NLRB v. BAPTIST HOSPITAL, INC.

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Argument of Norton J. Come

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in National Labor Relations Board against Baptist Hospital.

Mr. Come, I think you may proceed when you're ready.

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

This case is here on certiorari to the Sixth Circuit that involves the application of the principles for determining the validity under the National Labor Relations Act of rules barring employee union solicitation and literature distribution in hospitals which were enunciated by this Court's decision in Beth Israel Hospital last term.

The facts are briefly these.

This Baptist Hospital is a nonprofit hospital located in Nashville.

It has 600 patient beds and more than 1,800 employees.

For a number of years prior to October 1974, the hospital maintained the rule which prohibited anyone to solicit patients or visitors while on hospital premises without written approval of the administration.

In August of 1974, Congress enacted the Health Care Amendments to the National Labor Relations Act, bringing nonprofit hospitals under the Act's coverage.

In response to these amendments and to the fact that the union had began a campaign to organize the hospitals employees, the hospital after consulting with its lawyers but not with any doctors issued in October 1974 a revised rule.

The rule provided in pertinent part that no solicitations of any kind including solicitations for union membership will be permitted by employees at anytime including work time and non-work time in any area of the hospital which is accessible to or utilized by the public.

Solicitation was barred in other areas by employees who were supposed to be working or when conducted in such a way as to interfere with employees who are working.

The effect of this rule is to bar employee solicitation and literature distribution in such public areas as the hospital's cafeteria, gift shop, lobbies, public restrooms, entrances and even the parking lot across the street from the hospital and to confine such activity to nonpublic areas which were not -- or where not all the employees were accessible.

The Board upon charges filed by the union concluded that the revised rule violated Section 8 (a) (1) of the Act to the extent that it prohibited employees on soliciting the union during their non-work time in areas of the hospital other than the immediate patient care areas, the Board in short followed its decision in Saint John's Hospital that held while a hospital could lawfully bar employee solicitation or literature distribution in immediate patient care areas such as the patient's rooms, operating rooms, and therapy rooms are barred on that activity in other areas was presumptively invalid absent a showing by the hospital that was necessary to avoid disruption of patient care.

And the Board adopting the findings of the administrative law judge concluded that the hospital had not made that showing of special need here.

The Sixth Circuit in the decision rendered before this Court's decision in Beth Israel denied enforcement of the Board's order.

The Sixth Circuit found that the testimony by the hospital and two doctors as to the necessity for creating and maintaining a tranquil atmosphere throughout the hospital for patients and visitors was sufficient to establish special circumstances that warranted the hospital's restriction of employee solicitation and distribution in these public areas.

We submit that the Court of Appeals erred in not applying the principles that this Court enunciated in the Beth Israel case.

In Beth Israel, the Court held that the Board's general approach of requiring a health care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas where the hospital had not justified the prohibitions as necessary to avoid disruption of healthcare operations was consistent with the Act.

And the Court went on to find that the Board had reasonably applied that principle in concluding that the hospital had overstepped the line in prohibiting employee solicitation in its cafeteria which was used primarily by employees but also by patients and visitors.

Now, this case differs from Beth Israel in that it involves not only the hospital cafeteria but other public areas accessible to patients and their families.

In addition, as I indicated, there was a testimony by the hospital administrator and the two of its doctors in an effort to justify the rule.

Now, let's look at the facts here.

A hospital cafeteria here is essentially similar to that in Beth Israel.

The hospital study of cafeteria usage is not as detailed as it was in Beth Israel.

However, it shows that the employee usage was nonetheless substantial, 68% on weekdays and at least 47% on weekends, at least of those that went through the line.

The percentage of patients in the remaining 32% or 53% of the cafeteria's patrons is not shown by the hospital study but there is testimony in the record to indicate that only a small percentage of the patients used the cafeteria, most of them obtained their meals in their rooms and they can only go down to the cafeteria if they receive special permission to go down there.

Justice Harry A. Blackmun: Now, Mr. Come, what significance is your reference to special permission?

Of course that's routine in the hospital.

Mr. Norton J. Come: Well, --

Justice Harry A. Blackmun: I just wonder why are you emphasizing it?

Mr. Norton J. Come: Well, I'm emphasizing it to show that the -- there's nothing in this record to indicate that the use of the cafeteria was a predominant part of the hospital's therapeutic treatment here.

That the use of the -- that the cafeteria, the testimony shows was primarily a place of the employees took their breaks and want to relax and the patient --

Justice Harry A. Blackmun: Well, wouldn't a special permission to be relevant to the question whether patients who went to the cafeteria were at least thought to be well enough to associate with the public as opposed to secret people.

