BETH ISRAEL HOSPITAL v. NLRB

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Argument of Louis Chandler

Chief Justice Warren E. Burger: We will hear arguments next in Beth Israel Hospital against the Labor Board. [conferring]

Mr. Chandler, you may proceed whenever you are ready.

Mr. Louis Chandler: Mr. Chief Justice and may it please the Court.

This case involves the validity of a no solicitation, no distribution rule as it applies to a nonprofit hospital's cafeteria which is used by patients, their families and employees.

The primary function of a hospital is to provide patient care and critical to that function is providing an atmosphere as free from stress and strain as possible.

The hospital's rule, banning solicitation and distribution of literature which can be disruptive to the care of patients and all patient and family access areas including the cafeteria is clearly in furtherance of that concern.

Congress, in amending the National Labor Relations Act in 1974 to include coverage of nonprofit hospitals explicitly stated that hospitals are unique and expressed its concern for the well being of hospital patients and a need to avoid disruption wherever possible.

This concern was recognized by the DC Circuit Court of Appeals in NLRB versus Baylor, cited in the brief, and the Tneth Circuit Court in NLRB versus St. John's Hospital also cited both of which denied enforcement to Board orders and upheld no solicitation rules in patient access areas of those hospitals.

The lead and justification of Beth Israel's rule is graphically demonstrated in this case where union literature was passed out in the cafeteria viciously disparaging the quality of healthcare provided by the hospital.

Let us consider the effect on an ambulatory patient visiting with his family in the cafeteria who picks up a union leaflet left on a table with statements such as the following: "They totally ignored me while I was a patient.

My experience was bewildering, painful and ugly.

I was lucky it was not a complicated delivery.

Do not ever have a baby here unless you have a private doctor.

Reports and films have become backed up.

Doctors cannot get their films and reports on time.

Patient care is suffering."

Chief Justice Warren E. Burger: Who is speaking in this material you are reading?

Mr. Louis Chandler: This is union literature distributed by employees in the cafeteria at Beth Israel Hospital, in an area where patients and their families frequent.

Unknown Speaker: Mr. Chandler, the coffee shop is closed now, is it?

Mr. Louis Chandler: Yes, it is.

Unknown Speaker: And why was it closed?

Mr. Louis Chandler: There was a renovation and the space of a cafeteria was expanded to include the coffee shop area, so now there is a greater seating capacity in the cafeteria than when the case first arose.

Unknown Speaker: Was the coffee shop run by the hospital per se or by some women's organization 04:13 or how?

Mr. Louis Chandler: The coffee shop was also run by the hospital personnel with employees.

There were vending machines in this area and seating areas for patients and employees and visitors of patients.

There were other remarks that are contained in the record Appendix and union propaganda.

"Due to understaffing, lab specimens sit on countertops for hours therefore results are misleading or altogether wrong.

Much of the hospital is not maintained in a sanitary manner.

Respiratory treatments ordered by doctors are not always performed.

Patients who need treatments to stay alive get them but those who need them to get better do not get them.

The ratio of patients to nurses presents a hazardous environment and precludes the delivery of optimal healthcare."

The record Appendix is replete with such examples.

Justice William H. Rehnquist: Mr. Chandler, I do not claim to be an expert on union organizing tactics but this does not strike me as the ordinary union organizing literature which would be urging claims for added benefits or criticizing in some other way than this.

Is there something in the record that suggests why this sort of criticism was resorted to?

Mr. Louis Chandler: Your Honor, the Board, National Labor Relations Board, has recognized in numerous cases that union solicitation -- forget about scurrilous propaganda -- but the normal union solicitation as a part of an organizational campaign is potentially disruptive.

In the retail store industry and restaurants, they find that this is enough to warrant a broad ban on such activity, union solicitation and distribution wherever customers are present or likely to be present.

What the hospital is asserting is the same interest that applies to an employer who operates a restaurant or retail store, that patients who are sick and their families who are coming to a hospital setting and understandably anxious and vulnerable, as the Board itself has recognized, should be entitled to at least the same treatment as customers who come into a retail store.

It is a matter of common sense.

Chief Justice Warren E. Burger: Is one of the claims of the union based on what you read of their literature that the hospital is understaffed and that is part of the union organizing that if they get a union, they will see that it is properly staffed?

Mr. Louis Chandler: Yes, your Honor.

The tenor of this literature is geared towards complaints about working conditions as most union campaigns are.

Chief Justice Warren E. Burger: But they do not always in their organizing stage emphasize so much the need for more employees as this literature would appear up here to --

Mr. Louis Chandler: Not in other kinds of situations but here we are dealing with a hospital and they are raising concerns that are concerns to patients and here where the hospital has areas that are set aside for employees to engage in this activity.

There are employee only areas within the hospital and they may organize, they may distribute literature in those areas without interfering with patients or their families.

So the hospital feels that in order to protect patients, to insulate them from the potential disruption of this kind of literature or any kind of disruptive literature, and especially union literature because the Board itself has given its staff approval to banning that kind of distribution because that in and of itself is inherently disruptive according to the Board.

The controversial remarks such as this --

Chief Justice Warren E. Burger: Has the hospital allowed political candidates to come in the restaurant to distribute literature?

Mr. Louis Chandler: No, they do not.

As a matter of fact, the hospital's rule was promulgated initially during the Vietnam War to avoid demonstrations in the hospital throughout patient care at patient access areas.

The rule has been amended since then a number of times, however, the present rule involves a total ban on solicitation and distribution in patient access areas.

Justice John Paul Stevens: Mr. Chandler, does the record tell us how often this material actually fell into the hands of patients or visitors?

Mr. Louis Chandler: There is no evidence in the record your Honor to indicate that it fell into patients' hands at all.

However, the Board, in its other case precedent, recognizes that leaflets may be left in customer access areas and may be discarded and picked up by a customer and we feel that there is a logical inference that that could happen in this setting as well.

