Stanford Hospital & Clinics v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2003 Decided April 18, 2003

No. 01-1454

STANFORD HOSPITAL AND CLINICS, SUCCESSOR TO

UCSF STANFORD HEALTH CARE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 715,

INTERVENOR

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Laurence R. Arnold argued the cause for petitioner. With

him on the briefs was John H. Douglas.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Steven B. Goldstein, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Margaret A. Gaines,

Supervisory Attorney.

Benjamin I. Sachs argued the cause for intervenor. With

him on the brief were Judith A. Scott and Craig Becker.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Petitioner, a hospital, adopted a

policy prohibiting its employees from, among other things,

soliciting and distributing materials to (1) fellow employees in

areas adjacent to patient units and (2) all nonemployees

throughout the hospital. Finding that Petitioner failed to

demonstrate that such activities were likely to disturb pa-

tients, the National Labor Relations Board concluded that the

policy was overbroad in violation of the National Labor

Relations Act. The Board also found that Petitioner commit-

ted an unfair labor practice when it discriminatorily evicted a

nonemployee union organizer from its premises. Finding the

Board’s decision regarding the solicitation and distribution

policy consistent with Board precedent and supported by

substantial evidence, we deny the petition for review and

grant the Board’s cross-application for enforcement. Because

the Board’s eviction decision is contrary to law, however, we

grant the petition with respect to that issue and deny the

Board’s cross-application.

I.

In 1997, the Stanford University Medical School and the

University of California at San Francisco merged certain of

their medical facilities into a new entity known as UCSF–

Stanford Health Care (USHC). The events at issue in this

case occurred on the USHC South facility, located on Stan-

ford’s Palo Alto, California campus. Employing some 7,000

3

persons, including approximately 1,400 service employees, the

facility consists of two hospitals: the 663–bed Stanford Hospi-

tal Center and the 162–bed Lucile Packard Children’s Hospi-

tal.

In late November 1997, following consummation of the

USHC merger, Intervenor Service Employees International

Union, Local 715 began a drive to organize the hospital’s

service and maintenance employees. During the campaign,

which culminated in a majority vote in favor of representa-

tion, hospital employees and full-time union organizers regu-

larly solicited employees and nonemployees both inside and

outside the hospital and distributed union literature to them.

Responding to the union’s solicitation activities, USHC

promulgated an employee solicitation and distribution policy

intended to ‘‘avoid disrupting patient care and to prevent

disturbing our patients and their families.’’ UCSF Stanford

Health Care & Serv. Employees Int’l Union, Local 715, 335

N.L.R.B. No. 42, at 23 (Aug. 27, 2001). The policy prohibited

(1) solicitation of employees on hospital premises during work

time and in ‘‘patient care areas at any time’’; (2) literature

distribution on hospital premises during work time, and in

work areas at any time; and (3) solicitation of nonemployees

or distribution of literature to them at all times throughout

the entire facility. Id.

The policy defined patient care areas as including ‘‘patient

rooms, patient treatment and procedure rooms or areas,

patient admitting or registration areas, patient waiting rooms,

lounges used by patients and their families or visitors, and

the hallways immediately adjacent to all such areas.’’ Id.

This definition of patient care areas includes what the parties

refer to as ‘‘patient units.’’ Reached in each facility by

walking down a hallway and passing through a set of double

doors, patient units contain: patient rooms; treatment rooms

for radiology, surgery, and other medical purposes; and

lounges or sitting areas for use by patients, families, and

visitors. Areas outside patient units but covered by the

patient care area definition include a separate set of lounges

and waiting areas that patients, families, and visitors also use.

4

In unfair labor practice charges filed with the Board, the

union claimed that the solicitation and distribution policy

violated sections 7 and 8(a)(1) of the National Labor Relations

Act. 29 U.S.C. §§ 157, 158(a)(1). Following a two-day evi-

dentiary hearing, an administrative law judge upheld the

policy as applied to patient units, admitting and registration

areas, and day rooms used by employees. UCSF Stanford

Health Care, 335 N.L.R.B. No. 42, at 41. With respect to

hallways and lounges outside patient units, however, the ALJ

found that because USHC had failed to demonstrate that

solicitation and distribution activities in those areas were

likely to disturb patients, the policy was overbroad in viola-

tion of NLRA sections 7 and 8(a)(1). Id. at 46–49. Accord-

ing to the ALJ, the prohibition against soliciting nonemploy-

ees and distributing materials to them was also overbroad

because USHC had failed to demonstrate ‘‘special circum-

stances,’’ such as a likelihood of patient disturbance, that

would justify the ban. Id. at 49–50. Finally, the ALJ found

that USHC violated NLRA section 8(a)(1) when, during the

organizing campaign, it evicted several nonemployee union

organizers from the hospital’s premises, including one Bruce

Harland, whose eviction is at issue in this case. Id. at 38.

