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Published online by Cambridge University Press: 24 February 2021
In 1974, Congress passed the Health Care Amendments to the National Labor Relations Act, thus bringing nonprofit health care institutions within the purview of the Act and within the jurisdiction of the National Labor Relations Board. Since the passage of these Amendments, the Board consistently has held that hospital no-solicitation rules prohibiting employees from engaging in union organizational activities on hospital premises in other than immediate, patient-care areas are presumptively invalid. In N.L.R.B. v. Baptist Hospital Inc., 442 U.S. 773 (1979), however, the U.S. Supreme Court questioned the rationality of the Board's presumption, although the Court did not specifically overrule the presumption itself. By examing the special interests arising in the hospital setting, as well as the legislative intent behind the Health Care Amendments, this Note evaluates the Board's presumption in light of the four Supreme Court opinions in Baptist Hospital. The Note concludes that the Board's presumption— that hospital no-soliciation rules are invalid in all areas of a hospital except for those areas directly involved in immediate patient care—is rational and reasonable (1) because it properly balances the interests of the hospital, of the employees, and of the patients, and (2) because it is consistent with the legislative intent behind passage of the Health Care Amendments. In addition, this Note contends that the Board has expanded its “immediate patient-care area” standard in an effort to address the Supreme Court's concern in Baptist Hospital that, the Board's balancing of interests had weighted the patients' well-being too lightly.
1 St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enforcement granted in part and denied in part, 557 F.2d 1368 (10th Cir. 1977). The Board found unlawful the hospital's rule that prohibited solicitation in any area of the hospital to which patients and visitors had access. Id.
2 The Board did not define specifically the term “immediate patient-care,” but gave such examples of hospital locations used strictly for patient care as patients' rooms, operating rooms, and x-ray and therapy areas. Id. at 1150.
3 See Baylor Univ. Medical Center, 225 N.L.R.B. 771 (1976), enforcement granted in part and denied in part, 578 F.2d 351 (D.C. Cir. 1978), vacated in part and remanded, 439 U.S. 9 (1978), remanded to the Board, 593 F.2d 1290 (D.C. Cir. 1979); Baptist Hosp., Inc., 223 N.L.R.B. 344 (1976), enforcement denied, 576 F.2d 107 (6th Cir. 1978), aff'd in part and remanded, 442 U.S. 773 (1979); St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enforcement granted in part and denied in part, 557 F.2d 1368 (10th Cir. 1977).
4 See Lutheran Hosp. of Milwaukee, Inc., 224 N.L.R.B. 176 (1976), enforcement granted in part and denied in part, 561 F.2d 208 (7th Cir. 1977), vacated and remanded, 438 U.S. 902 (1978); Beth Israel Hosp., 223 N.L.R.B. 1193 (1976), enforced, 554 F.2d 477 (1st Cir. 1977), aff'd, 437 U.S. 483 (1978).
5 437 U.S. 483 (1978). The Supreme Court invalidated the hospital's no-solicitation rule as applied to the hospital's cafeteria and coffee shop. See notes 53-56 infra and accompanying text.
6 439 U.S. 1065 (1979). The prohibited areas in this case included the hospital's corridors and sitting rooms accessible to patients’ rooms as well as the cafeteria and gift shop.
7 442 U.S.773, 787-88 (1979).
8 Id. at 789-97.
9 Id. at 787-89.
10 Act of July 26, 1974, Pub. L. No. 93-360, 88 Stat. 395.
11 29 U.S.C. § § 151-168 (1970).
12 Section 7 of the National Labor Relations Act provides that “employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection… . “ 29 U.S.C. § 157 (1970).
13 Section 8(a)(1) provides that “it shall be an unfair labor practice for an employer … to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1) (1970).
14 National Labor Relations Act, §§ 3-6, 10-12, 29 U.S.C. §§ 153-156, 160-162 (1970).
15 In Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793 (1945), the Supreme Court stated that “[a]n administrative agency with power after hearing to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven.” Id. at 800.
16 N.L.R.B. v. Baptist Hosp., Inc., 442 U.S. 773, 796-97 (1979) (Brennan, J., concurring); Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 500-01 (1978). See also N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 266-67 (1975).
17 National Labor Relations Act, §§ 10(e)-(f), 29 U.S.C. §§ 160(e)-(f) (1970). See also Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951).
18 N.L.R.B. v. Baptist Hosp., Inc., 442 U.S. 773, 787 (1979); Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 501 (1978).
19 The Board is “one of the agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” Universal Camera Corp. v. N.L.R.B., 340 U.S. at 488.