Mr. Norton J. Come: That is correct.

And here, as in Beth Israel, the same fact is present.

Similarly, the other public areas in which employee solicitation and distribution was barred are areas which the hospital did not consider to be patient care or work areas.

There's testimony by the hospital administrator, Dr. Victory to the effect that none of these areas were regarded as a work area or an area of patient care or treatment.

Justice Lewis F. Powell: You are using, the Labor Board's definition of patient care, aren't you Mr. Come?

The doctor's testimony quite explicitly associated patient care with somewhat now of these public areas and that testimony is undisputed.

Mr. Norton J. Come: Well, I -- I'm going by the testimony of the hospital administrator who --

Justice Lewis F. Powell: He talked about work areas?

Mr. Norton J. Come: Well, he defined a work area as an area where a patient received care or treatment.

Justice Lewis F. Powell: You're not suggesting that the corridors of the hospital were not associated with patient care?

Mr. Norton J. Come: If --

Justice Lewis F. Powell: Are you?

Mr. Norton J. Come: No, I'm not but the -- but we do not have the corridors of the hospital involved in this case.

What we have here is the cafeteria, two lobbies, and the gift shop and a parking lot and the entrances which except for the emergency rooms were considered by the hospital administrator not to be patient care areas.

Justice Lewis F. Powell: Does the Board apply its rule to hospital corridors?

Mr. Norton J. Come: The Court of Appeals in the Baylor Hospital found that it had and the Board was reversed on that because on the ground that the -- there was not -- the hospital had shown enough facts to indicate that those hospitals, that those corridors were associated with patient care.

We do not have that in this case.

Justice Harry A. Blackmun: Does the Board apply rules to nurse stations?

Mr. Norton J. Come: The hospital in this case permitted solicitation in the --

Justice Harry A. Blackmun: Yes, I'm going to ask your opposition why but does the Board apply its rules to nurse station?

Mr. Norton J. Come: I think it would depend upon whether or not you could -- it would -- the hospital could show that those were patient care areas and I think in most hospitals, it would be easy to show that.

What you have here is just as a blanket rule that bars solicitation in any -- in every public area of the hospital.

Justice Harry A. Blackmun: What's the Board's attitude about nurse stations, if any?

Mr. Norton J. Come: I -- I think that it would depend upon whether it could be shown that that was a work area or a patient care area.

That has not been litigated to my knowledge in any of these cases, so far.

I have no doubt that it will be as we get into these cases more fully.

Justice Harry A. Blackmun: Well, I take it then to constant care area which is becoming more and more popular, probably the Board would be fairly lenient there.

Mr. Norton J. Come: I would -- I would think so.

Justice Byron R. White: Mr. Come has the Board -- is the Board still applying the -- its rule to corridors in any hospitals after the reversal in the Baylor case?

Or will it try it out in some other circuits, what do you know?

Mr. Norton J. Come: I do not know Your Honor what the Board has done as to take back some of the other hospital cases and --

Justice Byron R. White: What about the General Counsel?

Mr. Norton J. Come: What's that?

Justice Byron R. White: What about the General Counsel?

Mr. Norton J. Come: I know of no specific case involving the corridors.

Justice John Paul Stevens: Well, Mr. Come doesn't this case, I know you said it but doesn't this case involve the corridor at least to this extent even though the solicitation was not in the corridor, the Board's order, if one reads it one way, does prohibit solicitation in the corridor, if one reads it another way, it doesn't.

And I read it frankly to prohibit solicitation in the corridor because I thought the Board didn't treat corridor as patient care areas.

I think that's what Mr. Justice Powell was asking you too.

Mr. Norton J. Come: Well, I think -- I think that what the Board order says is that the hospital just cannot have a blanket ban in these public areas.

What they have to do is to define with more precision what are their patient care areas and even with respect to nonpatient care areas.

What are areas where it is likely that this sort of activity would interfere with patient care?

They have not done any of that in this case.

Justice John Paul Stevens: There is substantial testimony in this case, Mr. Come, about the corridors and the use to which they were put.

Mr. Norton J. Come: Well, I'd like to get to that testimony but I will --

Justice Lewis F. Powell: In light of that testimony, what happened to it?

You say it's out of the case.

Mr. Norton J. Come: No, I -- that testimony in short merely indicated that -- and it was given after the rule was promulgated, it was essential to keep a tranquil atmosphere, well, throughout the hospital, that when the doctors were asked about union solicitation, as my brother, Mr. Gold will indicate in more detail, he indicated that what they were concerned about was loud or hostile or volatile union solicitation and that peaceful solicitation one on one, they did not think would affect patient care.