Rather than being sensitive to the unique conditions found in the hospital, and to the declared intent of Congress to recognize the special needs of patients, the Board has mechanically applied rules that pseudo factory environment where no patients, customers or third parties are involved.

I have already alluded to the special circumstances present in a hospital environment involving patient care considerations.

Inherent in the nature of the hospital operation and the treatment of patients, is the fact that patients are understandably anxious and vulnerable and likely to be upset by union solicitation and distribution in patient access areas.

The Board itself recognized this principle prior to the 74 amendments, in the Guyan Valley Hospital case which was cited in the brief.

Justice William H. Rehnquist: Mr. Chandler, do you think it necessarily follows that a patient would upset by a leaflet that said, "Beth Israel employees get only so much an hour, Peter Bent Brigham employees get 10% more", do you think that would upset a patient?

Mr. Louis Chandler: I think your Honor, that there is a question of degrees and if the hospital were to allow some union solicitation on a selective basis, it would create problems of deciding which to allow and which not to allow.

In that particular case, I would think that there could be a problem from a patient's point of view feeling that there is some undercurrent within the hospital that employees are dissatisfied with the hospital and they may not be able to go about their duties properly.

As I was saying earlier, the Board, in Guyan Valley, affirmed administrative law judge's decision, and the administrative law judge found that the hospital services ill individuals who in their weakened condition may readily be upset if they overhear anti union, pro union arguments among employees while they, the patients, are in their rooms or in the halls or elevators and taking into consideration the nature of the institution and the necessity for protecting patients, any presumption of illegality is over come.

Justice Thurgood Marshall: Does this case involve patients' rooms?

Mr. Louis Chandler: This case does not, your Honor.

Justice Thurgood Marshall: I thought you just said room.

Mr. Louis Chandler: The Guyan Valley case that I am citing now involved patient access areas.

This was a rule that was in effect prior to the amendments.

The Board recognized that a hospital creates a special circumstance and they allowed just like they did with retail stores, they allowed an exception to the normal presumptions and said that in patient access areas and they defined them as the gift shop, elevators, stairways, corridors, patient rooms and so forth.

This was in the administrative law judge's decision affirmed by the Board.

They recognized that solicitation could be prohibited, however after the amendments were enacted in 1974, a-year-and-a-half later, despite the fact that the Board conceded before the Tenth Circuit in the St. John's case, that Guyan Valley represented an accurate state of the law at the time the amendments went into effect.

A-year-and-a-half later, in the St. John's decision, the Board's St. John's decision, the Board without articulating any reason for departing from the Guyan Valley analysis, without medical evidence, without any medical expertise, reversed its position and they ruled that although special conditions exist in a hospital that although a tranquil atmosphere is essential to a hospital's primary function of providing patient care, and that although solicitation might be unsettling to patients in strictly patient care areas that solicitation could have no adverse effect on patients in other areas such as cafeterias, lounges and alike.

Justice William H. Rehnquist: Did the board have jurisdiction over Guyan Valley because it was a for profit hospital?

Mr. Louis Chandler: Yes, the Guyan Valley was a for profit hospital and was covered by the Act, and Congress in amending the Act to include nonprofit hospitals said that "at least the same treatment should be afforded to employees and hospitals as under the prior legislation".

And what has happened here is the Congress added safeguards because of the taking of jurisdiction over the nonproprietary hospital involving specific amendments to statutes involving -- getting federal mediation involved earlier, strike notices and so forth, but they did not give recognition to the already existing state of the law.

Congress realized that the same condition should apply and they stated as much.

In the Congressional record, there is ample support for the proposition that at least the same rights for proprietary hospital should continue in effect plus additional safeguards.

Justice Byron R. White: Are you suggesting that the Board has the wrong standard in these kinds of cases or are you just challenging the application of an accepted standard in this context?

Mr. Louis Chandler: I am challenging the notion of not applying at least the same standard that is applied in a customer access area of a retail store to a hospital setting where patients are involved and where Congress in amending the Act to include nonprofit hospitals specifically stated that the Board in treating these situations should give special attention to the needs of patients.

So it seems to be more necessary to look at patients' needs in a hospital environment than to look at customers needs in a retail store environment.

Justice Byron R. White: So you are really then challenging the application of the rule that has evolved to the hospital?

Mr. Louis Chandler: That is correct.

I am challenging the disparate treatment of the Board in a retail context and a hospital context where in the hospital context, we have specific guidance from Congress that patients should be treated specially.

Justice William H. Rehnquist: Well, I suppose it depends on how high a level of abstraction you want to reach in answering my brother White's question.

If you complain that the Board is not applying the same standards to hospitals as it is to retail stores, you are, in effect, complaining about the standard that the Board has adopted, aren't you?

Mr. Louis Chandler: Yes, Your Honor.

I would agree with that.

Chief Justice Warren E. Burger: Now, when you say retail, do you include restaurants, open to the public?

Mr. Louis Chandler: Yes, I do Your Honor and this is a case which involves a hospital cafeteria with the substantial number of patients and visitors that use that cafeteria and they are just as much customers of this cafeteria.

Chief Justice Warren E. Burger: Is it necessary for a uniform application that there would be any patients or any family in the restaurant if it is a restaurant in what just happens to be in a hospital?

In other words if they cannot go into the Rive Gauche and distribute literature, is it your position they cannot go into any other restaurant just because it happens to be in a hospital?

Mr. Louis Chandler: Yes, sir.

Chief Justice Warren E. Burger: It does not make any difference whether it --

Mr. Louis Chandler: No, it does not.

Chief Justice Warren E. Burger: If the patients are nervous or the families are nervous?

Mr. Louis Chandler: That is a second position that the hospital asserts Your Honor.

First, we feel that the retail store precedent should be applied in this case because patients are involved.

A hospital is a special circumstance in and of itself and that need interest should be protected to insulate patients from potentially disruptive influences.

