statute [§ 1292 (a) (1)] somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders." The exception does not embrace orders that have no direct or irreparable impact on the merits of the controversy. The order in this case, like the order in Switzerland Cheese, had no such impact; it "in no way touch [ed] on the merits of the claim but only relate [d] to pretrial procedures. Id., at 25. A holding that such an order falls within § 1292 (a) (1) would compromise "the integrity of the congressional policy against piecemeal appeals." 385 U. S., at 25. The judgment is affirmed.

It is so ordered.

In Switzerland Cheese we held that an order denying a motion for summary judgment was not within § 1292 (a). Inasmuch as the requested summary judgment would have included an injunction against trademark infringement, that order was, if anything, a more direct refusal of an injunction than the order denying class certification in this case.

Of course, in one sense, the denial of class certification, like the denial of a summary judgment, does “touch on the merits," since a court must consider whether the complaint reveals common questions of law and fact, or whether there is a material issue of disputed fact. But this determination does not otherwise reflect on the legal sufficiency of the claim for injunctive relief.

Syllabus

BETH ISRAEL HOSPITAL v. NATIONAL LABOR RELATIONS BOARD

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

No. 77-152. Argued April 24, 1978-Decided June 22, 1978

Petitioner nonprofit hospital had a written rule that prohibited employees from soliciting and distributing literature except in certain employee locker rooms and certain adjacent restrooms. The cafeteria was the common gathering place of employees and had been used by petitioner or with its approval for solicitation and distribution of literature to employees for various nonunion purposes. After an employee had made general distribution in the cafeteria to other employees of a union newsletter and had been warned that she had violated the hospital's rule and would be dismissed if she did so again, the National Labor Relations Board (NLRB), following a charge by the union, issued an unfair labor practice complaint against petitioner. The NLRB applied to petitioner the rule that it had adopted in St. John's Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150, that since "the primary function of a hospital is patient care," and "a tranquil atmosphere is essential to the carrying out of that function," a hospital may be warranted in imposing more stringent restrictions on employee solicitation and distribution in immediate patient-care areas than are generally permitted other employers, but the balance should be struck against such restrictions in other areas such as lounges and cafeterias, absent a showing of disruption to patients. The NLRB held that petitioner's ban violated § 8 (a) (1) of the National Labor Relations Act (Act), which by amendments to the Act in 1974 was made applicable to employees of nonprofit healthcare institutions, and that the disciplining of employees for not observing the prohibition violated § 8 (a) (3). The NLRB ordered petitioner to cease and desist from interfering with "concerted union activities" and employees' §7 rights, and to rescind its written rule. The Court of Appeals accepted as settled law that restrictions on employee solicitation and distribution during nonworking hours are presumptively invalid absent special circumstances and that here petitioner had not satisfied its burden of justifying the ban on protected activities in the eating areas. While narrowing the scope of the remedies ordered by the NLRB, the court upheld the NLRB's action rescinding that part of petitioner's rule applicable to those areas. Held: The Court of Appeals

did not err in enforcing the NLRB's order to petitioner to rescind its rule as applied to the hospital's eating facilities. Pp. 491-508.

(a) Freedom of employees effectively to communicate with one another regarding self-organization on the jobsite is essential to their right to self-organize and to bargain collectively established by §7 of the Act, Republic Aviation Corp. v. NLRB, 324 U. S. 793, and in the light of its experience the NLRB is free to adopt a rule that, absent special circumstances, an employer's restriction on employee solicitation during nonworking time and distribution during such time in nonworking areas is presumptively an unreasonable interference with §7 rights constituting an unfair labor practice under § 8 (a)(1), without the necessity of proving the underlying generic facts that persuaded it to reach that conclusion. Pp. 491-493.

(b) Nothing in the legislative history of the 1974 amendments shows a congressional policy inconsistent with the NLRB's approach to enforcement of §7 organizational rights in the hospital context. Pp. 496-500.