Justice Lewis F. Powell: One on one when a patient may need the attention of the nurse for example, one on one solicitation at a time when patients are ringing for nurses or orderlies.

Mr. Norton J. Come: Well, this is not in a patient care area.

It is not -- it is when the employees are off duty.

Justice Lewis F. Powell: I'd like to get back to your statement, about this corridor that's not being used for treatment.

I think the record shows that the first thing doctors not try to do following surgery is to get that patient out into the corridors and into the rooms or the sitting rooms, or waiting rooms or where they visit with families and friends, then they move up and down as the record clearly shows on wheelchairs, on stretchers to and from treatment rooms and nobody can tell in advance when a patient will be so postured.

But coming back to the original point, I'd like to know whether the corridors in this case are there.

I thought they were here.

Mr. Norton J. Come: I think that they're in unless the hospital is able to demonstrate that they are patient care areas or that the activity there would interfere with patient care.

They are --

Justice William H. Rehnquist: Must they demonstrate both that they were patient care areas and that activity --

Mr. Norton J. Come: No, either.

Either, either.

Justice Potter Stewart: Didn't this Court earlier this term, in Baylor University Hospital differentiated between the cafeteria and the corridors and its disposition to the case summarily?

Mr. Norton J. Come: They did because they found that the hospital there had introduced evidence which showed that the corridors were not -- were patient care areas.

That there was enough evidence to put in there to show that the corridor --

Justice Potter Stewart: What's happened to that case?

Mr. Norton J. Come: Baylor Hospital.

Justice Potter Stewart: What's happened to it?

I'm not -- if it was remanded to the Court of Appeals?

Mr. Norton J. Come: Well, their only cafeteria was remanded to the Court of Appeals.

The Court of Appeals in turn remanded that the cafeteria issued back to the Board.

Justice Potter Stewart: But the corridor --

Mr. Norton J. Come: The corridor issue --

Justice Potter Stewart: We denied certiorari?

Mr. Norton J. Come: Yes, you did, Your Honors.

Justice Potter Stewart: And it was held in that case but the Court of Appeals refused to enforce the Board's order with respect to the corridors, is that it?

Mr. Norton J. Come: Right, because what the reason for denying cert was that the Court viewed it as a substantial evidence question in that case.

Justice William H. Rehnquist: You're telling us that's why we denied cert?

Mr. Norton J. Come: Well, that is what the opinion for the Court --

Justice Potter Stewart: Said.

Mr. Norton J. Come: -- said.

I'd like to save the balance of my time for rebuttal.

Argument of Laurence Gold

Chief Justice Warren E. Burger: Mr. Gold.

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

To continue with the point that Mr. Come was discussing, it is our understanding that under the Board's present approach, the first inquiry is in -- is whether a particular area is an immediate patient care area or not.

Their factual and legal problems in making that determination just as there are in making any other determination and the Board has not yet articulated its approach to solving all the questions and arriving at the lines of demarcation as an appendix to our brief, the blue brief we reprint our submission to the Board in a series of cases which have come back to the Board after Beth Israel, where we discussed an approach to the differing rules that could be applied at page 40 through 42 that could be applied in the different flat functional areas of the hospital if that is the Board's view to the proper approach.

But in any rate, corridors are in the case, this case but they're treated under the Board's order only by a distinction between patient care and nonpatient care areas and that has to be made more concrete depending on what happens in this Court in handling the basic question of whether the overall Board approach is right or at least right with regards to areas other than cafeterias.

I'd like to spend the remainder of my time making three basic points.

The first is that the overall presumption here seems to us to be a common sense way of developing the law.

It rests on two basic premises of the Act.

One is that stated by this Court in the Magnavox case in 415 U.S. that the working place or at least nonworking areas of the working place are uniquely appropriate for employee communication that they are presumptively saved to the employees for distribution and solicitation.

And secondly, a point made in numerous labor law cases, most specifically I would think in the Allen case 373 U.S. that the party with the facts and the knowledge is the one who ought to have the burden of proof of demonstrating its position.

And here of course, the hospital position is that patient care would suffer at least in certain regards if solicitation distribution is allowed.

The hospital claims to have the expertise in -- with regard to these medical questions and it's appropriate it seems to us to put the burden on the hospital.

This is a rebuttable presumption.

This is not a rule of law that we're discussing here.

