Baylor University Medical Center v. N.L.R.B.

• Decision Date: 14 February 1978
• Docket Number: No. 76-1940,76-1940
• Citation: 578 F.2d 351,188 U.S.App.D.C. 109
• Parties: 97 L.R.R.M. (BNA) 2669, 188 U.S.App.D.C. 109, 83 Lab.Cas. P 10,369 BAYLOR UNIVERSITY MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 351

578 F.2d 351

97 L.R.R.M. (BNA) 2669, 188 U.S.App.D.C. 109,

83 Lab.Cas. P 10,369

BAYLOR UNIVERSITY MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

No. 76-1940.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 27, 1977.

Decided Feb. 14, 1978.

Robert W. Smith, with whom Bowen L. Florsheim, Dallas, Tex., was on the brief, for petitioner.

Paul J. Spielberg, Deputy Asst. General Counsel, National Labor Relations Board, Washington, D. C., with whom John S. Irving, General Counsel, Carl L. Taylor, Associate General Counsel, National Labor Relations Board, Washington, D. C., were on the brief, for respondent.

Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.

MacKINNON, Circuit Judge:

The Baylor University Medical Center ("Baylor") petitions for review of an order of the National Labor Relations Board ("Board") and the Board makes a cross-application for enforcement of its order. Our jurisdiction is conferred by section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(e), (f). The Hearing Examiner conducted an extensive hearing on a complaint issued by the Board ¹ charging, inter alia, ² that Baylor's no-solicitation and no-distribution rule ("the no-solicitation rule") ³ was overly broad and an "unfair labor practice" in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). The gravamen of the Board's complaint was that this rule prohibited solicitation by employees during their non-working time and barred all forms of solicitation and distribution in any areas of the hospital complex where services were administered to patients or where visitors might be disturbed, thereby effectively eliminating solicitation and distribution in all parts of the hospital buildings except for a small employees' locker room. ⁴ The full rule provided:

Solicitation of patients or visitors by anyone on Baylor University Medical Center property is strictly prohibited. Solicitation of employees of Baylor University Medical Center by non-employees or the distribution of literature, pamphlets, or other material, by non-employees on Baylor University Medical Center property is prohibited.

Solicitation of employees of Baylor University Medical Center by other employees or distribution of literature between employees is prohibited during work time and/or in work areas. The term "work areas" includes patient care floors, hallways, elevators or any other area such as laboratories, surgery or treatment centers, where any type of service is being administered to or on behalf of patients and also includes any area where persons visiting patients are likely to be disturbed. Service to our patients and their visitors includes not only primary and acute medical care, but, as you all know, food service and psychological support.

Unauthorized sales and solicitation of orders for any type of product or service to anyone on Baylor University Center premises are prohibited. ⁵

The Board's order, which fully adopted the recommended decision of the Hearing Examiner, ⁶ required the hospital to cease and desist from enforcing this rule and to rescind any restriction on employees' solicitation other than in "immediate patient care areas." ⁷ In light of the general rule that solicitation cannot be proscribed during non-working time nor distribution during non-working time in non-working areas, ⁸ the Board while it recognized the special circumstances presented by a hospital environment to the extent of conceding that Baylor could prohibit solicitation at all times within "immediate patient care areas" ⁹ invalidated any ban on solicitation insofar as it applied to most of (1) the corridors, (2) to the cafeteria and (3) vending machine areas. The exclusion of these parts of the hospital from the permissible scope of the hospital's no-solicitation rule is the main point of contention between the parties.

We find that the record evidence compels the conclusion that the situation in Baylor involves unique circumstances which justify a broad proscription on solicitation and distribution. In its resolution of this case the NLRB has not adequately discharged its responsibility to effectuate congressional policy, ¹⁰ which unquestionably has been concerned to avoid disruptions in hospitals. We adopt petitioner's contention that it is not an unfair labor practice to bar solicitation in Baylor's corridors. Furthermore, we feel that a strong line of authority arising in contexts other than that of health care facilities establishes the validity of the no-solicitation rule in the cafeteria and vending area.