20 The administrative law judge, who is in a position to observe the, witnesses at first hand, submits his proposed findings of fact and recommendations for the disposition of the case directly to the Board. See A. Cox, D. BOK & R. GORMAN, LABOR LAW 114-21 (8th ed. 1977).
21 See Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793 (1945); Essex Int'l, Inc., 211 N.L.R.B. 749 (1974); Peyton Packing Co., 49 N.L.R.B. 828 (1943).
22 See R. GORMAN, BASIC TEXT ON LABOR LAW ch. viii, §§ 1-2, 179-84 (1st ed. 1976).
23 See cases cited note 21 supra. By barring communication among employees, these rules violate the employees’ right to self-organization. See also notes 12-13 supra and accompanying text.
24 Marshall Field & Co., 98 N.L.R.B. 88, (1952), modified and enforced, 200 F.2d 375 (7th Cir. 1953); Peyton Packing Co., 49 N.L.R.B. 828 (1943).
25 F.P. Adams Co., 166 N.L.R.B. 967 (1967).
26 Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 798 (1945); United Steelworkers v. N.L.R.B., 243 F.2d 593 (D.C. Cir. 1956), rev'd on other grounds, 357 U.S. 357 (1958).
27 Feheley, , Amendments to the National Labor Relations Act: Health Care Institutions, 36 OHIO ST. L.J. 235, 292 (1975).Google Scholar
28 See Mariott Corp. (Children's Inn), 223 N.L.R.B. 978 (1976); Bankers Club, Inc., 218 N.L.R.B. 22 (1975); McDonald's Corp., 205 N.L.R.B. 404 (1973); Goldblatt Bros., 77 N.L.R.B. 1262 (1948); May Dep't Stores Co., 59 N.L.R.B. 976 (1944), modified and enforced, 154 F.2d 533 (8th Cir. 1946), cert, denied, 329 U.S. 725 (1946).
29 The Board has based its exemption from the general rule on the protection of the employer's primary business of selling to customers. See cases cited note 28 supra.
30 Id.
31 In its original form, the National Labor Relations Act applied to private nonprofit hospitals, but the Taft-Hartley Amendments of 1947 specifically exempted employees of private nonprofit hospitals from the Act's coverage. In these 1947 Amendments, Congress amended section 2(2) of the Act to define the term “employer” so as to exclude “any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual.” The 1974 Health Care Amendments to the Act deleted this phrase, bringing nonprofit health care institutions within the purview of the Act. See Feheley, supra note 27, at 238-42.
32 Feheley, supra note 27, at 235-42.
33 See Shepard, , Health Care Institution Amendments to the National Labor Relations Act: An Analysis, 1 AM. J. L. & MED. 41 (1975)Google Scholar; Vernon, , Labor Relations in the Health Care Field Under the 1974 Amendments to the National Labor Relations Act, 70 Nw. U.L. REV. 202 (1975).Google Scholar
34 120 CONG. REC. 12936-38, 16899-900 (1974).
35 In St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), the Board modified its general no-solicitation presumption to reflect the importance of protecting patient health:
We recognize that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted… . Solicitation at any time in those areas [patients’ rooms, operating rooms, x-ray and therapy areas] might be unsettling to the patients—particularly those who are seriously ill and thus need quiet and peace of mind… .
Id. at 1150.
36 In St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), the hospital and the American Hospital Association argued that patient care requires that a hospital be free of the disruption which might result from solicitation in any public area. Id.
37 Id.
38 Id. at 1150-51.
39 See Baylor Univ. Medical Center, 225 N.L.R.B. 771 (1976), enforcement granted in part and denied in part, 578 F.2d 351 (D.C. Cir. 1978), vacated in part and remanded, 439 U.S. 9 (1978), remanded to the Board, 593 F.2d 1290 (D.C. Cir. 1979); Lutheran Hosp. of Milwaukee, Inc., 224 N.L.R.B. 176 (1976), enforcement granted in part and denied in part, 564 F.2d 208 (7th Cir. 1977), vacated and remanded, 438 U.S. 902 (1978); Baptist Hosp., Inc., 223 N.L.R.B. 344 (1976), enforcement denied, 576 F.2d 107 (6th Cir. 1978), aff’d in part and remanded, 442 U.S. 773 (1979); St. Peter's Medical Center, 223 N.L.R.B. 1022 (1976); Beth Israel Hosp., 223 N.L.R.B: 1193 (1976), enforced, 554 F.2d 477 (1st Cir. 1977), aff’d, 437 U.S. 483 (1978).