The Board's position that a broad ban on employee discussion is presumptively unlawful in the hospital can --

Chief Justice Warren E. Burger: These cases you refer to were not hospital cases, were they?

Mr. Laurence Gold: No.

No.

We're simply --

Chief Justice Warren E. Burger: Don't you think there's quite a difference between a factory or something of that kind in a hospital or a hotel?

Do you suggest if it would be appropriate for the solicitations to take place in the lobby of a hotel?

Mr. Laurence Gold: It would seem to me that there would be occasions where it might.

Chief Justice Warren E. Burger: Solicit the bell boys when they are to take care of the customers?

Mr. Laurence Gold: Well, Mr. Chief Justice, I think the best way I can answer that question is to turn to (a) (66) of the record.

The -- at that point, Mr. French who did the soliciting here for the union stated what solicitation was and we're talking about an abstraction here and I think helps to make it more concrete.

He said, he solicited in the cafeteria and he said I asked if I could join people, other employees who were sitting down taking a break and eating, and sat down and talked with them.

That's what solicitation is.

It's not a something that's unusual for people to do on their breaks.

People whether they're bell boys, whether hospital personnel.

Chief Justice Warren E. Burger: You moved in to the cafeteria.

I'm talking about public areas of a hospital that would correspond somewhat to the public areas of a hotel.

Mr. Laurence Gold: Well, I --

Chief Justice Warren E. Burger: You mean they can just -- they can solicit without any interference with working functions?

Mr. Laurence Gold: I -- I think it would depend on whether it was a nonworking area for them and whether they were on nonworking time.

The reason I responded as I did was that it depends, I would think on what they do.

If you have two bell boys, to use your example, who are taking a break which is permitted to them in a corner of a hospital and one says to the other, we don't have a union here it would be good if we had one.

And they have a quiet conversation in the first -- and the person who to whom that subject is brought says, either that's a good idea or a bad idea.

I don't see why -- what employer interest, what hospital interest, what hotel interest ought to say that that is inappropriate.

On the other hand, if they are standing at the front desk holding a customer's suitcases and having that conversation with the customer standing there when they are in working time, that's a very different case.

So all I was trying to say is that solicitation is the task of normally of discussing and if it happens in an area where such discussions are common, where there is conversation, people walking around, conversing on many different subjects, it's difficult for us to see why off duty employees in a nonworking area should not be permitted to engage in that activity.

Justice Thurgood Marshall: Mr. Gold, you restrict this to a nonworking area and nonworking time?

Mr. Laurence Gold: Yes, sir.

Justice Thurgood Marshall: Both?

Mr. Laurence Gold: Right.

Justice Harry A. Blackmun: Absolutely.

Mr. Laurence Gold: In the nonhospital context or at least, the factory context maybe a better word, solicitation has been permitted in working areas during nonworking time but not distribution.

That is a rule that I doubt if the Board would follow in areas where the public is present.

And the reason that I've taken your time to stress the point I've made is that the medical testimony in this case seems to us to suffer from a basic defect.

It is that the doctors didn't know what solicitation was.

Again, I'd like to direct you to page 61 of the record.

Dr. Ricketson after testifying for a length of time that's reflected in pages 51 through 60 of the record is cross-examined and the question is union solicitation, do you know what effect it would have?

Answer, first may I ask the question to be sure you and I understand?

What is union solicitation?

What does it consists of?

The medical testimony by and large assumes that union solicitation involves turmoil confusion, loud noises, speeches, and so on.

We think no matter what the basic legal rule is that whether there is a presumption for or against solicitation, the ultimate question ought to be that whatever the ultimate basic point ought to be that whatever standard an employer adopts if it bears more heavily on union solicitation of a kind that I've indicated goes on in this case, then on cognate nonunion activities discussion of other issues which may have just as great in effect on somebody maybe just as likely to result on an argument.

Now, my working experience says that the most likely areas for argument are questions of who is going to win the World Series and foreign policy and so on.

If you have general discussion, union discussion ought to be permitted.

That is the basic point, we submit.

Justice Lewis F. Powell: Mr. Gold, I'm sorry, I beg your pardon right there.

You referred to testimony on pages 60 and 61 but if you keep reading, I don't suggest you do it now, you can take my word for it, and if I'm wrong and then you can speak.

Top of page 62, the same doctor when asked about the effect on patients.

He said, that doesn't have to be a fight or argument or heated discussion.

If the patients get the idea that people who are supposed to be taking care of them, have their mind on something else, they are not very happy about it.

Mr. Laurence Gold: Yes.

May I respond to that, Mr. Chief Justice?