The Board affirmed. Id. at 1.

Stanford Hospital and Clinics, the successor to USHC (the

merger was dissolved in April 2000) now petitions for review,

challenging the Board’s conclusion that its solicitation and

distribution policy and its eviction of Harland violated the

NLRA. The Board cross-applies for enforcement. Because

Stanford does not challenge the Board’s finding that it violat-

ed NLRA section 8(a)(1) by excluding and attempting to

exclude full-time union organizers other than Harland, we

grant the Board’s petition to enforce that portion of its order.

See Int’l Union of Petroleum & Indus. Workers v. NLRB,

980 F.2d 774, 778 n.1 (D.C. Cir. 1992) (unchallenged Board

findings are entitled to summary enforcement).

II.

In reviewing Stanford’s challenges, we ‘‘give considerable

deference to the Board’s interpretation of the NLRA, and

5

must accept the Board’s determinations if they are supported

by substantial evidence.’’ Lucile Salter Packard Children’s

Hosp. v. NLRB, 97 F.3d 583, 588 (D.C. Cir. 1996). Decisions

regarding witness credibility and demeanor ‘‘ ‘are entitled to

great deference, as long as relevant factors are considered

and the resolutions are explained.’ ’’ Breakfast Prods., Inc. v.

NLRB, 901 F.2d 1130, 1130 (D.C. Cir. 1990) (unpublished

disposition) (quoting NLRB v. Louton, Inc., 822 F.2d 412, 414

(3d Cir. 1987)). With this highly deferential standard of

review in mind, we consider each of Stanford’s challenges.

Solicitation and Distribution Activities Directed at

Fellow Employees in Non-Patient-Care Areas

NLRA section 7 guarantees employees ‘‘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 pro-

tection.’’ 29 U.S.C. § 157. Section 8(a)(1) makes it 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). The Supreme Court has

repeatedly recognized that the right of employees under

section 7 ‘‘necessarily encompasses the right effectively to

communicate with one another regarding self-organization at

the jobsite.’’ Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491

(1978). Employees’ right to ‘‘self-organization at the jobsite,’’

however, is not unlimited, conflicting as it does with employ-

ers’ property rights and managerial interests. Thus, because

‘‘the undisputed right of self-organization assured to employ-

ees under the TTT Act and the equally undisputed right of

employers to maintain discipline in their establishments TTT

are not unlimited in the sense that they can be exercised

without regard to any duty which the existence of rights in

others may place upon employer or employee,’’ the Board

must ‘‘work[ ] out an adjustment’’ between these competing

rights. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–

98 (1945). ‘‘Accommodation between [employee-organization

rights and employer property rights],’’ the Court later ex-

6

plained, ‘‘must be obtained with as little destruction of one as

is consistent with the maintenance of the other.’’ NLRB v.

Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

The Supreme Court has allowed the Board to implement

these section 7 prescriptions by adopting a series of presump-

tions regarding restrictions on solicitation and distribution

activities. Republic Aviation Corp., 324 U.S. 804–05 (explain-

ing that Board presumption is like ‘‘a statutory presumption

or one established by regulation’’). For example, ‘‘restric-

tions on employee solicitation during nonworking time, and on

distribution during nonworking time in nonworking areas, are

violative of § 8(a)(1) unless the employer justifies them by a

showing of special circumstances which make the rule neces-

sary to maintain production or discipline.’’ Beth Israel Hosp.,

437 U.S. at 492–93. Alternatively, an employer’s nondiscrimi-

natory ban on nonemployee union organizers’ access to the

employer’s property for the purpose of solicitation and distri-

bution is presumptively lawful unless the union demonstrates

that employees are not otherwise accessible to union organiz-

ers. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992).

