Baylor University Medical Center, Petitioner, v. National Labor Relations Board, Respondent, 662 F.2d 56 (D.C. Cir. 1981)

the Board's policy which requires that absent (a showing of a substantial threat of harm to patients) solicitation and distribution be permitted in the hospital except in areas where patient care is likely to be disrupted (as a permissible) construction of the Act's policies as applied to the health-care industry by the 1974 amendments.

437 U.S. at 500, 98 S. Ct. at 2473. The Court also upheld the application of the presumption in Beth Israel, as the Court later described it, "to a hospital cafeteria maintained and operated primarily for employees and rarely used by patients or their families." NLRB v. Baylor University Medical Center, 439 U.S. 9, 10, 99 S. Ct. 299, 58 L. Ed. 2d 202 (1978) (per curiam).

In 1979 the Court had another opportunity to consider the Board's application of its presumption. NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 99 S. Ct. 2598, 61 L. Ed. 2d 251 (1979), involved a hospital rule that prohibited solicitation by employees "in any area of the Hospital which is accessible to or utilized by the public." Id. at 775, 99 S. Ct. at 2600. The Court agreed with the Sixth Circuit that there was no substantial evidence to support the Board's order forbidding the hospital from prohibiting solicitation in its corridors and sitting rooms that adjoined or were accessible to patients' rooms and operating and treatment rooms. The Court also held, however, that the Board had properly ruled that the hospital had not overcome the presumption of invalidity of the "no-solicitation" rule with respect to the hospital's cafeteria, gift shop, and lobbies on the first floor of the hospital.

The Court noted a number of factors that led to its decision regarding the cafeteria and other public areas located on the first floor. First, the hospital presented "no clear evidence" of the frequency of use of the first floor areas by patients. The evidence indicated only occasional patient visits to the public areas of the first floor. This determination was underscored by evidence that indicated that, to eat in the cafeteria, a patient must have "special permission." From this evidence, the Court noted it would be reasonable to conclude "that only those patients who are judged fit to withstand the activities of the public areas on the first floor are allowed to visit those parts of the Hospital." 422 U.S. at 786, 99 S. Ct. at 2605. The Court also noted that two officials of the hospital testified that "at least some kinds of solicitation in public areas such as the cafeteria would be unlikely to have a significant adverse impact on patients or patient care."² II

Baylor University Medical Center ("Baylor") is a five-hospital complex located in Dallas, Texas. In June of 1975 it issued a new interpretation of its long-standing no-solicitation rule. The rule as interpreted stated:

Solicitation of employees of Baylor University Medical Center by other employees or distribution of literature between employees is prohibited during work time and/or in work areas. The term "work areas" includes patient care floors, hallways, elevators or any other area, such as laboratories, surgery or treatment centers, where any type of service is being administered to or on behalf of patients and also includes any areas where persons visiting patients are likely to be disturbed. Service to our patients and their visitors includes not only primary and acute medical care, but food service and psychological support.

Baylor University Medical Center, 225 N.L.R.B. 771, 772-73 (1976), enforcement denied and remanded, 578 F.2d 351 (D.C. Cir.), vacated in part and remanded, 439 U.S. 9, 99 S. Ct. 299, 58 L. Ed. 2d 202 (1978), remanded, 593 F.2d 1290 (D.C. Cir. 1979). Local 648 of the Laborers International Union of North America (AFL-CIO), which had begun an organizing campaign at Baylor in the fall of 1974, complained to the Regional Director of the General Counsel that Baylor's no-solicitation policies violated section 8(a) (1) of the National Labor Relations Act.³ 

The Board's original decision in this case consisted of the adoption of the recommended order of the Administrative Law Judge (ALJ), and the affirmation of his rulings, findings and conclusions. Baylor University Medical Center, 225 N.L.R.B. 771 (1976). The ALJ, relying on minimal factual findings, disposed of the case by mechanically invoking the St. John's presumption, holding the solicitation ban invalid in all areas of the hospital other than "immediate patient care areas."⁴ 

On petition for review and cross-application for enforcement, this court denied enforcement of the Board's invalidation of Baylor's no-solicitation rule. Baylor University Medical Center v. NLRB, 578 F.2d 351 (D.C. Cir.) ("Baylor I "), vacated in part and remanded, 439 U.S. 9, 99 S. Ct. 299, 58 L. Ed. 2d 202 (1978). The opinion focused on three non-immediate patient care areas the corridors, the cafeteria and the vending areas. With respect to the corridors, we held that the "importance of preventing crowding and disruption in the hospital corridors" justified the solicitation ban. Id. at 354-57. The opinion treated the cafeteria and vending areas together and reasoned that, in judging the validity of solicitation bans, they should be treated like retail stores and restaurants. Since these last-mentioned establishments are permitted to ban solicitation in areas open to the public, we concluded that Baylor could enforce its ban in its cafeteria and vending areas. Id. at 357-58.

