Capital Medical Center v. NLRB ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2017 Decided August 10, 2018
No. 16-1320
CAPITAL MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD AND COMMERCIAL WORKERS LOCAL 21,
INTERVENOR
Consolidated with 16-1369
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Charles P. Roberts III argued the cause and filed the briefs
for petitioner.
Kellie J. Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were Richard F.
Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
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Counsel, Elizabeth A. Heaney, Supervisory Attorney, and
Heather S. Beard, Attorney.
Matthew J. Ginsburg argued the cause for intervenor.
With him on the brief was James B. Coppess.
Before: GARLAND, Chief Judge, and ROGERS and
SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: In this case, a small number
of off-duty hospital employees, seeking to inform visitors to
the facility about an ongoing labor dispute, peacefully
distributed leaflets and held picket signs on hospital property
next to an entrance. It is undisputed that the employees’
distribution of leaflets was protected under the National Labor
Relations Act. The question we face is whether the employees’
holding of picket signs—without any chanting, marching, or
obstructing of passage—necessarily took their conduct beyond
the NLRA’s protections. The hospital tried to stop the
employees’ stationary display of picket signs, believing that the
employees had no right to engage in that conduct on the
facility’s premises.
The National Labor Relations Board disagreed. The Board
examined the employees’ form of picketing under a framework
traditionally applied to assess off-duty employees’ distribution
of union literature on hospital property. That framework asks
whether prohibiting the employees’ conduct is necessary to
avoid disrupting patient care. The Board concluded that, here,
the hospital failed to make that showing with regard to the
employees’ holding of picket signs. As a result, the Board
determined, the hospital had violated the employees’ rights
under the NLRA by attempting to bar their protected conduct.
3
We sustain the Board’s interpretation of the NLRA as
reasonable. In our view, the Board’s approach permissibly
balances employees’ rights to organize against an employer’s
interests in controlling its property. And the Board was not
compelled to adopt a categorical rule that picketing of any
kind—including the stationary, nonobstructive holding of a
picket sign at issue here—is necessarily more disruptive, and
less entitled to the NLRA’s protections, than distribution of
union literature. We thus deny the hospital’s petition for
review and grant the Board’s cross-application for
enforcement.
I.
A.
Under Section 7 of the National Labor Relations Act,
employees “have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” 29 U.S.C. § 157. Section 7’s
protections encompass the “rights to discuss organization and
the terms and conditions of their employment, to criticize or
complain about their employer or their conditions of
employment, and to enlist the assistance of others in addressing
employment matters.” Quicken Loans, Inc. v. NLRB, 830 F.3d
542, 545 (D.C. Cir. 2016). Those rights include soliciting
support not only from fellow employees but also from
nonemployees such as customers and the general public. E.g.,
Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 343 (D.C.
Cir. 2003). Employers commit an “unfair labor practice” in
violation of the Act when they “interfere with, restrain, or
coerce employees in the exercise of” their Section 7 rights. 29
U.S.C. § 158(a)(1).
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When employees seek to exercise Section 7 rights on their
employer’s property, the employees’ rights are balanced
against the employer’s property interests and management
prerogatives. In administering that balance, the Board has
adopted various presumptions. In Republic Aviation Corp. v.
NLRB, the Supreme Court approved the Board’s application of
a presumption that an employer cannot prohibit off-duty
employees’ solicitation of union support on company property.
324 U.S. 793, 803 (1945). To overcome the presumption, an
employer must present “evidence that special circumstances
make” a prohibition on solicitation “necessary in order to
maintain production or discipline.” Id. at 803 n.10 (citation
omitted); see id. at 803-04. The Board later applied the
Republic Aviation presumption to the distribution of union
literature on company property by off-duty employees. Eastex,
Inc. v. NLRB, 437 U.S. 556, 572-74 & n.23 (1978).
The Board has also recognized that employer interests can
vary based on the nature of the workplace. Of particular
relevance, the Board has modified the Republic Aviation
presumption in the hospital context to account for the
importance of administering patient care without disturbance.
