St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B.

Citation557 F.2d 1368
Decision Date14 July 1977
Docket NumberNo. 76-1130,76-1130
Parties95 L.R.R.M. (BNA) 3058, 82 Lab.Cas. P 10,021 ST. JOHN'S HOSPITAL AND SCHOOL OF NURSING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Harry L. Browne, Spencer, Fane, Britt & Browne, Kansas City, Mo. (with Clifton L. Elliott, Kansas City, Mo., on the brief), for petitioner.

Ruth E. Peters, Washington, D. C. (William R. Stewart, Marion Griffin, John S. Irving, John E. Higgins, Jr., Carl L. Taylor, and Elliott Moore of the N.L.R.B., Washington, D. C., on the brief), for respondent.

William F. Ford, Atlanta, Ga. (Michael H. Campbell, Fisher & Phillips, Atlanta, Ga., Carl Weissburg and Lyle R. Mink of Weissburg & Aronson, Inc., Los Angeles, Cal., on the brief), for amici curiae Hospital Corp. of America and Federation of American Hospitals.

Richard L. Epstein, Chicago, Ill. (K. Bruce Stickler and Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill., of counsel on the brief), for amicus curiae American Hospital Association.

Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.

LEWIS, Chief Judge.

This case arises upon the petition of St. John's Hospital (Hospital) for review of an order of the National Labor Relations Board (Board) and the Board's cross-application for enforcement of its order. Jurisdiction is conferred by sections 10(e) and (f) of the National Labor Relations Act (Act), 29 U.S.C. §§ 160(e), (f). The Board's decision and order are reported at 222 NLRB No. 182, and hold that the Hospital violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by promulgating and enforcing an overly broad rule restricting employee solicitation and distribution of material and by reprimanding four employees for engaging in a "heated discussion" of the "pros and cons of unionization" during working time in a working area.

I. The "No-Solicitation" Rule.

On August 13, 1974, the Hospital promulgated, and since that date has continuously enforced, 1 a no-solicitation rule applying to all employees:

Except to solicit participation in official hospital employee programs, no employee shall solicit any other employee of the hospital for any purpose during working time or in working areas of the hospital, or in any area to which patients and visitors have access. No employee shall distribute any matter of any kind in any area of the hospital except in non-working areas where patients and visitors do not have access. At no time shall any employee solicit any patient or visitor for any purpose nor shall any employee distribute any matter to patients or visitors. This rule will be strictly enforced.

A.R. at 12. 2 The effect of this rule is to allow employee solicitation of union support and distribution of union material only on nonworking time in nonworking, employee-only areas. It is stipulated that these employee-only areas include a lunchroom and cafeteria used on a daily basis by 80% or more of the employees, as well as lounges, locker rooms, restrooms, and parking areas. The decision and order of the Board hold that notwithstanding the availability of these employee-only areas the rule promulgated by the Hospital is overly broad to the extent it prohibits solicitation in areas other than "strictly patient care areas" and distribution in nonworking areas accessible to patients and visitors.

We agree that the Hospital rule is overly broad but we also hold that the Board decision and order, in part, is faulty.

On appeal all parties 3 start from the premise that section 8(a)(1) of the Act, as interpreted by the Board and the courts, restricts employers from prohibiting employee solicitation of union support on nonworking time and from prohibiting distribution of union materials on nonworking time in nonworking areas absent special circumstances necessitating further restrictions to maintain discipline or production. E. g., Groendyke Transport, Inc., v. NLRB, 10 Cir., 530 F.2d 137, 141-42; Stoddard-Quirk Mfg. Co., 138 NLRB 615. All parties further agree that the special circumstances surrounding employment in a hospital setting justify some additional restrictions on employee solicitation and distribution in order to maintain the tranquil atmosphere essential to the Hospital's primary function of providing quality patient care. Thus, the issue presented is not whether the Hospital's restrictions on employee solicitation and distribution are impermissible per se, but rather to what areas these restrictions may be extended. 4

The question thus presented, to strike an acceptable balance between employee solicitation under the Act projected against the concept of hospital patient care, is indeed difficult. A cautious judgment in such regard must note that error in such judgment may cause irreparable damage to patients, and thus to the public, while error in the other direction can be salvaged by the Board under proper use of its overall expertise in labor matters.

