Employees' Stationary, Peaceful Picketing Outside Hospital's Non-Emergency Entrance Found To Be Lawful Under the NLRA

Capital Medical Center v. National Labor Relations Board - D.C. Circuit Court of Appeals

Facts:  Capital Medical Center ("Capital") is an acute-care hospital that was involved in a labor dispute after Capital's technical employees, represented by United Food and Commercial Workers ("Union"), had their collective bargaining agreement expire.  The Union sought to engage in picketing and handbilling outside Capital to advocate for a new collective bargaining agreement.  With Capital's permission, a few employees went onto Capital's property to hand out leaflets and hold signs alongside two non-emergency entrances.  The signs contained the messages "Respect Our Care" and "Fair Contract Now".  Although some hospital personnel told these employees they could not stand on hospital property with their picket signs, the employees declined to leave.  Capital's labor relations counsel told Union representatives that if the employees remained on hospital property, they would be disciplined and the police would be called.  The Union's representative maintained the employees had a right to remain on Capital's property with their picket signs.  After the police were called, the responding officer said he could not remove the employees because they were not being disruptive or blocking the doors.  The picketers left a short time thereafter.

The Union filed a charge with the National Labor Relations Board's ("NLRB") regional director on the grounds that Capital's reaction to the picket signs on hospital property unlawfully interfered with the employees' exercise of their Section 7 rights under the National Labor Relations Act ("NLRA").  An administrative law judge ("ALJ") found Capital committed an unfair labor practice by telling the employees they could not picket by the entrances, threatening disciplinary action, and calling the police.  The NLRB affirmed the ALJ's findings and conclusions, and held, in part, that the employees' stationary, peaceful picketing was unlikely to interfere with patient care and therefore was not inherently more disruptive than other protected Section 7 activity.  Capital subsequently appealed to the D.C. Circuit Court of Appeals.

Holding:  Generally speaking, when employees seek to exercise their Section 7 rights on their employer's property, the employees' rights are balances against the employer's property rights and management prerogatives.  Republic Aviation has established a presumption that an employer cannot prohibit off duty employees' solicitation of union support on company property.  An employer can overcome this presumption by establishing "evidence that special circumstances" make a prohibition of solicitation "necessary in order to maintain production or discipline."  Of note, employer interests can vary based upon the nature of the workplace.  Previously, the NLRB 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 NLRB does not consider a ban on employee solicitation of union support to be presumptively invalid.  On the other hand, outside of immediate patient care areas, 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 the disturbance of patients."

In this case, Capital argued that the NLRB failed to balance the hospital's property rights against the employees' Section 7 rights.  However, the Court found no merit in this argument as it pointed out that the NLRB accounted for (and balanced) the employer's property rights and management prerogatives by invoking the Republic Aviation framework.  In fact, the NLRB noted that the Republic Aviation framework gives effect to an employer's interests in the hospital setting on a case by case basis, which was done in this matter.

The Court found that the tailored Republic Aviation presumption protects off duty employees' distribution of union literature on hospital property in non-patient areas (unless it can be established that the conduct must be barred to avoid disrupting health care operations).  In this case, the employees engaged in quiet, stationary picketing and only stepped into entryways when handbilling, not when just holding picket signs. 

Judgment:  The D.C. Circuit Court of Appeals upheld an NLRB ruling which found that the employer unlawfully interfered with employees' Section 7 rights under the NLRA when the employer sought to prohibit employees from engaging in picketing on hospital premises.

The Takeaway:  Although the D.C. Circuit Court of Appeals had a somewhat lengthy opinion, I think at the heart of the matter, the question as to whether the employees' Section 7 rights were violated, was relatively straightforward.  Quite simply, Capital was unable to establish that the peaceful picketing interfered with health care operations at the hospital, given that the picketing occurred at non-emergency entrances and did not appear to interfere with administering patient care.  Had this picketing occurred at an ER entrance, in an area where ambulances pulled up, or another immediate care area, I think Capital would have had a strong argument to make that picketing in these areas (as the NLRB presumption would NOT be found to to apply).  Unfortunately for Capital, that instance simply did not apply in this case and therefore, when applying Republic Aviation, it simply did not have firm ground to stand on in this case.

Majority Opinion Judge:  Judge Srinivasan

Date:  August 10, 2018

Opinion:  http://hr.cch.com/eld/CapitalNLRB081018.pdf