Where the hospital failed to show that the off-duty employees’ distribution of union literature at the hospital’s main entrance had an adverse impact on patient care, its prohibition of this distribution was an unfair labor practice.
However, the NLRB erred in finding that the hospital had improperly prohibited union organizers from using the hospital cafeteria. The hospital policy at issue was a no-solicitation policy designed to keep out union representatives and other salesmen. Claims of disparate enforcement inherently require a finding that the employer treated similar conduct differently, and we see a difference between admitting employee relatives for meals and permitting outside entities to seek money or memberships. There was no evidence that the hospital ever allowed salesmen to solicit sales of products to employees in the cafeteria.
We also agree with the hospital that the board incorrectly used the balancing test outlined in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
We also hold that the hospital could legally keep a close eye on the union representatives when they managed to gain entrance into the cafeteria. We therefore deny enforcement to the part of the board’s order which found unlawful chilling and a coercive environment. However, unlike the solicitation claim, substantial evidence supports the board’s conclusion that employer officials went out of their way to chill the union’s activities in the cafeteria.
To summarize, we grant enforcement with respect to the board’s findings on the distribution of union literature, the unlawful surveillance of union reps, and the hospital’s disciplinary rules. However, we deny enforcement with respect to the board’s finding that the hospital unlawfully kept union representatives from soliciting in the cafeteria.
NLRB v. Southern Md. Hospital Center. (Lawyers Weekly No. CA1254 – 21 pp.) (Per Curiam) No. 89-2476, Oct. 15, 1990; On Application for Enforcement of an NLRB Order.