with whom The Chief Justice and Mr. Justice Rehnquist join, concurring in the judgment.
I concur only in the result the Court reaches here, for I, too, agree with much that Mr. Justice Powell says in his separate opinion.
There is, of course, a certain irony when the Board grants protection from solicitation to the retail store and to the Burger Chef and the Hot Shoppe cafeteria, but at the same time denies it to the hospital restaurant facility where far more than mere commercial interests are at stake. Patients and their concerned families are not to be treated as impersonal categories or classes. They are individuals with problems that ought not be subject to aggravation. Nevertheless, on this record, as the Court’s opinion reveals, it would have been difficult for the Board to reach a different result, when it utilized, questionably in my view, the rule of Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), even as perhaps modified for application in the hospital setting.
*509The tenor of the Court’s opinion and of the Board’s approach concerns me. There are many hospital coffeeshops and cafeterias that are primarily patient and patient-relative oriented, despite the presence of employee patrons, far more so than this very restricted Beth Israel operation, that seems akin to a manufacturing plant’s emloyees’ cafeteria. I fear that this unusual case will be deemed to be an example for all hospital eating-facility cases, and that the Board and the courts now will go further down the open-solicitation road than they would have done, had a more usual hospital case been the one first to come here. Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activity, and where the patient and his family — irrespective of whether that patient and that family are labor or management oriented — need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sickbed.
I entertain distinct doubts about whether the Board, in its preoccupation with labor-management problems, has properly sensed and appreciated the true hospital operation and its atmosphere and the institution’s purpose and needs. I earnestly share the caveat pronounced by the Court of Appeals, and reproduced by the Court in the next-to-the-last paragraph of its opinion, ante, at 508, and I sincerely hope that the Board bears that heavy responsibility in mind when it considers other hospital cases that come before it for decision.
Mr. Justice Powell,with whom The Chief Justice and Mr. Justice Rehnquist join, concurring in the judgment.
In Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), this Court approved the reasoning of the National Labor Relations Board in Peyton Packing Co., 49 N. L. R. B. 828 *510(1943), enf'd, 142 F. 2d 1009 (CA5), cert. denied, 323 U. S. 730 (1944), and the balance it struck in adjusting the respective rights of industrial employers and employees. The Court also endorsed the Board’s formulation: Because working time is for work, a rule prohibiting union solicitation during working time “ ‘must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose’ ”; but during nonworking time, when an employee’s time is his own even though he is on company property, a rule prohibiting union solicitation “ ‘must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.’ ” 324 U. S., at 803-804, n. 10 (quoting Peyton Packing Co., supra, at 843-844).
The Republic Aviation rule is inapplicable in the instant case, which arises from a setting entirely different from the one in which the rule was formulated. I concur in the judgment of the Court, however, because I regard the Board’s decision as based on substantial evidence even without the assistance of the Republic Aviation presumption.
I
The rule of Republic Aviation was adopted in the context of labor relations in industrial and manufacturing plants, where third parties unconnected with labor or management generally are not involved. In such a setting, it is relatively simple to divide the work environment into the two spheres defined in Peyton Packing. During working time an employer’s prohibition of solicitation and distribution may be presumed valid, because “[wjorking time is for work”; but during nonworking time or in nonworking areas, such rules are presumptively invalid. The latter part of the Board’s set of presumptions reflects the reasonable inference, based on the Board’s experience with the actual facts of industrial life, that *511such employers ordinarily will not have legitimate reasons to restrict employees’ activities on their own time, even if on company property. In sustaining the Board’s presumption, this Court recounted its development and said:
“We perceive no error in the Board’s adoption of this presumption. The Board had previously considered similar rules in industrial establishments and the definitive form which the Peyton Packing Company decision gave to the presumption was the product of the Board’s appraisal of normal conditions about industrial establishments. Like a statutory presumption or one established by regulation, the validity, perhaps in a varying degree, depends upon the rationality between what is proved and what is inferred.” 324 U. S., at 804 — 805 (footnotes omitted; emphasis supplied).
The rationality found to exist in Republic Aviation, and therefore the validity of the presumption, cannot be transferred automatically to other workplaces, for to do so would sever the connection between the inference and the underlying proof. The Court’s approval of the Republic Aviation rule was based explicitly on the Board’s considered appraisal of “normal conditions about industrial establishments.” 1 Conditions in industrial or manufacturing plants differ substantially from conditions in sales and service establishments where employees and members of the public mingle.
