Rеspondent, Beth Israel Hospital, is a major non-profit hospital of national reputation in Boston, Massachusetts. In 1975, the hospital had the following rule:
“Hospital employees who want to solicit other employees for the Union or other causes may do so when they are not on their own working times, but only in two well-defined locations of the Hospital:
1) Employee-only arеas — employee locker rooms and certain adjacent rest rooms; and
2) Cafeteria and coffee shop.
In the locker areas literature may be offered. In the cafeteria and coffee shop, conversations may take place on a one-to-one basis but there is to be no setting up of special tables, public distribution of literature nor any form of coercion. Elsewherе within the Hospital, including patient-care and other work areas, the lobbies, corridors, elevators, libraries, meeting rooms, etc., there is to be no solicitation nor distribution of literature. Soliciting of patients and visitors is *479 expressly prohibited at all times and places.”
While this rule was in effect, an employee, Ann Schunior, distributed a union newsletter in the hospital cafeteria. She was given a verbal warning by a superior and subsequently notifiеd in writing that she would be fired if she persisted in such activities. Charges were thereupon filed by the Massachusetts Hospital Workers’ Union, Local 880, Service Employees International Union. The Regional Director of'the N.L.R.B. issued a complaint that the promulgation of the hospital’s rule against distribution of union literature in the cafeteria and coffee shop, and limiting solicitation there to a one-to-one basis, violated § 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) and (1). The hospital’s warnings to Ms. Schunior were alleged also to violate § 8(a)(3) and (1). While the complaint was pending, the hospital promulgated a new rule flatly banning solicitation and distribution by employees in the. cafeteria and coffee shop and other areas open to the рublic. 1
After a hearing on the complaint, the Administrative Law Judge ruled that “[b]y initiating, promulgating and maintaining a written rule prohibiting distribution of union literature, and union solicitation except on a ‘one-to-one’ basis, in its cafeteria and coffee shop, the Respondent violated Section 8(a)(1).” The ALJ’s proposed remedial order required the hospital to rescind its written warning to emplоyee Schunior and “[rjescind its written rule prohibiting distribution of union literature and union solicitation in its cafeteria and coffee shop.” The ALJ also ■ proposed a broad order prohibiting discrimination against or discipline of employees “for engaging in concerted union activities for their mutual aid or protection, or in any like or related manner, interfering with, restraining, or coеrcing employees in the exercise of their rights guaranteed in Section 7.”
In a brief memorandum decision, 223 N.L.R.B. No. 188 (1976), a three member panel of the Board affirmed the ALJ’s “rulings, findings and conclusions”. The Board went on, in its formal order, to adopt the substance of the ALJ’s recommended order including that portion requiring the hospital to “[rjescind its written rule prohibiting distribution of union literature and union solicitation in its cafeteria and coffee shop.” The Board, however, also appended the following footnote 2 to its decision :
“Subsequent to the Administrative Law Judge’s Decision in this case, the Board in St. John's Hospital and School of Nursing, 222 N.L.R.B. No. 182 (1976), held that restrictions on solicitation and distribution in patient access areas such as cafeterias violates Sec. 8(a)(1) of the Act. Accоrdingly, the Respondent also violated Sec. 8(a)(1) by maintaining an overly broad no-solicitation, no-distribution rule that prohibited all solicitation and distribution in all areas to which patients and visitors have access and employees have access during nonworking time other than immediate patient care areas.” Id., slip op. at 1 n. 2.
Resisting the Board’s petition for enforcement, Bеth Israel argues that curtailing solicitation and distribution in the cafeteria and coffee shop is justified by the special circumstances of a health-care institution. Some of its out-patients and in-patients visit the cafeteria and coffee shop during the day and will, it is contended, be upset by the “table-hopping” and some *480 times heated discussions which accompany union solicitation and distribution. The hospital also points out that some of the union literature distributed in the past has been harshly critical of the quality of health care which the hospital provides. Beth Israel suggests that its legitimate desire to prevent such literature from falling into the hands of patients and visitors, and thereby upsetting them, justifies its no-distribution rule.
