Baylor University Medical Center v. National Labor Relations Board

MEDICAL UNIVERSITY BAYLOR Petitioner,

CENTER, RELATIONS

NATIONAL LABOR

BOARD. 76-1940.

No. Appeals, Court of

United States of Columbia Circuit. District Smith, Robert W. with whom Bowen L. Florsheim, Dallas, Tex., brief, 1977. was on the Argued Oct. for petitioner. 14, 1978. Feb. Decided J. Spielberg, Deputy

Paul Asst. General Counsel, Board, National Labor Relations Washington, C.,D. whom with John Irv- S. Counsel, ing, Taylor, General Carl L. Asso- Counsel, ciate General National Labor Rela- Board, Washington, C.,D. tions on brief, respondent. LEVENTHAL,

Before MacKINNON and WILKEY, Judges. Circuit MacKINNON, Judge: Circuit Baylor University The Medical Center petitions for review of order (“Baylor”) Relations Board of the National Labor cross-ap- makes a (“Board”) and the Board of its order. Our plication for enforcement 10(f) section jurisdiction is conferred Act, 29 the National Labor Relations U.S.C. 160(e), (f). Hearing con- The Examiner § hearing complaint on a an extensive ducted alia,2 charging, inter issued Board1 Baylor’s no-solicitation and no-distribu- rule”)3 (“the rule overly practice” broad and an “unfair labor 8(a)(1) in violation section Nation- Act, Relations al Labor U.S.C. 158(a)(1). gravamen The Board’s § complaint prohibited was that this rule so- by employees during their non- licitation working time and barred all forms of solici- and distribution in areas of the tation aspect hearings 3. cases No. The no-distribution in the consolidated 16-CA-6050, 16-CA-5888, per If not be se. solicitation can and 16-CA-6206 will discussed distribution, banned, rais- so a fortiori November were held problems ing litter as it the additional does complied with the NLRB order cluttering, general see Stoddard-Quirk relating every except portion respect Mfg. 138 NLRB 620-621 rule. no-distribution the no-solicitation 352 where services were ad-