Chief Justice Warren E. Burger: If Mr. Come is willing to give you his time?

Mr. Laurence Gold: If I have time I have plan to go on to that but the reason that we think the Board could disregard that testimony is the reason I concluded with.

Certainly, if the hospital goes to the point of saying that employees in the cafeteria, employees on breaks wherever there is -- wherever members of the public may be can't talk to each other about anything, then perhaps that rationale makes some sense but that isn't the way this hospital works.

This is just like Beth Israel where they tell to the people who work at the hospital that if they discuss patient care, they should be careful not to be overheard.

There isn't a scintilla of evidence here that if anybody senses employee conversations on any issue other than union issues.

And we think that that is the first point.

That testimony is testimony that has nothing to with the real world.

The hospital permits TV, it permits radio, patients talk to each other, visitors talk to each other, that's the test.

Argument of Fred W. Elarbee, Jr.

Chief Justice Warren E. Burger: I think you've covered those points so far.

Mr. Elarbee.

Mr. Fred W. Elarbee, Jr.: Mr. Chief Justice, may it please the Court.

With the Court's indulgence, I'd like to visit with the Court for a moment before I start my argument and particularly with Mr. Justice Stewart, some 24 years ago in 1955, I argued my very first case, the Court of Appeals in Cincinnati.

At that time, I was representing the Ironworkers International Union.

Since that time I was going to the other side, I want to say that Justice Stewart was on that panel.

It's a pleasure to get -- to see you again Justice Stewart.

I might say in passing that I hope better I had better luck here today than I had that day 24 years ago.

Chief Justice Warren E. Burger: Well, as a defector, you're familiar of the both sides of the problem now?

Mr. Fred W. Elarbee, Jr.: Yes, hope so.

Justice Potter Stewart: Well, as you see, I'm a defector, too.

I'm no longer in that Court.

Mr. Fred W. Elarbee, Jr.: Yes sir.

I think if the Court please, what we have here is an attempt by the Board to establish a rule that arises out of an industrial setting to a hospital situation which simply does not fit.

It's quite one thing when you talk about a manufacturing plant where all the employees are involved and another when you talk about a situation where third parties' rights and interests are involved.

Of course the Board got into that in the Retail Store cases, but here, you have even a further, more direct and important interest involved, it seems to me, and that is the right of the patient, or what the patient can expect when he goes to the hospital sometimes quite ill.

And what the patient's attitude is with respect to what's happening to him and those around in the hospital.

So I think the Board in establishing a rule that simply says immediate patient care areas and speaks to such areas such as the operating room, the patient's room and perhaps the X-ray room.

It's far to a limited rule given a modern day hospital when as this record shows as in Baptist Hospital patients are likely to be all with the hospital.

The patients who are ambulatory, patients who are transported to different places in the hospital, the rule simply doesn't fit in light of the testimony of this record.

In Beth Israel, Justice Blackmun expressed this concern in a concurring opinion.

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 rule than they would have done had a more usual hospital case than the first one to come here.

Justice Brennan in writing the majority opinion advised the Board to follow the cases and the hospital cases as it came before them not to take Beth Israel as a standard, it necessarily was to be applied in all cases.

And I think what we have is the Board taking its rule as enunciated in St. John's Hospital and which form the foundation for Beth Israel which this Court decided earlier on a completely and vastly different record.

It's taking its rule in St. John's has applied it again in this case without even a discussion of the record evidence in his decision than on a basis of a footnote.

But we're following St. John in a footnote, so what we have first of all it seems to me is a Board establishing a rule that rises primarily out of an industrial situation, a manufacturing plant, attempting to transpose it with some modern modification to a hospital with immediate patient care areas and it simply will not fit for a hospital such as Baptist.

First of all, I like to point out that there were substantial differences in the record evidence in this case that was presented this Court in the Beth Israel case.

Justice Blackmun anticipated that this -- Justice Powell in his concurring opinion anticipated that this might very well arise.

Some of the things that are substantially different it seems to me is in a much greater showing in this case that there was public use, visitors and relatives in the Baptist Hospital cafeteria and I suppose along with that non-employees are perhaps patients, it doesn't show.

But it does show that about 32% of the patrons in the cafeteria during weekdays were visitors or were nonemployees.

It could've been patients and visitors, I suppose.

About 53% or a majority on the weekends were not employees in the cafeteria.

In the medical testimony, the unrefuted, uncontradicted testimony was that it has anything unsettling that occurs, circumstances that occur to a relative of the patient is inevitably rubs off from the patient and could certainly affect the recovery or the progress of the patient with respect to the treatment he was receiving at the hospital.

