S T . Margaret Mercy Healthcare Centers v. National Labor Relations Board

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2752, 07-3110
S T . M ARGARET M ERCY H EALTHCARE C ENTERS ,
Petitioner/Cross-Respondent,
v.
N ATIONAL L ABOR R ELATIONS B OARD ,
Respondent/Cross-Petitioner.
____________
Petition to Review and Cross-Application to Enforce
an Order of the National Labor Relations Board.
13-CA-38629
____________
A RGUED F EBRUARY 22, 2008—D ECIDED M ARCH 11, 2008
____________
Before E ASTERBROOK , Chief Judge, and B AUER and P OSNER,
Circuit Judges.
P OSNER , Circuit Judge. The Labor Board found that
St. Margaret, which owns and operates two hospitals in
Indiana (but for the sake of simplicity we’ll assume they’re
one), interfered with the right of the hospital nurses to
organize and discriminated against one of the nurses,
who was a union activist. The interference, the Board
ruled, violated section 8(a)(1) of the National Labor Re-
lations Act, and the discrimination section 8(a)(3). 29
U.S.C. §§ 158(a)(1), (a)(3).

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2 Nos. 07-2752, 07-3110
Determining when an employer is unlawfully inter-
fering with organizing activities requires weighing the
employees’ interest in organizing against the interest of
the employers and others (such as, in this case, the hospi-
tal’s patients) in being free from disruptive interference
by union organizers in the operation of the employer’s
business. E.g., Sentry Markets, Inc. v. NLRB, 914 F.2d 113,
115 (7th Cir. 1990); First Healthcare Corp. v. NLRB, 344 F.3d
523, 533-34 (6th Cir. 2003). “Accommodation between
[employee-organization rights and employer property
rights] 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). So the
Labor Board allows a hospital to forbid union activities
in patient care areas, NLRB v. Baptist Hospital, Inc., 442
U.S. 773, 778 n. 8 (1979); Mt. Clemens General Hospital v.
NLRB, 328 F.3d 837, 846-47 (6th Cir. 2003); Stanford Hospital
& Clinics v. NLRB, 325 F.3d 334, 338-39 (D.C. Cir. 2003);
Brockton Hospital, 333 N.L.R.B. 1367, 1368-69 (2001), and
pursuant to this dispensation St. Margaret prohibits its
employees “from soliciting other employees or distributing
any materials at any time in patient care areas” (emphasis
in original). These areas include, the rule goes on to
provide, not only patient, operating, and other treat-
ment rooms but also “halls and corridors” adjacent to
those rooms, along with other areas used by patients. But
when nurses or other employees are on break, union
soliciting is permitted in “non-work areas,” defined to
include “employee break areas.”
The lawfulness of the company’s rule is conceded, but
the Board found that the hospital violated it—and by doing
so upset the balance the Board has struck between the
hospital’s interests and those of its employees—by forbid-

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Nos. 07-2752, 07-3110 3
ding union activities in the “employee break areas” (also
called “multipurpose rooms” or “breakrooms”), rooms in
which nurses and other members of the hospital’s staff
can relax while off duty.
The hospital argues that because the breakrooms are
opposite patient rooms in the hospital’s intensive-care unit,
separated from them only by a corridor, and the doors
of the breakrooms are usually left open, the patients can
hear the staff talking in them and so it is as if they were
“patient care areas.” It is not a ridiculous argument, or one
precluded by the hospital’s rule; the draftsmen may not
have anticipated the noise problem. The corridors are
wide, however—18-20 feet. (With the typical insouciance
of lawyers regarding quantitative measures, which we
have remarked despairingly in such cases as Coffey v.
Northeast Illinois Regional Commuter R.R. Corp., 479 F.3d 472,
478 (7th Cir. 2007), and Publications Int’l, Ltd. v. Landoll, Inc.,
164 F.3d 337, 343 (7th Cir. 1998), the record does not
contain the exact dimensions of the corridors.) (They
contain nurses’ stations.) There is only slight evidence that
staff conversations ever carry from a breakroom at one
side of the corridor to a patient’s room at the other side.
And eighteen feet is an underestimate of the distance the
sound has to travel to be heard, because members of the
staff when chatting in the breakrooms are obviously
some distance inside the room rather than leaning up
against the door; likewise the patients’ beds are not up
against the doors of their rooms. If conversations ever
do carry so far, the obvious solution, which would pro-
tect the interests of the hospital and the employees with-
out any sacrifice of either, is for the hospital to require
that the doors of the breakrooms be shut except when
someone is entering or leaving. The door could be on a

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4 Nos. 07-2752, 07-3110
spring that would cause it to close automatically when-
ever it was opened.
The charge of discrimination relates to a disciplinary
sanction against a nurse for engaging in union solicita-
tion at a nurses’ station. That is properly forbidden by
the hospital’s rule. But the Board found that the rule,
which is not limited to solicitation related to union organ-
izing, was applied discriminatorily. In fact, it was ap-
plied only to employees who solicit in favor of unions.
As the Board found, “employee solicitation at the nurses’
station was a common practice. These included a
wide variety of solicitations, including solicitations for
Girl Scout cookies, March of Dimes, United Way, Secre-
tary’s Day and Boss’ Day, and ‘going away’ parties,
birthday parties, and other social occasions.” We are
particularly struck by the hawking of “beach balm,” a
product “created by a registered nurse to control bikini
line irritation” and optimized for “anyone who shaves or
waxes bikini lines.” (Consumers will doubtless be reas-
sured to learn that beach balm is “natural, safe, and tested
by nurses, not on animals!”) Management was aware of
these solicitations and even participated in some of them.
It is true, as a Board member pointed out in dissent, that
with the exception of the balm the solicitations were
charitable or social rather than commercial. But what
difference can that make? The hospital’s rule forbids
solicitations in patient care areas, period, yet the only
solicitations that have ever drawn a rebuke from man-
agement are, as the hospital’s lawyer acknowledged at
argument, those in support of union activities. Moreover,
it is far from obvious that a patient in intensive care will
be less disturbed by a nurse hawking bikini lotion or
organizing a birthday party than by a union organizer.

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Nos. 07-2752, 07-3110 5
Patients, especially those in intensive care, and their
family members and friends, would like to think that
nurses when on duty give their exclusive attention to
their professional duties and are not distracted by en-
gaging in charitable, social, or commercial activities. The
singling out of the union-supporting nurse for rebuke
was discrimination against union activities.
The Board’s order is amply supported, and so the
petition for review is denied and the Board’s application
for an order judicially enforcing its order is granted.
USCA-02-C-0072—3-11-08

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