hospital complex persons where visiting patients are likely patients or where ministered to visitors to be disturbed. to patients Service our disturbed, thereby might effectively and their visitors only includes not pri- eliminating solicitation and distribution in mary care, but, and acute medical as you hospital buildings except all of the parts know, all food service psychological employees’ a small locker room.4 The full support. provided: rule Unauthorized sales and solicitation of patients by of or visitors Solicitation any type orders for product of or service anyone Baylor University on Medical anyone Baylor on University Center strictly property prohibited. Center is premises prohibited.5 of employees Baylor of Solicitation Uni- order, The Board’s fully adopted versity by non-employees Medical Center the recommended Hearing decision of the literature, or the of pamph- distribution Examiner,6 required to cease lets, material, by or non-employees other and desist from enforcing this rule and to Baylor University on Medical Center any rescind restriction on employees’ solici- property prohibited. is tation other patient “immediate employees Baylor of of Solicitation light care areas.”7 of the general University by Medical Center other em- that solicitation cannot be proscribed during ployees or distribution of literature be- non-working time nor during distribution prohibited is employees during tween non-working time in non-working areas,8 work time and/or work areas. The the Board —while it recognized special patient term “work areas” includes care presented floors, circumstances hallways, by a any elevators or envi- other laboratories, ronment extent surgery area such of conceding or centers, Baylor any treatment where could type prohibit ser- all being vice is administered to or on behalf times within “immediate patient care ar- patients any also includes area any eas”9 —invalidated ban on solicitation patients This locker room contains no more than 350 and their visitors includes not lockers, 3,700 employ- whereas there some primary care, and acute medical but also Baylor. ees at psychological support. food service and Hearing The Examiner had both rules before by 5. This rule was “clarified” on June considering him in the case. posting following of the rule: Fanning, by Penello and Walther any- Solicitation or visitors NLRB— nothing any Baylor purpose except members —said University one for their decision on property strictly that “the prohibit- Medical Center Board has is considered the record and employees Baylor light exceptions ed. Solicitation of versity the attached decision in Uni- by non-employees Medical Center or and briefs and has decided to affirm the rul- literature, pamphlets ings, distribution of finding [Hearing or and conclusions of the material, by non-employees other University adopt and to his Examiner] recommended or- property prohib- Medical Center is der.” J.A. at 27. ited. Unauthorized sales and solicitation of or- 7. J.A. 27-28. any type product ders anyone or service to pro- on Medical Center Premises are Corp. NLRB, Republic 8. See Aviation hibited. employees Baylor Solicitation of Univer- Manor, Lowell, D’Yourville Mass. v. sity employees Medical Center or (1st 1975). F.2d Cir. employees distribution literature between prohibited during is work time or in work Hearing adopted language The Examiner pa- areas. term “work area” includes the NLRB its St. John’s floors, hallways, elevators, tient care confer- Inc., Nursing, School of 22 NLRB No. places employees ence rooms and where con- (1976): LRRM 1333 business, any fer on or other area such as laboratories, surgery centers, recognize primary We that the treatment function aof any type being where tranquil of service is adminis- is care and that a atmosphere tered to or on carrying behalf of and also essential to the out of persons visiting includes patients may provide where areas that function. In order to this atmo- hospitals may sphere, be disturbed. justified impos- Service our (1) most and denied applied part, insofar as However, 1977).11 subsequent- this decision corridors, (2) (3) the cafeteria vend- was denied enforcement ly Tenth areas.' The exclusion of these ing machine after the NLRB order in Circuit this case permissible hospital from parts of the issued, St. John’s and School scope no-solicitation rule NLRB, Nursing (10th v. 1368 the contention between point the main 1977). agree We with the Tenth Cir. Cir- parties. possible cuit that even were it —which compels evidence We that the record find manifestly is not —to determine with any the situation in the conclusion that rationality which confidence and areas in a justify which unique circumstances involves are are not and which “immediate- dis- on solicitation proscription a broad care,12 ly” involved in patient Board’s of this case its resolution tribution. In overly position restrictive on the valid ex- discharged adequately NLRB has not tent of no-solicitation rules in medical facil- congressional responsibility to effectuate ities must nevertheless be overturned as con- been unquestionably policy,10 unique insensitive both to the conditions hospitals. disruptions cerned to avoid in an general hospital found acute and to it is contention adopt petitioner’s We Congress. the declared intent of to solicita- practice bar an labor unfair reviewing by an order the NLRB, Furthermore, we corridors. tion in must accept courts its determinations if arising strong authority line feel that “substantial supported by are evi- that of care health other in contexts 13and give dence” considerable deference to validity the no- establishes facilities interpretation the Board’s terms of vend- in the solicitation case, however, we NLRA.14 In this find ing area. is both contrary that the Board’s decision to evidently Examiner felt Hearing The outside congressional purpose and on Baylor’s proscriptions compelled to limit expertise,15 and accordingly Board’s area of of the Board’s as he did because solicitation to of the deference entitled little tradition- Hospital John’s While to NLRB actions.16 ally recent decision St. accorded we 182, Inc., deny 222 enforcement to liberty NLRB No. not at Nursing, School merely of the Board because order we (1976), part enforced in 91 L.R.R.M. 1333 507, Pipefitters, stringent prohibitions v. U.S. 97 ing NLRB 429 S.Ct. more somewhat 891, Camp (1977); H. & generally permit- 51 L.Ed.2d 891 S. Co. then [sic] NLRB, 1947); (6th Cir. v. 160 F.2d 519 29 ted. 160(e), (f) (1970). § U.S.C. J.A. at 21. Drivers Local Union v. Truck 10. Cf. NLRB Inc., 251, Weingarten, 420 U.S. 14. NLRB v. J. 643, 81, 97, 449, S.Ct. 11 L.Ed.2d 77 # 171, 266, 959, quoting 95 L.Ed.2d S.Ct. 43 NLRB, Corp. Phelps Dodge v. 313 676 221, Corp., 236, Erie U.S. NLRB v. 373 Resistor 845, L.Ed. 85 1271 (1963); Phelps 308 83 S.Ct. Dodge 10 L.Ed.2d Corp. NLRB, supra note 10. v. Hearing “The Examiner commented: St. John’s is con- case Board’s decision of Nursing 15. St. John’s and School v. trolling at 22. here.” J.A. NLRB, supra 557 F.2d at note (“. perceptions own . . the Board’s See, g., and School of St. John’s e. physical, mental, and the modern care Nursing F.2d 1372-73 hospital patients— and emotional conditions strictly 1977) (“This distinction between Cir. patient acknowledged Board’s outside the areas expertise field of access areas and care labor/management relations.”) conditions of the on the relative areas based patients frequenting sup- areas those finds no Corp., 16. Cf. v. Universal Camera Moreover, port . in the record. (2d J„ 1951) (Frank, F.2d concur- application at best and is difficult distinction Winter, ring); Agency Judicial Review of Deci- rejected in a Board indeed has been Court, The sions: Labor Board and the ”). ‘specious.’ similar context as Sup.Ct.Rev. 53-69. result,17 S.Rep.No. 93-766, we a different Cong., favored 93d 2d have Sess. re- enforcement denying no hesitation feel printed in Cong. 1974 U.S.Code & Admin. order. the instant News, 2, 3946, (emphasis vol. added). suggested The Board elsewhere that Con- I gress prevent concerned to The Corridors disruptions that would be caused actual the NLRA as it history of legislative picketing,21 strikes or but we sup- find no hospitals18 voluntary, non-profit applies port for reading such a narrow of the con- for the unmistakable solicitude reveals an gressional purpose.22 On hand, the other institutions, functioning of these peaceful clear expressions congressional con- employees’right expense even some cern for avoiding disruptions not until 1974 that such organize.19 It was environment that do legisla- we find employ some 55%of all institutions —which encourages tive history give special us to within the included hospital workers—were weight patients to the striking needs of a NLRA, amending course of the in the and balance preventing between possible coverage Congress clearly scope Act’s of the sources of disruptions pro- in hospitals and that these facilities belief evinced its tecting employees’ right to organize.23 which special problems mandated presented application Moreover, the approach to of clearly preferable a different it seems in re- in other than that taken fields.20 the NLRA solving any doubts as to how best to accom- of the witnesses before the Many Com- conflicting modate these interests err to on mittee, employee both and em- including side protecting the of the —to witnesses, ployer uniqueness stressed the irreparable injury might whom be done— There of health care institutions. was a rather than on that of a organization labor recognized concern for the need to avoid brief, which can at worst suffer albeit disruption patient possi- of care wherever unjustified delay.24 ble. parties The interested particu- should be sensitivity It was this to the need for larly possible inclined to avoid sources of continuity care of led the disruption in the of a hospital large case as adopt Committee to amendments with re- congested and Baylor. as total admis- gard requirements to notice and other sions, Baylor is largest hospital the seventh procedures related to potential strikes picketing. 