BETH ISRAEL HOSPITAL v. NATIONAL LABOR RELATIONS BOARD
No. 77-152
Supreme Court of the United States
Argued April 24, 1978—Decided June 22, 1978
437 U.S. 483
Louis Chandler argued the cause for petitioner. With him on the brief was Robert Chandler.
Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General McCree, John S. Irving, and Carl L. Taylor.
Laurence Gold argued the cause for intervenor Massachusetts Hospital Workers’ Union Local 880, Service Employees’ International Union. With him on the brief were Lester Asher, J. Albert Woll, and George Kaufmann.*
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136,
In 1970, prior to the advent of any union organizational activity at the hospital, petitioner announced a rule barring solicitation and distribution of literature in any area to which patients or visitors have access. Petitioner permitted these activities only in certain employee locker rooms and certain adjacent restrooms. App. 59. In July 1974, however, as a result of a proceeding instituted against it before the Massachusetts Labor Relations Commission, petitioner announced a rule permitting solicitation in the cafeteria on a one-to-one basis while maintaining the total ban on distribution. Id., at 67. On March 6, 1975, shortly after the NLRB acquired jurisdiction, petitioner reinstated its previous rule limiting employee solicitation and distribution to certain employee locker rooms and restrooms. Id., at 70.2 That rule provides:
“There is to be no soliciting of the general public (patients, visitors) on Hospital property. Soliciting and the distribution of literature to B. I. employees may be done by other B. I. employees, when neither individual is on his or her working time, in employee-only areas—employee locker rooms and certain adjacent rest rooms. Elsewhere within the Hospital, including patient-care and
all other work areas, and areas open to the public such as lobbies, cafeteria and coffee shop, corridors, elevators, gift shop, etc., there is to be no solicitation nor distribution of literature.
“Solicitation or distribution of literature on Hospital property by non-employees is expressly prohibited at all times.
“Consistent with our long-standing practices, the annual appeal campaigns of the United Fund and of the Combined Jewish Philanthropies for voluntary charitable gifts will continue to be carried out by the Hospital.” Id., at 70-71.
Upon a charge filed by the union,3 the Board issued a complaint and the matter was tried before an Administrative Law Judge. The Board affirmed the rulings, findings, and conclusions of the Administrative Law Judge that petitioner‘s issuance and maintenance of the rules violated § 8 (a) (1) and the disciplining of an employee for an infraction of them violated § 8 (a) (3). 223 N. L. R. B. 1193 (1976). The Administrative Law Judge found that there were few places in which employees’ § 7 rights effectively could be exercised, that petitioner had not offered any convincing evidence that the rule was necessary to prevent disruptions in patient care, and that, on balance, the rule was an unjustified infringement of § 7 rights. See 223 N. L. R. B., at 1198. The Board issued an order, paragraph 1 of which broadly required petitioner to cease and desist from interfering with “concerted union activities” and “exercise of [employees‘] rights guaranteed in Section 7 of the Act,” and paragraph 2 (b) of which required petitioner to “[r]escind its written rule prohibiting distribution of union literature and union solicitation in its cafeteria
The Court of Appeals accepted as settled law that rules restricting employee solicitation during nonworking time, and distribution during nonworking time in nonworking areas are presumptively invalid in the absence of special circumstances to justify them, 554 F. 2d 477, 480 (1977), and held that, since “[i]n this case, the application of the employer‘s no-solicitation, no-distribution rules to the cafeteria and coffee shop banned concerted activities in non-working areas during non-working time . . . [t]he burden, therefore, was on the hospital to show that special circumstances justified its curtailment of protected activities in these two places.” Ibid. After review of the record, the court held that “the Board did not err in finding that the hospital had not justified its no-solicitation, no-distribution rule as it related to the cafeteria and coffee shop.” Id., at 481. The court refused to enforce paragraph 1 of the Board‘s order, however, on the ground that no proclivity to violate the Act had been shown to support that broad cease-and-desist order. It also enforced paragraph 2 (b) only after adding to the order the clarifying words “that part of” so that petitioner was required to “[r]escind that part of its written rule prohibiting distribution [of union literature and union solicitation in its cafeteria and coffeeshop],” id., at 482 (emphasis in original), to make clear that the validity of the rules as applied to areas outside the cafeteria and coffeeshop remained open. The Board has not sought review of the Court of Appeals’ rulings in these respects.4 The narrow question for decision, therefore, is whether the Court of Appeals erred in enforcing the Board‘s order requiring petitioner to rescind the rules as applied to the hospital‘s eating
I
Although petitioner employs approximately 2,200 regular employees,6 only a fraction of them have access to many of the areas in which solicitation is permitted. Solicitation and distribution are not permitted in all locker areas. Rather, of the total number of locker areas only six separate and scattered locker areas containing 613 lockers are accessible to all employees for these purposes.7 Moreover, most of these rooms are divided and restricted on the basis of sex, and in any event