So you have contrasted.

As one of the members of the Court said I believe in Beth Israel what seems to be a typically employee-oriented cafeteria.

That's not the record in Baptist Hospital where certainly on weekends, a majority at least according to the surveyor, it was a limited survey according to the record shows that majority of the people visiting the cafeteria over weekends were nonemployees, are visitors to the hospital.

One point I would like to make further and if you read this record, all through it, the medical experts, the doctors, treated the hospital as a whole, as a patient care area, those area of the hospital where the patients were likely to be found.

They did not distinguish between the operating room or the patient's room or the gift shop where patients visit to get a newspaper or perhaps cigarettes or some other reason.

Those doctors did not distinguish between these areas and immediate patient care areas as the Board has done.

Another thing that was so vastly different about Beth Israel and is not true in this case, the record evidence in that case showed that the hospital itself, apparently because there were only about 9% -- the business of that cafeteria were 9% of the visitors had used it for, had allowed individual one on one solicitation prior to this case arise, it had used it for the types of solicitation for charities, various types of charities.

It had established a table and display rack for brochures and other important, other employee information.

That's not true in Baptist Hospital.

This record shows that this rule had been imposed for many years.

They had not allowed solicitation in the cafeteria.

It even shows that Mr. Victory, I believe it was his testimony that one employee attempting to sell Avon products in the cafeteria was disallowed prior, long before this case arose.

It's been a consistent rule consistently applied.

I think --

Justice Byron R. White: (Voice Overlap) could a patient make an appointment with his insurance broker to meet him in the cafeteria say if he needs some insurance or not?

Mr. Fred W. Elarbee, Jr.: No, sir.

Not if they're going to apply the rule as they say they did.

They say that solicitation is to dig that.

They mean it, they couldn't do that.

Justice Byron R. White: What about in the sitting room just a place to -- a place where patient -- the only place the patient can probably talk to somebody outside?

I suppose you can make it -- I suppose you can make appointment with your brother to visit with him and the next half hour, you say you couldn't have -- be chatting with your insurance agent..

Mr. Fred W. Elarbee, Jr.: According to the rule Mr. Justice, the solicitation or selling things of that sort are not permitted in the public access areas.

I think the hospital demonstrated in this record with a testimony that the doctors had good reason for that.

And I suppose the patient might get away with something like that but certainly it's not permitted on the rule.

Chief Justice Warren E. Burger: If the patient wants to see his insurance agent, he can invite him to his room and --

Mr. Fred W. Elarbee, Jr.: He could invite him to his room and I suppose that might be alright if only the patient, his insurance salesman was there.

But certainly they would not want -- they would not want --

Justice Byron R. White: But suppose he's in the ward a fortiori, he couldn't invite him in there?

Mr. Fred W. Elarbee, Jr.: No, sir.

Although people are permitted I think from time to time to visit the ward but I don't think they want anybody selling anybody, anything in the hospital ward.

Justice Thurgood Marshall: Now, let's get close to the home.

Can a lawyer go and see his client in?

Mr. Fred W. Elarbee, Jr.: Yes, sir.

Justice Thurgood Marshall: And write a will?

Mr. Fred W. Elarbee, Jr.: I suppose he could talk to him about important matters such as will, yes sir.

Justice Thurgood Marshall: Well, I'm just trying to get closer to home.

Mr. Fred W. Elarbee, Jr.: But Mr. Justice Marshall, I'd like to get to a point here I think it may be somewhat misleading.

There's no need for this Court or for us or any of us to assume that union solicitation is just another type of ordinary conversation carried on between two people in a quiet and unassuming manner.

This Court long ago recognized in one of the early free speech cases and I think the language was something like the language of the picket line is not the parlance of the power.

I don't know whether Metamora days, one of the old free speech cases long time ago.

Well, certainly this is not a picket line but the Board has itself recognize that union solicitation can be unsettling.

It said it in St. John's.

It said, admittedly union solicitation would be unsettling but they said in immediate patient care areas.

Now how can you --

Justice Byron R. White: Well, you show that suppose it makes any difference, if it's 30%, 10% patients in the cafeteria or 60%.

Mr. Fred W. Elarbee, Jr.: No sir, I don't.

I don't think --

Justice Byron R. White: And so you would suggest that we were wrong in Beth Israel?

Mr. Fred W. Elarbee, Jr.: Well, I could go along with you a little bit on that context.

Justice Byron R. White: Well, not very far though on this argument because --

Mr. Fred W. Elarbee, Jr.: Pardon, sir?

