United States Court of Appeals, District of Columbia Circuit
November 1, 2017
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
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
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,
SRINIVASAN, CIRCUIT JUDGE.
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.
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.
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
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).
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).
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.
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, 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