In reviewing the decision and order of the Board we are required by statute to afford conclusive effect to the Board's findings of fact if supported by substantial evidence on the record as a whole. 29 U.S.C. §§ 160(e), (f). See NLRB v. Pipefitters Local 638, 429 U.S. 507, 531, 97 S.Ct. 891, 51 L.Ed.2d 1. Similarly, the Board's interpretation of specific provisions of the Act is ordinarily entitled to considerable deference in light of the Board's " 'special function of applying the general provisions of the Act to the complexities of industrial life' . . . and its special competence in this field." NLRB v. Weingarten, 420 U.S. 251, 266, 95 S.Ct. 959, 961, 43 L.Ed.2d 171 quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308. Nevertheless, reviewing courts are not "to stand aside and rubber stamp their affirmance" of Board decisions inconsistent with a statutory mandate or contrary to congressional policy and are specifically empowered "to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part (an) order of the Board." NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.E d.2d 839; 29 U.S.C. §§ 160(e), (f).

The Board's decision starts with the premise that since the Hospital's rule limits solicitation during working time and distribution of literature in nonwork areas, it is presumptively unlawful. Groendyke Transport, Inc., supra. The Board concedes, however, that this "presumption" is at least partially dispelled by the Hospital's recognized need to provide a tranquil atmosphere conducive to its primary function of providing quality patient care:

We recognize that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as patient's rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas. Solicitation at any time in those areas might be unsettling to the patients particularly those who are seriously ill and thus need quiet and peace of mind.

A.R. at 34-35. The Board then proceeds to draw a distinction between those patients in "strictly patient care areas" and patients in other "patient access areas such as cafeterias, lounges, and the like," concluding that although union solicitation may be "unsettling" to the former group, it could have no "adverse effect" on the latter. Id. at 35.

It is unclear from the Board's decision what restrictions would be allowed in other areas accessible to patients 5 but not specifically classified by example such as hallways, elevators, stairs, or waiting rooms. The only guideline for classifying these areas supplied by the Board's decision is the blanket assertion that "(o)n balance, the interests of patients well enough to frequent such areas (as cafeterias, lounges, and the like) do not outweigh those of the employees to discuss or solicit union representation." A.R. at 35. Under this rationale the distinction between various patient access areas is made to turn on the condition of the patients "frequenting" these areas and whether such areas are "strictly" devoted to patient care.

This distinction between strictly patient care areas and other patient access areas based on the relative conditions of the patients frequenting those areas finds no support in the record. The only record evidence adduced before the administrative law judge related to the circumstances surrounding the reprimands issued to four hospital employees. (See part III infra.) No evidence was presented regarding the relative abilities of confined vis-a-vis ambulatory patients to withstand the admittedly "unsettling" effects of union solicitation or the medical and administrative reasons for deciding whether to confine a patient to his or her room. We are therefore compelled to conclude that the ultimate factual inferences on which the Board's distinction was based were drawn not from the record evidence but rather from the Board's own perceptions of modern hospital care and the physical, mental, and emotional conditions of hospital patients areas outside the Board's acknowledged field of expertise in labor/management relations. Moreover, this distinction is difficult of application at best and indeed has been rejected by the Board in a similar context as "specious."

In Mount Airy Foundation, 217 NLRB No. 137, involving the classification of various types of hospital employees for purposes of forming appropriate collective bargaining units, the Board stated:

If any particular fact is evident it is the fact that all employees in the health care industry, sharing as they must a genuine concern for the well-being...

To continue reading

Request your trial
37 cases
  • Beth Israel Hospital v. National Labor Relations Board
    • United States
    • United States Supreme Court
    • 22 Junio 1978
    ...interests in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (CA10 1977), in which it applied the basic rule of Republic Aviation but found "sufficient justification" for curtailment of employee rights in certai......
  • National Labor Relations Board v. Baptist Hospital, Inc
    • United States
    • United States Supreme Court
    • 20 Junio 1979
    ...it had adopted in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (CA10 1977). See 223 N.L.R.B., at 344 n.2. In St. John's Hospital, the Board stated that immediate patient-care areas are areas "such as the pati......
  • Lamkin v. Bowen, Civ. A. No. 88-K-1768.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 14 Septiembre 1989
    ...Auth., 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (citation omitted); see also St. John's Hosp. & School of Nursing, Inc. v. NLRB, 557 F.2d 1368, 1372 (10th Cir.1977). This equally applies to an agency's construction of its own regulation. United Transp., 797 F.2d at 829 (es......
  • Dayton Tire and Rubber Co. v. N.L.R.B., 77-1106
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 17 Enero 1979
    ...and fair. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); St. John's Hospital & School of Nursing, Inc. v. N. L. R. B., 557 F.2d 1368 (10th Cir. 1977); Pioneer Drilling Co. v. N. L. R. B., 391 F.2d 961 (10th Cir. 1968). Upon a finding of an unfair lab......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT