concurring in the judgment.
I concur only in the judgment because I do not agree with the basis of the Court’s opinion. The Court accepts as valid the Board’s presumption that hospital rules prohibiting solicitation during nonworking time outside of “immediate patient-care areas” violate employees’ right to organize. The Court denies enforcement to the Board’s order in part on the ground that its finding that the Hospital failed to overcome this presumption was not supported by substantial evidence.
I would think no “evidence” is needed to establish the proposition that the primary mission of every hospital is care and concern for the patients and that anything which tends to interfere with that objective cannot be tolerated. A religious choir singing in a hospital chapel may well be desirable but if that interferes with patient care, it cannot be allowed.
*792To be supportable a presumption cannot rest on grounds which are irrational. Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978). For me, it is wholly irrational for the Board to create a presumption- that removes from the hospital absolute authority to control all activity in areas devoted primarily to patient care, including all areas frequented by patients. I would place the decision on the basis that: (1) the Board’s presumption is wholly invalid as applied to areas of a hospital devoted primarily to the care of patients; (2) once the Board’s order is deprived of the support of the presumption, it must be scrutinized to determine if it is supported by independent substantial evidence. That examination leads me to the conclusion that the Board’s order is not supported by substantial evidence with respect to any of the patient-care areas or public areas above the first floor of the Hospital.
In short the Board’s presumption is wholly invalid as applied to any area of the hospital devoted primarily to the care of patients for the reasons stated in Mr. Justice Powell’s opinion concurring in the judgment in Beth Israel Hospital, supra, at 510-514, which I joined. A hospital differs from a factory or industrial establishment. This is especially important in light of the Board’s presumption against' solicitation in the analogous public areas of restaurants and retail stores. Id., at 511-513.
Nothing in Beth Israel Hospital is to the contrary. There the Court stressed the necessity for continuing development and possible revision of the Board’s approach to hospital employees’ activities. Id., at 507-508. Moreover, Mr. Justice Brennan, speaking for the Court in that case, carefully explained that the particular cafeteria there was primarily an employee-service area, id., at 506, not a patient-care facility.
The inquiry then properly turns to whether the Board’s decision was supported by substantial evidence on the record as a whole. On the basis of the evidence described by the Court, ante, at 782-786, it seems clear to me that the decision *793of the Board was not supported by substantial evidence with respect to public areas above the first floor of the Hospital. The fundamental issue in cases such as this is whether the employees’ organizational rights affected by the hospital rules in question are superior to the hospital’s needs in carrying out its mission.
The central “business” of a hospital is not a business in the sense that term is generally used in industrial contexts. The hospital’s only purpose is the care and treatment of its patients, and I agree fully with the Court’s statement that “[n]othing in the evidence before the Board provided any basis ... for doubting the accuracy of the [testimony] that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery.” Ante, at 784. The union’s interest in membership solicitation in the public area of the Hospital above the first floor was severely undercut by the availability of abundant alternative areas for such union activity. Whatever doubts there may be as to the adverse effects on patients should be resolved in favor of their protection. I would not elevate the interests of unions or employees, whose highest duty is to patients, to a higher plane than that of the patients.
The evidence described by the Court, ante, at 786-787, demonstrates that the gift shop on the first floor is maintained primarily for the accommodation of visitors who wish to purchase articles for patients and is not a “patient-care” area; as in Beth Israel, supra, the first floor cafeteria is not a primarily patient-care area.