In immediate patient-care areas, the Board does not consider a
ban on employee solicitation of union support to be
presumptively invalid. See Beth Israel Hosp. v. NLRB, 437
U.S. 483, 495 (1978); NLRB v. Baptist Hosp., Inc., 442 U.S.
773, 778 & n.8 (1979). But outside of immediate patient-care
areas, such as in hospital lounges and cafeterias, a prohibition
on employee solicitation of union support is presumptively
invalid unless the hospital can demonstrate the need for the
restriction “to avoid disruption of health-care operations or
disturbance of patients.” Beth Israel Hosp., 437 U.S. at 507.
The Republic Aviation presumption, including its tailored
application to hospitals, has been applied predominantly in the
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contexts of oral solicitation of union support or distribution of
union-related literature. In 2004, however, the Board applied
the Republic Aviation presumption in a case involving both
distribution of handbills and picketing on company property.
Town & Country Supermarkets, 340 N.L.R.B. 1410 (2004).
Because the employer had failed to demonstrate special
circumstances justifying its ban on that activity, the Board held
that the employer committed an unfair labor practice by
attempting to bar the “employees from engaging in picketing
and handbilling.” Id. at 1414.
B.
With that backdrop in mind, we turn to the dispute in this
case. Petitioner Capital Medical Center is an acute-care
hospital in Olympia, Washington. United Food and
Commercial Workers (the Union) represents a unit of Capital’s
technical employees. Their collective bargaining agreement
expired in September 2012. As of May 2013, the parties had
yet to reach a new agreement.
On May 9, 2013, the Union notified Capital that it intended
to engage in picketing and handbilling outside the hospital on
May 20, to advocate for a new agreement before the next
bargaining session. At 6:00 a.m. on May 20, 2013, twenty to
twenty-five employees began picketing and chanting on the
public sidewalks around the hospital. The picketing and
handbilling activities continued throughout the day, with fifty
to sixty employees picketing and handbilling on the public
sidewalks in the afternoon. A few employees, with Capital’s
permission, went onto the hospital’s property to hand out
leaflets alongside two nonemergency entrances.
Around 4:00 p.m., two to four employees took leaflets and
picket signs from the sidewalk and walked onto hospital
6
property. They stood next to a nonemergency entrance to the
building while holding the signs, with some also handing out
leaflets while holding the signs. The signs contained the
messages “Respect Our Care” and “Fair Contract Now.”
Multiple hospital personnel told the employees that they could
continue distributing leaflets but could not stand on hospital
property with their picket signs. The employees, though,
declined to leave.
Union representatives then met with Capital’s labor
relations counsel and human resources manager. The
company’s counsel informed the Union representatives that the
picketing employees would face discipline if they remained on
hospital property. The representatives maintained that the
employees had a right to remain on hospital property with their
picket signs. Capital’s counsel then called the Union’s attorney
and threatened to discipline the employees or call the police.
One picketing employee, concerned about potential discipline
or arrest, returned to the sidewalk. Another employee took his
picket sign and replaced him near the entrance.
At around 5:00 p.m., roughly an hour after the employees
began holding picket signs on hospital property, a hospital
security officer called the police. A police officer arrived, and
informed Capital personnel that he could not remove the
employees because they were not being disruptive or blocking
the entry doors. The picketers opted to leave a short time later
because their picketing was scheduled to end soon in any event
(at 6:00 p.m.). Few people entered or exited the hospital during
the time the employees held picket signs near the entrance, and
there were no confrontations between the employees and
anyone who came into or out of the hospital.
The Union filed a charge with the NLRB’s regional
director, alleging that Capital’s reaction to the employees’
7
holding picket signs on hospital property unlawfully interfered
with employees’ exercise of their Section 7 rights. The Board
issued a complaint, alleging that Capital’s interference in the
picketing violated the Act. In July 2014, an administrative law
judge found that Capital had committed an unfair labor practice
by telling employees they could not picket by the entrances,
threatening disciplinary action, and calling the police.
