Capital Med. Ctr. v. Nat'l Labor Relations Bd.
Capital Med. Ctr. v. Nat'l Labor Relations Bd.
Opinion of the Court
*430In 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.
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."
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.
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 ,
The Republic Aviation presumption, including its tailored application to hospitals, has been applied predominantly in the 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 ,
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 *432continued 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 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' 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,
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 ,
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 patrolling, chanting or obstruction of the entrance." Capital Med. Ctr. ,
Capital now petitions this court for review, and the Board cross-applies for enforcement of its order.
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 Repu blic 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 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 ,
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. ,
*434Capital'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 ,
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. ,
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 ,
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. ,
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.
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 *436prior precedents. "[A]n unexplained divergence from its precedent would render a Board decision arbitrary and capricious." Fort Dearborn Co. v. NLRB ,
Capital points primarily to the Board's decision in Providence Hospital ,
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 ,
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. ,
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,
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. ,
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 ,
In order to overcome the Republic Aviation presumption, "the Hospital had to show only a likelihood of, not actual, disruption or disturbance."
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 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 *438cross-application for enforcement of its order.
So ordered.
Reference
- Full Case Name
- CAPITAL MEDICAL CENTER v. NATIONAL LABOR RELATIONS BOARD, United Food and Commercial Workers Local 21, Intervenor
- Status
- Published