In St. John’s Hospital & School of Nursing, Inc., 222

N.L.R.B. 1150 (1976), the Board adopted special presump-

tions regarding solicitation and distribution activities in hospi-

tals. Because ‘‘the primary function of a hospital is patient

care and [because] a tranquil atmosphere is essential to the

carrying out of that function,’’ the Board allows hospitals to

‘‘impos[e] somewhat more stringent prohibitions on solicita-

tion than are generally permitted.’’ Id. at 1150. Under St.

John’s, hospitals may ban solicitation and distribution activi-

ties even during nonwork time in ‘‘patient care areas, such as

the patients’ rooms, operating rooms, and places where pa-

tients receive treatment’’ because ‘‘[s]olicitation at any time in

those areas might be unsettling to the patients.’’ Id. Out-

side patient care areas, however, ‘‘a hospital may ban solicita-

tion and distribution only as necessary to avoid disruption of

health-care operations or disturbance of patients.’’ Brockton

Hosp. v. NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002) (internal

quotation marks and citation omitted). The Supreme Court

has repeatedly upheld these solicitation and distribution rules.

7

See Beth Israel Hosp., 437 U.S. 483; Baptist Hosp. v. NLRB,

442 U.S. 773 (1979).

In this case, the sole issue before us is whether Stanford

may, in order to protect patients from disturbance, prohibit

solicitation and distribution activities in hallways and lounges

outside patient units. According to Stanford’s four witnesses,

patients and their families frequent these areas and are

disturbed by non-patient-care-related activities, including em-

ployee solicitation and distribution activities directed at fellow

employees. Although Stanford need demonstrate only ‘‘a

likelihood of, not actual, TTT [patient] disturbance,’’ we con-

clude, as we did in Brockton Hospital (which involved a

similar policy) that ‘‘substantial evidence supports the Board’s

decision that the Hospital did not meet even this standard.’’

294 F.3d at 104. In reaching this conclusion, we rely on three

particularly persuasive elements of the ALJ’s analysis.

First, the ALJ doubted the credibility of Stanford’s wit-

nesses because, although they testified that all non-patient-

care-related activities—such as eating, sleeping, and conver-

sations on controversial subjects in lounges and waiting ar-

eas—disturb patients, they were unable to explain why Stan-

ford restricted only solicitation or distribution, and not all

other non-patient-care-related activities. ‘‘These witnesses,’’

the ALJ explained, ‘‘did not differentiate the actions of [Stan-

ford’s] employees during solicitation and distribution activities

and their allowable conversations and distributions, even if

they involved controversial subjects.’’ UCSF Stanford

Health Care, 335 N.L.R.B. No. 42, at 46. Given the breadth

of the witnesses’ claims, the ALJ was troubled that Stanford

had neither ‘‘ban[ned] employees from the waiting areas

outside the units, the registration area or the hallways’’ nor

prohibited employees from eating or sleeping in lounges or

waiting rooms. Id. Perhaps most tellingly, the ALJ found

that Stanford itself posted anti-union materials discussing the

possibility of strikes ‘‘without limiting the areas of TTT distri-

bution.’’ Id.

The Supreme Court’s Beth Israel Hospital decision sup-

ports the ALJ’s reasoning. Upholding a Board invalidation

8

of a ban on solicitation in an employee cafeteria, the Court

observed that the hospital’s differential treatment of (1) solici-

tation activities and (2) other activities equally likely to

disturb patients undercuts the hospital’s justification for the

ban. ‘‘Evidence that petitioner adopted a less restrictive

approach to behavior in the cafeteria which would be at least

as disquieting to patients as union solicitation,’’ the Court

explained, ‘‘further supports the Board’s conclusion that the

risk of harm to patients is not so great as to justify an

unlimited restriction.’’ Beth Israel Hosp., 437 U.S. at 502

n.20.

Stanford insists that there is a recognized distinction be-

tween union solicitation and distribution on the one hand and

mere conversation on the other, and that Stanford should not

be forced to ban the latter in order to regulate the former.