Beth Israel also challenges the Board’s footnоted conclusion that the hospital violated Section 8(a)(1) by maintaining an overly broad rule prohibiting all solicitation and distribution in all areas to which patients and visitors have access “other than immediate patient care areas”. The hospital fears that this footnote will be read as expanding the scope of the Board’s decision and order so as to mandate the allowance of organizational activity throughout the hospital in all except the most obvious patient care areas. The hospital maintains that such a reading would result in extreme unfairness to it, by cutting off all future opportunity to show the harmful effects upon patients of organizational activity in other parts of the hospital. The complaint made no rеference to areas other than the cafeteria and coffee shop and no evidence as to the effects of union activity in other areas was introduced at the hearing.
Principles governing an employer’s limitation of solicitation and distribution by employee union organizers are by now fairly well settled. Rules which prohibit union solicitation on the employer’s property during nonworking time in any location have been held to be presumptively unreasonable and discriminatory in the absence of evidence of special circumstances to justify them.
Republic Aviation Corp. v. NLRB,
We are unable to say, on this record, that the Board was compelled tо hold that Beth Israel met this burden. The Board views a hospital’s “basic function” as the provision of patient care: it has accordingly declined to accept rules cutting back on organizational rights in non-patient care areas unless the hospital shows that the curtailed activity will impinge upon patient care. 2 The hospital argues that solicitation *481 and distribution activities among employees might “offend or uрset patients and their visitors” gathered in the cafeteria and coffee shop, but the Board could conclude that such activities in these public areas would not constitute a sufficient threat to the treatment of patients, or to their recovery, to justify depriving employees of their organization rights. There was evidence of very substantial employee use of such аreas, and the Board had to weigh the probable effect on ambulatory patients and visitors of employee solicitation and distribution activities in these natural gathering areas against the harm to employees of a ban. Beth Israel asserts that patients witnessing “table-hopping” and heated pro- and anti-union discussions will be subject to anxiety as they worry about “the security of their environment.” But this assumes that irresponsible behavior will be the norm, and gives no weight to the fact that only ambulatory patients visit the cafeteria and coffee shop. We think the Board was entitled to reject this line of argument as unduly speculative. 3 This is not to say that the Board does not bear 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. See St. John’s Hospital, supra, slip op. at 3-4 (ban valid in “patient care areas” where greater likelihood of upsetting ill patients can be shown).
Beth Israel argues that its no-distribution rule will prevent the union’s “scurrilous” attacks on the hospital’s health care from falling into the hands of patients or visitors. There was no evidence, however, that literature, offensive or otherwise, was distributed to patients or visitors. Employee Schunior testified thаt she took care to distribute only to employees. If in the future employee organizers deliberately distribute “scurrilous” literature to patients or visitors, the hospital may well have cause to discipline such employees.
Cf. NLRB v. Local 1229, IBEW (Jefferson Standard Broadcasting Co.),
We have much more sympathy with Beth Israel’s criticism of the Board’s finding, appearing in footnote 2 of its decision, of a § 8(a)(1) violation founded upon the rule’s applicability to all other non-patient-care areas. Footnote 2 can be read in several ways. Arguably, it merely cites St. John’s Hospital, supra, as additional authority for finding invalid an “overly broad” rule which outlaws solicitation and distribution in areas “such as cafeterias.” Such a reading of the footnote is consistent with the rest of the Board’s decision and order which applies only to the particular areas focused on by the ALJ, i. e., the cafeteria and coffee shop. On the other hand, the footnote can also be interpreted as a binding determination that solicitation and distribution must be permitted, without limitation, in “all areas . . other than immediate patient care areas.” Such is the interpretа *482 tion urged on us by the Board’s counsel in seeking enforcement of the order in this case.
Without any facts in the record pertaining to the appropriateness of solicitation and distribution restrictions in areas other than the cafeteria and coffee shop, or any indication that the Board was focusing on other areas, we are unwilling to give such a broad interpretation to its puzzling footnote.
4
Counsel’s post hoc rationalizations cannot serve to fill a critical gap in the record.