The Court disposed of the NLRB's petition for certiorari in Baylor I by relying on its then-recent decision in Beth Israel. In a per curiam opinion the Court stated:

As the Court's decision in Beth Israel is relevant to the cafeteria issue in this case, we grant the petition for a writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals for reconsideration in light of Beth Israel only on that issue. Insofar as the petition for certiorari seeks review of the corridor issue, the petition is denied.

NLRB v. Baylor University Medical Center, 439 U.S. 9, 10, 99 S. Ct. 299, 58 L. Ed. 2d 202 (1978).

Our second opinion in this case followed the Supreme Court's remand. After recounting the Court's opinion, we stated:

Beth Israel decidedly does not hold that a prohibition on solicitation in a cafeteria used by employees is unlawful. The lawfulness of the ban, instead, is determined on the evidence offered in each case; in Beth Israel, evidence that the cafeteria was a natural and well-established gathering place for employees, rarely used by others, was regarded as dispositive.

Baylor University Medical Center v. NLRB, 593 F.2d 1290, 1293 (D.C. Cir. 1979) ("Baylor II") . After listing the significant differences between Beth Israel Hospital and Baylor,⁵  we concluded that our task was

to determine only whether the Board's decision to strike a balance against Baylor's interests is supported by the evidence. To say that it is is to say that Baylor failed to meet its burden of overcoming the Republic Aviation presumption with evidence justifying the prohibitions as necessary to avoid disruption of patient care.

Id. at 1295.

We concluded that, on the record as it then stood, "immediate enforcement of the Board's order would be ill-advised." Id. We instructed the Board to consider on remand

the availability of alternative areas in and especially around the facility for solicitation. That consideration is important, for while Baylor's evidence may not justify a no-solicitation/no-distribution rule applicable to the entire operating schedule of the cafeteria (6:30 A.M. to 6:30 P.M.) it does justify, in our view, a continuation of the ban during some periods.

Id. We noted the evidence in the record that indicated that the ratio of employees to patients and visitors during the cafeteria's evening meal (4:30 to 6:30 p.m.) was almost one-to-one. We also pointed out the evidence that showed that the "landscaped and concrete terrace areas around the hospital are designed for and heavily used by the employees." Id.

On remand the Board adhered to its earlier position that the solicitation ban could not be applied in the vending areas and cafeteria. Baylor University Medical Center, 247 N.L.R.B. No. 178, 103 L.R.R.M. 1311 (Feb. 22, 1980). It received no additional evidence.⁶  The availability of the outside grounds as a suitable alternative area for solicitation was summarily rejected by the Board "Attempting to contact 3,700 employees located throughout various buildings on the sprawling grounds of the medical center complex would be a herculean task." Slip op. at 7, 103 L.R.R.M. at 1313. The opinion is silent on the advisability or desirability of permitting Baylor to ban solicitation in the cafeteria during those times when the concentration of patients and visitors is highest. Because we still believe that a consideration of these factors is important and because there is no substantial evidence in the record to support the Board's complete disapproval of the solicitation ban in the cafeteria and vending areas, we must again remand to the Board.

III

In our view the Board's decision in this case is flawed both by mischaracterization and by the absence of substantial evidence in the record to support many of its factual findings.

The Board lists as Baylor's only justification for its rule a belief that it is necessary to ensure a tranquil atmosphere. The Board posits that union solicitation is not uniquely capable of disrupting tranquility, and then notes that "there is no rule prohibiting any topic of conversation, save that of union solicitation." Slip op. at 5, 103 L.R.R.M. at 1313. Reiterating this point, the Board adds: "Nor would it appear that discussion of medical matters, disease, and death would be particularly reassuring to patients." Id. at 6, 103 L.R.R.M. at 1313. The Board here confounds the difference between solicitation and conversation. As we noted in Baylor I, "solicitation has a disruptive force quite apart from its contribution to noise level and overcrowding. There was evidence at the hearing that witnessing solicitation tends to undermine both patients' and visitors' confidence in the hospital." 578 F.2d at 356 (citing App. at 343 (testimony of Dr. A. D. Sears) and App. at 209 (testimony of Dr. John Goodson)). Solicitation differs from conversation. Baylor does not permit all forms of communication except union solicitation its ban extends to all forms of solicitation.