Secondly, this is a cafeteria and cafeterias outside of hospital setting have been given this kind of protection against union solicitation.

Justice Potter Stewart: Generally, in an ordinary cafeteria, the employees of the cafeteria are not sitting around at the tables, are they?

Mr. Louis Chandler: They may sit around the tables.

They may intermingle with patients and visitors.

Justice Potter Stewart: No.

A nonhospital cafeteria, a nonhospital cafeteria.

It is a usual thing to find employees sitting around at the table having lunch or dinner or breakfast.

Mr. Louis Chandler: I think we have to distinguish between employee only cafeterias and public cafeterias.

Justice Potter Stewart: I am talking about a public cafeteria, open to public.

Is it normal in such a cafeteria to find employees of the cafeteria patronizing it as customers.

Mr. Louis Chandler: Yes, Your Honor.

In fact, in the Goldblatt case which is a Board decision dating back to 1948 involving a department store.

The Board applied its retail store precedent to the department store's cafeteria which was used by employees and customers and there is no indication --

Justice Potter Stewart: That was a department store rule.

Mr. Louis Chandler: That was a department store rule.

Justice Potter Stewart: And that is your first point.

Your second point is the eating place rule, right?

Mr. Louis Chandler: No, the department store has a cafeteria on the premises and that is used by employees as well as customers.

And the Board in that case says that not only is the selling function of the department store at stake but the rapport of customers who happen to eat in that area.

Justice Thurgood Marshall: Why do not you not give a very simple answer to my brother Stewart, that most employees that handle the food in the cafeteria know better than to eat that. [Laughter]

Mr. Louis Chandler: I wish I had thought of that Your Honor.

In the Boards McDonald's restaurant case which is sited in the brief, the Board has said from the administrative law judge's decision --

Justice Thurgood Marshall: But in this case they were not passing out this literature to the employees of the cafeteria, were they?

Mr. Louis Chandler: They were -- employees working in that cafeteria.

Justice Thurgood Marshall: Employees of the hotel, I mean of the hospital, but not the ones in the cafeteria that is my brother Stewart's point.

Mr. Louis Chandler: There are employees at the hospital however Your Honor that work in that cafeteria that could be distracted.

This is a work area as well as a --

Chief Justice Warren E. Burger: Well, how many employees do you have in the cafeteria?

Mr. Louis Chandler: I do not have that information, it is not on the record.

Justice Thurgood Marshall: And first of all, when you have about 50 times that many seats so it is obviously not for them.

It is for the employees that do not work in the cafeteria.

Mr. Louis Chandler: It is for the employees that do not work in the cafeteria.

It is also for the patients and visitors of the hospital.

Justice Thurgood Marshall: That is right.

Who also do not work in the cafeteria.

Mr. Louis Chandler: That is correct.

Justice Thurgood Marshall: That is the point, that is a little different.

It is a little different, isn't it?

Mr. Louis Chandler: It is no more different than the Goldblatt case which is also a cafeteria where there are fewer employees working.

There are off duty employees and there are customers that share that facility and the Board in that situation has applied the rule that we would ask them to apply in this case.

Justice William H. Rehnquist: Was Goldblatt a restaurant or a department store which had a restaurant?

Mr. Louis Chandler: That was a department store that had a restaurant Your Honor.

Justice William H. Rehnquist: And I presume there would be some employees from other branches of the store than the cafeteria who ate in the cafeteria?

Mr. Louis Chandler: Yes Your Honor.

Chief Justice Warren E. Burger: Well, I suppose if it is like any other cafeteria there are employees circulating around constantly taking away the trays and the plates of customers who have departed?

Mr. Louis Chandler: Yes Your Honor that is correct and that is why I indicated that this is also a work area.

There are employees at the hospital that work in the cafeteria.

The Board in St. John's moved away from this Guyan Valley principle and they said that only non-ambulatory patients or patients who are confined to their rooms and to immediate care areas or treatment rooms are entitled to the protection from Union solicitation distribution, that other patients who are ambulatory are better able to endure the unsettling effects which the Board recognizes that might be the case in the immediate patient care areas.

The Board apparently has rendered its expert judgment that the unsettling effects of such solicitation and distribution for some reason are suspended while a psychiatric patient is in the cafeteria with his family awaiting psychiatric treatment or a cancer outpatient.

Justice John Paul Stevens: Mr. Chandler I have been trying to figure out where do you recommend the solicitation should take place?

Mr. Louis Chandler: We recommend that the solicitation be allowed in employee only areas of the hospital.

Justice John Paul Stevens: Which are what?

Mr. Louis Chandler: There are locker rooms and adjacent restrooms in the hospital and outside of the hospital.

Justice John Paul Stevens: Outside the hospital?

Mr. Louis Chandler: Outside of the hospital.

Justice John Paul Stevens: Front steps?

Under the same danger on the front steps that may be a leaflet would be handed to a patient not knowing he is a patient.

Mr. Louis Chandler: Yes Your Honor outside of the hospital on public grounds that the hospital has no control over.

I would not --

Justice John Paul Stevens: Or it could direct its employees not the solicit of the front because it might have the same adverse effect, couldn't it.

Mr. Louis Chandler: But the hospital has no control over what may happen on public property.

Justice John Paul Stevens: But it has control over its employees, doesn't it?

Why did not it imply the same rule, say, that you get fired because this may jeopardize the health of the psychiatric patient walking in the front door.

Isn't it precisely the same risk as in the coffee shop where 1% of the people are patients as I understand or 2% ro something like that.

Mr. Louis Chandler: I think there is a less of a risk involved, becuase there is --

Justice John Paul Stevens: But there is a risk.

Mr. Louis Chandler: There is some risk but there is a balance Your Honor that has to be made.

Justice John Paul Stevens: Whereas in the coffee shop, of course, they can at least ask the person whether a patient or not but I suppose it is out in front of me little more difficult.

People who are walking along, you sort of stick a leaflet in front of them.