5,000 and of the private nation’s “acute care” 260, generally, 17. Brooks 261 22. See id. 1976); Co., 404, Mfg. NLRB v. Walton 369 U.S. 405, 853, (1962). S.Ct. L.Ed.2d long 23. No-solicitation rules ana- have been lyzed balancing property rights in terms of the amendments to the NLRA which employer organizational rights the of and the voluntary brought non-profit hospitals under see, employees, g., e. NLRB v. United scope the of the NLRA are contained Public America, 357, Steelworkers 357 U.S. 78 S.Ct. 93-360, (July 26, 1974). Law 88 Stat. 395 1268, 2 L.Ed.2d 1383 NLRB v. The 105, Babcock and Wilcox Vernon, generally, 19. See Labor Relations 679, (1956). case, In this it is not the Under the 1974 Health Care Field Amend- non-profit employer the but rather its Analysis, ment to the An Overview and NLRA: whose interests are in conflict with those of the 202, 70 Nw.U.L.Rev. employees. 20. The included a series of Amendments 24. See St. John’s and School of Nurs- provisions seeking discourage to strikes and ing, supra (“A note 557 F.2d at 1371 cau- them, July requiring advanced notice of judgment regard tious in such must note that 93-360, l(b)-(e), Pub.L. 88 Stat. § judgment may irreparable error cause (codified 158(d), (g) (Supp. V 29 U.S.C. § damage patients, public, and to thus the 1975)). while the error other direction can be sal- vaged by proper the Board under use its See, g., St. School e. John's and matters.”) expertise overall in labor Nursing, supra note 557 F.2d at 1374. work,30 largest in breaks from fourth and hospitals, charitable and ca- in bed second and maintained a ban all procedures, forms of solicitation surgical 3,700 individuals over employs It pacity. years31 long for some fifteen there before — 1,125 care for the and beds its maintain any was at Baylor. movement unionize there who are admitted 44,000 in-patients importance preventing crowding testimony before There year. each disruption in and can- corridors 15,000-20,000 that some Hearing Examiner seriously Experienced not be debated. wit- day25 each entered persons testified con- nesses extent to which corridors passageways gestion impedes the opera- corridors down- streets of as the main crowded “as annoys pa- of the medical staff and con- It remarkable Dallas.”26 town Quick unimpeded tients and visitors.32 more chaotic Baylor are not ditions through hallways passage was shown to any are; imposition of certainly the operation to the imperative efficient disruption potential sources additional hospital and success of certain of af- reluctantly and required only be should services, emergency its such as cardiac than the analysis more detailed a far ter hallways unit.33 The arrest serve not particular case.27 NLRB devoted visitors, passageways patients, doc- make much of respondents Although tors, medicine,34 viewing but also as bias,28 history anti-union alleged nursery35 rooms for the and storerooms for is no indication there variety hospital equipment must way discriminatory or di- inwas be a moment’s notice.36 There available at at unionization.29 against efforts rected testimony great also that a deal of the variety pre- a of other takes therapy Baylor at physical undertaken actu- crowding. excess noise and against cautions corridors,37 ally took and that place required to employees are example, all For many they departments their for the corridors served areas when take work leave their emotionally hospital operation and all lack the at Brief 10-11. Petitioner’s 25. disturbing aspect of union solicitation in that Chase, Testimony Associ- Mr. Howard M. conceivably pa- of 26. fears could raise Baylor, J.A. at 161. Director of they might Executive ate or visitors that not receive tients possible the best health care. Hospital, 554 F.2d v. Beth Israel 27. See NLRB 477, (1st 1977), granted,-U.S. cert. Hiatt, testimony Di- 30. J.A. at of Linda -, 764, 54 L.Ed.2d 780 98 S.Ct. (one of rector of Nurses Truett wings). Respondent’s 4-6. Brief at 28. 155, Testimony of 31. J.A. at Mr. Howard Spinning Compare Stowe 29. Chase. 93 L.Ed. S.Ct. U.S. Teller, (2d Inc. v. Bonwit 169-170, Testimony 32. J.A. at of Mr. Jack denied, 1952), cert. Cir. 644, Hays, Department of Administrator points (1953). Respondent Medicine, 293; Testimony Physical J.A. of Lin- Baylor for the allow solicitation that does out Hiatt, J.A. at 313. da Society, American Cancer Fund and the United holding bake sale and an occasional well as as Hicks, Testimony of Ad- 33. J.A. at John acquaint (a designed program fair benefit (one Bay- ministrator of Jonsson employees available to with the benefits 217, Testimony wings); J.A. William lor’s 20-21; them). Respondent’s J.A. 173- Brief Rohloff. permits Baylor activi such fact that banning of solicitation other forms while ties 193-194, Hicks; Testimony of John J.A. 34. J.A. however, not, illicit discrimina indicate does 159-160, Testimony of Howard Chase. part petitioner, as the solicita tion on the manifestly permitted non- tions which are 161, Testimony Chase. J.A. of Howard (the carefully disruptive controlled Cancer solicitation, only Society example, consisted 310, Testimony Hiatt. employee’s pay J.A. of Linda in each a note included 174, Testimony check) of Mr. Howard J.A. 285-286, Testimony Hays. part J.A. Jack a normal These solicitations Chase. waiting service as part room.38 It of a labor only dispute as the available seems an true, insists,39 large petitioner as unnecessary measure and undesirable additional part virtually every functioning of an that anxiety persons source of already hard- is involved in general hospital acute emotionally.44 taxed thought And the that Baylor the care,40 and that at corridors affecting matters one’s life and death are all-pur- as much as additional seem to serve perceived in terms wage increases and hallways.41 merely as On pose rooms coffee breaks those responsible for one's us, patently it is unrea- before record well-being fully justifies very upsetting require the Board would sonable that concern that and those close to permitted in the corridors in solicitation be them shown to have about such activi- congestion and dis- view of the additional It only ties.45 is not the likelihood that it involve. ruption which would congestion and commotion would result could, respondent suggests,42 solicitation, from such but also the inher- impose general, proscrip- a “evenhanded” ently disturbing effect of interjecting un- loitering tion on noise and the corridors dertones of labor disputes into a situation specifically banning rather than solicitation. persons where sick are totally dependent on alternative, however, suggest To the unflagging assistance of others that are substance, over as there are exalt form major contributing factors the disruptive few very activities besides solicitation and effect of solicitation. Wherever in the hos- take plausibly place distribution that could pital emotionally group vulnerable greater result corridors and patients and their present, visitors Moreover, crowding and noise. if unique we feel considerations come willing NLRB is to concede play justify into an otherwise overly justified might by the special broad rule broad no-solicitation rule. hospital (thereby pre- characteristics of a must be remembered that Respon- [I]t empting question of the facility dents is not a manufacturing rule), why it it insists is hard to see plant, hospital. is a And it is in the justi- no-solicitation rule also would not be hospitals nature of that certain of the By prohibits fied. solicitation working (hallways, elevators, stairs, areas probable potential because it is the most patient’s rooms, gift shops, etc.) are nec- disruption recurrent cause of corri- essarily open to the use of and Furthermore, dors. solicitation has a dis- Further, . . visitors. . the hospital ruptive quite apart force from its contribu- ill who, services individuals their weak- overcrowding. tion level to noise and There ened condition may readily upset be if hearing witnessing was evidence at the they overhear anti-union/pro-union argu- solicitation tends to both pa- undermine . ments hospi- tients’ and visitors’ confidence in the Having worry Guyan tal.43 to confront Valley Hospital, 198 NLRB employees might reduce their standards of 265, Testimony Sears, 159-160, Testimony