(c) The NLRB by those amendments is responsible for administering the federal national labor relations policy in the health-care industry. Though the NLRB is no more an expert in that industry than it is in other enterprises within its jurisdiction, it is the NLRB's function to strike the balance in all areas within its jurisdiction between conflicting legitimate interests in order to effectuate the national labor policy. Hence petitioner's argument that the NLRB lacks expertise to make judgments involving hospitals and that the principle of limited judicial review should not apply in that area, is without merit. Pp. 500-501. (d) The NLRB's conclusion that "the possibility of any disruption in patient care resulting from solicitation or distribution of literature is remote" as applied to petitioner's cafeteria is rational and fully supported by the record, as indicated by much cogent evidence, including the facts that only 1.56% of the cafeteria's patrons are patients and that petitioner itself permitted nonunion solicitation and distribution in the cafeteria. Moreover, petitioner introduced no evidence of untoward effects on patients during the period when the rules permitted limited union solicitation in the cafeteria. Pp. 501-505.

(e) Contrary to petitioner's argument, it is not irrational for the NLRB to uphold, as it has, a ban against solicitation in the dining area of a public restaurant, where such solicitation tends to upset patrons, while prohibiting a ban on such activity in a hospital cafeteria like petitioner's, 77% of whose patrons are employees, absent evidence that nonemployee patrons would be upset. That argument fails to consider that the NLRB's position struck the appropriate balance between orga

nizational and employer rights in the particular industry to which each solicitation rule applied. Pp. 505-507.

554 F. 2d 477, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined. BLACKMUN, J., post, p. 508, and POWELL, J., post, p. 509, filed opinions concurring in the judgment, in which BURGER, C. J. and REHNQUIST, J., joined.

Louis Chandler argued the cause for petitioner. With him on the brief was Robert Chandler.

Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General McCree, John S. Irving, and Carl L. Taylor.

Laurence Gold argued the cause for intervenor Massachusetts Hospital Workers' Union Local 880, Service Employees' International Union. With him on the brief were Lester Asher, J. Albert Woll, and George Kaufmann.*

MR. JUSTICE BRENNAN delivered the opinion of the Court. The National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. §§ 151 to 168, was further amended in 1974 to extend its coverage and protection to employees of nonprofit health-care institutions.1 Act of July 26, 1974, Pub. L. No. 93-360, 88 Stat. 395. Petitioner is a Boston nonprofit hospital whose employees are covered by the amended Act. This case presents the question whether the Court of Appeals for the First Circuit erred in ordering

*Richard Dorn filed a brief for the National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, as amicus curiae urging affirmance.

1

1 Coverage was achieved by deleting from the definition of "employer" in §2 (2) of the Act, 29 U. S. C. § 152 (2), the provision that an employer shall not include "any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual . . . ." Act of June 23, 1947, ch. 120, 61 Stat. 136.

enforcement of that part of an order of the National Labor Relations Board based on the Board's finding that petitioner, in violation of §§ 8 (a)(1) and (3), 29 U. S. C. §§ 158 (a)(1) and (3), interfered with its employees' rights guaranteed by § 7 of the Act, 29 U. S. C. § 157, by issuing and enforcing a rule that prohibits employees from soliciting union support and distributing union literature during nonworking time in the hospital cafeteria and coffeeshop used primarily by employees but also used by patients and visitors.

In 1970, prior to the advent of any union organizational activity at the hospital, petitioner announced a rule barring solicitation and distribution of literature in any area to which patients or visitors have access. Petitioner permitted these activities only in certain employee locker rooms and certain adjacent restrooms. App. 59. In July 1974, however, as a result of a proceeding instituted against it before the Massachusetts Labor Relations Commission, petitioner announced a rule permitting solicitation in the cafeteria on a one-to-one basis while maintaining the total ban on distribution. Id., at 67. On March 6, 1975, shortly after the NLRB acquired jurisdiction, petitioner reinstated its previous rule limiting employee solicitation and distribution to certain employee locker rooms and restrooms. Id., at 70.2 That rule provides:

"There is to be no soliciting of the general public (patients, visitors) on Hospital property. Soliciting and the distribution of literature to B. I. employees may be done by other B. I. employees, when neither individual is on his or her working time, in employee-only areasemployee locker rooms and certain adjacent rest rooms. Elsewhere within the Hospital, including patient-care and

2 The July 1974 rule was in effect at the time the complaint was filed. Prior to the hearing before the Administrative Law Judge, however, the Board amended its complaint to encompass the March 6, 1975, policy which prohibited all solicitation and distribution in the cafeteria.