By Robert Margolis, J.D. and Lisa Milam, J.D.
The D.C. Circuit has upheld the NLRB’s determination that off-duty hospital employees holding picket signs on hospital property next to a nonemergency entrance were engaged in protected activity. The Board correctly applied the framework set forth in Republic Aviation Corp. v. NLRB to reject the hospital’s attempt to stop the employees’ stationary display of picket signs, the appeals court held. Note, though, that General Counsel Peter Robb has signaled his intent to revisit the Obama Board’s reasoning in this case (Capital Medical Center v. NLRB, August 10, 2018, Srinivasan, S.).
Picketing. The medical center is an acute care hospital in the state of Washington. Its collective bargaining agreement with the United Food and Commercial Workers expired in September 2012 and, as of May 2013, no new contract had been reached. The union gave notice to the hospital that it intended to engage in picketing and handbilling outside the hospital to advocate for a new agreement. Off-duty employees picketed and handed out leaflets on the public sidewalks around the hospital, with a few employees going on hospital property to hand out leaflets outside two nonemergency entrances. Two to four other employees stood next to those entrances holding picket signs. Hospital officials told the employees they could remain on the premises to hand out leaflets but could not stand on the property with picket signs. There were no confrontations with persons entering or exiting the hospital.
ULP charge. The union filed a charge with the NLRB, alleging that the medical center’s response interfered with the employees’ Section 7 rights. An ALJ found for the union and the NLRB adopted the finding, concluding that the Republic Aviation presumption should govern in cases involving picketing on company property, as distinguished from leafletting. The Board rejected the argument that picketing is inherently more disruptive than other Section 7 activity; it agreed with the ALJ that the employees’ stationary, peaceful picketing was not likely to interfere with patient care, and as a result, the medical center could not overcome the Republic Aviation presumption.
Republic Aviation presumption. In Republic Aviation, the Supreme Court approved the NLRB’s application of a presumption that an employer cannot prevent off-duty employees from soliciting union support on company property. Only if the employer can present evidence of “special circumstances” making a prohibition “necessary … to maintain production or discipline” can the employer overcome that presumption. The NLRB has subsequently modified the Republic Aviation presumption based on the nature of the workplace, so that in the hospital setting, the ability to administer patient care without disturbance must be figured into the analysis. Thus, in immediate patient-care areas, a ban on certain union solicitation activity is not presumptively invalid; outside immediate patient-care areas, however, the presumption still exists.
The Republic Aviation presumption has been applied primarily in cases involving oral solicitation of union support or distribution of union-related literature, not in cases involving picketing, the appeals court observed. It noted one NLRB decision which applied Republic Aviation in a case involving both handbills and picketing on company property.
The medical center contended that the NLRB was not entitled to deference here because it failed to balance the hospital’s property rights against the employees’ Section 7 rights. This argument was “misconceived,” the court said, noting that this balance is accounted for in the Republic Aviation analysis.
Picketing vs. leafletting. The parties did not dispute that leafletting on company property was protected Section 7 activity, but the medical center argued that picketing should be treated differently than leafletting, such that the Republic Aviation presumption does not apply to that particular activity. The NLRB properly rejected that argument, the appeals court found. As the NLRB noted, and the appeals court highlighted, stationary picketing is less confrontational than leafletting because those holding picket signs did not have direct contact with nonemployees.
The medical center also invoked language from Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, a 1988 Supreme Court decision holding that “picketing is qualitatively different from other forms of communication.” However, as the NLRB noted, that case involved those actively “patrolling a picket line,” and not the kind of stationary picketing that took place in this case. In addition, the NLRB pointed out that the Supreme Court, while noting that picketing is “different,” did not suggest that it was necessarily or inherently disruptive.
The appeals court agreed with the NLRB’s analysis. The NLRB did not hold that picketing must always be permitted on premises to the same degree as handbilling or soliciting. Instead, it noted that where such picketing disrupts operations or interferes with patient care, Republic Aviation would permit a hospital to bar it. The NLRB’s application of Republic Aviation was therefore sustained as reasonable, not only as to solicitation and handbilling, but as to the picketing in this case.
Burden of proof. Finally, the medical center challenged the way that the NLRB applied the Republic Aviation framework, arguing that it impermissibly required the medical center to prove actual disturbance of patients rather than merely a likelihood of disturbance. In fact, quoting the NLRB decision, the D.C. Circuit noted that the Board had examined whether there was evidence of “any potential disruption” and “the likely impact” of the picketing. The evidence in the record, that 2 to 4 stationary picketers held signs outside a nonemergency entrance without chanting, marching, or obstructing the entrance, supported the NLRB’s finding that there was no likelihood of disruption. The appeals court therefore denied the hospital’s petition for review and granted the Board’s cross-application for enforcement.
Board law revisited. NLRB General Counsel Robb, in his first GC Memorandum (GC 18-02), issued on December 1, 2017, cited the Board’s holding in this case and the underlying issue at hand as one that merits a closer look. He noted that his office will review cases involving significant legal issues that might warrant an “alternative analysis,” in that they involved an Obama-era overturning of Board precedent, or generated one or more Board member dissents. To that end, Robb has directed the regions to submit to the Division of Advice any cases involving off-duty employee access to property, including cases that apply Republic Aviation to picketing by off-duty employees and equate picketing with handbilling, despite the greater impact on legitimate employer interests, including patient care concerns.
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