38. J.A. of Dr. A. D. M.D. 41. J.A. of Mr. Howard Baylor. at Chase. Respondent’s 42. Brief at 20 15. 39. n. Petitioner’s Brief 10-18. 343, Testimony Sears; J.A. D. Dr. A. J.A. generally, Hospital, 40. See NLRB v. Beth Israel 209, Testimony Goodson, of Dr. John M.D. at supra (“We note n. at 482-83 Baylor. phrase pa- would add that a like ‘immediate self-defining given tient-care areas’ is far from 209, Testimony Goodson; J.A. at of Dr. John major hospi- complexity metropolitan of a 255-256, Testimony Gross, Joseph J.A. at waiting tal. Would a area the nurse’s desk Department Director of of Pastoral Care at ‘patient- on a floor a where reside be Baylor. waiting care area?’ Would room in emergency ward?”) 255, Testimony Joseph J.A. Gross. changed Since there is question the NLRB no that the surprising Hospi- It matter viewpoint on this tal be prohibit entitled to its own established solicita- repudiated we find its now tion and all utterly, public and distribution in so access present its areas of appropriate gift shop its cafeteria analysis more and the instant case. located position anywhere outside the Hospi- premises, Corp. (Children’s tal Marriott II Inn), 141; 223 NLRB No. McDonald’s Corp., 205 NLRB No. we conclude Vending and Areas The Cafeteria that the does not lose that right vending Bay- and areas of The cafeteria simply public because its cafeteria and considerably problem a different present lor gift part shop are of a complex regard corridors. With from that rather than a shopping mall or drive-in Board’s determination that restaurant. allowed in the cafeteria must be 557 F.2d at 1375. vending point other main area —the course, Of there not as much medical parties also disagreement between —we importance maintaining the quietness or ruling, do for a the Board’s but so overturn non-congestion ordinarily of areas as far the inverse of that which virtually reason patient removed from direct as pub care its deny us enforcement of invalida- led area,46 lic or vending cafeteria but such rule as it Baylor’s a hospital areas in totally not devoid corridors. While we held applied to the significance. Respondent medical is correct hospi- soliciting ban out pointing places likely that these justified “spe- due to the tal’s corridors was emotionally disturbing if even solicita of a environ- cial circumstances” prohibited. arguments, tion is despite Such ment, proscription hold that a similar we paid parties’ the attention to them in the vending its area is covering briefs,47 are, however, irrelevant to our justified these areas are not mate- because analysis. exigencies same of good rially or different from other res- “special” require allowing medical care that pro shops. reasoning We find the taurants hibition of solicitation in corridors the Tenth Circuit St. John’s may justify or proscrip the same Nursing supra, and School cafeteria, tion in a particular hospital but persuasive: we hold that whether or not a restaurant As to “other access areas hospital, is in shop proprietor can bar like,” cafeterias, shops, we gift premises. solicitation on the even if it is conceded these conclude that precedent directly are not related the Hos- The line of in both court and areas providing pa- permitting function of NLRB decisions pital’s primary blanket no-so- care, tient the nevertheless licitation rules in restaurants and shops is long unequivocal.48 commercial interests and maintains the same essential ra- by are held the man- tionale of these cases been that in these facilities as has as the enterprises depends of retail stores and restaurants success of such at- agement types tracting conge- of establishments. customers and thus on the located 22-24; significant Respondent’s impeding See Brief at is no issue Petition- 46. There vending through passage the cafeteria or area er’s Brief at 26-28. vary depending upon though might its lo- this hospital. patients Those who See, cation within a g., e. Marshall Field & Co. v. places legitimately cannot ex- venture these 1953); F.2d 375 amended NLRB artificially pect the restorative atmo- that same May Department Store F.2d 533 hospi- sphere for them rest the denied, created (8th Cir.), cert. sustained, though they expect tal will be can (1946); Corporation, Marriott given will be to such that some consideration No. 223 NLRB LRRM 1028 have same that such areas will needs and Palolo, McDonalds LRRM against protection commotion and disturbance hospitals. outside as similar areas niality in their atmosphere premis- of the It does not appear record, from the but it case, es,49 may be the prohibit practices it is reasonable to that Baylor operates its cafeteria vending machines annoy.50 or as non- tend disturb service, profit so in this respect suggest that Respondents precedents objectives differs somewhat in its from are involving commercial establishments in- those of the usual restauranteur. Never- apposite here because—unlike institu- theless, providing services, its it has risk hospitals losing do not their tions— interest, much the same albeit non-finan- “customers” due to irritation solicita- cial, any owner does making his principal tion.51 While the business of re- pleasant facilities as possible. as Whether attracting customers, tail establishments is the motive is monetary enrichment or en- hospital’s argued main concern—it is —is riching quality the overall care, shops cafeterias environment, employers operate who estab- peripheral no more than to its main lishments whose pleas- raison d’etre is their operation. argu- To extent justified antness are in imposing otherwise whatsoever, ment has it wholly force overbroad no-solicitation rules. It is not misplaced or in this context. Whether not goal making money, but of running a patients and their visitors have choice about facility whose primary goal is to be attrac- whether not the hospital, they to use tive that supports special treatment ac- certainly have a choice about whether or corded to regard. restaurants in this not vending to use its ma- Ill