We just figured that risk is outweighed by the need to organize in that particular context, is that right?

Mr. Louis Chandler: I believe so in that context, yes Your Honor.

In the cafeteria, no because there are patients who regardless of whether they are able to walk to the cafeteria maybe quite ill and are in need of protection and insulation and in need of an environment to help them cope.

Justice John Paul Stevens: Because every patient I suppose has to walk in the front door, but everyone does not eat in the cafeteria.

Most patients I assume get most of their meals in their rooms.

Mr. Louis Chandler: Most inpatients Your Honor.

There are eight times as many outpatients as in patients in the hospital according to the record evidence and there are 400 beds in the hospital so there are substantially more outpatients who may coming off the street for --

Justice Thurgood Marshall: Do you mean outpatients go to the hospital cafeteria indeed?

Mr. Louis Chandler: Yes, Your Honor.

They may while they are awaiting --

Justice Thurgood Marshall: And they are not held there for psychiatric treatment. [Laughter]

Mr. Louis Chandler: The Board has held that it is disruptive to organize in public areas in other cases not in hospital cases.

They have held it in the Guyan Valley case.

Our position is they should hold that in this case as well where you have patience involved and patient access areas that their rule this distinction between ambulatory and non-ambulatory is not supported.

Justice Byron R. White: What if the news in the cafeteria was only minimal by the patients, and I take it here it is not a very high percentage of patients or at least not a very high percentage of the customers or patients.

Mr. Louis Chandler: There are substantial number of customers, however, based upon the figures that are in the evidence on an annual basis for over 54,000 patients and their families, visitors who use that cafeteria just to purchase meals, and in the decision of the administrative law judge which is appended to the brief of the petitioner in a related case, he found that patients use the cafeteria for visiting children and not necessarily to purchase meals, so there could be a substantially greater number than the 54,000.

Justice Thurgood Marshall: So Mr. Chandler you keep saying that the Board does not follow its own precedents, is that your complete argument?

Mr. Louis Chandler: No, Your honor, I think that we have here a situation where Congress has spoken.

Congress has said that special attention must be given to the needs of patients, and our position is that the Board has not recognized the special needs.

Not only because of the retail store exception but because the hospital is a special circumstance, it is a unique environment and should be given special attention.

Thank you.

Chief Justice Warren E. Burger: Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: Mr. Chief Justice may it please the Court.

I think that much of my brother's argument proceeds on the assumption that when Congress enacted the Healthcare Amendments of 1974 and brought non-profit hospitals under the National Labor Relations Act it somehow mandated the Board to restrict solicitation and distribution by employees in an organizational context.

We submit that the legislative history of that statute and those amendments shows quite contrary that Congress intended to leave it to the Board's discretion to continue the exercise its preexisting responsibility to accommodate employee's organizational rights and the employer's management interest which in the case of a hospital is to maintain patient care.

Chief Justice Warren E. Burger: Do you challenge the findings that a significant number of non-employees use that cafeteria over a period of a year?

Mr. Norton J. Come: The findings of the Board which were sustained by the Court of Appeals and which are based upon a survey hospital conducted that appear at record Appendix 124 shows that employees purchase 77% of the meals served in this cafeteria, visitors 9%, and patients only 1.56%.

The remainder of the meals were purchased by students, volunteers, doctors, nurses, and others.

There is no employee only facility in this hospital.

The hospital's employees' handbook states that a modern cafeteria is provided for all employees where a nutritious well prepared meal is maybe purchased at reasonable prices.

In short, the point that I am making is that this hospital cafeteria is primarily a employee eating facility that hospital held out to its employees as such, and indeed it has used the cafeteria area to communicate with employees concerning hospital programs and is permitted employees to obtain literature there concerning a variety of commercial matters.

Chief Justice Warren E. Burger: These controversial matters, these communications?

Mr. Norton J. Come: Well, they were not Union organizational matters.

Chief Justice Warren E. Burger: But they were controversial in any respect.

Justice Thurgood Marshall: Red Cross.

Mr. Norton J. Come: Well, the trial examiner, at petitioners Appendix 33, indicates the nature of them.

The poster is publicizing the hospitals buck a day a cost reduction program, travel brochure, a rat carpool board, literature concerning nutritional ideas, commercial literature relating the tennis camps, film processing, magazine subscriptions, united fund and combined Jewish philanthropies drives and things of that sort.

The point is though that whether hospital drew the line was at solicitation and literature relating to Union activity.

Justice William H. Rehnquist: Mr. Come following up a little bit on the Chief Justice's question.

The leaflets described by Mr. Chandler in his opening arguments, if this case is to depend on facts at all and perhaps it should not, it seems to present the very worst possible situation for the Union's position and the Board's position.

A good deal or worse, I would think normal the organizing tactics would present.

Is there anything in the Board's record that suggests why the Union resorted to this type of statements in its organizing campaign?

Mr. Norton J. Come: I submit Your Honor that although some of this literature perhaps gets to the outer fringes, it is still a probe test working conditions and often Union literature on that subject is not for exactly the language of the filer.

Now the Court of Appeals found reading from Petitioner's Appendix 55, Beth Israel argues that its no distribution rule will prevent the Union's scoreless attacks and quotes and the hospital's healthcare from falling into the hands of patients.

There was no evidence however that literature offensive or otherwise was distributed to patients or visitors.

Employee Schunior testified that she took care to distribute only to employees.

Justice Potter Stewart: Well, the emphasis is on distribute, doesn't the record show that these are left on the tables and available to anybody?

Mr. Norton J. Come: I think that all that the record shows what employee Schunior distributed and what she was disciplined for.

I think that the rest of it is speculation as the Court of Appeals so finds here, and as the Court goes on to add that if in the future in fact scoreless or offensive literature is distributed, the remedy is to ban that kind of literature or to discipline employees for distributing that kind of literature not to ban all of it, and that is what the hospital has got here.