Although it is certainly true that ‘‘solicitation has a disruptive

force quite apart from its contribution to noise level and

overcrowding,’’ Baylor Univ. Med. Ctr. v. NLRB, 578 F.2d

351, 356 (D.C. Cir. 1978), Stanford’s argument misses the

point. Neither the ALJ nor the Board held that Stanford

could ban solicitation and distribution activities in non-

patient-care areas only if it also banned all non-patient-care-

related activities and conversations. Indeed, the Board has

never required the adoption of such sweeping bans as a

condition for approving limitations on solicitation and distri-

bution activities. Rather, the ALJ’s decision rests on the

tension between Stanford’s witnesses’ testimony that ‘‘any

activity that does not appear to focus on patient care is

upsetting to families’’ and the hospital’s failure to ‘‘include all

such behavior [in] its ban.’’ UCSF Stanford Health Care, 335

N.L.R.B. No. 42, at 46. ‘‘This failure,’’ the ALJ concluded,

‘‘was unexplained[,] and the basis for its selectivity not pre-

sented and therefore unjustified.’’ Id.

Second, the ALJ found that Stanford failed to produce

‘‘specific evidence’’ demonstrating that ‘‘all TTT [patient] wait-

ing areas were used by patients or their families.’’ Id.

‘‘Assuming some use by patients and their families of some of

these rooms,’’ the ALJ explained, ‘‘the frequency of such use

or the relation to immediate patient care was not clearly

9

established by [Stanford].’’ Id. Indeed, Stanford provided

no evidence of patients using the rooms either ‘‘after 8 p.m.

when visiting hours ended at Stanford Hospital’’ or late in the

evening at Lucile Packard when patients and family members

were unlikely to be present. Id. at 46–48. Nor did Stanford

‘‘present[ ] any evidence concerning the frequency of patients

using hallways and waiting areas outside the units to walk as

part of their recovery regimen or otherwise.’’ Id. at 47.

Our decision in Brockton Hospital supports the ALJ’s

analysis. There, we sustained the Board’s invalidation of a

ban on distribution activities in a hospital’s vestibule because

the hospital had failed to produce evidence that patients were

likely to observe the activity. ‘‘The Hospital’s experts testi-

fied that if patients saw or heard about the content of the

literature they would be upset; the Hospital presented no

reason, however, to believe patients were likely to learn of the

content of the literature.’’ Brockton Hosp., 294 F.3d at 104

(internal citation omitted). To be sure, unlike in Brockton

Hospital, the record here contains some evidence that doctors

spoke to patients in waiting areas and that patients used

some waiting areas and hallways outside patient units. But

St. John’s requires more than mere patient presence in areas

covered by a solicitation and distribution ban. In order to

satisfy the St. John’s patient-disturbance test, hospitals must

establish both that patients will witness employee solicitation

and that they will likely be disturbed by it. Here, not only

has Stanford failed to demonstrate the frequency with which

patients use hallways and waiting areas outside patient units,

or that they even use these areas, but the ALJ doubted the

credibility of Stanford’s claim that employee solicitation and

distribution activities would disturb patients. See supra pp.

7–8.

Stanford argues that the ALJ effectively required it to

demonstrate patient use of each hallway and lounge twenty-

four hours a day, seven days a week. This is true, but that

obligation stems from Stanford’s decision to make its policy

applicable in non-patient-care areas twenty-four hours a day,

seven days a week. If Stanford wished to escape that

burden, it could have done so by adopting a less comprehen-

10

sive ban on solicitation and distribution activities. For exam-

ple, it could have limited its policy to the periods of time

during the day when patients and their visitors were most

likely to be in hallways and lounges outside patient units.

But having made its policy effective twenty-four hours a day,

seven days a week, Stanford had an obligation to demonstrate

‘‘that solicitation is likely either to disrupt patient care or

disturb patients.’’ Baptist Hosp., 442 U.S. at 782 n.11. In

NLRB v. Southern Maryland Hospital Center, 916 F.2d 932

(4th Cir. 1990), the Fourth Circuit reached a similar result,

upholding the Board’s invalidation of a ban on distribution

activities at a hospital entrance because the hospital had

failed to demonstrate that patients used the entrance early in

the morning when leafletting occurred. Id. at 935.