40 222 N.L.R.B. 1150 (1976). See also note 35 supra.
41 St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. at 1150-51.
42 Id. at 1151.
43 See Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d 351 (D.C. Cir. 1978); N.L.R.B. v. Baptist Hosp., Inc., 576 F.2d 107 (6th.Cir. 1978); St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B., 557 F.2d 1368 (10th Cir, 1977).
44 St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B., 557 F.2d at 1375. The court held that the Board's distinction between strictly patient-care areas and other patient-access areas “involves medical and administrative judgments outside the Board's acknowledged area of expertise.” Id. at 1374. But see N.L.R.B. v. Baptist Hospital, Inc., 442 U.S. at 796-97 (Brennan, J., concurring) (“[t]he Board has shown itself to be sensitive to the difference between the hospital and the industrial workplace. Indeed, the very presumption at issue … reflects that sensitivity.”)
45 St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B., 557 F.2d at 1374-75.
46 Id. at 1375-76.
47 Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d 351 (D.C. Cir. 1978). The court followed the Tenth Circuit by rejecting the Board's immediate patient-care/patient-access distinction and by giving little deference to the Board's presumption because it is “both contrary to congressional purpose and outside the Board's area of expertise.” Id. at 353. The D.C. Circuit Court possesses great precedential value in reviewing Board orders because it has automatic concurrent jurisdiction over any appeal of a Board order. National Labor Relations Act, § 10(f), 29 U.S.C. § 160(f) (1970).
48 Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d at 353.
49 Id; St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B., 557 F.2d at 1374-75.
50 Lutheran Hosp. of Milwaukee, Inc. v. N.L.R.B., 564 F.2d 208 (7th Cir. 1977); N.L.R.B. v. Beth Israel Hosp., 554 F.2d 477 (1st Cir. 1977).
51 In Beth Israel Hospital, the court stated:
While responsible minds might differ as to the validity of such a distinction, we cannot say that the Board acted irrationally in viewing hospital cafeterias differently, given the different factors affecting the different sorts of institutions, their employees, and their clientele. We owe deference to the Board's application of the Act to the varying circumstances of employer-employee relations.
N.L.R.B. v. Beth Israel Hosp., 554 F.2d at 480 n.2.
52 Id.
53 437 U.S. 483 (1978).
54 Id. at 496-500.
55 id. at 505. This conclusion was fully supported by the record, which revealed that only 1.56 percent of the cafeteria's patrons were patients, that the hospital permitted nonunion solicitation in the cafeteria, and that the hospital introduced no evidence of negative effects on patients during the period when the rules permitted union solicitation in the cafeteria. Id. at 501-03.
56 The Court stated:
The Board bears a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.
Id. at 508 (quoting circuit court opinion, 554 F.2d at 481).
57 See, e.g., N.L.R.B. v. Nat'l Jewish Hosp. & Research Center, 593 F.2d 911 (10th Cir. 1978) (The Tenth Circuit abandoned its rationale from St. John's Hospital, and, therefore, upheld a Board order that invalidated a solicitation prohibition in the hospital's cafeteria and gift shop).
58 576 F.2d 107 (6th Cir. 1978).
59 The special circumstances justifying the hospital's ban on solicitation related to the doctor's and administrator's testimonies as to the medical needs of patients who were served by maintaining an overall climate free of strife and controversy. Id. at 110.
60 439 U.S. 1065 (1979).
61 The union initially filed charges with the Board, which, after investigation, issued a complaint against the hospital, focusing primarily on the hospital's no-solicitation rule. 442 U.S. 773, 776-77 (1979).
62 576 F.2d 107, 108 (6th Cir. 1978). Vice-President of Personnel Services, W.T. Victory, conceded that union activity was involved in the adoption of the revised rule. Id.
63 The old rule provided:
In order to protect employees from any form of solicitation, raffle, charity drives, etc., it is strictly prohibited for anyone to solicit patients or visitors while on hospital premises without written approval of the Administrator. Violations of this policy will subject employee to disciplinary action. Employees who discover Persons unauthorized solicitation should report this immediately to their supervisor.
442 U.S. 773, 775 n.1 (1979).
64 The new rule provided:
No solicitations of any kind, including solicitations for memberships or subscriptions, will be permitted by employees at any time, including work time and non-work time in any area of the Hospital which is accessible to or utilized by the public. Anyone who does so will be subject to disciplinary action. In those work areas of the Hospital not accessible to or utilized by the public, no solicitation of any kind, including solicitation for memberships or subscriptions will be permitted at any time by employees who are supposed to be working, or in such a way as to interfere with the work of other employees who are supposed to be working. Anyone who does and thereby neglects his work or interferes with the work of others will likewise be subject to disciplinary action… .