It has got a total ban on the distribution of any Union literature even the most innocuous or any Union solicitation in any area of the hospital other than the employee only areas and the only employee only areas here were the locker rooms which on the findings of the Board --

Justice Thurgood Marshall: And the restrooms you have got restrooms.

Mr. Norton J. Come: And the restrooms.

Justice Thurgood Marshall: I can conceive how you pass them out. [Laughter]

Mr. Norton J. Come: The restrooms were joining the locker rooms as I understand it.

But on the findings of the Board and affirmed by the Court of Appeals these locker rooms were not open to all employees and they were segregated by sex and as a matter of fact not even the hospital use the locker rooms or bulletin boards and some of the locker rooms when it found it necessary to communicate with the employees, and either did so by posting bulletins in the cafeteria or by giving them fliers in conjunction with there paychecks, so that the long in short of it is that if the employee organizes -- and we are not talking about outside organizers we are talking about employees of the hospital -- are not free to engage in orderly solicitation of their fellow employees who are off duty and distribute literature to them at that time in the cafeteria.

There is no other place in this hospital second where these employees organizers can get their message across to their fellow --

Chief Justice Warren E. Burger: What about the locker rooms that you have just spoken to us about.

Why is not that a perfectly adiquate place where no one has access except employees?

Mr. Norton J. Come: Well, those locker rooms are not open to all employees.

Chief Justice Warren E. Burger: Well, any employee that is interested can carry a literature in there if he wants to can't he?

Mr. Norton J. Come: Not every employee can get access to those locker rooms.

Justice Thurgood Marshall: What about the entrance to the hospital?

I mean every employee does not have to go to the cafeteria, but every employee does have to come in the door.

Mr. Norton J. Come: Well, the hospital's rule as I understand it also preclude the distribution of literature in front of the hospital and as a matter a fact in the second Board case involving the Beth Israel Hospital which is still pending before the Board.

Three employees were disciplined for handing out literature right in front of the entrance of the hospital.

Chief Justice Warren E. Burger: Do the employees of this hospital use the same front entrance that the patients and the visitors do, if so it is the first hospital that I have ever heard of?

Are they having employees entrance that has special access?

Mr. Norton J. Come: So far as the record show --

Chief Justice Warren E. Burger: 400-bed hospital?

Mr. Norton J. Come: There is no such restriction.

Chief Justice Warren E. Burger: Well I would not believe it unless you could demonstrate it affirmatively on the record.

It is just incredible to suggest that they do not have an employee's entrance.

Mr. Norton J. Come: Well, there maybe an employees entrance but in so far as the record shows there is no indication that they are confined to entering the hospital through that entrance.

Chief Justice Warren E. Burger: But the place for distribution to employees is at the employee's entrance, is it not?

That is where you are going to get the best traffic for the purposes of the Union.

Mr. Norton J. Come: Well, that is certainly not the rule with respect to other establishments.

The Board is entrusted with the duty of balancing the employee's organizational rights against the employer's property rights.

This Court has recognized that the place of work is the place that is uniquely appropriate for the employees to obtain such information.

Going as far back as Republic Aviation, the Court approved of the Board's presumptions that working time is for work and therefore a rule barring employee solicitation and distribution during working time is presumptively invalid but by the same token, non-working time is the employees own time and therefore a rule barring solicitation and distribution during that time is presumptively invalid absent the showing.

Chief Justice Warren E. Burger: Even when it is only 77% of the employees and the balance is someone other than employees, that is the figure you gave as I understood it.

Why should the balance of the people have to be exposed to this kind of activity, anymore than people walking into the Rive Gauche or the Mayflower Hotel Restaurant?

Mr. Norton J. Come: Well, an accommodation has to be made between the organizational rights of the employees and those of the hospital.

Chief Justice Warren E. Burger: Do you think some consideration needs to be given to the patients on the purpose of running a hospital?

Mr. Norton J. Come: Yes, Your Honor and the Boards St. John's principle in which the board attempted to accommodate the general Republic Aviation principles to the special needs of the hospital is an effort to make such an accommodation.

Unknown Speaker: Were we reveiwing that case or this one?

Mr. Norton J. Come: We are reviewing this case, Your Honor.

Unknown Speaker: Well, where do you find a real discussion in the Board's order in this case or in the administrative law judge's decision by the way?

Mr. Norton J. Come: Well, I think that the line that St. John's draws is between patient care areas and other areas of the hospital to which patient's may have the access.

I think that the only issue that we have in this case is the cafeteria, that is admittedly not a patient care area but it is an area to which patients have access, and the question is whether balancing the needs of the employees for obtaining information concerning union activity in the cafeteria against the possible harm to the patient care function of the hospital, the Board was reasonable in drawing the accommodation in favor of the employee rights.

Unknown Speaker: Where do you find any discussion by the Board or the administrative law judge about such a balance as that in this case?

Mr. Norton J. Come: It is the administrate law judge's decision is replete with such discussion, Your Honor beginning on pages --

Unknown Speaker: Did you recite the contentions of the parties that is about -- it does not tell me where he comes to a real finding except on page 42.

Mr. Norton J. Come: Well, I think that 42 is his ultimate conclusion.

Unknown Speaker: Why would you treat this cafeteria different than a cafeteria in a retail store?

Mr. Norton J. Come: All right, I think we come down to that.

Unknown Speaker: The administrative law judge and the Board certainly did not discuss the matter.

Mr. Norton J. Come: The Board discussed it in the St. John's decision which the Board referred to in a Footnote in this case in affirming the administrative law judge.

Unknown Speaker: So we should read it up at that decision and incorporate that discussion in this case?

Mr. Norton J. Come: In so far as the distinction between a retail cafeteria and a hospital cafeteria is concerned and the essence of the distinction is this: The Board has got obviously in the exercise of this discretion that it has, make this accommodation in the light of the different situations that you have in different industries.

This is a difficult problem that requires a lot of fine tuning, and that is one of the reasons why Congress left it to the Board subject of course to judicial review.

