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POWELL, J., concurring in judgment

437 U.S.

might have legitimate reasons for prohibiting solicitation and distribution on the selling floor and in other areas where customers are likely to be present. In the retail-store cases, the Board weighed the respective interests of the employer and the employees and concluded that the employer's rule was reasonable in view of the extent of the public's presence on the premises, the relationship between the public and the employees, and the fact that the employer's main business, consisting of direct selling to customers, would be disrupted. The same conclusion was reached with respect to a public restaurant on the premises of a retail store when on-duty and off-duty employees were “in close contact with each other" and with customers, on the theory that under such circumstances, union solicitation would be "as apt to disrupt the [employer's] business as . . . solicitation carried on in any other portion of the store in which customers are present.” Goldblatt Bros., Inc., 77 N. L. R. B. 1262, 1264 (1948). See also McDonald's Corp., 205 N. L. R. B. 404, 408 (1973).'

? See Marriott Corp. (Children's Inn), 223 N. L. R. B. 978 (1976); Bankers Club, Inc., 218 N. L. R. B. 22 (1975); McDonald's Corp., 205 N. L. R. B. 404 (1973); Marshall Field & Co., 98 N. L. R. B. 88 (1952), enf'd, 200 F. 2d 375 (CA7 1953); Goldblatt Bros., Inc., 77 N. L. R. B. 1262 (1948); May Dept. Stores Co., 59 N. L. R. B. 976 (1944), enf'd as modified, 154 F. 2d 533 (CA8), cert. denied, 329 U. S. 725 (1946).

The Board's retail-establishment cases might be interpreted as instances in which the Board concluded that the Republic Aviation presumption had been rebutted by the employer's proof of "special circumstances." The special circumstances would be created by the “presence [of customers] and the likelihood of their being exposed to union activities." Bankers Club, Inc., supra, at 27. But even if this were the correct formulationthat the Republic Aviation presumption applies to retail establishments but is rebutted by proof of the presence of members of the public in areas where solicitation takes place that test would be satisfied in all retailestablishment cases as well as in the instant case. The result would be the same as if the presumption did not apply at all. After special circumstances had been shown, the Board then would have to determine the proper balance between employees' rights and the employer's interests.

483

POWELL, J., concurring in judgment

In my view, the presence of patients and members of the public in the hospital cafeteria removes the case from the framework established in Republic Aviation, just as the presence of customers has that effect in the Board's retail-establishment cases. The hospital's function in serving patients, their families, and visitors is much like the retail establishment's function in serving its customers. That a nonprofit hospital does not share the profit motive of a retail establishment does not diminish the hospital employer's professional concern for the welfare of those in its care, including not only patients but also their friends and relatives who come to visit.

It is true that the hospital's primary function is carried out in the immediate patient-care areas, just as the retail establishment's main function is carried out on the selling floor. But the Board has applied its retail store rules to public restaurants on the premises of the retail store, see supra, at 512, notwithstanding the fact that the primary selling function does not take place there. Public restaurants in retail stores are provided for some of the reasons that hospitals maintain public eating places—including the convenience of the establishment's patrons. In addition, a hospital's more general purpose extends to, and pervades, all areas of the hospital to which the public has access; it is not limited narrowly to the provision of technical medical treatment. Part of the hospital's func

• Thus, while the Board has distinguished between selling and certain nonselling areas of department stores, and has applied the presumption of invalidity to no-solicitation rules in some nonselling public areas, see Marshall Field & Co., supra, at 92–93, a similar line may not be drawn so easily between patient care and nonpatient care areas of a hospital. As the Court of Appeals for the Tenth Circuit observed in denying enforce ment to the Board's attempt to divide the areas of a hospital, “the ultimate factual inferences on which the Board's distinction [is] 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." St. John's Hospital & School of Nursing, Inc. v. NLRB, 557 F. 2d 1368, 1373 (1977).

POWELL, J., concurring in judgment

437 U.S.

tion is to provide a “total environment . .. where the medical needs of patients are served by maintaining a climate free of strife and controversy.” NLRB v. Baptist Hospital, Inc., 576 F. 2d 107, 110 (CA6 1978). In this respect, the Board should take greater account of the impact of solicitation in this sensitive area than it does with respect to retail establishments. A presumption developed in and geared to the context of industrial establishments, which the Board has declined to apply to retail stores, simply has no relevance to hospitals.