The Board implies that Baylor does not uniformly enforce its solicitation ban, and in so doing discriminates against union solicitation: "The Respondent ... engages in and permits various forms of solicitation, e. g., weddings, retirements, bake sales, and a 'benefit fair' ...." Slip op. at 6, 103 L.R.R.M. at 1313. There is no record support for a claim of discriminatory enforcement of Baylor's solicitation ban and no evidentiary support for these other forms of solicitation being as disruptive or extensive as union solicitation. The General Counsel acknowledged at the hearing that the NLRB had not "alleged any discriminatory application of the rule," App. at 55, and we noted in Baylor I that "there is no indication that (Baylor's) no-solicitation rule was in any way discriminatory or directed against efforts at unionization."⁷  The Board has improperly suggested that Baylor has singled out union solicitation for eradication.

The Board relies on slim evidence to support its claim that union solicitation in the cafeteria would not disrupt patients and visitors. "Employees Goolsby and Mosely testified without factual contradiction that they solicited authorization cards in the cafeteria without disruption." Slip op. at 6, 103 L.R.R.M. at 1313. True, there was testimony that employees had engaged in isolated instances of solicitation in the cafeteria without creating a "fight," "commotion," or "argument" among the employees solicited. App. at 64. They did not testify, however, that no disruption of patients and visitors occurred, and it would be unreasonable to expect Baylor to produce evidence of disruption given that the incidents were isolated and prohibited. Baylor did produce the testimony of several witnesses who testified that solicitation in the cafeteria would disrupt patients and visitors. App. at 231-32 (statement of Robert Wooldridge, Director of Central Food Services); id. at 209-12 (statement of James Goodson, gynecologist physician and surgeon); id. at 157-58 (statement of Howard Chase, Associate Executive Director).

The Board states that "(p)atients who eat in the cafeteria must obtain permission from their attending physician and consequently it may be assumed that they have been 'judged fit to withstand the activities of the public areas ....' " Slip op. at 6, 103 L.R.R.M. at 1313 (quoting Baptist Hospital, 442 U.S. at 786, 99 S. Ct. at 2605). This assumption finds no support in the record. The General Counsel points to the following testimony to support the Board's finding that patients may only eat in the cafeteria with their doctor's permission:

Q. Now, we have also had testimony several times during this hearing that patients come into your cafeteria, but I want to make sure the record is clear.

In-patients get fed on the floor and in their rooms. That's correct, isn't it?

A. (by Robert Wooldridge, Director of Central Food Services) No, that's not correct.

That is normally correct, but

JUDGE VON ROHR: I think that's the answer. That's normally correct. There are exceptions. I'm sure we all realize that.

Q. ... And if they wish to visit with their family, and they're well enough, as a matter of their own personal desire they may go into the cafeteria for a snack or meal?

A. They may eat all their meals in the cafeteria if their doctor allows them.

App. at 447-48. Although this testimony indicates that a patient must have his doctor's permission if he wishes to eat all his meals in the cafeteria, it does not suggest whether or not the doctor's permission is required for an occasional meal there. This evidence that a patient may need his doctor's permission to eat in the cafeteria is too slim to support the conclusion, drawn by the Board, that patients who eat in the cafeteria can "withstand the activities of the public areas." Additionally, visitors, of course, do not need a doctor's permission to eat in the cafeteria. Yet, the Baylor position all along has been its solicitation ban protects both patients and visitors.⁸  Thus, there is no support for the Board's conclusion that the non-employee customers of the cafeteria will not be disturbed by union solicitation, while there is evidentiary support for the opposite conclusion.