Third, the ALJ found that USHC failed to produce ‘‘evi-

dence of any complaints generated by its employees[’] solici-

tation and distribution activities.’’ UCSF Stanford Health

Care, 335 N.L.R.B. No. 42, at 48. The ALJ reached this

conclusion based on record evidence that during the eleven

months in which employees engaged in solicitation and distri-

bution activities, USHC received some 1,200 complaints about

Stanford Hospital and 300 about Lucile Packard, but ‘‘few if

any’’ involved union solicitation or distribution. Although

Stanford must show only a likelihood of patient disturbance—

not actual patient disturbance—the Supreme Court found in

Beth Israel Hospital that the absence of complaints during

eight months of union activity, a period three months shorter

than the union activity at USHC, was ‘‘especially telling.’’

Beth Israel Hosp., 437 U.S. at 502; see also Brockton Hosp.,

294 F.3d at 104 (absence of complaints undermines hospital’s

argument that permitting union activity would create a likeli-

hood of disturbance).

Together, these three aspects of the ALJ’s decision—her

doubts about witness credibility, her finding that Stanford

failed to show patient use of all hallways and lounges outside

patient units, and her finding that few if any complaints

received by the hospital during the organizing campaign

involved solicitation and distribution activities—are more than

sufficient to support the Board’s conclusion that Stanford

11

failed to demonstrate that solicitation and distribution activi-

ties directed at fellow employees outside patient units were

likely to disturb patients. Stanford insists, however, that its

evidence is ‘‘consistent with evidence already deemed by this

court and the Supreme Court sufficient as a matter of law.’’

Petitioner’s Br. at 36. In support of this proposition, Stan-

ford cites Baptist Hospital and our first and third Baylor

University Medical Center decisions, but it ignores signifi-

cant differences between those cases and this one.

In Baptist Hospital, the Supreme Court denied enforce-

ment of a Board decision invalidating a solicitation ban that

applied to corridors and sitting rooms on patient floors.

Stanford calls our attention to the following statement in the

Court’s opinion:

The increased emphasis in modern hospitals on the

mobility of patients as an important aspect of patient

therapy is well known, and appears to be a part of

patient care at the Hospital. Small public rooms or

sitting areas on the patient-care floors, as well as the

corridors themselves, provide places for patients to

visit with family and friends, as well as for doctors to

confer with patients’ families—often during times of

crisis.

Baptist Hosp., 442 U.S. at 784 (internal citations omitted).

We do not read this statement, as Stanford does, to apply to

all hospitals without regard to the specific evidence before the

Board. The record in Baptist Hospital contained evidence

that patients actually used waiting areas outside immediate

patient care areas. And as the Supreme Court pointed out in

a sentence not quoted by Stanford, the record also contained

evidence that ‘‘[p]atients in the most critical and fragile

conditions often move or are moved through these corridors,

either en route to treatment in some other part of the

Hospital or as part of their convalescence.’’ Id. By contrast,

the ALJ here found that Stanford failed to demonstrate the

extent to which patients use hallways and waiting areas

covered by its policy. Baptist Hospital differs from this case

in a second important respect: Whereas the ALJ in this case

12

doubted the credibility of Stanford’s claim that employee

solicitation and distribution actually would disturb patients, in

Baptist Hospital the Court observed—in a sentence only

partially quoted by Stanford—that ‘‘[n]othing in the evidence

before the Board provided any basis TTT for doubting the

accuracy of the [witnesses’] statements TTT that union solici-

tation in the presence or within the hearing of patients may

have adverse effects on their recovery.’’ Id.

Our Baylor University decisions are equally unhelpful to

Stanford. In the first decision, we upheld a solicitation and

distribution ban that applied to a hospital corridor. Baylor

Univ. Med. Ctr. v. NLRB, 578 F.2d 351 (D.C. Cir. 1978). But

there, unlike here, the hospital had presented significant

evidence about the congested state of its corridors. Wit-

nesses testified:

[S]ome 15,000–20,000 persons entered the hospital

each day and that the passageways and corridors

were ‘‘as crowded as the main streets of downtown

Dallas.’’ It is remarkable that conditions at Baylor

are not more chaotic than they are; certainly the

imposition of any additional sources of potential

disruption should only be required reluctantly and

after a far more detailed analysis than the NLRB

devoted to this particular case.

