concurring.
I concur fully in Parts I, II and III of Judge Swygert’s well considered opinion and in most of Part IY.
I agree that petitioner’s rule limiting solicitation and distribution of materials to “non-work areas and non-patient areas and non-public areas” is overly broad. On the other hand, I think the Board’s order permitting solicitation in “other than immediate patient care areas” likewise is unduly broad, if not ambiguous.
While I question the wisdom and necessity of requiring a hospital to permit solicitation in public cafeterias, lounges, and gift shops,11 recognize that the Board’s findings and interpretation of the Act are entitled to considerable deference in light of the Board’s “ ‘special function of applying the general provisions of the Act to the complexities of industrial life’ . . . and its special competence in this field”. NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 *217S.Ct. 959, 968 (1975), quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963).
On this basis, I agree with the holding of the First Circuit in NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), enforcing the Board's order enjoining the employer-hospital from prohibiting distribution and limiting solicitation in the hospital’s cafeteria and coffee shop to which both employees and the public have access. The court there, however, rejected the Board’s argument that the enforcement order should extend to all non-patient care areas.2 As the court noted (Note 6):
[A] phrase like “immediate patient-care area” is far from self-defining given the complexity of a major metropolitan hospital. Would a waiting area by the nurse’s desk on a floor where patients reside be a “patient-care area”? Would the waiting room in the emergency ward? 554 F.2d at 482-83.
In most modern hospitals there are many small visiting rooms or lounges in the vicinity of patients’ bedrooms, where patients visit with relatives and friends. Are these “immediate patient-care areas”?3
While I would prefer a more limited enforcement of the Board’s order, I concur in the court’s opinion, recognizing as Judge Swygert has noted, that further litigation will be necessary to determine in exactly which areas of a hospital solicitation and distribution may be forbidden. As the court stated in Beth Israel Hospital, supra :
“[The Board bears] a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.” 554 F.2d at 481.
. Solicitation and distribution are permitted in employee locker rooms and adjoining lounges and restrooms; in the main cafeteria, utilized only by employees (from 300 to 400 a day); in employee lounge and break areas on almost every floor of the hospital; and in employee parking lots.
. The court concluded that the order of the Board “fairly obviously was intended to regulate only” the cafeteria and coffee shop.
. As petitioner argues, it is difficult to explain “why a patient with a broken toe in the X-ray room would be adversely affected by union solicitation but a heart attack victim, sitting in the lounge talking to his wife, would not be.”