concurring in part and dissenting in part:
The majority denies enforcement of a Board order invalidating the hospital’s ban against solicitation and distribution of literature in the hospital corridors, cafeteria and vending areas. I concur in the majority opinion insofar as it applies to the hospital corridors. I cannot agree, however, that a rule barring these activities in the cafeteria and vending areas has been shown to be equally defensible. Since the Supreme Court will soon address this issue in another case,1 I will confine myself to a few brief remarks.
The general principle, established in Republic Aviation2 and other cases posits that rules prohibiting union solicitation on the employer’s property during nonworking time are presumptively unreasonable and discriminatory. That rule is subject to an exception relied on by the majority, which develops the legality of no-solicitation rules in ordinary restaurants and shops.3 The rationale of these cases, as the majority notes, is the crucial importance of a congenial atmosphere to the success of the business. That is the justification of the exception.
The case at bar — hospital cafeterias and vending machines — does not present the same considerations as warranted the exception wrought for ordinary commercial restaurants. Their role and context is not the main business of a hospital but an ancillary convenience — making refreshment available to staff and visitors (and to patients free to leave their rooms). The hospital cafeteria and vending areas are not in direct competition with ordinary restaurants for this trade. The time and place utility of a hospital cafeteria gives it advantages for custom not bestowed by the food and ambience.
To be sure, the hospital has a legitimate interest in a congenial atmosphere in its cafeteria — but it is not the kind of live-or-die imperative that must be given recognition even though it undercuts the rights of employees protected by the general Republic principle.
The distinction I have delineated is reinforced, I think, when it is viewed in conjunction with the hospital’s ban on solicitation in direct patient care areas and closely related locations, including corridors that are likely to be used for or involved in patient care, the central purpose of the hospital. I join the majority in upholding this aspect of the hospital’s rule. But if, out of necessity, the law permits curtailment of employee rights (union activities) in certain sensitive areas, is there not a fairly correlative expectation of a certain *361receptivity to those rights and activities in other hospital locations?
In my view the statute does not fairly contemplate that a hospital can confine its employees to the closets, and deny them protection in the places most natural for talk that is not patient-related, by leaning on the exception wrought for commercial enterprises to ensure survival.
The Board acted reasonably and with sufficient basis in the record when it concluded that solicitation in such locations as cafeterias and vending machines would not significantly undercut the therapeutic functioning of the hospital. It is only in the most general and non-critical sense that “patient care” is rendered in these areas. They are basically retreats, where patients, staff, and visitors may withdraw from immediate contact with patient care areas. They are natural places for employees to talk about matters of mutual concern such as unions.
I respectfully dissent from that portion of the majority opinion which holds that the Board was not authorized to protect such talk in these cafeteria and vending areas.
. NLRB v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), cert. granted sub nom. Beth Israel Hospital v. NLRB, 434 U.S. 1033, 98 S.Ct. 764, 54 L.Ed.2d 780 (1978). In Beth Israel, the First Circuit granted enforcement to that part of a Board order requiring the hospital to rescind its rule against distribution and solicitation in the hospital cafeteria and coffee shop.
. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945).
. See majority opinion at---of 188 U.S. App.D.C., at 357-358 of 578 F.2d supra.