Petitioner itself has recognized that the cafeteria is a natural gathering place for employees on nonworking time, for it has used and permitted use of the cafeteria for solicitation and distribution to employees for purposes other than union activity. For example, petitioner maintains an official bulletin board in the cafeteria for communicating certain messages to employees. On occasion it has set up special tables in or near the cafeteria entrance to aid solicitation of contributions for the United Way or United Fund charities, the Jewish Philanthropies Organization Drive, the Israel Emergency Fund, and to recruit members for the credit union. When petitioner embarked upon an intensive cost-reduction program, styled “Save a Buck a Day” or “BAD,” it used the cafeteria to post banners and distribute informational literature touting the program to employees, and, significantly, generally did not use the locker rooms and restrooms for this purpose. In addition to these official uses, petitioner maintains an unofficial bulletin board in the cafeteria for the employees’ use, a rack and small table which display commercial literature, such as travel brochures, and information of interest only to employees, such as carpool openings.
“[T]here are relatively few places where employees can congregate or meet on hospital grounds or in the nearby vicinity for the purpose of discussing nonwork related matters other than in the cafeteria; secondly, the area in the neighbor-
On October 25, 1974, Ann Schunior, a medical technician in the Department of Medicine, was distributing the union newsletter As We See It by circulating from table to table. She approached only persons she thought were employees, and if not sure of their employee status, inquired whether they were, explaining that she was distributing literature for employees. Petitioner‘s general director witnessed this activity, advised Schunior that she was violating the hospital‘s no-distribution rule, and demanded that she cease the distribution. A written warning notice was issued to Schunior the same day advising that she had been in flagrant violation of the hospital‘s rules and that further violations would result in dismissal. 223 N. L. R. B., at 1195-1196. The publication As We See It was objectionable to petitioner because certain issues were said to contain remarks which disparaged the hospital‘s ability to provide adequate patient care, primarily because of understaffing. Id., at 1196.
II
A
We have long accepted the Board‘s view that the right of employees to self-organize and bargain collectively established by § 7 of the NLRA,
“[The Board must adjust] the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee.” Id., at 797-798.
That principle was further developed in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), where the Court stated:
“Accommodation between [employee-organization rights and employer-property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other.” Id., at 112.
Based on its experience in enforcing the Act, the Board developed legal rules applying the principle of accommodation. The effect of these rules is to make particular restrictions on employee solicitation and distribution presumptively lawful or unlawful under § 8 (a) (1) subject to the introduction of evidence sufficient to overcome the presumption. Thus, the Board has held that restrictions on employee solicitation during nonworking time, and on distribution during nonworking time in nonworking areas, are violative of § 8 (a) (1) unless the employer justifies them by a showing of special circum-
Republic Aviation Corp., supra, sustained the Board‘s general approach to adjudication of § 8 (a) (1) charges. There we held that the Board is free to adopt, in light of its experience, a rule that, absent special circumstances, a particular employer restriction is presumptively an unreasonable interference with § 7 rights constituting an unfair labor practice under § 8 (a) (1), without the necessity of proving the underlying generic facts which persuaded it to reach that conclusion. The validity of such a rule “[l]ike a statutory presumption or one established by regulation, . . . perhaps in varying degree, depends upon the rationality between what is proved and what is inferred.” Republic Aviation, supra, at 804-805 (footnote omitted). The Board here relied on, and petitioner challenges, the fashioning of a similar presumption applicable to hospitals.
Although, prior to the 1974 amendments, the Board had considered the validity of no-solicitation and no-distribution rules in the context of proprietary hospitals, no clear rule emerged from its decisions. In Summit Nursing & Convalescent Home, Inc., 196 N. L. R. B. 769 (1972), enf. denied, 472 F. 2d 1380 (CA6 1973), a divided panel, reversing the Administrative Law Judge, held unlawful a rule prohibiting solicitation or distribution “at any time in the patient or public area within the [nursing] home, or in the nurses’ stations.” Another divided panel, in Guyan Valley Hospital, Inc., 198 N. L. R. B. 107 (1972), affirming the Trial Examiner, held lawful a rule prohibiting “soliciting in working areas during working hours.” In Guyan Valley the Trial Examiner noted that the employer‘s rule did not interfere with “solicitation . . . in the waiting room, the employees’ dining room, and the parking lot.” Id., at 111. The Board apparently relied upon this fact to distinguish it from Summit Nursing, supra. See 198 N. L. R. B., at 107 n. 2. Finally, in Bellaire General Hospital, 203 N. L. R. B. 1105 (1973), the panel which had split in Summit Nursing, unanimously held unlawful a rule prohibiting solicitation and distribution “by employees while off duty or during working hours.” 203 N. L. R. B., at 1108.