The Board has always had the view that an employee cafeteria in an industrial plant for example, there was a right to solicit and distribute on nonworking time.

On the other hand, the Board, with respect to a commercial restaurant has found that --

Unknown Speaker: Retail store or anything separate.

Mr. Norton J. Come: That is correct.

That to permit solicitation or distribution there, involved too great a likelihood of disrupting the main function of the commercial enterprise which was to serve customers.

Justice William H. Rehnquist: Even though in a department store restaurant, presumably a number of employees with the various departments would eat.

Mr. Norton J. Come: That is correct, Your Honor.

That is correct.

Justice Thurgood Marshall: So it is all cafeterias except those in hospitals under one roof?

Mr. Norton J. Come: Well, not the cafeterias in industrial plants.

Justice Thurgood Marshall: Well, cafeterias in retail establishments?

All other than hospitals are covered but the hospitals are not?

Mr. Norton J. Come: Hospitals are not covered because the Board believes that to permit solicitation by fellow employees and distribution in such facilities is not likely to interfere with the function of the hospital.

It is not likely to interfere with patient care.

Justice Thurgood Marshall: (Inaudible).

Mr. Norton J. Come: That is correct.

Justice Thurgood Marshall: And participated in a labor controversy helps people to get well.

Mr. Norton J. Come: Well, as Judge White had pointed out in the Lutheran Hospital case, which did sustain the Board, in this day and age, patients are not likely to be upset by overhearing discussion of Union activity any more than they would be by overhearing doctors and nurses who talk in a cafeteria about operations or diseases or the normal things that are likely.

Justice Thurgood Marshall: They are the same things that is in those pamphlets?

Mr. Norton J. Come: That is correct, Your Honor.

Chief Justice Warren E. Burger: Did Judge Parker state any evidence to support this conclusion or was that just some generalization that occurred to him?

Mr. Norton J. Come: He did not cite any evidence but there Your Honor, I think we get back to the point that this Court made in Republic Aviation namely that the Board is entitled in drawing up these rules as to the proper balance between employee and management rights to draw reasonable inferences based upon its experience in this area and that it is not necessary for a Board rule to be sustained to have evidence that would establish the results of the particular rules.

I mean, they have to be reasonable.

Chief Justice Warren E. Burger: Your time is expired now, Mr. Come.

Mr. Gold.

Argument of Laurence Gold

Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.

Continuing with the point that Mr. Come was making, I think it is important to stress that this case brings to this Court a question concerning the validity of certain basic rules presumption that the Board has stated.

One of those presumptions is that employee solicitation and distribution of union literature in nonworking areas and during nonworking times is presumptively lawful.

It is a presumption, the hospital in any case can seek to overcome that presumption.

In this case, the hospital did not seek to overcome that presumption with any facts.

What it did was say that the rules here should be presumptively lawful.

Justice William H. Rehnquist: Mr. Gold, do you view this primarily as a review of a rule making proceeding or as an adjudication?

Mr. Laurence Gold: I would believe that it is of an adjudication.

Justice William H. Rehnquist: Substantial evidence considered on a rule?

Mr. Laurence Gold: That is right, in other words, the Board has, at least since the Republic Aviation case, followed this approach of stating a presumption and then litigating the applicability of the presumption in particular cases.

Chief Justice Warren E. Burger: We will resume there at 1 o'clock.

Mr. Gold, you make continue.

Mr. Laurence Gold: Thank you, Mr. Chief Justice.

At that break for lunch, I was making the point that the basic Board rule here is in the form of a presumption, restrictions on union solicitation and union distribution in a cafeteria like this, says the Board, is presumptively unlawful.

Chief Justice Warren E. Burger: It is like this that is in quotation marks if I may quote you that perhaps creates the problem.

Can you have a presumption which is applied to factories and other places and have that apply with the same force to the restaurant in a hospital?

Mr. Laurence Gold: Well, what the Board has done is say that in certain areas, rules are presumptively lawful and others presumptively unlawful, and the burden --

Chief Justice Warren E. Burger: In a factory as you know and I know and we all know, except for a rare exception of a visiting fireman, the only people lunching are the employees and perhaps officers of the company.

Here you have something that is open to 28 some percent, 23% I think it was of people other than employees and the considerations of the tranquility of the establishment.

Mr. Laurence Gold: Mr. Chief Justice, the figures are that employees and other staff comprise 89% of the customers and there are --

Chief Justice Warren E. Burger: Well, (Inaudible) doctors.

Mr. Laurence Gold: I do not think there will be the doctors would be disturbed nor does the hospital argue it, and so the question is whether the 1.5% patients and 10% guests argue for a different presumption.

I think that the Board preceded perfectly, rationally in the following sense.

There are two lines of cases as we have developed and contrary to the impression created by the petitioner that there is one.

Line one says that where you have an employee only cafeteria, a restriction to this type is presumptively unlawful.

Presumption number two says that where the facility is primarily for the general public, such rules are presumptively lawful.

And what the Board did here was to say that to begin this process as a working hypothesis, we will say that this rule is presumptively unlawful and put the burden on the hospital which after all claims to have the medical expertise to show that there are special circumstances which make the rule lawful, and the hospital did not accept that invitation instead, they argued what the Board's presumption is arbitrary and capricious.

We think that that places a very heavy burden on them under this Court's general law regarding the review of administrative agency determinations and that they have not begun to carry it.

First of all as we have been discussing --

Unknown Speaker: But it is not a substantial evidence problem?

Put that way is, it is a statutory construction problem?

Mr. Laurence Gold: There are two steps.

That is right.

First is the did the Board proceed properly in stating this presumption?

Unknown Speaker: That is a legal question?

Mr. Laurence Gold: Yes, and then if it did -- I do not think that --

Unknown Speaker: Well, there are two: It does not proceed within its statutory to hardly state and presumption, and secondly, if it may state one, it is also a second legal question whether this is a proper one as they have created it here.

