Eastern Maine Medical Center v. N.L.R.B.

• Decision Date: 31 August 1981
• Docket Number: No. 80-1758,80-1758
• Citation: 658 F.2d 1
• Parties: 108 L.R.R.M. (BNA) 2234, 92 Lab.Cas. P 12,981 EASTERN MAINE MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 1

658 F.2d 1

108 L.R.R.M. (BNA) 2234, 92 Lab.Cas. P 12,981

EASTERN MAINE MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1758.

United States Court of Appeals, First Circuit.

Argued May 7, 1981.

Decided Aug. 31, 1981.

Thomas C. Johnston, Bangor, Me., with whom Clare Hudson Payne, and Eaton, Peabody, Bradford & Veague, Bangor, Me., were on brief, for petitioner.

Marjorie S. Gofreed, Atty., Washington, D. C., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, ^* Senior District Judge.

COFFIN, Chief Judge.

The Eastern Maine Medical Center petitions for review of a decision and order of the National Labor Relations Board finding that it committed several unfair labor practices and ordering it to bargain with the Maine State Nurses Association and to make whole certain of its employees. The Board cross-petitions for enforcement. We enforce the Board's order.

Eastern Maine Medical Center (EMMC) is the second largest hospital in the state of Maine with approximately 400 beds and 1400 employees. On March 18, 1976 the registered nurses at EMMC ¹ elected the Maine State Nurses Association (MSNA) as their collective bargaining representative by a margin of 114-100, the first EMMC employees to elect union representation. Over the next fifteen months the MSNA failed to obtain an initial collective bargaining agreement, while non-bargaining unit EMMC employees received substantial increases in wages and benefits. On May 31, 1977, shortly after the expiration of the one year election-bar period, a decertification petition was filed and on July 28, 1977 the MSNA was voted out by a margin of 132-81.

The union filed objections to the election on August 3, 1977 and unfair labor practice charges on September 1, 1977. The Regional Director, in his initial report on the election objections, recommended that one of the objections, having to do with the employer's no-solicitation rule, be upheld and that the election be set aside. Thereafter, the Regional Director withdrew his initial report, concluding that several other union objections required an evidentiary hearing. On October 28, 1977, the Regional Director issued a complaint and consolidated the unfair labor practice case with the issues remaining in the representation case. The unfair labor practice complaint alleged that EMMC had violated § 8(a)(1) of the Act by soliciting employees to file a decertification petition and by maintaining and enforcing overly broad no-access and no-solicitation rules; § 8(a)(1) and (3) of the Act by withholding wage increases from bargaining unit employees while granting them to non-bargaining unit employees; and § 8(a)(5) of the Act by refusing to bargain in good faith with the MSNA. At the hearing the General Counsel was permitted to amend the complaint to add an allegation of unlawful interrogation in violation of § 8(a) (1).

After nine days of hearing an Administrative Law Judge (ALJ) found that EMMC had not solicited the decertification petition, but found against EMMC in all other respects. The Board, in an opinion focused principally on the no-solicitation rule, adopted the findings and conclusions of the ALJ, but modified the ALJ's proposed remedy by deleting some of its more stringent provisions. ²

I. NO-SOLICITATION AND NO-ACCESS RULES

In the spring of 1975, when the MSNA began its organizing drive at EMMC, the hospital by rule prohibited any solicitation on its property without the advance authorization of the executive director. This rule was modified and relaxed on October 1, 1975. Two official versions of the new rule were circulated. One version, appearing in a memorandum addressed to all medical center personnel and in EMMC's "Weekly Bulletin", permitted employee solicitation during "break time" in "break areas". The second version, appearing in a memorandum addressed to all other employees, substituted for "break areas", "non-work areas". Solicitation during working time or by non-employees was flatly prohibited.