This series of somewhat inconclusive decisions was the background against which, after the 1974 amendments, the full Board considered development of a rule establishing the permissible reach of employer rules prohibiting solicitation and distribution in all health-care institutions. In a unanimous opinion, in St. John‘s Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), the Board concluded that the special characteristics of hospitals justify a rule different from that which the Board generally applies to other employers. On the basis of evidence and aided by the briefs amici curiae filed by the American Hospital Association and District 1199
“that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the patients’ rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas. Solicitation at any time in those areas might be unsettling to the patients—particularly those who are seriously ill and thus need quiet and peace of mind.” Ibid. (emphasis added).
The Board concluded that prohibiting solicitation in such situations was justified and required striking the balance against employees’ interests in organizational activity. The Board determined, however, that the balance should be struck against the prohibition in areas other than immediate patient-care areas such as lounges and cafeterias absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas. The Board concluded, on a record devoid of evidence which contradicted that assessment, that the possibility of disruption to patient care in those areas must be deemed remote.
III
Petitioner challenges the qualified extension of the rule affirmed in Republic Aviation to hospitals on several grounds: First, it argues that the Board‘s decision conflicts with the congressional policy evinced in the 1974 hospital amendments that the “self-organizational activities of health care employees not be allowed to ‘disrupt the continuity of patient care.‘” Brief for Petitioner 10. Second, it argues that the basis for
A
Contrary to petitioner‘s assertion, nothing in the legislative history of the 1974 amendments indicates a congressional policy inconsistent with the Board‘s general approach to enforcement of § 7 self-organizational rights in the hospital context. First, there is no reason to believe, as petitioner asserts, that Congress intended either to prohibit solicitation entirely in the health-care industry or to limit it to the extent the Board had required at the time the 1974 amendments were enacted. In extending coverage of the Act to nonprofit hospitals, Congress enacted special provisions for strike notice and mediation, applicable solely to the health-care industry, intended to avoid disruptions of patient care caused by strikes.12
Second, nothing in the legislative history supports petitioner‘s argument that the particular approach to enforcement of § 7 rights in the hospital context adopted by the Board is inconsistent with congressional policy. The elimination of the nonprofit-hospital exemption reflected Congress’ judgment that hospital care would be improved by extending the protection of the Act to nonprofit health-care employees.13 Congress found that wages were low and working conditions poor in the health-care industry, and that as a result, employee morale was low and employment turnover high.14 Congress deter-
It is true, as petitioner argues, that Congress felt that “the needs of patients in health care institutions required special consideration in the Act . . . ,” ibid., and that among the witnesses before the Committee on Labor and Public Welfare, “[t]here was a recognized concern for the need to avoid disruption of patient care wherever possible.” Id., at 6. But these statements do not support petitioner‘s further contention that congressional policy establishes that the very fact that hospitals are involved justifies, without more, a restrictive no-solicitation rule the validity of which must be sustained unless the Board proves that patient care will not be disrupted. To begin with, the congressional statements quoted, when placed in context, offer no support for such an argument.16
B
Petitioner disputes the applicability of the principle of limited judicial review of Board action generally and of the principle announced in Republic Aviation, regarding the Board‘s authority to fashion generalized rules in light of its experience, in particular, to the Board‘s decision involving hospitals. Arguing that the Board‘s conclusion regarding the likelihood of disruption to patient care which solicitation in a patient-access cafeteria would produce is essentially a medical judgment outside of the Board‘s area of expertise, it contends that the Board‘s decision is not entitled to deference. Rather, since it, not the Board, is responsible for establishing hospital policies to ensure the well-being of its patients, the Board may not set aside such a policy without specifically disproving the hospital‘s judgment that solicitation and distribution in the cafeteria would disrupt patient care. Brief for Petitioner 18. We think that this argument fundamentally misconceives the institutional role of the Board.
