STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA NURSES ASSOCIATION, )

)

Petitioner )

)

vs. ) CASE NO. 76-389

) PERC NO. 8H-CA-752-0164

SOUTHEAST VOLUSIA HOSPITAL )

DISTRICT, )

)

Respondent, )

)

RECOMMENDED ORDER

The trial in this proceeding, with all parties present, was held before me in New Smyrna Beach, Florida, on May 17, 1976, with all parties represented, upon the Acting General Counsel's complaint and notice of hearing issued May 3, 1976, pursuant to a charge filed on November 6, 1975, by the Florida Nurses Association (herein sometimes referred to as FNA).

APPEARANCES

For Petitioner: Gerald Williams, Esquire and Public Employees Jane Rigler, Esquire Relations Staff Attorneys for Commission: Jack L. McLean, Jr.

Acting General Counsel

2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

For Respondent: William E. Sizemore, Esquire

First Financial Tower Post Office Box 3324 Tampa, Florida 33601

The Respondent filed an Answer on May 12, 1976, denying the commission of any unfair labor practices. In general the issues raised by the pleadings are

1. whether the Respondent promulgated and enforced a no solicitation - no distribution rule violative of Section 447.501(1)(a), F.S., and (2) whether the Respondent unlawfully threatened its employees that they would not receive an annual cost of living increase because of their organizational activity in violation of Section 447.501(1)(a), F.S.

   
   

   Upon the entire record, upon my observation of the witnesses and their demeanor while testifying and upon careful consideration of the arguments and the briefs submitted by the parties, 1/ I make the following:

   
   

   FINDINGS OF FACT

   
   

   Jurisdiction

   1. The Respondent, a special district, is engaged in the operation of a hospital in New Smyrna Beach, Florida. Based on the pleading and the admissions contained therein, I find that the Respondent is a public employer within the meaning of Chapter 447, F.S., and was such at all times material herein.

      
      

      The Labor Organization Involved

      
      

   2. The Florida Nurses Association, hereinafter sometimes called FNA or the Association is, based on the pleadings and the admissions contained therein, an employee organization within the meaning of Section 447.203(10), F.S.

      
      

      The Alleged Unfair Labor Practices Introduction

   3. Briefly this case concerns itself, in the main, with the measures taken by Respondent in the promulgation of its no solicitation - no distribution rule and secondly whether or not the employees were unlawfully denied a cost of living increase in an effort to thwart their organizational activities. The complaint alleges, and the General Counsel and the Association contend that the no solicitation rule is invalid on its face in that it contains an absolute prohibition on solicitation during working hours without any clarification or distinguishing of the phrases "working hours" and "working time", citing Essex International, Inc., 211 NLRB No. 112, 86 LRRM 1411, 1412 (1974) and May Department Stores, 15 LRRM 173 (1944). The contention is additionally made by the General Counsel that while the NLRB has recognized exceptions to a general rule containing a broad restriction in the interest of business justification to facilitate production and discipline, no such showing or justification has been made by the Respondent in this case and therefore employees are denied an opportunity to discuss organizational activities at any time at their place of work. The General Counsel distinguishes the Respondent's defense that its no solicitation - no distribution rule is protected by Section 447.509, F.S., since it makes no differentiation between 447.509(1)(b), F.S., since distribution is forbidden in every part of the hospital including areas where employees do not perform official duties such as the cafeteria and lounge. Next the General Counsel contends that the Respondent unlawfully denied employees the annual cost of living increase because of their, organizational activities in a departure of its previous grant of such annual increases based solely on employees organizational activities and its effort to thwart such. While the General Counsel concedes that a clarifying statement was made with regard to merit increases, the contention is advanced that no such explanation was given to the statement concerning cost of living increases.

      
      

   4. During the fall of 1975, the FNA began discussions of organizing the subject employees for collective bargaining purposes. As far as the record reveals, since January 1, 1974, Respondent's policy handbook contained a provision urging its employees to participate in the annual United Fund Campaigns. The section further adds that "all other solicitations are prohibited throughout the year." (See General Counsel's Exhibit No. 1 incorporated by reference.) Thereafter in March, 1975, the rule contained in the policy handbook prohibiting solicitation was amended to read, as stipulated by the parties, Solicitation and Distribution:

      
      

      We cannot afford to have outside activities interfere with patient care. Therefore, the following rules concerning these matters will be enforced:

      1. Employees may not solicit funds or support for any fund, drive, cause of organization during working hours.

      2. Employees may not distribute literature on behalf of any fund, drive, cause or organization during working hours or in areas of the

         hospital where employees work.

      3. Persons not employed by the hospital are prohibited from entering the premises to solicit funds or support for or distribute literature on behalf of any fund, drive, cause or organization.

         
         

   5. The referenced rule is still in effect and the Respondent as far as the record reveals, enforces the rule as written. Hospital employees take a 30 minute unpaid lunch period and the record clearly established that except in emergency situations, a registered nurse may not leave the hospital during a meal period without prior authorization.