Id. at 776 n.2.
65 Local 150-T, Service Employees International Union, AFL-CIO.
66 442 U.S. at 776. This is the mechanism by which unions, employees and employers may protect their rights guaranteed by the Act. See A. Cox, D. BOK & R. GORMAN, supra note 20, at 114-21.
67 442 U.S. at 776.
68 The hospital's Vice-President for Personnel Services stressed the protection of patients and their families from the disquiet and ill effects of union organizational activity. The hospital's Chief of Medical Staff emphasized the importance of patients’ psychological attitudes in successful treatment, which might be adversely affected by union solicitation. Id. at 782-83.
69 A hospital may overcome the Board's presumption by showing that union solicitation is likely either (1) to disturb patients or (2) to disrupt patient care by interfering with the health care activities of doctors, nurses and staff, even though not conducted in the presence of patients. Id. at 781 n.11.
70 The Board held that there was no evidence in the record of sufficient substance to show that the conduct of the Union or of any of the Respondent's employees was of such nature as to make the rule an overriding necessity. 223 N.L.R.B. at 357.
71 The Board's order prevented the hospital from applying its rule not only to its lobbies, cafeteria and gift shop but also to the corridors and sitting rooms that adjoin or are accessible to patients’ rooms oroperating rooms. Id.
72 576 F.2d 107 (6th Cir. 1978).
73 Id. at 109-11.
74 Id. at 109-10.
75 442 U.S. 773, 784-87.
76 Id. at 775; id. at 791 (Blackmum, J., concurring).
77 Id. at 791 (Burger, C.J., concurring); id. at 793 (Brennan, J., concurring).
78 Id. at 783-86.
79 Id.
80 Id. at 785-86.
81 Id. at 786-87.
82 Id. at 784-85.
83 Id. at 787-90. Justice Powell never reached the issue of rationality: “we need not here decide the rationality of this portion of the Board's presumption [pertaining to corridors and sitting rooms], nor undertake the task of framing the limits of an appropriate presumption regarding the permissibility of union solicitation in a modern hospital.” Id. at 789.
84 Justice Powell stressed the importance of hospital corridors as a therapy area for walking patients, and as an avenue for the rapid movement of patients and emergency equipment. Id. at 789-90 n.16.
85 Id.
86 Id. at 791-93 (Burger, C.J., concurring).
87 The Chief Justice's reasoning was somewhat unclear and circular. The basis for his decision was no more than a restatement of his argument:
For me it is wholly irrational for the Board to create a presumption that removes from the hospital absolute authority to control all activity in areas devoted primarily to patient care, including all areas frequented by patients. I would place the decision on the basis that: (1) The Board's presumption is wholly invalid as applied to areas of a hospital devoted primarlly to the care of patients ….
Id. at 792.
88 Id. See also notes 28-30 supra and accompanying text.
89 437 U.S. 483 (1978).
90 442 U.S. at 793 (Burger, C.J., concurring).
91 442 U.S. at 791 (Blackmun, J., concurring). See also Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 508-09 (1978) (Blackmun, J., concurring); notes 28-30 supra and accompanying text.
92 442 U.S. at 791 (Blackmun, J., concurring).
93 Id.
94 Id. at 796 (Brennan, J., concurring).
95 Justice Brennan stated:
Justice Brennan stated: The development of … presumptions is normally the function of the Board … and its conclusions on such matters are traditionally accorded considerable deference… . Judges, like most of the rest of the public, experience hospitals solely as patients. It is the Board, by contrast, which confronts every day the complexities of labor relations policy in the health-care area.
Id. See also notes 17-20 supra and accompanying text.
96 442 U.S. at 796.
97 Id. at 778-81.
98 Feheley, supra note 27, at 237.
99 St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976). See also notes 35-38 supra and accompanying text.
100 See notes 12, 13, 21-23 supra and accompanying text.
101 St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976). See also notes 35-38 supra and accompanying text.
102 Baptist Hosp., 442 U.S. at 797 (Brennan, J., concurring). See also notes 17-20, 95 supra and accompanying text.
103 Justice Brennan stated that he did not believe “that there is any warrant for second-guessing the Board's handling of its ‘difficult and delicate responsibility’ in this sensitive area of labor-management relations.” 442 U.S. at 797.