It is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy. Because it is to the Board that Congress entrusted the task of “applying the Act‘s general prohibitory language in the light of the infinite combinations of events which might be charged
C
Petitioner‘s contention that the Board‘s decision is unsupported by evidence and irrational is without merit. Not-
There was also cogent evidence that petitioner itself recognized that at least some solicitation and distribution would not upset patients and undermine its function of providing quality medical care. It thus appears that petitioner‘s rule was more restrictive than necessary to avert that result.20
based on overheard clinical discussions about named patients in such places as the cafeteria line. Petitioner warned that the “effect [of this on patients] can be devastating ...,” App. 136, and that “[p]atients and visitors [have been] horrified to overhear—in cafeteria lines—what is to the engrossed clinician innocuous professional discussion.” Id., at 138. This kind of discussion, far more unsettling than talk of wages and working conditions, was not banned from the cafeteria; rather, petitioner merely required staff to “restrict the voicing of your clinical discussions to include none other than your intended audience.” Ibid.
Similarly, it is the Board upon whom the duty falls in the first instance to determine the relative strength of the conflicting interests and to balance their weight. As the Court noted in Hudgens v. NLRB, 424 U. S. 507, 522 (1976), “[t]he locus of [the] accommodation [between the legitimate interests of both] may fall at differing points along the spectrum depending on the nature and strength of the respective
On the other hand, in the context of health-care facilities, the importance of the employer‘s interest in protecting patients from disturbance cannot be gainsaid. While outside of the health-care context, the availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry, see Babcock & Wilcox, supra, at 112-113, it may be that the importance of the employer‘s interest here demands use of a more finely calibrated scale. For example, the availability of one part of a health-care facility for organizational activity might be regarded as a factor required to be considered in evaluating the permissibility of restrictions in other areas of the same facility. That consideration is inapposite here, however, where the only areas in which organizational rights are permitted is not conducive to their exercise. Moreover, the area in which organizational rights are sought here is a “natural gathering are[a]” for employees, 554 F. 2d, at 481, and one in which the risk of harm to patients is relatively low as compared to potential alternative locations within the facility. On the basis of the record before it, we cannot say that the Board, in evaluating the relative strength of the competing interests, failed to consider any factor appropriately to be taken into account. Cf. Babcock & Wilcox, supra.
D
Petitioner‘s argument that it is irrational to hold, as the Board has, on the one hand, that a rule prohibiting solicitation in the dining area of a public restaurant is lawful because
In the hospital context the situation is quite different. The main function of the hospital is patient care and therapy and those functions are largely performed in areas such as operating rooms, patients’ rooms, and patients’ lounges. The Board does not prohibit rules forbidding organizational activity in these areas. On the other hand, a hospital cafeteria, 77% of whose patrons are employees, and which is a natural gathering place for employees, functions more as an employee-service area than a patient-care area. While it is true that the fact of access by visitors and patients renders the analogy to areas such as stockrooms in retail operations less than complete, it cannot be said that when the primary function and use of the cafeteria, the availability of alternative areas of the facility in which
IV
In summary, we reject as without merit petitioner‘s contention that, in enacting the 1974 health-care amendments, Congress intended the Board to apply different principles regarding no-solicitation and no-distribution rules to hospitals because of their patient-care functions. We therefore hold that the Board‘s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act. We hold further that, with respect to the application of that principle to petitioner‘s cafeteria, the Board was appropriately sensitive to the importance of petitioner‘s interest in maintaining a tranquil environment for patients. Insofar as petitioner‘s challenge is to the substantiality of the evidence supporting the Board‘s conclusions, this Court‘s review is, of course, limited. “Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.” Universal Camera Corp. v. NLRB, 340 U. S. 474, 491 (1951). We cannot say that the Court of Appeals’ assessment of the record either “misapprehended” or “grossly misapplied” that standard. The Court of Appeals did note, however, that the
“[T]he Board [bears] a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.” 554 F. 2d, at 481.
The authority of the Board to modify its construction of the Act in light of its cumulative experience is, of course, clear. NLRB v. Iron Workers, 434 U. S., at 351; NLRB v. Weingarten, Inc., 420 U. S., at 265-267.
Affirmed.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.
I concur only in the result the Court reaches here, for I, too, agree with much that MR. JUSTICE POWELL says in his separate opinion.