When confronted with the problem of retail-establishment rules prohibiting solicitation and distribution, the Board wisely refrained from mechanically applying the Republic Aviation rule when its justification was absent. The Board recognized that in the setting of a retail establishment, an employer well *512might have legitimate reasons for prohibiting solicitation and distribution on the selling floor and in other areas where customers are likely to be present.2 In the retail-store cases, the Board weighed the respective interests of the employer and the employees and concluded that the employer’s rule was reasonable in view of the extent of the public’s presence on the premises, the relationship between the public and the employees, and the fact that the employer’s main business, consisting of direct selling to customers, would be disrupted. The same conclusion was reached with respect to a public restaurant on the premises of a retail store when on-duty and off-duty employees were “in close contact with each other” and with customers, on the theory that under such circumstances, union solicitation would be “as apt to disrupt the [employer’s] business as . . . solicitation carried on in any other portion of the store in which customers are present.” Goldblatt Bros., Inc., 77 N. L. R. B. 1262, 1264 (1948). See also McDonald’s Corp., 205 N. L. R. B. 404, 408 (1973).3
*513In my view, the presence of patients and members of the public in the hospital cafeteria removes the ease from the framework established in Republic Aviation, just as the presence of customers has that effect in the Board’s retail-establishment cases. The hospital’s function in serving patients, their families, and visitors is much like the retail establishment’s function in serving its customers. That a nonprofit hospital does not share the profit motive of a retail establishment does not diminish the hospital employer’s professional concern for the welfare of those in its care, including not only patients but also their friends and relatives who come to visit.
It is true that the hospital’s primary function is carried out in the immediate patient-care areas, just as the retail establishment’s main function is carried out on the selling floor. But the Board has applied its retail-store rules to public restaurants on the premises of the retail store, see supra, at 512, notwithstanding the fact that the primary selling function does not take place there. Public restaurants in retail stores are provided for some of the reasons that hospitals maintain public eating places — including the convenience of the establishment’s patrons. In addition, a hospital’s more general purpose extends to, and pervades, all areas of the hospital to which the public has access; it is not limited narrowly to the provision of technical medical treatment.4 Part of the hospital’s func*514tion is to provide a “total environment . . . where the medical needs of patients are served by maintaining a climate free of strife and controversy.” NLRB v. Baptist Hospital, Inc., 576 F. 2d 107, 110 (CA6 1978). In this respect, the Board should take greater account of the impact of solicitation in this sensitive area than it does with respect to retail establishments. A presumption developed in and geared to the context of industrial establishments, which the Board has declined to apply to retail stores, simply has no relevance to hospitals.
II
The Board contends that it has effected a proper accommodation of the competing interests in St. John’s Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), enf. granted in part and denied in part, 557 F. 2d 1368 (CA10 1977), in which it applied the basic rule of Republic Aviation but found “sufficient justification” for curtailment of employee rights in certain areas of the hospital.5 Acknowledging that the “primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function,” the Board concluded in St. John’s that “hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted.” Accordingly, a hospital might prohibit solicitation in “strictly patient care areas,” such as “patients’ rooms, operating rooms, and places where patients receive treatment”; but not in other areas of the hospital, even those to which patients and visitors have access. 222 N. L. R. B., at 1150-1151.
In my view, the Board’s “accommodation” of the competing interests in St. John’s fails to give appropriate weight to the unique characteristics of a hospital. It amounts to no *515more than an application of the Republic Aviation rule to certain areas of a hospital but not others, despite the fact that members of the public are present and potentially affected even in areas of a hospital not characterized as “strictly patient care” areas. I believe that the Tenth Circuit was correct in refusing to accord the St. John’s presumption the kind of deference that was accorded the Republic Aviation presumption when applied in the industrial setting. I would hold that the potential impact on patients and visitors of union solicitation and distribution of literature in hospitals requires the Board to make a far more sensitive inquiry into the actual circumstances of each case.
Once the Board is deprived of the presumption of invalidity of an employer’s rule, it must establish by substantial evidence on the record as a whole that the employer has violated §§ 8 (a) (1) and 8 (a) (3). On the facts of this case, I would hold that the Board has carried its burden.
The Board must reach an accommodation between the respective rights of employer and employees “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); see Eastex, Inc. v. NLRB, post, p. 556; Hudgens v. NLRB, 424 U. S. 507, 521-523 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539, 542-545 (1972). “The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and [the employer’s] rights asserted in any given context.” Hudgens, supra,, at 522. In this case, the employer’s asserted concern is with the welfare of patients and their visitors, a particularly weighty “management” interest. In accommodating the interests of employer and employees in a hospital case, the Board must recognize the employer’s responsibility for the welfare of patients and other third parties present in the hospital.6
*516Yet in view of the facts in this case, which either are stipulated or largely undisputed, I think the Board has met its burden by substantial evidence. As found by the Administrative Law Judge, use of the hospital cafeteria by employees is substantial (77%), while use by patients is negligible (1.56%) and use by the general public is relatively low (under 10%). The cafeteria is predominantly the employees’ facility, and there hardly is any other area of the hospital in which employees may communicate with each other while at the hospital. The parties stipulated that the only areas where employees can gather are the locker areas and restrooms, and only 613 of the 2,200 employees’ lockers are accessible to all employees.7
In addition to the unavailability of other convenient places for employee communication, cf. Babcock & Wilcox, supra, at 112-113, the facts show that the hospital cafeteria is used by both the employer and employees for a variety of commercial and noncommercial notices and solicitations. And while the hospital was concerned about the disruptive effect on patients of employees’ conversations about the medical progress of particular patients, it implemented only a precatory rule, not an outright prohibition of all such conversations in the cafeteria. See ante, at 502-503, n. 20.