Mr. Laurence Gold: Right.

Unknown Speaker: And those are legal questions, I think.

Mr. Laurence Gold: Yes.

Unknown Speaker: So we do not get into Universal Camera types of inquiries for judicial review in this case?

Mr. Laurence Gold: No, I think that the problem here is exactly the same as the problem for factories and other facilities as in Republic Aviation where this Court answered the first question you posed, yes, the Board --

Unknown Speaker: Well, but tell me Mr. Gold, if we agree that the presumption was proper then we still have to determine that whether its application on the factual record here that was proper in the conclusion?

Mr. Laurence Gold: Yes.

Justice William J. Brennan: So we do have -- to that extent, we have a judicial review of factual determination?

That is right.

Justice William J. Brennan: I know you do not have too much time but if you do, I hope you will be able to give a few seconds to tell us where are the factual findings here?

Mr. Laurence Gold: Okay.

Unknown Speaker: Particularly with relation to this St. John's, about the Judge Campbell cause a puzzling footnote?

Mr. Laurence Gold: Well, the footnote is in our view basically -- the puzzling aspect of the footnote is basically out of the case because the Court of Appeals said that except as to the cafeteria, there has not been a sufficient articulation of the Board's theory sent all other aspects of the case back and the Board accepted the remand.

So what we have here is the application of the Board's presumption to this cafeteria and the administrative --

Unknown Speaker: And our findings as to that?

Mr. Laurence Gold: The administrative law judge's findings, I apologize, I do not have the petition.

I have the decision, are set forth at length at 220 --

Unknown Speaker: He has a long discussion, but I have the tough time in identifying any findings excep that Page 42.

Unknown Speaker: Will you get to that summary, Mr. Gold to summarize.

Is that where we find the findings based on --

Mr. Laurence Gold: No, I would say that beginning at the portion of the decision at 223 NLRB 1197, and continuing through the end of 1198, the administrative law judge considers each of the factors which were argued namely the effect on patients, the discrimination point which I would like to stress the availability of access to people elsewhere, he reviews each aspect of the record and says that in this situation, the presumption was not overcome.

As to the discrimination point which I guess will be the only thing and if I can have even one minute on that we do want to make the point that the administrative law judge found, the Board accepted the finding and the Court of Appeals affirmed it as well that the employer put a greater restraint on communications concerning union activity than on any other type of communication in one of the best settled rules here, and we think one which is plainly derived from the Act itself which protects discussion of union activity and other matters concerning mutual aid and protection but does not protect charity drives or discussions of sporting events or public affairs is in itself sufficient to sustain the finding here.

This is not a normal cafeteria.

It is not like Rive Gauche, I would point the Court to the pictures at Pages 111 through 114.

Justice Thurgood Marshall: Mr. Gold the one thing worries me if we agree me with you, how do we explain away the retail store?

Mr. Laurence Gold: Well, This was my point Mr. Justice Marshall, in the retail store the basic function of the cafeteria of the store is to serve the general public.

Here the basic function of this cafeteria was to serve the employees.

You would not walk in to a general public facility and find slogans addressed to the employees BAD means save a buck a day or you would not find bulletin boards, table setup for the employees.

The employer's actions here demonstrate that this was basically a place used by employees and other staff and was the place at which employees spoke to each other.

After all union solicitation distribution sound like archaic terms, but what they are, are people talking to each other or people reading literature or exchanging literature.

Chief Justice Warren E. Burger: But they can do that in the locker rooms?

Mr. Laurence Gold: Well, as Mr. Come endeavored to indicate Mr. Chief Justice only a third of the locker rooms are open to employees generally.

The other locker rooms are open only to the employees who have a locker in that particular facility and what the employers rule does in this instance is to close off communication between somewhere around 2/3rds of the employees because what he wants to do is to say that any place you ever find a patient, it is improper for employees to be discussing unionization whether or not they are working.

Chief Justice Warren E. Burger: Your enlarged time is not expired Mr. Gold.

Mr. Laurence Gold: Yes, I apologize Mr. Chief Justice.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further Mr. Chandler?

Rebuttal of Louis Chandler

Mr. Louis Chandler: Yes, Your Honor.

Chief Justice Warren E. Burger: We have enlarged your time to compensate for your friends.

Mr. Louis Chandler: Thank you.

Briefly there are several points in reply.

The record Appendix verifies that there are approximately 700 lockers in just four of locker areas to which all of that Beth Israel employees have access.

Secondly, brother counsel stated that the Board's rule is a rule prohibiting solicitation during work time is presumptively valid.

What he neglected to say was that the Board rule also says it is presumptively valid to prohibit solicitation in work areas and public or customer access areas.

Here the Beth Israel cafeteria apart from being a place where employees are working is a customer access area and the customers here happen to be patients and their families.

At the very least the hospital is entitled to the same consideration.

The question of numbers has been raised.

The Board has never raised question of how many customers are in a particular area in an elevator of a department store or in a cafeteria in a department store.

We see no reason to apply it in a cafeteria setting especially here where there are substantial numbers.

The primary function that brother counsel mentioned that apply in the retail store I cite again the Goldblatt Case because in that case because in that case the primary function was selling merchandise cafeteria and that case was not for selling merchandise or was with selling food and adjunct to that operation.

In the remand that brother counsel referred to in the related Beth Israel Case, the Administrator law judge made certain findings of fact and I would read from the addendum in the brief.

Solicitation and distribution --

Chief Justice Warren E. Burger: What page?

Mr. Louis Chandler: This is on page 49.

"Solicitation and distribution in patient access areas can interfere with patient care functions.

Such activity can be disturbing to patients and their families.

Persons who are particularly susceptible to being disturbed such disturbance can interfere with Beth Israel's primary function of curing illness."

However, he goes on to say that he was bound by the Board's rule in St. John's not by the Tenth Circuit Court which reversed the Board's rule.