The general principle applied by the Board in solicitation cases, approved in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1954), is that a rule against employee solicitation during the work time is presumptively valid, while a rule restricting employee solicitation during nonworking time is presumptively invalid. Nonworking time restrictions may be upheld only when the employer demonstrates "special circumstances" making the rule necessary to maintain production or discipline. The Board has modified this general approach with regard to hospitals, to accommodate the special need of patients for a tranquil environment. The Board's rule as to hospitals, first announced in St. John's Hospital & School of Nursing, 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (10th Cir. 1977), allows employer restriction of nonworking time solicitation in "immediate" patient-care areas but maintains the presumption against nonworking time restrictions in other areas, such as cafeterias and lounges, even though they may be accessible to patients. We upheld this presumption as applied to a hospital cafeteria and coffee shop in NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), aff'd, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). The Supreme Court in Beth Israel and in NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 787-88, 99 S.Ct. 2598, 2606-07, 61 L.Ed.2d 251 (1979) rejected attacks on the validity of the hospital presumption, while registering serious doubt in Baptist Hospital that the scope of protectible patient-care areas could rationally be thought to exclude areas commonly used by patients, such as corridors and sitting rooms on patient floors. Id. at 788-90, 99 S.Ct. at 2607-08.

Under these principles, the EMMC no-solicitation rule was overbroad, and therefore presumptively invalid, in two respects. First, by permitting solicitation only during breaks, and not during other nonworking time, such as before and after work and during lunchtime, the rule did not permit solicitation during the full range of nonworking time. Second, because the rule required that all solicitation take place in nonworking areas or, even more restrictively, in break areas, the rule barred nonworking time solicitation even in areas not involved with the care of patients. Thus, the rule covered substantially more than patient-care areas, even giving that term a broad definition. EMMC failed to introduce any evidence justifying the broad no-solicitation rule as necessary to prevent either disruption of patient care or disturbance of patients. Accordingly, we uphold the Board's conclusion that the no-solicitation rule was overly broad and violative of § 8(a)(1).

While practically conceding the facial invalidity of its rule, EMMC takes issue with the Board's determination that it unlawfully enforced a prohibition on solicitation in the second floor lobby of the hospital. On March 10, 1977 two off-duty registered nurses were soliciting signatures for MSNA membership and dues check-off cards in the public cafeteria on the second floor. When later that day they moved out in the lobby adjoining the cafeteria, the hospital's director of personnel asked them to leave the premises, invoking what he termed the hospital's no-solicitation "policy". The nurses complied.

The hospital contends that the second floor lobby was properly declared off limits to protect friends of patients and "members of the patients' families anxiously awaiting results of surgery" from the potentially disturbing sight of union solicitation. According to the hospital the interest of tranquility of friends and relatives, as well as patients is to be balanced against the self-organizational rights of employees. As authority for this proposition, EMMC relies on a statement in Justice Blackmun's concurring opinion in Beth Israel that "the patient and his family ... need a restful, uncluttered, relaxing and helpful atmosphere...." 437 U.S. at 509, 98 S.Ct. at 2477 (emphasis added), quoted in NLRB v. Baptist Hospital, Inc., 442 U.S. at 783-84, n.12, 99 S.Ct. at 2604-05. EMMC complains that the Board erred by completely ignoring the interests of relatives and friends of patients.

We do not agree with this characterization of the Board's decision. Since the lobby was not a patient-care area and the nurses expelled for soliciting there were off-duty, the hospital bore the burden of proof on the validity of the expulsion. EMMC could have justified its action by showing that solicitation was likely either to disturb patients or disrupt health care services. NLRB v. Baptist Hospital, Inc., 442 U.S. at 781, n. 11. The Board observed, we believe correctly, that if visitors were accorded the same protection as patients, virtually every publicly accessible part of the hospital would be off-limits for solicitation, including cafeteria and lobby areas such as those held open to solicitation in Beth Israel and Baptist Hospital. The Board did not rely on this observation alone, however, but went on to examine in detail the character of the second floor lobby "focussing particularly upon the delivery of health care services at EMMC as that may involve the lobby area at issue....", the second criterion recognized in Baptist Hospital.

The Board concluded, based on the following facts, that EMMC had not demonstrated an adverse effect on health care operations. The lobby is a large waiting area open to the general public, immediately adjoining the hospital's public cafeteria. It is used by people on breaks from conferences in nearby conference rooms, those passing to and from the medical library and by nurses who wait there at shift...