      
      

   6. Sometime during the months of January or February, 1975, Francis Doggett, Respondent's nursing director, first learned that the FNA was organizing in the hospital. In mid March, 1975, a meeting was held of all head nurses and supervisors including the nurses director, Respondent's attorney William E. Sizemore, and approximately ten (10) nurses. A sign-in sheet was used to record attendance. William Schneider, Respondent's administrator asked the head nurses and supervisors whether any of them had signed authorization cards and those in attendance responded. Only two nurses, Ms. Hadlow and Ms. Lewis, responded that they had signed authorization cards. Immediately after the meeting, Mr. Schneider met with Ms. Hadlow and Ms. Lewis and encouraged them to withdraw their authorization cards from the FNA. To accomplish this, on March 19, the following day, Shirley Reynolds, Respondent's Personnel Director, typed two letters at the request of Schneider on hospital stationery and received into evidence as General counsel's Exhibit No. 4 requesting that the designation of FNA as a bargaining agent be returned to June M. Hadlow and Evelyn M. Lewis. Shortly after the March 18 meeting, the Administrator met with the other registered nurses in the hospital's conference room in two different sessions. Attendance was required and based on the evidence it is clear that it was not the normal practice of Mr. Schneider to meet with RN's and in fact none of the nurses had ever met with him previously. Mr. Schneider inquired of the nurses what their problems were, why they were organizing and why they felt they needed a third party to intervene on their behalf. He showed the nurses and attendants a copy of a resolution, adopted by the Board of Commissioners of the Hospital District, opposing collective bargaining by hospital employees. Ms. Doggett, who was also in attendance expressed her displeasure that the registered nurses would be the first employees to try to organize for collective bargaining purposes.

      
      

   7. Thereafter on or about April 15, a memo was posted on the hospital's bulletin board stating that the medical staff had adopted a policy in opposition to collective bargaining. Three days later, on April 18, the FNA filed an RC petition for certification with PERC seeking to represent all registered nurses. On May 7, 1975, the hospital's Administrator held another mandatory meeting for RN's in a classroom in the old section of the hospital and for those nurses who were not on duty. They attended and were paid for the time spent at the meeting. Two sessions were held and Mr. Schneider, Ms. Doggett, Mrs. Reynolds and Mr. Sizemore, Respondent's attorney, represented management. Discussions by management concerned itself with the ramifications of the RC Petition filed by

      FNA and Mr. Schneider informed the nurses that the administration was planning a nurses lounge for them. Thereafter, Ms. Doggett told employees that the RN's would not receive a cost of living raise because they were organizing. One nurse asked if the nurses would receive merit raises whereupon Ms. Doggett replied no. Mr. Sizemore, seeking to clarify Ms. Doggett's statement, stated that the nurses would receive merit raises because it was an established hospital practice.

      
      

   8. The testimony reveals that hospital employees have received annual budgetary increases for eight of the last nine years and the year in which no increase was given was occasioned by the wage and price freeze. All nursing personnel who testified received some type of non-merit upward adjustment in their salary in every year except the year of the freeze.

      
      

   9. As stated, the Respondent takes the position that its solicitation- distribution rule tracks 447.509, F.S., and is not a violation of it inasmuch as the legislature cast aside the policy that has prevailed for many years in the private sector. Respondent adds that the General Counsel of PERC seeks to totally ignore this intended departure and simply graft the Federal Rules on Florida Law. Section 447.509, F.S., provides in pertinent part that employee organizations, or any persons acting on their behalf are prohibited from: (a) soliciting public employees during working hours of any employee who is involved in the solicitation and (b) distributing literature during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations and any similar public installations. This section shall not be construed to prohibit the distribution during the employees' lunch hour or in such areas not specifically devoted to the performance of the employee's official duties. Respondent cites the U.S. Supreme Court's decision in Republic Aviation Corp. v. N.L.R.B., 324 US 793, 16 LRRM 620 (1945), a case which addressed at length the issue of solicitation.

      The court in that case noted that a balance must be struck between "the undisputed right of self organization" and the "equally undisputed right of employers to maintain discipline in their establishments." The NLRB traditionally struck that balance by prohibiting employers from restricting solicitation except when the employee is actually engaged in the job function he performs. Thus, the employer is allowed to restrict activities only during "working time" and during break time or lunch time, even though paid for by the employer, an employee is free to solicit for a union. As Respondent notes, there have been literally hundreds of NLRB cases affirming this rule and striking down rules restricting activity during "working hours". The NLRB has long held that restrictions on employees' solicitation, or distribution of literature, in non-work areas, when employees are not actually working are presumptively invalid. The NLRB also presumes that a rule limiting solicitation during the time when an employee is working is for the maintenance of production and discipline and is valid, even though it is a restriction on Section 7 rights. 2/ If a rule is ambiguously phrased so that it may be interpreted as prohibiting legitimate activity, it is invalid. In Essex International, 211 NLRB No. 112, the board dealt with rules against solicitation during "working time" and distribution during "working hours". A board majority concluded that there is a clear distinction between "working hours" and "working time". The term "working time" or "work time" connotes the time spent on actual job duties. The board considers rules prohibiting solicitation during "working time" or "work time" to be valid presumptively, but the presumption can be overcome by extrinsic evidence that the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during break time or other periods when employees are not actively working.