Id. at 355. Contrary to Stanford’s claim, our third Baylor

University decision, which declined to enforce a Board order

invalidating a partial ban on solicitation and distribution

activities in a hospital cafeteria, did not rest on ‘‘physician

testimony regarding the psychological vulnerability of inpa-

tients (and family members) in acute care hospitals, and the

importance for inpatients to feel that hospital staff ‘really

cares totally for their well being.’ ’’ Petitioner’s Br. at 32

(quoting Baylor Univ. Med. Ctr. v. NLRB, 662 F.2d 56, 62 n.8

(D.C. Cir. 1981)). Rather, it rested on the Board’s disregard

of ‘‘the testimony of several witnesses who testified that

solicitation in the cafeteria would disrupt patients and visi-

tors.’’ Id. Stanford presented no such evidence.

13

Solicitation and Distribution Activities

Directed at Nonemployees

The Board found the ban on solicitation of nonemployees

anywhere on Stanford’s property to be overbroad because

Stanford had failed to demonstrate that the ban was needed

to protect patients. Challenging this conclusion, Stanford

argues that employees have no right to solicit nonemployees

and distribute union materials to them, and that even if they

do, this right is outweighed by Stanford’s right to provide a

suitable environment for its patients. Our resolution of this

issue is controlled by Eastex, Inc. v. NLRB, 437 U.S. 556

(1978), in which the Supreme Court explained that when an

employer is charged with interfering with section 7 activity by

prohibiting employees from engaging in union activity on its

property, two questions arise:

The first is whether, apart from the location of the

activity, [the restricted activity] is the kind of con-

certed activity that is protected from employer inter-

ference by §§ 7 and 8(a)(1) of the National Labor

Relations Act. If it is, then the second question is

whether the fact that the activity takes place on [the

employer’s] property gives rise to a countervailing

interest that outweighs the exercise of § 7 rights in

that location.

Id. at 563.

As to the first Eastex question, not only does section 7

protect employee rights to solicit fellow employees and to

distribute materials to them, see supra pp. 5–7, but neither

this court nor the Board has ever drawn a substantive

distinction between solicitation of fellow employees and non-

employees. To the contrary, both we and the Board have

made clear that NLRA sections 7 and 8(a)(1) protect employ-

ee rights to seek support from nonemployees. For example,

in Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162 (D.C. Cir.

1993), we held that employees are entitled to ‘‘distribut[e]

leaflets to customers’’ on their employer’s property, id. at

1177, and in Santa Fe Hotel & Casino, 331 N.L.R.B. 723

(2000), the Board affirmed an ALJ decision stating that ‘‘the

14

fact that the off-duty employee distributions TTT were to

customers rather than to other employees appears to be a

distinction without a difference and is an irrelevant consider-

ation,’’ id. at *730. See also NCR Corp., 313 N.L.R.B. 574,

576 (1993) (‘‘The right of employees to distribute union litera-

ture during nonworktime and nonwork areas is not limited

only to distribution to prospective union members. Employ-

ees have a statutorily protected right to solicit sympathy, if

not support, from the general public, customers, supervisors,

or members of other labor organizations.’’); cf. NLRB v.

Fruit & Vegetable Packers & Warehousemen, Local 760, 377

U.S. 58, 63 (1964) (holding that NLRA section 8(b)(4)(ii)(B)

does not prohibit ‘‘peaceful picketing TTT limited TTT to

persuading Safeway customers not to buy Washington State

apples when they traded in Safeway stores’’).

Stanford insists that ‘‘[t]he Supreme Court has long recog-

nized TTT a clear distinction in the strength of the section 7

rights implicated by communication purely among employees,

and communication between nonemployees and employees.’’

Petitioner’s Reply Br. at 22. This proposition, Stanford

claims, ‘‘follows logically’’ from Lechmere, which holds that

nonemployee union organizers otherwise able to communicate

with employees can be excluded from an employer’s property.

Stanford misreads Lechmere. Having nothing to do with

whether employees may solicit nonemployees, that decision

turns on the fact that the NLRA’s plain language ‘‘confers

rights only on employees, not on unions or their nonemployee

organizers.’’ Lechmere, 502 U.S. at 532 (emphasis in origi-

nal). What matters under Lechmere is not the identity of a

solicitor’s intended audience (nonemployees in this case), but

whether the solicitor is employed by the property owner or

otherwise lawfully on the employer’s property. Nothing in

Lechmere supports Stanford’s contention that employees have

no right to solicit and distribute to nonemployees.

