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Capital Medical Center v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

August 10, 2018

Capital Medical Center, Petitioner
National Labor Relations Board, Respondent United Food and Commercial Workers Local 21, Intervenor

          Argued November 1, 2017

          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 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.



         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.

         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.



         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).

         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 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 ...

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