Justice Byron R. White: You couldn't go very far with this on Beth Israel, making this argument you're making now.

Mr. Fred W. Elarbee, Jr.: No, sir.

I really couldn't.

I'd say that the facts are completely distinguished however from what it appeared in Beth Israel and I think that this -- the question you raised was also applicable to the Board's standard of immediate patient care area.

If something is unsettled, certainly, it can be unsettling in the gift shop, in the cafeteria, in the corridor as well as in the patient's room for instance.

I don't see how you can draw that kind of line.

First of all I think it's --

Justice Thurgood Marshall: You think we can draw a line between the operating room and the parking lot?

Mr. Fred W. Elarbee, Jr.: Yes, sir.

And the court below did too.

Justice Thurgood Marshall: Well I mean, do you?

Mr. Fred W. Elarbee, Jr.: Yes, sir.

Yes, sir.

Chief Justice Warren E. Burger: You don't have any patients out on the parking lot very often, do you?

Mr. Fred W. Elarbee, Jr.: No, sir.

Justice Harry A. Blackmun: Are you going to mention nurses' station situation at this hospital case?

Mr. Fred W. Elarbee, Jr.: Yes, sir.

According to the record, this hospital allows people during nonwork time employees in the nurses' stations to carry on solicitation in those locations.

The record shows that it has occurred in those locations and the hospital is not doing anything about it or it has reprimanded employees for it.

Now, beyond that, where do you want me to go?

Justice Harry A. Blackmun: Well, I just wondered whether you thought that was consistent with your position on after the cafeteria and other places.

Mr. Fred W. Elarbee, Jr.: Yes, sir.

The record shows that employees take breaks in the nurses' stations.

It also shows that the nurses' stations are rather large areas.

I believe it's 20 by 40 feet.

And I'm sure most of us have been on hospitals and seen people sitting in the nurses' station drinking Coca-Cola, drinking coffee and not at work.

Justice Harry A. Blackmun: Not I.

Not I in the hospitals I know of.

Mr. Fred W. Elarbee, Jr.: Well I -- but at least the record -- pardon sir?

Justice William J. Brennan: Nurses' station, the area in which the nurses relax when they are not working or is it like the desk of a hotel where they are giving orders --

Mr. Fred W. Elarbee, Jr.: It is primarily as I understand it sir a work area but according to the evidence in this record at this hospital, it is used for employees for breaks also and the utility rooms next door.

That's unrefuted in the testimony.

Justice Byron R. White: But the patients don't use it.

Mr. Fred W. Elarbee, Jr.: No, sir.

It is a work area separated from the patients and the public by glass partitions according to the record in this case and the question was asked why would a hospital permit it?

The only reason that I can assume is that it is a rather large area.

They do take breaks in the area and if they are not at work then I suppose a hospital says it's a public or the patients are not involved.

Justice Byron R. White: At least it has anything to do with this case or the rationale of this case if there aren't any patients involved.

Mr. Fred W. Elarbee, Jr.: That's right, sir.

Only to this extent, this Court considered the fact that in Beth Israel, and it's has been considered in many other cases.

There were not places or sufficient places for people to communicate with respect to Section 7 rights, things of this sort.

But in this case the record shows that there are 26 nurses' stations, 28 utility rooms that have coffee machines and some of them may use break areas, employee lounges I believe two with vending machines, the laundry building, maintenance building, employees' restrooms and the parking lot which are available for solicitation in this case.

So it's an entirely different record from what we had in Baptist Hospital.

Justice Thurgood Marshall: You mean in Beth Israel.

Mr. Fred W. Elarbee, Jr.: Pardon?

I mean in Beth Israel.

I'm sorry sir.

Justice Byron R. White: May employees, is there a rule against employees talking with each other about whether or not to join a union just to get away from this word solicitation?

Mr. Fred W. Elarbee, Jr.: Solicitation?

Justice Byron R. White: Yes.

May employees talk about and get into an argument about that?

Neither -- none of them is a solicitor for a union but they are just arguing pro and con union.

Can they -- are they suppose to do that in the restroom or not?

Mr. Fred W. Elarbee, Jr.: Your Honor, I would say not.

Justice Byron R. White: Well, you would say not.

Does the rule forbid that?

Mr. Fred W. Elarbee, Jr.: That particular set of facts has not brought up.

I can't answer you --

Justice Byron R. White: Well, can you get into the big argument in the cafeteria about whether ought to be a united fund or separate fund drives for Red Cross?

Mr. Fred W. Elarbee, Jr.: Well, Your Honor -- Your Honor, I view a discussion between two people as a little bit differently as when I view solicitation as such.

