576 F.2d 107 (6th Cir. 1978), 76-1675, N.L.R.B. v. Baptist Hosp., Inc.

Docket Nº:76-1675.
Citation:576 F.2d 107
Case Date:May 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 107

576 F.2d 107 (6th Cir. 1978)




No. 76-1675.

United States Court of Appeals, Sixth Circuit

May 10, 1978

Argued Feb. 7, 1978.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., William R. Stewart, Washington, D. C., Raymond A. Jacobson, Director, Region 26, N. L. R. B., Memphis, Tenn., for petitioner.

Joseph H. Clark, David Vaughan, Elarbee, Clark & Paul, Atlanta, Ga., for respondent.

William F. Ford, Michael H. Campbell, Fisher & Phillips, Atlanta, Ga., for amicus curiae Hospital Corp.

Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This case concerns the validity of a "no-solicitation rule" in a hospital setting. Following a hearing an administrative law judge concluded that the rule is invalid on its face to the extent that it prohibits solicitations at any time in all areas of the hospital which are accessible to, or utilized by the public. He also held that no unusual circumstances had been established which would justify the otherwise invalid restrictions contained in the rule. The National Labor Relations Board (the Board) considered exceptions filed by Baptist Hospital, Inc. (the hospital) and agreed with the conclusion of the administrative law judge that promulgation and enforcement of the no-solicitation rule constituted a violation of provisions of the National Labor-Management Relations Act of 1947, as amended, 29 U.S.C. §§ 141, et seq. (the Act). The Board's decision and order are reported at 223 NLRB No. 34 (1976).

Page 108

Baptist Hospital, located in Nashville, Tennessee, is a non-profit general hospital with 600 beds and more than 1800 employees. For some years prior to 1974 the hospital had enforced a rule against solicitations which applied to the entire hospital premises. In August 1974 a union began attempts to organize employees of the hospital. Also, during that month the Act was amended to give the Board jurisdiction over nonprofit health care institutions.

W. T. Victory, vice president of personnel services for the hospital, testified that the no-solicitation rule was revised with the advice of counsel. The present rule, effective since October 4, 1974, reads as follows:

No solicitations of any kind, including solicitations for memberships or subscriptions, will be permitted by employees at any time, including work time and non-work time in any area of the Hospital which is accessible to or utilized by the public. Anyone who does so will be subject to disciplinary action. In those work areas of the Hospital not accessible to or utilized by the public, no solicitation of any kind, including solicitations for memberships or subscriptions will be permitted at any time by employees who are supposed to be working, or in such a way as to interfere with the work of other employees who are supposed to be working. Anyone who does so and thereby neglects his work or interferes with the work of others will likewise be subject to disciplinary action.

No distributions of any kind, including circulars or other printed materials, shall be permitted in any work area at any time.

In publishing the revised rule the hospital explained its purpose in an employee's handbook as being "to help protect the privacy and rights of employees as well as to help maintain a good working environment and appearance throughout the hospital."

The same witness testified that, as applied by the hospital, the rule prohibits all soliciting and the distribution of literature by employees in any area open to the public or any area where work is performed. Included in the areas closed to solicitation are a gift shop and cafeteria which are open to employees, visitors to the hospital, and with some exceptions, to patients. Solicitation and distribution are permitted, however, in...

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