There is, of course, a certain irony when the Board grants protection from solicitation to the retail store and to the Burger Chef and the Hot Shoppe cafeteria, but at the same time denies it to the hospital restaurant facility where far more than mere commercial interests are at stake. Patients and their concerned families are not to be treated as impersonal categories or classes. They are individuals with problems that ought not be subject to aggravation. Nevertheless, on this record, as the Court‘s opinion reveals, it would have been difficult for the Board to reach a different result, when it utilized, questionably in my view, the rule of Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), even as perhaps modified for application in the hospital setting.
I entertain distinct doubts about whether the Board, in its preoccupation with labor-management problems, has properly sensed and appreciated the true hospital operation and its atmosphere and the institution‘s purpose and needs. I earnestly share the caveat pronounced by the Court of Appeals, and reproduced by the Court in the next-to-the-last paragraph of its opinion, ante, at 508, and I sincerely hope that the Board bears that heavy responsibility in mind when it considers other hospital cases that come before it for decision.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.
In Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), this Court approved the reasoning of the National Labor Relations Board in Peyton Packing Co., 49 N. L. R. B. 828 (1943), enf‘d, 142 F. 2d 1009 (CA5), cert. denied, 323 U. S. 730 (1944), and the balance it struck in adjusting the respective rights of industrial employers and employees. The Court also endorsed the Board‘s formulation: Because working time is for work, a rule prohibiting union solicitation during working time “‘must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose’ “; but during nonworking time, when an employee‘s time is his own even though he is on company property, a rule prohibiting union solicitation “must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.” 324 U. S., at 803-804, n. 10 (quoting Peyton Packing Co., supra, at 843-844).
The Republic Aviation rule is inapplicable in the instant case, which arises from a setting entirely different from the one in which the rule was formulated. I concur in the judgment of the Court, however, because I regard the Board‘s decision as based on substantial evidence even without the assistance of the Republic Aviation presumption.
I
The rule of Republic Aviation was adopted in the context of labor relations in industrial and manufacturing plants, where third parties unconnected with labor or management generally are not involved. In such a setting, it is relatively simple to divide the work environment into the two spheres defined in Peyton Packing. During working time an employer‘s prohibition of solicitation and distribution may be presumed valid, because “[w]orking time is for work“; but during nonworking time or in nonworking areas, such rules are presumptively invalid. The latter part of the Board‘s set of presumptions reflects the reasonable inference, based on the Board‘s experience with the actual facts of industrial life, that
“We perceive no error in the Board‘s adoption of this presumption. The Board had previously considered similar rules in industrial establishments and the definitive form which the Peyton Packing Company decision gave to the presumption was the product of the Board‘s appraisal of normal conditions about industrial establishments. Like a statutory presumption or one established by regulation, the validity, perhaps in a varying degree, depends upon the rationality between what is proved and what is inferred.” 324 U. S., at 804-805 (footnotes omitted; emphasis supplied).
The rationality found to exist in Republic Aviation, and therefore the validity of the presumption, cannot be transferred automatically to other workplaces, for to do so would sever the connection between the inference and the underlying proof. The Court‘s approval of the Republic Aviation rule was based explicitly on the Board‘s considered appraisal of “normal conditions about industrial establishments.”1 Conditions in industrial or manufacturing plants differ substantially from conditions in sales and service establishments where employees and members of the public mingle.
When confronted with the problem of retail-establishment rules prohibiting solicitation and distribution, the Board wisely refrained from mechanically applying the Republic Aviation rule when its justification was absent. The Board recognized that in the setting of a retail establishment, an employer well
It is true that the hospital‘s primary function is carried out in the immediate patient-care areas, just as the retail establishment‘s main function is carried out on the selling floor. But the Board has applied its retail-store rules to public restaurants on the premises of the retail store, see supra, at 512, notwithstanding the fact that the primary selling function does not take place there. Public restaurants in retail stores are provided for some of the reasons that hospitals maintain public eating places—including the convenience of the establishment‘s patrons. In addition, a hospital‘s more general purpose extends to, and pervades, all areas of the hospital to which the public has access; it is not limited narrowly to the provision of technical medical treatment.4 Part of the hospital‘s func-
II
The Board contends that it has effected a proper accommodation of the competing interests in St. John‘s Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), enf. granted in part and denied in part, 557 F. 2d 1368 (CA10 1977), in which it applied the basic rule of Republic Aviation but found “sufficient justification” for curtailment of employee rights in certain areas of the hospital.5 Acknowledging that the “primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function,” the Board concluded in St. John‘s that “hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted.” Accordingly, a hospital might prohibit solicitation in “strictly patient care areas,” such as “patients’ rooms, operating rooms, and places where patients receive treatment“; but not in other areas of the hospital, even those to which patients and visitors have access. 222 N. L. R. B., at 1150-1151.