In non-hospital cases the availability of alternative areas for solicitation is irrelevant to the determination of whether a ban on solicitation is valid. The Supreme Court has recognized, however, that different considerations in the health care context make proper an inquiry into the availability of alternative areas.⁹  Because the Board had not considered the availability of alternative areas in its original decision, we instructed it to consider "the availability of alternative areas in and especially around the facility for solicitation." 593 F.2d at 1295. The Board's consideration of the issue consisted of the following:

While it may be true, as Respondent contends, that the moderate climate of Dallas is helpful to outdoor solicitation that is no more than a mitigating factor in considering its rule which, as a practical matter, makes the workplace off limits to employee discussion of workrelated matters. Attempting to contact 3,700 employees located throughout various buildings on sprawling grounds of the medical center complex would be a herculean task.

Slip. op. at 7, 103 L.R.R.M. at 1313. We believe the Board has jumped to a conclusion here, with little or no evidentiary support. To the extent the record contains evidence of the use of the grounds by the employees, it suggests that solicitation there would be convenient.¹⁰ 

The Board attempts to lessen the appeal of the alternative areas by extolling the attractiveness of the cafeteria as a place for solicitation. It states that the cafeteria "is the only area where employees from the five hospitals and medical support departments congregate on a regular basis." Slip op. at 6, 103 L.R.R.M. at 1313. This suggests that all employees use the cafeteria for their meals or breaks. The evidence is to the contrary. One hospital official testified that less than half of the employees take their break in the cafeteria and that a "majority" eat their one major meal there. App. at 420-21 (statement of Howard Chase, Associate Executive Director).

We also find the Board's resolution of the vending areas issue unsatisfactory. In Baylor II we noted that it was not clear whether the Supreme Court's remand included the vending machine areas.¹¹  We interpreted the remand not to "include the areas where vending machines are located throughout the hospital. Many of these areas are small and for the convenience of staff, patients, and visitors and are off the corridors. (App.) at 127, 153, 200, 216, 265, 292, 316, 322." 593 F.2d at 1296 n.9. We made it possible, however, for the Board to reconsider the vending areas question: "If the Board considers that any of these areas should be open to solicitation it should make separate findings ...." Id.

On remand, the Board acknowledged that Baylor presented evidence "that as part of physical training some patients use the vending machines ... and occasionally ambulatory patients and visitors use the machines." Slip op. at 8, 103 L.R.R.M. at 1314. The Board did not find this evidence sufficient to justify the ban on solicitation, however, since "this evidence falls far short of that necessary to establish that the vending areas are areas of immediate patient care." Id. We do not believe that this should be the end of the inquiry. Under the Board's St. John's presumption, a solicitation ban outside of an immediate patient care area should be upheld if the hospital makes a showing that the ban is necessary to prevent a disruption of patient care. It does not appear that the Board considered this question, but instead terminated the inquiry after deciding that the vending areas were not immediate patient care areas. The Board's decision on the vending issue is additionally flawed by its misguided view of the absence of alternative areas for solicitation. Id.

We thus must reject the Board's ruling on the vending areas. On remand the Board should consider whether the evidence submitted by Baylor is sufficient to overcome the St. John's presumption. It would appear difficult for Baylor to establish the necessity of preventing solicitation in the vending areas after the cafeteria closes and when darkness makes the grounds unsuitable for solicitation. Conversely, the evidence in the record as it now stands showing the location of the vending areas as "off the corridors" and indicating they are regularly used by patients and their visitors suggests that a ban during the daytime hours would probably be permissible. The Court in Baptist Hospital refused to set aside the ban on solicitation in "the corridors and sitting rooms on patients' floors." 442 U.S. at 785, 99 S. Ct. at 2605. In any event, the record as presently constituted does not support the Board's decision.

IV

The record does not support the Board's total invalidation of Baylor's solicitation ban in its cafeteria and vending areas. Two factors are involved in such a ruling. First, the evidence indicates that approximately 40% of the cafeteria's patrons are non-employees. Second, the evidence shows that the exterior grounds of the hospital complex are a convenient place for solicitation, and that they are widely used by employees. This is the evidence that we held required an earlier remand, and our disapproval of the Board's method of dealing with that evidence requires another remand. The record as it now stands may support an order by the Board preventing Baylor from enforcing its ban in the vending areas from 6:30 p. m. to 6:30 a. m., when the cafeteria is closed and the use of the grounds is not feasible, and in the cafeteria during non-meal times, when the proportion of employees to non-employees is relatively high. Any greater prohibition on enforcement of the ban would require additional evidence.

Remanded.