Because section 7 entitles employees to solicit nonemploy-

ees, the validity of Stanford’s policy turns on the second

Eastex question: Does the fact that the solicitation and

distribution activities took place on the employer’s property

give rise to countervailing employer interests that outweigh

15

employee section 7 rights? Echoing its justification for ban-

ning solicitation and distribution activities outside patient

units, Stanford argues that its employees’ right to solicit

nonemployees is outweighed by the need to ‘‘respect TTT the

privacy and sensitivity of patients.’’ Petitioner’s Br. at 16.

For essentially the same reasons we have sustained the

Board’s conclusion that Stanford failed to establish a likeli-

hood of patient disturbance that could justify its more limited

ban on solicitation of fellow employees, we agree with the

Board that Stanford failed to demonstrate that its interest in

patient privacy and well-being outweighs its employees’ sec-

tion 7 rights to solicit nonemployees. The ALJ explained:

The rule [banning all solicitation of nonemployees

and distribution to them] is so broad as to encom-

pass all lawful employee[s’] petitioning of public

support regardless of where such solicitation or dis-

tribution occurs on [Stanford’s] propertyTTTT The

ban clearly bars protected activity throughout the

hospitals and other areas defined only as [Stan-

ford’s] property, without establishing a special need

for such a broad ban. There was no showing pa-

tients would receive such literature outside the hos-

pital buildings or in the cafeterias, gift shops, main-

tenance or utility areas. Employees, absent a

showing of special circumstances, are not barred

from standing in front of hospitals and handing out

literature concerning a labor issue. [Stanford] has

failed to demonstrate the existence of special cir-

cumstances in this case.

UCSF Stanford Health Care, 335 N.L.R.B. No. 42, at 50.

The ALJ also observed that Stanford presented no persuasive

evidence that ‘‘such a broad ban is necessary to protect

patients,’’ nor that ‘‘regular leafletting by the Union outside

the Hospital during the organizing campaign prior to the ban

TTT had any adverse effect upon patient care.’’ Id.

Contesting none of these findings, Stanford maintains that

even if section 7 allows solicitation of nonemployees, employ-

ees may not exercise such rights in hospitals. In support,

16

Stanford first cites Beth Israel Hospital’s statement that ‘‘a

rule forbidding any distribution to or solicitation of nonem-

ployees would do much to prevent potentially upsetting litera-

ture from being read by patients.’’ Beth Israel Hosp., 437

U.S. at 503 n.23. This statement, however, is dicta, for the

question before the Beth Israel Hospital Court had nothing

whatsoever to do with employer authority to restrict solicita-

tion of nonemployees. Equally important, nothing in Beth

Israel Hospital suggests that the Court intended to sanction

hospital rules that prohibit solicitation and distribution activi-

ties unlikely to affect patients or patient care. Quite to the

contrary, the Court sustained the Board’s St. John’s pre-

sumption under which employers seeking to limit solicitation

and distribution activities must demonstrate a likelihood of

patient disturbance.

Stanford also cites Aroostook County Regional Ophthal-

mology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), which

held that a small medical practice may lawfully prohibit its

employees from discussing (1) confidential patient medical

information with third parties and (2) grievances within ear-

shot of patients. That decision hardly supports Stanford’s

claim that it may prohibit its employees from discussing their

own terms and conditions of employment with nonemployees.

Moreover, in upholding the policy at issue in that case, we

relied on the existence of two considerations not present here:

that the employer ‘‘does not operate large facilities where the

distinction between patient and non-patient areas can easily

be discerned,’’ and that, ‘‘[i]n a small medical practice[,] TTT

the employer has unique concerns about employees acting in

a way that might disturb patients.’’ Id. at 213. As Stanford

concedes, it has hundreds of beds and thousands of employ-

ees.

Finally, Stanford relies on Rocky Mountain Hospital, 289

N.L.R.B. 1347 (1988), in which the Board adopted an ALJ

decision upholding a complete ban on solicitation of nonem-

ployees. According to Stanford, the Board’s failure to explain

why Stanford’s policy differs from the one sustained in Rocky

Mountain Hospital renders the decision here arbitrary and

capricious. The Board responds that Rocky Mountain Hos-

17

pital has no precedential value because no one excepted to

the ALJ’s decision sustaining the solicitation ban. We agree

with the Board.