On August 12, 2016, the Board affirmed the ALJ’s
findings and conclusions. Capital Med. Ctr. & UFCW Local
21, 364 N.L.R.B. No. 69, 2016 WL 4362367, at *1 (Aug. 12,
2016). The Board “assume[d] arguendo” that the employees’
stationary holding of picket signs amounted to “picketing
within the meaning of the Act.” Id. at *1 n.4. The Board then
assessed whether the presumption recognized in Republic
Aviation, 324 U.S. 793, as tailored to the hospital context, Beth
Israel Hosp., 437 U.S. 483, applies to employee picketing just
as it applies to employee handbilling and other protected
Section 7 activity.
The Board decided that the Republic Aviation framework
should govern in cases involving picketing on company
property. That conclusion, the Board noted, found support in
its prior decision in Town & Country, 340 N.L.R.B. at 1414,
which had applied the Republic Aviation presumption to
off-duty employee picketing on the employer’s premises. The
Board rejected the notion that picketing is inherently more
disruptive than the other Section 7 activity covered by Republic
Aviation, such that the presumption should be categorically
inapplicable in the context of picketing.
Applying the modified Republic Aviation presumption that
governs in the hospital context, the Board examined the
employees’ conduct at issue, which the Board described as
“holding signs near a nonemergency entrance without any
8
patrolling, chanting or obstruction of the entrance.” Capital
Med. Ctr., 2016 WL 4362367, at *3 n.9. The Board agreed
with the ALJ’s finding that the employees’ stationary, peaceful
picketing was unlikely to interfere with patient care. Capital
thus failed to meet its burden to show that it needed to bar the
picketing to “prevent patient disturbance or disruption of health
care operations.” Id. at *5. One Board member dissented,
disagreeing with the Board’s conclusion that the Republic
Aviation presumption should apply to off-duty picketing on
employer property.
Capital now petitions this court for review, and the Board
cross-applies for enforcement of its order. 29 U.S.C.
§ 160(e)-(f). The Union has intervened in support of the
Board’s decision.
II.
Capital principally challenges the Board’s decision on the
ground that the Republic Aviation framework should be
inapplicable in the context of employee picketing on company
property. We disagree. The Board permissibly declined to
conclude that picketing inherently is so disruptive as to be
categorically ineligible for protection under the Republic
Aviation presumption. We also reject Capital’s contention that,
in applying the Republic Aviation framework, the Board should
have found the picketing in this case sufficiently likely to
disrupt patient care such that Capital could validly bar it.
A.
We first address whether the Board could apply the
Republic Area framework to employee picketing on company
premises, or whether the Board instead was obligated to
confine that framework to the exercise of Section 7 rights in
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other ways such as orally soliciting support or distributing
leaflets. In deciding to apply Republic Aviation to employee
picketing, the Board construed the scope of Section 7’s
protections. We defer to the Board’s reasonable interpretation
of ambiguous NLRA provisions, as we generally do when an
agency construes a statute it administers. E.g., ITT Indus., Inc.
v. NLRB, 251 F.3d 995, 999-1000 (D.C. Cir. 2001); see
Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, 467 U.S. 837,
842-43 (1984). We sustain the Board’s application of the
Republic Aviation framework here on that basis.
At the outset, it is undisputed that Section 7 does not
directly resolve the rights of off-duty employees to picket on
company property. See ITT Indus., 251 F.3d at 1000 (“Section
7 does not itself speak of access rights[.]”). The Board’s
interpretation of those rights, then, would ordinarily call for our
deference if reasonable. But Capital contends that the Board’s
interpretation nonetheless is ineligible for deference because,
Capital argues, the Board failed to balance the hospital’s
property rights against the employees’ Section 7 rights, as it
was required to do. See id. at 1005; NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 112 (1956).
Capital’s argument is misconceived. The Board accounted
for (and balanced) the employer’s property rights and
management prerogatives by invoking the Republic Aviation
framework. See DHL Express, Inc. v. NLRB, 813 F.3d 365,
376 (D.C. Cir. 2016). As the Board explained, “Republic
Aviation itself explicitly required a balance between protection
of employees’ Section 7 rights and employers’ property rights
and business interests”; and the Republic Aviation framework
gives effect to an employer’s interests in the hospital setting on
a case-by-case basis by enabling a hospital to “prohibit Section
7 activities in non-patient care areas if it shows that the
prohibition is needed to prevent patient disturbance or
10
disruption of health care operations.” Capital Med. Ctr., 2016
WL 4362367, at *4; see also id. at *4 nn.10-11.
