N.L.R.B. v. Beth Israel Hosp., 76-1318

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation554 F.2d 477
Docket NumberNo. 76-1318,76-1318
Parties95 L.R.R.M. (BNA) 2230, 81 Lab.Cas. P 13,193 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BETH ISRAEL HOSPITAL, Respondent.
Decision Date29 April 1977

David F. Zorensky, Atty., Washington, D. C., with whom John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Michael S. Winer, Atty., Washington, D. C., were on brief, for petitioner.

Robert Chandler, Boston, Mass., with whom Stoneman, Chandler & Miller, Boston, Mass., was on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and BOWNES, District Judge. *

LEVIN H. CAMPBELL, Circuit Judge.

Respondent, 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 areas 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. Elsewhere 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 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 notified 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 public. 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 employee Schunior and "(r)escind 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 coercing 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 "(r)escind 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. Accordingly, 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, Beth 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 sometimes 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 footnoted 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 reference 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, 324 U.S. 793, 804, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); D'Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975); St. John's Hospital & School of Nursing, 222 N.L.R.B. No. 182, slip op. at 2, appeal docketed, No. 76-1130 (10th Cir. 1976). Rules prohibiting distribution of literature are likewise said to be presumptively invalid if applied during non-working time in non-working areas. Food Store Employees Local 347 v. NLRB, 135 U.S.App.D.C. 341, 418 F.2d 1177, 1180 (1969); IAM District 9 v. NLRB, 415 F.2d 113, 115 n. 5 (8th Cir. 1969); NLRB v. Orleans Manufacturing Co., 412 F.2d 94, 96 (2d Cir. 1969); Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 303 (5th Cir. 1968); St. John's Hospital, supra. In 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. The burden, therefore, was on the hospital to show that special circumstances justified its curtailment of protected activities in these two places.

We are unable to say, on this record, that the Board was compelled to 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 and distribution activities among employees might "offend or upset 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 areas, 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...

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