chines. vending The cafeteria and area compete must still to attract the business of Conclusion hospital’s patients. That a hospital is recognize We that the instant appeal in not “principally” in the restaurant business ways presents some a harder case than did not does mean that it not concerned that the facts of the St. John’s decision the restaurants which operate it does should Circuit, Tenth Baylor in that signifi- profitable possible. as attractive and cantly fewer “employees only facilities” in hospitals operated Public cafeterias than did St. John’s and Nursing as a convenience to its and their School.52 Consequently, the extent justification visitors and there is no for which opportunity organiza- union saddling restrictions, them with applica- may be reduced by restricting solicita- ble generally, might to cafeterias from tion to areas to which neither nor compel operate time time them to at a visitors have access greater Assuming arguendo loss. that a distur- that sanctioned the Tenth Circuit. We signifi- bance the cafeteria would not are, however, by no means confronted here cantly impede care, health with a situation in which there are no alter- independently still has an valid in- native channels through which the employ- profitable terest in the and orderly opera- ees can communicate purposes organ- tion of its commercial food services which ization. Where no such channels are availa- justifies barring ble, solicitation in its restau- an employer may be permit forced to rants. he where legiti- otherwise could NLRB, supra Respondent’s 49. See Marshall Field & Co. v. Brief at 22-24. 48; May Store, Department supra 48; note note Inc., Bros., 1262, Goldblatt 77 NLRB 1263-64 employees-only 52. St. John’s had an (1948). cafeteria in it which was estimated that of 80% employees the ate. There were also “numer- general in cases assume that solicitation employees ous” other areas such as disruptive approach be will no-solicitation lounges rooms, and locker 557 F.2d at 1375. perspective rules from the of or whether not employees’ right organize requires to that the tolerated, see, disruption g., attendant be e. NLRB, supra Marshall Field & v. Co. note 48.