We therefore must sustain the Board’s interpretation if it
is reasonable. Capital advances two strands of arguments in
contending that the Board could not permissibly apply the
Republic Aviation presumption to employee picketing on
company property. First, Capital asserts that picketing of any
kind is inherently more disruptive than other forms of Section
7 activity. Second, Capital submits the Board did not
adequately explain its departure from agency precedents under
which an employer could bar picketing on its property if there
were reasonable alternative means of communication available
to the employees. We find Capital’s arguments unpersuasive,
and we sustain the Board’s approach as reasonable.
1.
There is no dispute that the tailored Republic Aviation
presumption protects off-duty employees’ distribution of union
literature on hospital property in non-patient care areas (unless
the hospital can show it needs to bar the conduct to avoid
disrupting health care operations). Capital therefore did not
attempt to stop its employees from handing out leaflets outside
the entrance to its facility. Is employee picketing categorically
different, such that the Republic Aviation framework should
have no application to picketing as a blanket matter?
The Board permissibly answered that question no. The
Board explained that “[t]here is nothing in the nature of
picketing per se that would support a conclusion that Republic
Aviation is inapplicable to that activity.” Capital Med. Ctr.,
2016 WL 4362367, at *3 n.9. “In fact,” the Board determined,
“picketing is often neither coercive nor disruptive.” Id. The
Board said that it needed to “look no further for an example
11
than the peaceful display of picket signs . . . that occurred in
this case.” Id. “Indeed,” the Board reasoned, “the quiet,
stationary” picketing at issue “was even less confrontational
than the permitted handbilling in an important respect: it
involved no direct contact with the recipient of the handbill.”
Id. at *5 n.14. And whereas the employees “stationed
themselves outside the main pathways to the doors,” they “only
stepped into the entryway . . . when handbilling,” not when
they merely held picket signs. Id. at *4 n.13.
The Board’s interpretation of Section 7, so as to apply the
same framework to picketing as to other protected employee
conduct, is reasonable. In contending otherwise, Capital relies
on the Supreme Court’s observation that “picketing is
qualitatively different from other forms of communication.”
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 580 (1988). The Board, though,
addressed that observation directly, explaining that the Court
“did not state that [picketing] is necessarily or inherently
‘coercive’ or ‘disruptive.’” Capital Med. Ctr., 2016 WL
4362367, at *3 n.9. And the Court in DeBartolo, when
referring to “picketing,” appeared to have in mind “those
patrolling a picket line,” 485 U.S. at 580, as opposed to the
stationary holding of picket signs by two to four employees
without any patrolling (or even chanting), at issue here.
The Board, moreover, specifically rejected any notion that
it was “holding that on-premises picketing must be permitted
to the same degree as on-premises solicitation and
handbilling.” Capital Med. Ctr., 2016 WL 4362367, at *3 n.9
(internal quotation marks omitted). Rather, the Board could
“easily envision circumstances, not present here, where
picketing on hospital property would disrupt operations or
interfere with patient care while solicitation and distribution
would not.” Id. The Republic Aviation framework would
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enable a hospital to bar picketing in those situations. Id. And
the Board presumably will develop principles on a
case-by-case basis that will guide employers about the
circumstances in which they can prohibit picketing on
company premises. It also bears recalling that the Republic
Aviation framework’s presumption applies only in
“non-patient care areas.” Id. at *4. In patient-care areas, a
hospital is generally free to prohibit Section 7 activity
including any holding of picket signs. See Stanford Hosp., 325
F.3d at 338-39.
