the Center had violated section 8(a)(1) of the Act by promulgating, maintaining, enforcing, and threatening to enforce certain no-solicitation and distribution rules; by polling employees with regard to their grievances and creating the impression such grievances would be satisfied in order to discourage employee support for the Union; and by interrogating employees concerning their union activities. It further found that the Center had violated section 8(a)(3) of the Act by discharging registered nurse Lauren Hammond, and by reprimanding or issuing written warnings to Hammond and four other employees. The Board ordered the Center to cease and desist from further violations of the Act, to revoke its no-solicitation rule, to rescind the reprimands referred to above, to offer reinstatement with backpay to Lauren Hammond, and to post in the hospital an explanatory notice indicating the Center's intent to comply with the Board's order. It also ordered that a second election be held among the employees in the technical unit.

For ease of analysis, we shall set forth separately below the facts relating to each violation of the Act.

II. THE UNFAIR LABOR PRACTICES

On review of an NLRB order, a court should grant enforcement if the Board correctly interpreted and applied the law and if its findings are supported by substantial evidence in the record, considered in its entirety. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91, 71 S.Ct. 456, 464-66, 95 L.Ed. 456 (1951); NLRB v. Carbonex Coal Co., 679 F.2d 200, 203 (10th Cir.1982). Section 10(e) of the Act provides that as to questions of fact, the findings of the Board are conclusive if supported by "substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e) (Supp.1981). Substantial evidence has been defined as " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Universal, 340 U.S. at 477, 71 S.Ct. at 459 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) ). Although the statute does not expressly limit the scope of our review concerning questions of law, "the experienced judgment of the Board is entitled to great weight." Crane Sheet Metal, Inc. v. NLRB, 675 F.2d 256, 257 (10th Cir.1982). We are not free to overturn the Board's decision because we might have decided the matter differently. NLRB v. Pepsi-Cola Bottling Co. of Topeka, 613 F.2d 267, 270 (10th Cir.1980); see Universal, 340 U.S. at 488, 71 S.Ct. at 464-465; NLRB v. Albion Corp., 593 F.2d 936, 939 (10th Cir.1979). Rather, it is our responsibility to ascertain that the Board acts within reasonable bounds and that the supporting evidence is truly substantial. Universal, 340 U.S. at 490, 71 S.Ct. at 465-466; Pepsi-Cola, 613 F.2d at 270.

A. Section 8(a)(1) Violations

It is an unfair labor practice under section 8(a)(1) of the Act for an employer "to interfere with, restrain, or coerce employees" in the exercise of the rights of self-organization and collective bargaining guaranteed by section 7 of the Act. 29 U.S.C. Sec. 158(a)(1) (1976); see id. Sec. 157. The test for violations of section 8(a)(1) is not whether an attempt at coercion has succeeded or failed, but "whether the employer engaged in conduct which reasonably tends to interfere with, restrain, or coerce employees in the free exercise of their section 7 rights." NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 689 (7th Cir.1982); see Hedstrom Co. v. NLRB, 629 F.2d 305, 314 (3d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981).

1. The No-Solicitation Rules

During the period that organizational activity was underway at St. Luke's, the Center maintained at various times three different no-solicitation/distribution rules. The Board found each of the rules facially invalid and determined that the Center had violated section 8(a)(1) of the Act by promulgating, maintaining, and enforcing the rules. The Center apparently does not contest the Board's finding as to the first rule, which was in effect from mid-April to mid-September of 1979. Accordingly, we confine our analysis to the two subsequent rules, designated herein as Rules Two and Three.

Rule Two, issued on or about September 15, 1979, provided:

"Because our patients are in areas throughout the hospital and because our medical staff has determined that tranquility is essential to proper patient care, the Medical Center, in cooperation with the medical staff, has adopted the following rule:

Except to solicit participation in official Medical Center employee programs, no employee shall solicit any other employee of the Medical Center for any purpose at any time in any area to which patients have access. This prohibition includes, among other areas, hallways, stairs, waiting rooms, elevators, and patients' and visitors' lounges.

Employees may engage in solicitation of other employees only when both employees are on non-working time and only in areas to which patients do not have access.

No employee shall distribute any matter of any kind in any areas of the Medical Center except in non-working areas to which patients do not have access.

At no time shall any employee solicit any patient or visitor for any purpose, nor shall any employee distribute any matter to patients or visitors.

This prohibition does not apply during non-working time in the cafeterias at any of the campuses, or during non-working time in the coffee shop at the Denver Presbyterian campus between the hours of 8 p.m. and 8 a.m."

Rec., vol. III, at 1430-31.

On or about October 18, 1979, the Center again revised its no-solicitation rule. Rule Three provided:

"Effective immediately the following rule will be in effect at all locations in the Medical Center.

Employees will not engage in any activity during their on-duty time which takes them away from devoting full attention to their responsibilities.

Employees shall not engage in solicitation of other employees on either the working (on duty) time of the employee doing the solicitation or the employee being solicited.

Employees shall not distribute any matter on their working time or in any working area.

The rule will be strictly enforced.

This rule is less restrictive than the rule which has been in effect because we believe employees will use reason and good judgment in all areas of the Medical Center, particularly those areas of patient care and where patients and their visitors have access. Naturally any activity which is disruptive to the care of the patient or atmosphere of patient care will not be tolerated."

Rec., vol. III, at 1431 (emphasis in original).

It is well established that "the right of employees to self-organize and bargain collectively ... necessarily encompasses the right effectively to communicate with one another...