Beth Israel Hosp. v. Nlrb, 437 U.S. 483 (1978)

MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.

I concur only in the result the Court reaches here, for I, too, agree with much that MR. JUSTICE POWELL says in his separate opinion.

There is, of course, a certain irony when the Board grants protection from solicitation to the retail store and to the Burger Chef and the Hot Shoppe cafeteria, but at the same time denies it to the hospital restaurant facility where far more than mere commercial interests are at stake. Patients and their concerned families are not to be treated as impersonal categories or classes. They are individuals with problems that ought not be subject to aggravation. Nevertheless, on this record, as the Court’s opinion reveals, it would have been difficult for the Board to reach a different result, when it utilized, questionably in my view, the rule of Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), even as perhaps modified for application in the hospital setting.

The tenor of the Court’s opinion and of the Board’s approach concerns me. There are many hospital coffee shops and cafeterias that are primarily patient and patient-relative oriented, despite the presence of employee patrons, far more so than this very restricted Beth Israel operation, that seems akin to a manufacturing plant’s employees’ cafeteria. I fear that this unusual case will be deemed to be an example for all hospital eating facility cases, and that the Board and the courts now will go further down the open solicitation road than they would have done had a more usual hospital case been the one first to come here. Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activity, and where the patient and his family -- irrespective of whether that patient and that family are labor- or management-oriented -- need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace, in addition to the tensions of the sickbed.

I entertain distinct doubts about whether the Board, in its preoccupation with labor-management problems, has properly sensed and appreciated the true hospital operation and its atmosphere and the institution’s purpose and needs. I earnestly share the caveat pronounced by the Court of Appeals, and reproduced by the Court in the next-to-the-last paragraph of its opinion, ante at 508, and I sincerely hope that the Board bears that heavy responsibility in mind when it considers other hospital cases that come before it for decision.

1. Even the formulation of the "special circumstances" rule is stated in terms of the specific environment of an industrial plant, speaking of circumstances making a restriction on employee activity "`necessary in order to maintain production or discipline.’" 324 U.S. at 803-804, n. 10.

2. 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).

3. 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 formulation -- that 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 retail establishment 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.

4. 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 enforcement 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).

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.

6. This, of course, is consistent with Congress’ concern, in enacting the 1974 health care amendments, "for the need to avoid disruption of patient care wherever possible." S.Rep. No. 93-766, p. 6 (1974).

7. 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.

8. Rather, the employer rested on the allegedly inflammatory nature of a union newsletter distributed by one employee, without introducing any evidence that the newsletter had fallen or would fall into the hands of patients or visitors. Furthermore, proof of such a probability would not be relevant to the no-solicitation portion of the hospital’s rule. The hospital allowed one-to-one solicitation in the cafeteria until after the initiation of these proceedings; yet petitioner was "unable to show any instance of injury to patients" while that more permissive rule was in effect. 223 N.L.R.B. 1193, 1197 (1976).

9. Moreover, the Court’s opinion expresses no view as to the validity of prohibiting employee solicitation or distribution in other areas of a hospital which may not be devoted "strictly" or "immediately" to patient care but to which patients and visitors have access. This question was not presented in this case.