359 “uniquely handicapped in the matter of cir- in different Perhaps it.53 mately ban self-organization activity.”58 and concerted compelled would hospital cumstances or even We do not that the minor added incon- find its allow solicitation to having of to solicit outdoor ar- regards As the its corridors. of venience in some however, outweighs petitioner congressionally has eas our directed Baylor, at situation any disruptions hospitals. apply solicitude avoid does its rule that testified buildings,54 and it the outside area conclusion, we note that its before St. lots, parking the apparent ruling, John’s the NLRB the courts excellent fo- supply an gardens lawns the agreed special both circumstances heavi- areas are These solicitation. for rum by presented health care facilities demand of whom eat many by employees, used ly they differently ed that be treated from there.55 breaks and take their their meals the industries under NLRA.59 An areas Thus, of indoor despite paucity the is, course, agency polic free to its alter solicitation, no means available ies,60 the remarkably meager but evidence light mild particularly the case— NLRB in the available John’s St. Dallas, the outside which makes climate suggests reversing decision61 that in its ear year56 all virtually available areas —that policies lier the Board in this instance would be organizing of labor process exposure special inadequate have had limiting solicita- disadvantaged by crucially assessing considerations involved to the out-of-doors. tion, part, the most scope labor in health proper solicitation one It is true that recent case are facilities. alternative fact that The mere there not, course, the rule announced in St. John’s upheld has available channels order, Hospital, v. Beth Israel illegal no-solici- NLRB NLRB otherwise justify an alone 1977) granted, (1st 477 Cir. cert. chan- order, when such at least but tation 1033, 764, 434 U.S. 98 S.Ct. 54 L.Ed.2d 780 modify employer need not an open, nels (1978), highly there the court was but even justifiable an otherwise this rule in broad applying critical may be somewhat instant case The rule.57 62 insisted on a case case bal John’s, much so terms not so but than St. harder particular test circum ancing weighing must there developed principle came hospitals stances in individual employees because the abandoned NLRB, supra Corp. v. See, g., 58. Marshall Field & Co. note Republic v. Aviation 53. e. 982, 48, 8, 799, F.2d supra 65 S.Ct. at 381. 324 U.S. at note 1372; Superior Lumber v. Lake NLRB L.Ed. 1948). (6th Corp., F.2d 147 Cir. See, Nursing g., 59. e. Summit and Convales- Home, 1973); cent 472 F.2d 1380 129-130, Testimony Howard at 54. J.A. Home, Nursing Manor N.L.R.B. Shorewood Non-employee barred solicitors Chase. (1975) (Penello, dis- No. 89 L.R.R.M. 1037 Baylor property its under rule. from all senting); Guy Valley Hospital, 198 NLRB (1972). 324-325, Testimony of Mr. Howard 55. J.A. Chase. Seven-Up Bottling v. 60. NLRB 347-52, (1953). 73 S.Ct. L.Ed. 377 324, Testimony Howard of Mr. J.A. 56. Chase. 61. St. case was submitted John’s stipulations availability and no evidence was NLRB on six insists that The Board presented question of distribution employee on the how communica- avenues alternative patients. rebut- would affect Petition- until the tion are irrelevant illegality presumptive no-solicita- Brief at 20. er’s ted the 24-28; rule, Respondent’s Brief at see Tennessee, Magnavox Co. of aptly suggests the First Petitioner Cir- 326-27, 39 L.Ed.2d 358 ruling relying the NLRB in St. John’s cuit in law, reading a correct This is not have realized how scant the could “special circumstances” of find that but as we that decision was based had evidence on which than re- have more environment Supplemental Reply Brief at been. Petitioner’s argu- presumption, the Board’s butted particular case. force in this ment is without before the Board. The First empha- exception Circuit relied on the majority, which present hospitals “unique sized that consid- develops the legality no-solicitation rules apply erations that do not set- industrial in ordinary restaurants and shops.3 The tings” and that “the Board should stand cases, rationale of these as the majority ready rulings experi- to revise its if future notes, is the importance crucial conge- a ence well-being demonstrates that atmosphere nial to the success of the busi- jeopardized.”63 is in fact In this justification ness. That is the of the excep- case feel that petitioner adequately we tion. well-being pa- demonstrated The case at hospital cafeterias and bar— operation tients and visitors and the vending machines—does present hospital jeopardized by allowing would be same considerations as warranted the ex- solicitation in the corridors and wherever ception wrought ordinary for commercial else or visitors have access. restaurants. Their role and context is not is no need for further There examination the main business of a hospital but an ancil- Baylor. Accordingly, of the conditions lary making refreshment convenience— option we do not exercise our remand (and available to staff and pa- visitors Instead, grant the NLRB. we enforcement tients free to leave rooms). their The hos- insofar as it covers order those pital cafeteria vending areas are not in petitioner’s unrelated to provisions no-solici- competition direct with ordinary restau- deny tation rule and enforcement as to the rants this trade. place The time and remainder. utility of hospital gives it advan- So ordered. tages for custom not bestowed the food and ambience.

