N.L.R.B. v. Baptist Hosp., Inc.
| Decision Date | 10 May 1978 |
| Docket Number | No. 76-1675,76-1675 |
| Citation | 576 F.2d 107 |
| Parties | 98 L.R.R.M. (BNA) 2356, 83 Lab.Cas. P 10,595 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAPTIST HOSPITAL, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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.
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).
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 several employees' lounges which contain vending machines, 28 utility rooms, 26 nurses' stations and those rest rooms which are restricted to employees. There was uncontradicted testimony that employees have openly solicited for a union in some of these areas without interference. Vice-president Victory also testified that there was no change in application of the hospital's longstanding rule against solicitations after October 4, 1974; that the revisions were made in order to be in compliance with the law. He conceded that union activity was "involved" in adoption of the revised rule.
The witness Victory related that when the union commenced its activities some employees were stopped for discussion of the pros and cons of organizing and this caused a disruption of the work force at various places throughout the hospital. The revised rule was required, the witness stated, to prevent disruption of patient care. It would not be in the best interest of the patients to change the rule, in the opinion of Victory, who stated that this was also the consensus of doctors with whom he had discussed the possibility of changing the rule.
Two members of the medical staff of the hospital testified. Both were experienced physicians engaged in private practice. Dr. Russell T. Birmingham testified that it was important to shield patients from emotional problems because the attitude of a patient and the patient's family have "a great deal to do with the recovery" of the patient. The witness stated that the need to maintain a tranquil atmosphere is not limited to treatment areas, since patients are permitted to move around in all areas of the hospital. If union activity should become "volatile or hostile in any form" it was Dr. Birmingham's opinion that such activity would have a potential for affecting patients and their families adversely.
Dr. Greer Ricketson testified that any "nonprofessional attitude" among hospital employees is upsetting to patients. He stated that patients and their families are disturbed when people who are supposed to be taking care of them seem to have their minds on other things. This witness, who was chief of the medical staff of the hospital at the time of the hearing, stated emphatically that the rule and the reasons for the rule apply equally to all solicitations. Explaining the need for a rule which covers the entire working and public-access areas of the hospital, Dr. Ricketson referred to the present-day mobility of patients and the fact that an event which disturbs the visiting family invariably gets back to the patient.
No evidence was introduced which contradicted in any way the testimony of the two doctors that important medical reasons exist for maintaining the no-solicitation rule of the hospital. The administrative law judge summarized their testimony and found nothing "new or unusual" in it. He concluded that the hospital had failed to establish the existence of unusual circumstances at Baptist Hospital sufficient to warrant approval of a rule which prohibits solicitation in nonworking areas on nonworking time. The Board agreed with this conclusion without discussion, merely holding:
By promulgating and maintaining a no-solicitation rule which prohibits employees from soliciting for the Union during their nonwork time in areas of the hospital other than immediate patient care areas, respondent has violated Section 8(a)(1) of the Act. 1
Both the decision of the Board and that of the administrative law judge are weakened by their reliance on previous Board orders which have been denied enforcement upon judicial review. The administrative law judge relied almost exclusively on Summit Nursing Home, Inc., 196 NLRB No. 110 (1972), in holding the no-solicitation rule in the present case invalid. This court denied enforcement of the Board's order in its entirety in N. L. R. B. v. Summit Nursing Convalescent Home, 472 F.2d 1380 (1973). In affirming the decision of the administrative law judge in the present case the Board based its holding squarely on its decision in St. John's Hospital & School of Nursing, 222 NLRB No. 182 (1976). The portion of the decision and order thus relied upon was denied enforcement by the court of appeals. St. John's Hospital and School of Nursing, Inc. v. N. L. R. B., 557 F.2d 1368 (10th Cir. 1977).
In ordering that the ban against solicitation by non-working employees in the present case be limited to areas of "immediate patient care"...
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