104 Id. See note 95 supra.
105 Id. at 787-93.
106 Id. at 792 (Burger, C.J., concurring). See note 87 supra.
107 S. REP. NO. 766, 93d Cong., 1st Sess. (1974).
108 Baptist Hosp., 442 U.S. at 797 (Brennan, J., concurring).
109 See Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d 351 (D.C. Cir. 1978).
110 Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 495 (1978).
111 Id. at 501-03.
112 442 U.S. 773 (1979).
113 Id. at 784-86.
114 Lutheran Hosp. of Milwaukee, Inc v. N.L.R.B., 564 F.2d 208, 214 (7th Cir. 1977).
115 Id.
116 Id.
117 Id. at 215.
118 Id.
119 Baptist Hosp., 442 U.S. 773, 784 (1979). See also Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d 351, 354-56 (D.C. Cir. 1978).
120 Baptist Hosp., 442 U.S. at 792 (Burger, C.J., concurring); id. at 791 (Blackmun, J., concurring).
121 Lutheran Hosp. of Milwaukee, Inc. v. N.L.R.B., 564 F.2d at 214.
122 Id.
123 Id.
124 Id.
125 Id.
126 Id.
127 In Lutheran Hosp. of Milwaukee, Inc. v. N.L.R.B., the court stated that:
We cannot believe that patients and their visitors who are present in these areas, cafeterias and lounges are likely to become “unsettled” upon exposure to organizational activities conducted by employees. Labor unions are common entities in this country, and only an extraordinary patient would be so dismayed, at witnessing an attempt to form one that his health would actually become impaired.
Id. at 215.
128 Baptist Hosp., 442 U.S. 773, 786 (1979).
129 Lutheran Hosp. of Milwaukee, Inc. v. N.L.R.B., 564 F.2d at 214.
130 Baptist Hosp., 442 U.S. at 781 n.11; Beth Israel Hosp, 437 U.S. at 499.
131 See Feheley, supra note 27.
132 Section 1(b) of the 1974 Act amended section 2 of the Act by adding adefinition of “health care institution” to which the special provisions would be applicable. Section 1(d) amended the notice provisions of section 8(d) of the Act by requiring, with respect to health care institutions, 90-day notice of termination or expiration of a contract, 60-day notice to the Federal Mediation and Conciliation Service (FMCS) of contract termination or expiration, 30-day notice to FMCS with respect to initial contract negotiation disputes arising after recognition, and that the health care institution and the labor organization participate in mediation at the direction of the FMCS. Section 1(e) added a new section 8(g) to the Act, requiring labor organizations to give 10-day written notice to the health care institution and to the FMCS before engaging in picketing, strikes, or other concerted refusals to work. Pub. L. No. 93-360, 88 Stat. 395 (1974). See also Beth Israel Hospital, 437 U.S. 483,496-500 (1978).
133 Justice Brennan opined:
Congress did not enact any special provision regarding solicitation and distribution in particular or disruption of.patient care in general other than through strikes. We can only infer, therefore, that Congress was satisfied to rely on the Board to continue to exercise the responsibility, to strike the appropriate balance between the interests of hospital employees, patients, and employers.
Id. at 497.
134 Id. at 496-500.
135 See Baylor Univ. Medical Center v. N.L.R.B., 578 F.2d 351, 358-59 (D.C. Cir. 1978); St. John's Hosp. & School of Nursing, Inc. v. N.L.R.B., 557 F.2d 1368, 1375 (10th Cir. 1977).
136 442 U.S. at 784-85.
137 In N.L.R.B. v Babcock & Wilcox Co., 351 U.S. 105 (1956), the Court held that an employer may validly post his property against non-employee solicitation and distribution if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. Id. at 112. While an employer may place no restriction on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline, no such obligation is owed to non-employees. This rule accommodates the conflict between employees’ organizational rights and the employer's property rights.
138 See N.L.R.B. v. Beth Israel Hosp., 437 U.S. 483, 505 (1978).
139 See notes 140-43 infra and accompanying text.
140 N.L.R.B. No. 67, 102 L.R.R.M. 1024 (1979). The Board held that the hospital violated the Act by prohibiting three employees from soliciting on behalf of a union during their lunch hour in the corridor adjacent to the employee cafeteria, since this area was neither a patient-care nor a patient-access area.
141 244 N.L.R.B. No. 71, 102 L.R.R.M. 1177 (1979). The Board held that the hospital violated the Act by reprimanding an employee for soliciting for a union during non-working time in the lobby of the hospital.
142 N.L.R.B. v. Beth Israel Hosp., 437 U.S. 483, 497-99 n.14-16 (1978).
143 See note 31 supra.