Solicitation involves an individual going from one person to another solicit to take some action and this case with respect to the union.

But the record is clear and the doctors did not distinguish between union solicitation or any other form of solicitation or conduct which would simply be unprofessional in their view.

I would distinguish if two people simply having conversation but in terms of distributing union cards, in terms of going around soliciting people to join them, let's go to the meeting tomorrow night which could --

Justice Byron R. White: So employee can't -- couldn't circulate a petition in an election, not a union election, but couldn't get to have –- to get signatures to put somebody on a ballot for city council?

Mr. Fred W. Elarbee, Jr.: Not in those areas accessible to the public in the hospital, sir.

There are other areas which will be available for that purpose but not in those areas that are accessible to the public.

Chief Justice Warren E. Burger: Well, which ones do you mean, the locker room and the parking lot?

Mr. Fred W. Elarbee, Jr.: No, sir.

The nurses' --

Chief Justice Warren E. Burger: Which ones?

Mr. Fred W. Elarbee, Jr.: The nurses' stations, the utility rooms, the two employee lounges where one is a cafeteria type lounge that have vending machines, seats approximately 50 people, another one seats 25 to 30 and apparently in the entire maintenance building at least after the testimony and the laundry building is also in the testimony, employee restrooms and the parking lot.

Now, there are some 50 odd locations where these activities can take place that are not accessible to the public.

Justice Thurgood Marshall: In the laundry, can you hear anything in the laundry --

Mr. Fred W. Elarbee, Jr.: Laundry building is what they --

Justice Thurgood Marshall: Can you hear anything -- have you ever been in laundry room?

Mr. Fred W. Elarbee, Jr.: Yes, sir.

Justice Thurgood Marshall: Have you been able to hear anything?

Mr. Fred W. Elarbee, Jr.: Not a great deal.

Our record as it is -- the ideal place to solicit.

But then again and I think this is an important point to this Court.

We're not here and I don't think the union is entitled to say we are entitled to ideal circumstances to carry on our activities.

Justice William J. Brennan: There are places for hidden discussion, I suppose.

Mr. Fred W. Elarbee, Jr.: That's right.

I mean, there's must be an accommodation.

After all, we're talking about a hospital.

We're talking about patients and if you a had sick one in the hospital, I'm sure you will realize if they are truly sick just overhear two nurses talking about whether or not they are going to go the beach the next day.

It's irritating and upsetting to a person who's sitting and wondering if they are going to live or die or something is seriously wrong with him.

Justice Thurgood Marshall: Yes, but there are some people that have been in a hospital and hearing nurses talking about when they are going to get their promotion which has nothing to do with the union but that's alright.

Mr. Fred W. Elarbee, Jr.: Well, I think the testimony of the doctors was that any type of conduct or conversation which was unprofessional or would show the patient or the patient might be led to believe that these people are more concerned with something rather than patient care or need would be upsetting to a patient and they did not distinguish Justice Marshall between patient's stamina or a patient.

Justice Thurgood Marshall: What I am worried about is that they decide what is good conversation and what is not.

Mr. Fred W. Elarbee, Jr.: Well --

Justice Thurgood Marshall: And I think some people don't like other people deciding what they should talk about.

Mr. Fred W. Elarbee, Jr.: I suppose --

Justice Thurgood Marshall: Isn't that right?

Mr. Fred W. Elarbee, Jr.: Well, yes and no.

I suppose we could speculate here what kind of conversations would be permitted, were they ordinary average conversation between --

Justice Thurgood Marshall: Well, I don't want to get involved in that.

Mr. Fred W. Elarbee, Jr.: Alright sir.

Well, what were they talking about is a right to solicit union memberships on the premises and the Board recognizes the unsettling effects of union solicitation, it said that in St. John's.

Given that, how can you say that if you ought to be limited to the operating room or the patients' room.

I think that the Board is either saying one of two things.

They are either saying that it would not have unsettling effects in other places, it's either saying that or it's either saying it will only upset a few and therefore we should allow it.

I don't think that's an acceptable standard.

I don't believe -- I believe I've basically covered the point to the Court.

I urge the Court again that the court below reviewed the record and found that in so far as the Board had concluded that the hospital here showed special circumstances that the Board limited those special circumstances to the immediate patient care area, the court below specifically found that is not the evidence in this record, and so there was no justification for the Board concluding in the fact of this case that it should be limited to “immediate patient-care areas” and I ask this Court to affirm the decision of the court below which I believe to be correct, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.