In my view, the Board‘s “accommodation” of the competing interests in St. John‘s fails to give appropriate weight to the unique characteristics of a hospital. It amounts to no
Once the Board is deprived of the presumption of invalidity of an employer‘s rule, it must establish by substantial evidence on the record as a whole that the employer has violated
The Board must reach an accommodation between the respective rights of employer and employees “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956); see Eastex, Inc. v. NLRB, post, p. 556; Hudgens v. NLRB, 424 U. S. 507, 521-523 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539, 542-545 (1972). “The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective
In addition to the unavailability of other convenient places for employee communication, cf. Babcock & Wilcox, supra, at 112-113, the facts show that the hospital cafeteria is used by both the employer and employees for a variety of commercial and noncommercial notices and solicitations. And while the hospital was concerned about the disruptive effect on patients of employees’ conversations about the medical progress of particular patients, it implemented only a precatory rule, not an outright prohibition of all such conversations in the cafeteria. See ante, at 502-503, n. 20.
The hospital failed to introduce any evidence of a reasonable possibility of harmful consequences to patients or visitors.
In sum, I view this case as essentially barren of the type of evidence that could be produced on behalf of many hospitals when confronted with a similar problem. See, e. g., NLRB v. Baptist Hospital, Inc., 576 F. 2d 107 (CA6 1978). My concurrence in the judgment is based entirely on the facts, as I disagree—for the reasons above stated—with the rationale of the Board, its reliance upon a wholly inappropriate presumption, and its unrealistic distinction between hospital and retail-store cafeterias. I also note that the Court emphasizes the facts of this case, and the “critical significance [of the fact] that only 1.56% of the cafeteria‘s patrons are patients.” Ante, at 502.9
Notes
“[Section 7] organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. Early in the history of the administration of the Act the Board recognized the importance of freedom of communication to the free exercise of organization rights.” Id., at 542-543 (citation omitted). Moreover, the Court‘s opinion expresses no view as to the validity of prohibiting employee solicitation or distribution in other areas of a hospital which may not be devoted “strictly” or “immediately” to patient care but to which patients and visitors have access. This question was not presented in this case.
“During the last 2 1/2 years, hospital wage increases have lagged far behind those received by workers in other industries.
“Today, hospital workers are still notoriously underpaid.
“The long hours worked and the small monetary reward received by hospital workers result in a constant turnover with a consequent threat to the maintenance of an adequate standard of medical care. This was emphasized over and over again by many of the witnesses. Turnover rates for employees in several hospitals that were studied were reported by witnesses to be as high as 1,200 to 1,500 [percent] a year.
“Mr. President, both management and union witnesses reported lower turnover after unionization than before. . . . [T]he turnover rates at the two hospitals which had been 1,200 to 1,500 percent a year before unionization dropped to 24 to 30 percent a year after unionization. Indeed it has been convincingly argued that when hospital employees are unionized . . . the result is better job stability and security than is possible without such collective bargaining arrangements. This will also mean a better job done in terms of the quality of patient care provided.
“Mr. President, I urge all those who want improved health care and increased stability for labor-management relations in health care institutions to support this bill.” 120 Cong. Rec. 12936-12938 (1974).
“In the Committee‘s deliberations on this measure, it was recognized that the needs of patients in health care institutions required special consideration in the Act including a provision requiring hospitals to have sufficient notice of any strike or picketing to allow for appropriate arrangements to be made for the continuance of patient care in the event of a work stoppage.” S. Rep. No. 93-766, p. 3 (1974).
“PRIORITY CASE HANDLING
“Many of the witnesses before the Committee, including both employee and employer witnesses, stressed the uniqueness of health care institutions. There was a recognized concern for the need to avoid disruption of patient care wherever possible.
“It was this sensitivity to the need for continuity of patient care that led the Committee to adopt amendments with regard to notice requirements and other procedures related to potential strikes and picketing.
“Because of the need for continuity of patient care, the Committee expects the NLRB to give special attention and priority to all charges of employer, employee and labor organization unfair practices involving health care institutions consistent with [existing priorities].” Id., at 6-7.
“[I]n some of the stores the restaurant consists of a counter, in which restaurant employees on duty, other employees off duty, union organizers, and customers are in close contact with each other. Under these circumstances, union solicitation in the restaurants is as apt to disrupt the Respondent‘s business as is such solicitation carried on in any other portion of the store in which customers are present.” Id., at 1263-1264.