Stanford Hospital and Clinics, Successor To Ucsf Stanford Health Care 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 H OSPITAL AND CLINICS, S UCCESSOR TO
UCSF S TANFORD H EALTH CARE,
PETITIONER
v.
NATIONAL LABOR RELATIONS B OARD,
R ESPONDENT
SERVICE E MPLOYEES INTERNATIONAL UNION, L OCAL 715,
I NTERVENOR
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.

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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: G INSBURG, Chief Judge, and R OGERS and T ATEL ,
Circuit Judges.
Opinion for the Court filed by Circuit Judge T ATEL .
T ATEL, 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

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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.

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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

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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-

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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.

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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

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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

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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-

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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

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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

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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.

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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

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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

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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,

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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-

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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

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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-

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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.

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