Capital argues that the Board erred in relying on its
previous decision in Town & Country Supermarkets, which, in
Capital’s view, was inadequately reasoned and materially
distinguishable in its treatment of picketing. The Board,
though, invoked Town & Country Supermarkets here primarily
(and correctly) to show that it had previously applied the
Republic Aviation framework to picketing by off-duty
employees on company property. Id. at *3. The Board hardly
relied solely on Town & Country Supermarket to justify its
decision to apply Republic Aviation in the context of this case.
Rather, as discussed, the Board separately set out why it would
be appropriate to bring employee picketing within that
framework—including by reasoning that picketing can be
noncoercive and nondisruptive, as the Board found was true of
the peaceful, stationary holding of picket signs in this case.
Finally, Capital argues that the Board erred in relying on
Section 8(g) of the NLRA. That provision requires employees
of health care facilities to provide 10-days’ advance notice
before engaging in picketing or striking. 29 U.S.C. § 158(g).
The Board invoked Section 8(g) to demonstrate that Congress
contemplated the picketing of health care facilities by
employees, and Congress allowed for picketing of hospitals
without excluding picketing on hospital property. Capital
13
Med. Ctr., 2016 WL 4362367, at *3 n.9. Capital emphasizes
that Section 8(g) does not speak to whether picketing of
hospitals necessarily would occur on a hospital’s private
grounds. The Board understood as much, but permissibly
relied on Section 8(g) to support the general idea that picketing
of hospitals need not be subjected to different standards than
other Section 7 activity.
In short, the Board reasonably interpreted Section 7 in
concluding that the Republic Aviation presumption could
encompass not only solicitation and distribution on employer
property, but also picketing.
2.
Capital next contends that the Board applied the Republic
Aviation framework without accounting for and sufficiently
explaining its departure from its prior precedents. “[A]n
unexplained divergence from its precedent would render a
Board decision arbitrary and capricious.” Fort Dearborn Co.
v. NLRB, 827 F.3d 1067, 1074 (D.C. Cir. 2016). The Board,
though, gave an adequate explanation here.
Capital points primarily to the Board’s decision in
Providence Hospital, 285 N.L.R.B. 320 (1987). There, a
hospital prohibited off-duty employees from engaging in
informational picketing on hospital property. In administering
the balance “between property rights and Section 7 rights,” the
Board applied its then-applicable Fairmont Hotel test. Id. at
321 (citing Fairmont Hotel, 282 N.L.R.B. 139 (1986)). That
test addressed whether an employer must allow access to its
property for the exercise of Section 7 rights by off-duty
employees or nonemployee union organizers. Under the test,
if the employer’s property interests and the off-duty
employees’ (or nonemployee organizers’) Section 7 interests
14
were relatively equal in weight, the Board considered whether
there was a “reasonable alternative means for communicating
with [the] intended audience.” Id. at 322. Applying that
inquiry in Providence Hospital, the Board upheld the hospital’s
ban on picketing on its property, concluding that the employees
could effectively communicate with the public by engaging in
informational picketing on adjacent public property. Id.
The Board subsequently determined that the availability of
“reasonable alternative means” would be relevant in every case
involving access to company property for exercising Section 7
rights, not just cases in which the competing interests were
roughly equal in strength. See Jean Country, 291 N.L.R.B. 11,
11 (1988). The Supreme Court then invalidated the Jean
Country framework’s balancing of interests, “[a]t least as
applied to nonemployees.” Lechmere, Inc. v. NLRB, 502 U.S.
527, 538 (1992). The Court held that, under its precedents,
nonemployee union organizers had no cognizable interest in
accessing the employer’s premises as long as they had
reasonable access to employees elsewhere. Id. at 537-38. The
Court did not directly speak to whether the Jean Country
framework—including the consideration of “reasonable
alternative means”—continued to govern in cases involving
off-duty employees.
Capital argues that the Board was obligated by its
precedents to continue considering the availability of
reasonable alternative means in cases involving off-duty
employees, unless it adequately explained why it would no
longer do so. The Board, however, adequately accounted for
its precedents in its decision. It specifically referenced
Providence Hospital, explaining that the decision no longer
governed “[f]or the reasons set forth by the [administrative
law] judge.” Capital Med. Ctr., 2016 WL 4362367, at *4 n.12.