NLRB v. Metropolitan Life Insurance Co.,
We thus make plain that we interpret the Board’s decision and order as adjudicating no more than the status of the cafeteria and coffee shop. The order proposed by the ALJ and adopted by the Board required the hospital to “[rjescind its written rule prohibiting distribution of union literaturе and union solicitation in its cafetera and coffee shop.” We think this fairly obviously was intended to regulate only the two mentioned areas. To avoid any question we shall enforce that order only as amended to read, “[rjescind
that part of
its written rule prohibiting distribution . [etc.]”.
5
In so doing we in no way suggest that union activity may properly be banned in other public areas. It may well turn out that a rule banning distribution and solicitation is likewise invalid in many other non-patient-care areas accessible to patients and visitors as well as employees. But we think that the hospital should not be foreclosed from demonstrating that special circumstances justify a different result elsewhere.
6
Since we refuse to enforce the
*483
order in areas other than the cafeteria and coffee shop, the hospital is not collaterally estoppеd from litigating the propriety of the rule in other areas.
See W. W. Windle Co. v. Commissioner,
Finally, we decline to enforce paragraph 1 of the Board’s order which broadly prohibits interference with “concerted union activities” and “the exercise of [employees’] rights guaranteed in Section 7 of the Act.”
7
A non-profit hospital’s concern about the possible effect on patients of organizational conduct in parts of the institution can hardly be dismissed as unreasonable when registered at a time when guidelines are still in flux and are in the process of being formulated through administrative and court proceedings. We do not think it can reasonably be inferred from a single violation of this character that the hospital has a proclivity knowingly to violate the Act, thus justifying a broad ordеr.
See NLRB v. Curtis Manufacturing Co.,
Except as indicated above, the Board’s order will' be enforced.
So ordered.
Notes
. “There is to be nо soliciting of the' general public (patients, visitors) on Hospital property. Soliciting and the distribution of literature to BI employees may be done by other BI 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 othеr work areas, and areas open to the public such as the 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 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.”
. The Board in
St. John’s Hospital & School of Nursing,
222 N.L.R.B. No. 182, slip op. at 4 n. 3,
appeal docketed,
No. 76-1130 (10th Cir. 1976), indicated that it would focus only on the employer’s “basic function” in assessing the validity of the proffered justification for curtailing employees’ concerted activities. Since a hospital’s patient care function is believed not to be impaired by organizational aсtivities in cafeterias and like areas, the Board refused to apply to hospitals its precedents upholding no-solicitation. rules when applied to non-working-time activities of employees in department store sales floors and lunchrooms.
E. g., Goldblatt Bros., Inc.,
. The Board’s conclusion that the hospital had not carried its burden of showing special circumstances receives further support from the ALJ’s supported finding that numerous non-union distribution activities have been routinely permitted in the cafeteria and coffee shop.
William L. Bonnell Co. v. NLRB,
. The Board argues that Beth Israel itself put in issue all non-patient-care areas and therefore should not be heard to argue that the Board improperly determined the rule’s legality in all such areas. Wе understand Beth Israel at most to have argued that it, qua hospital, had the right to ban all solicitation and distribution on its premises. While this argument obviously goes too far, we do not see it as inviting the Board, in one fell swoop, to adjudicate the status of all other areas even though the record contained no information pertaining to these other areas. Nowhere other than in the аmbiguous footnote does the Board indicate that it focused on the rule’s application to particular non-patient-care areas beyond the cafeteria and coffee shop.
The Board also argues that if it improperly expanded the scope of its inquiry to invalidate the rule in all non-patient-care areas, Beth Israel waived its right to raise this issuе on appeal by failing to petition the Board for reconsideration of its decision.
See
§ 10(e), 29 U.S.C. § 160(e);
ILGWU v. Quality Mfg. Co.,
. The “notice to employees” ordered by the Board to be posted should also be reworded to reflect this clarification of the order.
. We would add that a phrase like “immediate patient-care areas” is far from self-defining given the complexity of a major metropolitan hospital. Would a waiting area by the nurse’s *483 desk on a floor where patients reside be a “patient-care area?” Would the waiting room in the emergency ward?
. The Board made the order even broader than the ALJ proposed by substituting “in any other manner” for “in any like or related manner”.