II The Board contends that it has effected a proper accommodation of the competing 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 certain areas of the hospital. Acknowledging that the "primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function,” the Board concluded in St. John's that "hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted.” Accordingly, a hospital might prohibit solicitation in "strictly patient care areas," such as “patients' rooms, operating rooms, and places where patients receive treatment”; but not in other areas of the hospital, even those to which patients and visitors have access. 222 N. L. R. B., at 1150_1151.

In my view, the Board's “accommodation” of the competing interests in St. John's fails to give appropriate weight to the unique characteristics of a hospital. It amounts to no

5 Both the parties and the court in St. John's started from the premise that the Republic Aviation rule applied. The Court of Appeals disagreed, however, with the Board's assessment that special circumstances justified the hospital's restriction only in "immediate” patient care areas.

483

POWELL, J., concurring in judgment

more than an application of the Republic Aviation rule to certain areas of a hospital but not others, despite the fact that members of the public are present and potentially affected even in areas of a hospital not characterized as "strictly patient care” areas. I believe that the Tenth Circuit was correct in refusing to accord the St. John's presumption the kind of deference that was accorded the Republic Aviation presumption when applied in the industrial setting. I would hold that the potential impact on patients and visitors of union solicitation and distribution of literature in hospitals requires the Board to make a far more sensitive inquiry into the actual circumstances of each case.

Once the Board is deprived of the presumption of invalidity of an employer's rule, it must establish by substantial evidence on the record as a whole that the employer has violated $88 (a)(1) and 8 (a)(3). On the facts of this case, I would hold that the Board has carried its burden.

The Board must reach an accommodation between the respective rights of employer and employees "with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956); see Eastex, Inc. v. NLRB, post, p. 556; Hudgens v. NLRB, 424 U. S. 507, 521-523 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539, 542-545 (1972). "The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective $ 7 rights and [the employer's] rights asserted in any given context.” Hudgens, supra, at 522. In this case, the employer's asserted concern is with the welfare of patients and their visitors, a particularly weighty “management" interest. In accommodating the interests of employer and employees in a hospital case, the Board must recognize the employer's responsibility for the welfare of patients and other third parties present in the hospital.

6 This, of course, is consistent with Congress' concern, in enacting the

POWELL, J., concurring in judgment

437 U.S.

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Yet in view of the facts in this case, which either are stipulated or largely undisputed, I think the Board has met its burden by substantial evidence. As found by the Administrative Law Judge, use of the hospital cafeteria by employees is substantial (77%), while use by patients is negligible (1.56%) and use by the general public is relatively low (under 10%). The cafeteria is predominantly the employees' facility, and there hardly is any other area of the hospital in which employees may communicate with each other while at the hospital. The parties stipulated that the only areas where employees can gather are the locker areas and restrooms, and only 613 of the 2,200 employees' lockers are accessible to all employees.'

In addition to the unavailability of other convenient places for employee communication, cf. Babcock & Wilcox, supra, at 112-113, the facts show that the hospital cafeteria is used by both the employer and employees for a variety of commercial and noncommercial notices and solicitations. And while the hospital was concerned about the disruptive effect on patients of employees' conversations about the medical progress of particular patients, it implemented only a precatory rule, not an outright prohibition of all such conversations in the cafeteria. See ante, at 502-503, n. 20.

The hospital failed to introduce any evidence of a reasonable possibility of harmful consequences to patients or visitors.

1974 health-care amendments, "for the need to avoid disruption of patient care wherever possible.” S. Rep. No. 93–766, p. 6 (1974).

? The Administrative Law Judge also found that the urban location of the hospital and the widely dispersed residences of hospital employees make communication outside the hospital difficult. In addition, petitioner would not provide the union with a list of employees' names and addresses. "The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees," NLRB v. Magnavox Co., 415 U. S. 322, 325 (1974); see Eastex, Inc. v. NLRB, post, at 574, and the hospital cafeteria was the most appropriate place for such communication on the facts of this case.

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