   10. A study of the rule in question indicates that it is clearly a departure from Section 447.509, F.S., because Section 1(b) thereof indicates that the Section shall not be construed to prohibit the distribution during the employees' lunch hour or in certain areas not specifically devoted to the performance of the employees' official duties. Turning to the rule in question, solicitation and distribution is banned in all areas including the cafeteria and other places in the hospital where employees work. Since the Employer has not issued any clarifying statement and is susceptible of an interpretation which implies an overly broad restrictive reach, the Employer, by not electing to clarify the rule must bear the burden of the unlawfulness inherit in the ambiguity since it cannot be said that the ban on soliciting and distributing literature applies only to working areas during working time. The undersigned is of the opinion that the rule in question is a prohibition of solicitation during "working hours" and is presumptively invalid, and that the presumption should be applied in the absence of an affirmatively established clarification by the Employer which was not done in this case. See for example, John H. Swisher and Son, 211 NLRB no. 114 Pepsi Cola Bottling Company of Los Angeles,

211 NLRB no. 132; Groendyke Transport, 211 NLRB no 139. For discussion of a rule which was found valid and lawful which restricted employee activity during working time, see for example, General Motors Corporation, 212 NLRB no. 45. Based thereon, I shall therefore recommend that the Respondent's solicitation- distribution rule in this case, violates Section 447.509, F.S. The second issue raised is whether the Respondent violated Section 447.501(1)(a), F.S., by threating its registered nurses by informing them that they would not receive the annual cost of living increases because of their organizational activity. The alleged threat occurred during the May 7 meeting of all registered nurses. William Schneider testified that the annual salary adjustments were not tied to any cost of living index but rather came as a conclusion of wage survey and budgetary processes. Accordingly, the raises varied in amounts from year to year, the raises varied from position to position and the raises varied among the various departments with particular nursing skills. The General Counsel concedes that a clarifying statement was made with regard to merit increases but that no explanation was made concerning cost of living increases. Respondent's attorney, Sizemore, who was present at the May 7th meeting, clarified the statement by Ms. Doggett to the effect that merit increases would be given inasmuch as it was an established practice but that cost of living increases would not be given due to the absence of an established policy. It is clear that the meeting centered around the discussion of annual raises, merit raises and a new employee lounge and the effects it could have once a petition was filed and during collective bargaining. It is significant to note that no employee witness testified that the annual increases were tied to any cost of living increases. Rather it appears that the annual wage increases were tied to factors cited by Respondent such as its concern about remaining competitive with other employers in the area and its ability to be able to attract and retain employees with specialized training. It is further clear that the employer's counsel discussed the annual raise and the employees who testified did not deny that counsel did so. There was no evidence that the employer had withheld increases that it had previously promised employees but rather it appeared that the employer continued to grant what had been given in prior years except that the issue of cost of living increases was one which was not an established practice and therefore would arguably violate Section 447, F.S., if the employer were to bestow it to employees during the pendency of an RC petition. Based on these facts, it appears that as the Respondent urges in its defense, it was merely trying to inform the employees of the legal implication of granting the wage increase alleged to be violative while an RC petition was pending. In these circumstances, I shall therefore recommend that the General Counsel has failed to prove a violation based on the evidence presented as it relates to

withholding of an annual cost of living increase because of alleged organizational activity. I shall therefore recommend that this allegation be dismissed.

CONCLUSIONS OF LAW

1. The parties to this proceeding were duly noticed pursuant to the notice provisions of Chapters 120 and 447, Florida Statutes.

   
   

2. The authority of PERC is derived from Chapter 447, F.S.

   
   

3. The Respondent is a public employer within the meaning of Chapter 447,

   F.S.

   
   

4. The Charging Party is an employee organization within the meaning of

   Chapter 447, F.S.

   
   

5. By promulgating and enforcing its existing solicitation- distribution rule, the Respondent violated Section 447.501(a), F.S.

   
   

6. By informing its employees that they would not receive an annual cost of living increase during the pendency of an RC petition, the Respondent did not violate Section 447.501(a), F.S.

RECOMMENDATION

Based on the above findings and conclusions of law, I recommend, that the Respondent be ordered to cease and, desist from enforcing and retract its existing solicitation-distribution rule and that it post an appropriate Notice to employees to such effect.

In all other respects, I recommend that the complaint be dismissed.

DONE and ENTERED this 15th day of September, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this report and recommended order, each has been carefully weighed and considered.

2/ 29 U.S.C. Sec. 157.

COPIES FURNISHED:

Gerald Williams, Esquire and Jane Rigler, Esquire

Staff Attorneys for Jack L. McLean, Jr. Acting General Counsel for the

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

William E. Sizemore, Esquire First Financial Tower

Post Office Box 3324 Tampa, Florida 33601

Docket for Case No: 76-000389

Orders for Case No: 76-000389