And the ALJ in turn thoroughly explained her decision not to
15
apply the Providence Hospital/Jean Country line of
decisions—and instead to apply the Republic Aviation
framework—in the circumstances of this case.
The ALJ acknowledged that the “case that weighs most
strongly in [Capital’s] favor is Providence Hospital.” Capital
Med. Ctr. & UFCW Local 21, ALJ Decision, 2014 WL
3548159, at 10 (July 17, 2014) (J.A. 359). But the Providence
Hospital/Jean Country line of decisions, the ALJ observed, had
been rejected by the Supreme Court as applied to
nonemployees. Id. at 8, 10-11 (J.A. 357, 359-60). And the
Board had since “declined to apply the Jean Country test to
cases involving off-duty employee access to the work
premises.” Id. at 8 (J.A. 357). Rather, the Board’s decisions
had evolved to draw distinctions based on certain “primary
considerations,” one of which the ALJ found especially salient
here: whether the circumstances involved a blanket prohibition
against off-duty employees accessing company property, or
instead involved selective permission for off-duty employees
to come onto the premises for some purposes but not to engage
in certain forms of Section 7 activity. Id. at 8, 10-11 (J.A. 357,
359-60).
This case falls into the latter category, the ALJ explained.
It “does not involve a no-access rule or policy.” Id. at 8 (J.A.
357). Instead, “off-duty employees were permitted to be on the
Hospital’s premises . . . so long as they did not carry picket
signs.” Id.; see id. at 11 (J.A. 360). In that setting, the ALJ
determined, the Republic Aviation framework, rather than the
Providence Hospital/Jean Country line of decisions, was
controlling. Id. at 8, 11 (J.A. 357, 360).
The Board expressly incorporated the ALJ’s reasoning.
Capital Med. Ctr., 2016 WL 4362367, at *4 n.12. The Board
thus determined that, “consistent with . . . [its] treatment of
16
other Sec. 7 activity in a hospital setting, it is appropriate to
place on the employer the burden of showing a likelihood of
disturbance or disruption in a particular case.” Id. The Board
adequately explained why it adopted that approach rather than
the one set out in Providence Hospital/Jean Country, including
by adopting the ALJ’s reasoning on the issue.
B.
Capital briefly challenges the Board’s finding that, under
the Republic Aviation framework, the informational picketing
at issue here was unlikely to disrupt health operations or cause
patient disturbance. We assess whether the Board’s finding in
that regard is supported by substantial evidence, Brockton
Hosp. v. NLRB, 294 F.3d 100, 104 (D.C. Cir. 2002), and
conclude that it is.
In order to overcome the Republic Aviation presumption,
“the Hospital had to show only a likelihood of, not actual,
disruption or disturbance.” Id. Capital asserts that the Board
impermissibly required it to show an actual disruption rather
than the likelihood of a disruption. The Board, however,
examined whether Capital had adduced evidence of “any
potential disruption” and the “likely impact” of the picketing.
Capital Med. Ctr., 2016 WL 4362367, at *4 (emphases added).
Capital failed to rebut the presumption, not because it was
made to prove an actual disruption, but because its allegation
of a “potential disruption” was based on “speculative and
exaggerated contentions” that were “not supported by the
record.” Id. at *4-5.
The Board’s finding that Capital had failed to demonstrate
a likelihood of patient disturbance or disruption of health care
operations is supported by substantial evidence. Undisputed
record evidence establishes that there were only two to four
17
employees who held picket signs on the hospital’s property,
standing stationary by a nonemergency entrance. They did not
chant, march, or obstruct visitors from entering or leaving the
hospital, and Capital offered no evidence demonstrating that
the peaceful holding of picket signs nonetheless could disrupt
patient care. We therefore uphold the Board’s finding that the
picketing at issue here presented no likelihood of disruption or
disturbance, and we sustain the Board’s resulting conclusion
that Capital violated the NLRA by attempting to stop the
employees from holding picket signs.
* * * * *
For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-application for enforcement of its
order.
So ordered.