LEVENTHAL, Judge, concurring Circuit sure, beTo hospital part legitimate has a dissenting part: interest in a congenial atmosphere in its majority denies enforcement of cafeteria —but it is not the kind of live-or- invalidating hospital’s Board order ban imperative die that must given recogni- against solicitation and distribution liter- tion even though it undercuts rights hospital corridors, ature in the cafeteria and employees protected by general Repub- concur vending majority areas. I lic principle. opinion applies insofar as to the however, agree, I corridors. cannot that a The distinction I have delineated is rein- barring these activities in the cafeteria forced, think, I when it is viewed in con- vending areas has been shown to junction hospital’s with the ban on solicita- equally Supreme defensible. Since the tion in direct care areas and closely Court will soon address this issue in another locations, related including corridors that case,1 myself I will confine to a few brief likely to be used involved in remarks. patient care, the central purpose of the hospital. join The general principle, I the majority established in Re- in upholding public aspect Aviation2 and other posits cases if, rule. But prohibiting rules union out necessity, permits solicitation on the the law curtail- employer’s property during nonworking ment of employee rights (union activities) time presumptively unreasonable areas, certain sensitive is there not a discriminatory. subject That rule is fairly expectation correlative of a certain against 63. 554 F.2d at 481. rescind its rule distribution and solicita- tion in shop. cafeteria and coffee Hospital, v. Beth Israel 554 F.2d 477 (1st 1977), granted Republic NLRB, Corp. cert. sub nom. Beth Aviation v. 324 U.S. Israel (1945). S.Ct. el, 54 L.Ed.2d 780 In Beth Isra granted majority opinion the First Circuit enforcement to that 3. See at---of part requiring of a Board order App.D.C., supra. at 357-358 of 578 F.2d rights activities to those receptivity locations? fairly does not my the statute view hospital can confine its