Curiously, the Board in the McDonald's Hamburger case apply the restaurant rule by saying and I quote from the decision of the Board.

"Union solicitation can lead to heated verbal exchanges among the solicitors and those solicited.

Indeed it is certainly not unknown for violent physical exchanges to occur in such circumstances should such that be in the presence of customers would not be unlikely the employer can well foresee the destruction of the rapport which this employer and any normal employer would like to have with its customers."

Justice Thurgood Marshall: Well, wouldn't that be a crime?

Mr. Louis Chandler: Excuse me Your Honor.

Justice Thurgood Marshall: Wouldn't it be a crime to fight?

Mr. Louis Chandler: Would it be a crime?

Justice Thurgood Marshall: Yes, it would be a crime.

You take care of that one separate.

Call in the police and arresting the man.

Mr. Louis Chandler: You are right Your honor.

Justice Thurgood Marshall: That solves that problem.

Wouldn't that to solve that with NLRB Case?

Mr. Louis Chandler: No, we do not Your Honor, but the Board has recognized in a retail store setting and a restaurant setting that solicitation can be disruptive, and if they give that kind of consideration in the McDonald's hamburger place we would expect that they would be able to apply that same logic to a hospital setting.

Chief Justice Warren E. Burger: There are only complaint I would say that you are really lying which is the complain about the NLRB being consistent and then nothing we have been able to do so far to compel them to do that, so (Inaudible) doing on this case.

Mr. Louis Chandler: I would hope that this case where there is express congressional intent to give the needs of the patient's special attention that this would be the case where the Board has acted contrary to that congressional intent and where the Court should strike them down as did the Tenth Circuit and DC Circuit Courts in the St. John's and Baylor Cases.

I would ask that this Court reverse the First Circuit's decision as did those Circuit Courts of the same reasoning.

Unknown Speaker: Mr. Chandler, may I ask you one question?

Mr. Louis Chandler: Yes.

Unknown Speaker: Was the rule against solicitation apply to all solicitation or just to union solicitation?

Mr. Louis Chandler: The rule was applied to controversial solicitation Your Honor.

Justice William J. Brennan: How was that defined?

Mr. Louis Chandler: Pardon me.

Unknown Speaker: How was that defined?

Mr. Louis Chandler: As I indicated earlier, the rule originated when certain political activity was occurring in the hospital involving the Vietnam War and demonstrations.

That was one reason for banning that kind of activity.

The hospital, I am talking about medical people who make a determination as to what may be detrimental to patients in a hospital setting, made a determination consistent with the Board's own case law that union solicitation is potentially disruptive.

They have indicated to doctors.

The hospital has indicated to its staff not to discuss concerns inpatient access areas that could affect patients and this is a consistent concern.

The Baylor Court and the DC Circuit has recognized that this is controversial material that should be banned as opposed to innocuous things, and unless the Board shows that the hospital's administration has made a bad medical judgment, then we see no basis for the Board to insist upon a new rule.

As this Court determined recently in the University of Missouri Case against Horowitz.

That involved the academic field, but there they recognized that academic people are better able to make determinations as to academic problems and subject matter than the Courts or Administrative agencies.

Here we would suggest that the same principle applies in a medical field especially where there was no medical evidence or medical testimony other than the Board's own medical perceptions that supports this distinction for ambulatory as against non-ambulatory.

Justice Byron R. White: Did you put in any evidence of that?

Mr. Louis Chandler: Your Honor at the time the hearing arose the Board case precedent was established.

As indicated earlier, it was the Guyan Valley precedent.

We presented evidence that patients and visitors were present and that solicitation activity occur.

Justice Byron R. White: With this medical judgment did you think that will be left to the doctors?

We have nothing in the record about it.

Mr. Louis Chandler: I do not believe you need to pass on that Your Honor because of the mere presence of the customers in a patient access area of just as in the retail store.

This presents a special circumstance.

Justice Thurgood Marshall: Mr. Chandler, my brother Powell's question that you and I did not understand it, so let me try again.

In this case limited to this hospital was any other solicitation, other than unions, barred?

Mr. Louis Chandler: In the cafeteria there was solicitation allowed.

There were pledged cards that were distributed for uniting.

Justice Thurgood Marshall: I have not said a word about what was allowed.

I am asking what else was prohibited other than union solicitation?

Mr. Louis Chandler: I have already indicated that and the records supports it.

There were numerous letters sent to staff directing them not to discuss potentially upsetting things in the presence of customers.

Justice Thurgood Marshall: Weren't they signs of no solicitations?

Mr. Louis Chandler: There were no signs there was a --

Justice Thurgood Marshall: But what did you say no solicitation.

What did you mean?

Mr. Louis Chandler: We said there are patients and visitors.

Justice Thurgood Marshall: What did you mean?

Who did you mean should not solicit?

Mr. Louis Chandler: I am not sure I followed your question Your Honor.

Justice Thurgood Marshall: Who was included in the phrase no solicitation?

Who was no?

Mr. Louis Chandler: All employees may not solicit.

Justice Thurgood Marshall: Anything?

Mr. Louis Chandler: Anything other than --

Chief Justice Warren E. Burger: They should not solicit to be repaid the money they told them.

Mr. Louis Chandler: That is right.

In a work area what are talking about?

Justice John Paul Stevens: Mr. Chandler.

Mr. Louis Chandler: Yes Your Honor.

Justice John Paul Stevens: On the medical judgment point, can we tell from the record whether the rule was drafted by doctors and people concerned with medical problems as opposed to the possibility that might simply been drafted by the Labor Relations Director?

Mr. Louis Chandler: On the face of the rule, no Your Honor, you cannot.

Justice John Paul Stevens: Or the record just does not tell us, does it?

Mr. Louis Chandler: I believe the record does indicate that Dr. Rabkin who was the General Director of the Hospital, responsible for drafting the rule.

Justice John Paul Stevens: Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.