The hospital failed to introduce any evidence of a reasonable possibility of harmful consequences to patients or visitors. *517It relied primarily on arguments with respect to hospitals in general. No testimony was introduced that the practice at Beth Israel is to seek early rehabilitation of patients by encouraging them to leave their rooms at the earliest time compatible with their condition, and to move about the hospital. The further weakness in petitioner’s case is that it introduced no medical testimony that related such practices and needs to its cafeteria.8 Putting it differently, the undisputed evidence portrays this cafeteria as being one essentially operated for employees as their primary gathering place, and as almost wholly unrelated to patient care.
In sum, I view this case as essentially barren of the type of evidence that could be produced on behalf of many hospitals when confronted with a similar problem. See, e. g., NLRB v. Baptist Hospital, Inc., 576 F. 2d 107 (CA6 1978). My concurrence in the judgment is based entirely on the facts, as I disagree — for the reasons above stated — with the rationale of the Board, its reliance upon a wholly inappropriate presumption, and its unrealistic distinction between hospital and retail-store cafeterias. I also note that the Court emphasizes the facts of this case, and the “critical significance [of the fact] that only 1.56% of the cafeteria’s patrons are patients.” Ante, at 502.9
Even the formulation of the “special circumstances” rule is stated in terms of the specific environment of an industrial plant, speaking of circumstances making a restriction on employee activity “ 'necessary in order to maintain production or discipline.’ ” 324 U. S., at 803-804, n. 10.
See Marriott 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); Marshall Field & Co., 98 N. L. R. B. 88 (1952), enf’d, 200 F. 2d 375 (CA7 1953); Goldblatt Bros., Inc., 77 N. L. R. B. 1262 (1948); May Dept. Stores Co., 59 N. L. R. B. 976 (1944), enf’d as modified, 154 F. 2d 533 (CA8), cert. denied, 329 U. S. 725 (1946).
The Board’s retail-establishment cases might be interpreted as instances in which the Board concluded that the Republic Aviation presumption had been rebutted by the employer’s proof of “special circumstances.” The special circumstances would be created by the “presence [of customers] and the likelihood of their being exposed to union activities.” Bankers Club, Inc., supra, at 27. But even if this were the correct formulation— that the Republic Aviation presumption applies to retail establishments but is rebutted by proof of the presence of members of the public in areas where solicitation takes place — that test would be satisfied in all retail-establishment cases as well as in the instant case. The result would be the same as if the presumption did not apply at all. After special circumstances had been shown, the Board then would have to determine the proper balance between employees’ rights and the employer’s interests.
Thus, while the Board has distinguished between selling and certain nonselling areas of department stores, and has applied the presumption of invalidity to no-soli citation rules in some nonselling public areas, see Marshall Field & Co., supra, at 92-93, a similar line may not be drawn so easily between patient-care and nonpatient-care areas of a hospital. As the Court of Appeals for the Tenth Circuit observed in denying enforcement to the Board’s attempt to divide the areas of a hospital, “the ultimate factual inferences on which the Board’s distinction [is] based were drawn not from the record evidence but rather from the Board’s own perceptions of modem hospital care and the physical, mental, and emotional conditions of hospital patients — areas outside the Board’s acknowledged field of expertise in labor/management relations.” St. John’s Hospital & School of Nursing, Inc. v. NLRB, 557 F. 2d 1368, 1373 (1977).
Both the parties and the court in St. John’s started from the premise that the Republic Aviation rule applied. The Court of Appeals disagreed, however, with the Board’s assessment that special circumstances justified the hospital’s restriction only in “immediate” patient-care areas.
This, of course, is consistent with Congress’ concern, in enacting the *5161974 health-care amendments, “for the need to avoid disruption of patient care wherever possible.” S. Rep. No. 93-766, p. 6 (1974).
The Administrative Law Judge also found that the urban location of the hospital and the widely dispersed residences of hospital employees make communication outside the hospital difficult. In addition, petitioner would not provide the union with a list of employees’ names and addresses. “The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees,” NLRB v. Magnavox Co., 415 U. S. 322, 325 (1974); see Eastex, Inc. v. NLRB, post, at 574, and the hospital cafeteria was the most appropriate place for such communication on the facts of this case.
Rather, the employer rested on the allegedly inflammatory nature of a union newsletter distributed by one employee, without introducing any evidence that the newsletter had fallen or would fall into the hands of patients or visitors. Furthermore, proof of such a probability would not be relevant to the no-solicitation portion of the hospital’s rule. The hospital allowed one-to-one solicitation in the cafeteria until after the initiation of these proceedings; yet petitioner was “unable to show any instance of injury to patients” while that more permissive rule was in effect. 223 N.L.R.B. 1193, 1197 (1976).
Moreover, the Court’s opinion expresses no view as to the validity of prohibiting employee solicitation or distribution in other areas of a hospital which may not be devoted “strictly” or “immediately” to patient care but to which patients and visitors have access. This question was not presented in this case.