contemplate that a closets, deny them to the

employees most places natural

protection by leaning patient-related, that is not

talk wrought for commercial the exception survival.

enterprises to ensure reasonably and with suf- acted

The Board when concluded in the record

ficient basis in such locations as cafete-

that solicitation signif- vending machines

rias therapeutic function-

icantly undercut most

ing hospital. It “patient sense that

general and non-critical areas. They in these

care” rendered retreats, staff, patients, where

basically from immediate con-

visitors withdraw They areas. are nat- patient care

tact with to talk mat- places employees about

ural concern such as unions. of mutual

ters that portion from respectfully

I dissent which holds that the majority opinion protect not authorized

Board was vending cafeteria and areas.

talk these UN

GENERAL SERVICE EMPLOYEES 73, affiliated with Ser

ION LOCAL NO. Union, Employees

vice International Petitioner,

AFL-CIO, LABOR RELATIONS

NATIONAL

BOARD, Respondent.

No. 70-1708. Appeals, Court

United States Circuit.

District of Columbia 10, 1977.

Argued June 22, 1978.

Decided Feb. 4,May Denied

Rehearing

Case Details

Case Name: Baylor University Medical Center v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 14, 1978

Citation: 578 F.2d 351

Docket Number: 76-1940

Court Abbreviation: D.C. Cir.