The Hearing Examiner evidently felt compelled to limit Baylor's proscriptions on solicitation as he did because of the Board's recent decision in St. John's Hospital and School of Nursing, Inc., 222 NLRB No. 182, 91 L.R.R.M. 1333 (1976), enforced in part and denied in part, 557 F.2d 1368 (10th Cir. 1977). ¹¹ However, this decision subsequently was denied enforcement by the Tenth Circuit after the NLRB order in this case was issued, St. John's Hospital and School of Nursing v. NLRB, 557 F.2d 1368 (10th Cir. 1977). We agree with the Tenth Circuit that even were it possible which it manifestly is not to determine with any confidence and rationality which areas in a hospital are and which are not "immediately" involved in patient care, ¹² the Board's overly restrictive position on the valid extent of no-solicitation rules in medical facilities must nevertheless be overturned as insensitive both to the unique conditions found in an acute general hospital and to the declared intent of Congress.

In reviewing an order by the NLRB, courts must accept its determinations if they are supported by "substantial evidence" ¹³ and give considerable deference to the Board's interpretation of the terms of the NLRA. ¹⁴ In this case, however, we find that the Board's decision is both contrary to congressional purpose and outside the Board's area of expertise, ¹⁵ and accordingly entitled to little of the deference traditionally accorded to NLRB actions. ¹⁶ While we are not at liberty to deny enforcement to an order of the Board merely because we would have favored a different result, ¹⁷ we feel no hesitation in denying enforcement to the instant order.

I The Corridors

The legislative history of the NLRA as it applies to voluntary, non-profit hospitals ¹⁸ reveals an unmistakable solicitude for the peaceful functioning of these institutions, even at some expense to employees' right to organize. ¹⁹ It was not until 1974 that such institutions which employ some 55% of all hospital workers were included within the NLRA, and in the course of amending the scope of the Act's coverage Congress clearly evinced its belief that these facilities presented special problems which mandated a different approach to the application of the NLRA than that taken in other fields. ²⁰

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.

S.Rep.No. 93-766, 93d Cong., 2d Sess. reprinted in 1974 U.S.Code Cong. & Admin.News, vol. 2, 3946, 3951 (emphasis added).

The Board suggested elsewhere that Congress was only concerned to prevent the disruptions that would be caused by actual strikes or picketing, ²¹ but we find no support for such a narrow reading of the congressional purpose. ²² On the other hand, the clear expressions of congressional concern for avoiding disruptions in the hospital environment that we do find in the legislative history encourages us to give special weight to the needs of patients in striking a balance between preventing possible sources of disruptions in hospitals and protecting employees' right to organize. ²³ Moreover, it seems clearly preferable in resolving any doubts as to how best to accommodate these conflicting interests to err on the side of protecting the patients to whom irreparable injury might be done rather than on that of a labor organization which can at worst suffer a brief, albeit unjustified delay. ²⁴

The interested parties should be particularly inclined to avoid possible sources of disruption in the case of a hospital as large and congested as Baylor. In total admissions, Baylor is the seventh largest hospital of the nation's 5,000 "acute care" private and charitable hospitals, fourth largest in surgical procedures, and second in bed capacity. It employs over 3,700 individuals to maintain its 1,125 beds and care for the 44,000 in-patients who are admitted there each year. There was testimony before the Hearing Examiner that some 15,000-20,000 persons entered the hospital each day ²⁵ and that the passageways and corridors were "as crowded as the main streets of downtown Dallas." ²⁶ It is remarkable that conditions at Baylor are not more chaotic than they are; certainly the imposition of any additional sources of potential disruption should only be required reluctantly and after a far more detailed analysis than the NLRB devoted to this particular case. ²⁷

Although respondents make much of Baylor's history of alleged anti-union bias, ²⁸ there is no indication that its no-solicitation rule was in any way discriminatory or directed against efforts at unionization. ²⁹ The hospital takes a variety of other precautions against excess noise and crowding. For example, all employees are required to leave their work areas when they take their breaks from work, ³⁰ and the hospital has maintained a ban on all forms of solicitation for some fifteen years ³¹ long before there was any movement to unionize at Baylor.

The importance of preventing crowding and disruption in the...