As the Board has explained, it has a ‘‘well-established

practice of TTT adopt[ing] an administrative law judge’s find-

ings to which no exceptions are filed. Findings adopted

under such circumstances are not TTT considered precedent

for any other case.’’ Colgate–Palmolive Co., 323 N.L.R.B.

515, 515 (1997). Nothing in International Union of Operat-

ing Engineers, Local 12, 270 N.L.R.B. 1172 (1984), is to the

contrary. The issue in that case was whether an ALJ’s

finding of an NLRA violation, adopted by the Board without

the union having filed an exception, could support an en-

hanced penalty for a later violation by the same union. In

keeping with its position here, the Board concluded that

‘‘[w]hile the lack of formal review may diminish or even

negate the precedential value of the rationale in such a

decision, there is no sound basis for treating [it] as less than a

formal determination of a respondent’s culpability under the

Act.’’ Id. at 1172–73. Therefore, although it would have

been preferable for the Board to say something about Rocky

Mountain Hospital, its failure to do so renders its decision

neither arbitrary nor capricious.

Eviction of Harland

This brings us finally to Stanford’s challenge to the Board’s

conclusion that the eviction of union organizer Harland violat-

ed NLRA section 8(a)(1). The facts are these: Sometime in

September 1998, while Harland was sitting on a bench wait-

ing for a ride from a hospital employee, a Stanford guard

directed him to leave the premises. The guard recognized

Harland both from earlier conversations and from having

previously kicked him out of the cafeteria and other parts of

the hospital for violating Stanford’s solicitation and distribu-

tion policy. Although Harland insisted that he was merely

waiting for a ride, like others standing nearby, the guard

escorted him off the premises, telling him never to return.

The ALJ found that Harland’s eviction constituted discrimi-

nation on the basis of protected activity because Stanford had

18

not evicted persons unaffiliated with the union who were also

waiting for rides. Although the ALJ found that the eviction

also violated California law, the Board, in affirming the ALJ,

relied ‘‘solely on the judge’s conclusion that the eviction

discriminated against Harland based on protected activity.’’

UCSF Stanford Health Care, 335 N.L.R.B. No. 42, at 1.

Stanford argues that the Board should have compared

Harland to persons who were not only waiting for rides on

hospital property, but who, like Harland, had also been

previously asked to leave the hospital for violating its solicita-

tion and distribution policy. According to Stanford, because

neither the ALJ nor the Board found that it treated Harland

any differently from others who had violated the solicitation

and distribution policy, the eviction of Harland cannot consti-

tute discrimination in violation of section 8(a)(1). We agree.

As a nonemployee union organizer—in contrast to a Stan-

ford employee—Harland had no section 7 right of access to

Stanford’s property. See Lechmere, 502 U.S. at 532 (explain-

ing that nonemployee union organizers are not directly pro-

tected by the NLRA). The rule that nonemployee organizers

have no right of access to employers’ property has two

recognized exceptions. First, nonemployee union organizers

are entitled to access where ‘‘the location of a plant and the

living quarters of the employees places the employees beyond

the reach of reasonable union efforts to communicate with

them.’’ Id. at 533–34 (internal quotation marks and citation

omitted). Second, ‘‘an employer engages in discrimination as

defined by section 8(a)(1) if it denies union access to its

premises while allowing similar distribution or solicitation by

nonemployee entities other than the union.’’ Lucile Salter

Packard Children’s Hosp., 97 F.3d at 587. As Lucile Pack-

ard demonstrates, however, this latter exception—the one at

issue in this case—requires differential treatment of nonem-

ployee organizers and similarly situated solicitors and distrib-

utors. Absent evidence of differential treatment of union and

nonunion solicitors, there can be no finding of discrimination.

Here, the Board violated this basic principle. It compared

Harland, a self-confessed serial violator of Stanford’s solicita-

19

tion and distribution rules, to non-soliciting bench sitters. It

should have compared Harland to other bench sitters who

had previously violated Stanford’s solicitation policy.

III.

Having considered Stanford’s remaining arguments and

found them to be without merit, we deny the petition with

respect to the solicitation and distribution policy and grant

the Board’s cross-application for enforcement. With respect

to Harland’s eviction, we grant Stanford’s petition and deny

the Board’s cross-application for enforcement.

So ordered.