Brockton Hosp. v. N.L.R.B.

• Decision Date: 28 June 2002
• Docket Number: No. 01-1219.,01-1219.
• Citation: 294 F.3d 100
• Parties: BROCKTON HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Massachusetts Nurses Association, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

294 F.3d 100

BROCKTON HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Massachusetts Nurses Association, Intervenor.

No. 01-1219.

United States Court of Appeals, District of Columbia Circuit.

Argued March 11, 2002.

Decided June 28, 2002.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Arthur P. Murphy argued the cause for petitioner. With him on the briefs were Gregory J. Walsh and Robert H. Morsilli.

James M. Oleske, Jr., Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David S. Habenstreit, Supervisory Attorney. Anne M. Lofaso, Attorney, entered an appearance.

Jack J. Canzoneri was on the brief for intervenor.

Before: GINSBURG, Chief Judge, and ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

Brockton Hospital petitions for review of a Decision and Order of the National Labor Relations Board holding that the Hospital violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by preventing the Massachusetts Nurses Association (the Union) from distributing literature to its members at entrances to the Hospital, maintaining overbroad solicitation, distribution and confidentiality policies, and removing from the door of a nurse's locker a notice announcing a union meeting. The Board has cross-applied for enforcement of its order and the Union has intervened in support of the Board. We deny the petition and grant the cross-application for enforcement except with respect to the alleged but uncharged unfair labor practice stemming from the removal of the meeting notice.

I. Background

The Union has represented the registered nurses at Brockton Hospital, an acute care facility, for over 20 years. In anticipation of the October, 1997 expiration of the Union's collective bargaining agreement with the Hospital, the Union began early in that year what it called a "safe care campaign," part of which involved the distribution of literature to nurses in the bargaining unit. The literature, as described by the Board, consisted largely of articles addressing "the adverse effect on patients caused by downsizing and restructuring of nursing staff and the use of nonprofessional employees giving the care and treatment that used to be the sole province of nurses." Brockton Hosp. and Mass. Nurses Ass'n, 333 N.L.R.B. No. 165 at 7, 2001 WL 521996 (2001). The Hospital reasonably characterizes the literature as containing "shocking and sensational headlines" and focusing upon "horror stories of patient death and injury due to allegedly unsafe care" at hospitals other than Brockton.

For ten consecutive Thursdays beginning March 20, 1997 off-duty nurses distributed this literature to other nurses in the vestibule at the front entrance to the Hospital, at the rear entrance, and at the Emergency/Outpatient entrance. The Hospital stopped distribution in the vestibule on the first two occasions but thereafter allowed it while making clear its view that it could lawfully prohibit the practice. In August, 1997 a Hospital supervisor removed from a nurse's locker a notice of a union meeting, which notice had been posted without prior permission.

The Union timely filed unfair labor practice charges concerning the Hospital's interference with the distribution of literature, as well as its policies limiting solicitation and distribution and delineating the nurses' obligations with regard to confidentiality. The General Counsel thereafter issued a complaint alleging that the Hospital's (1) ban on distribution in the vestibule; (2) solicitation and distribution policies; (3) confidentiality policy; and (4) removal of the union notice each violated § 8(a)(1) of the Act. The ALJ so held, Brockton Hosp., 333 N.L.R.B. No. 165 at 10-12, and the Board agreed, adopting as its own much of the ALJ's reasoning, id. at 1-3.

II. Analysis

The court reviews the Board's decision deferentially. We uphold its findings of fact if they are supported by substantial evidence, see United States Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.Cir.1998), and abide its interpretation of the Act if it is reasonable and consistent with controlling precedent, see Local 702, Int'l Bhd. of Elec. Workers v. NLRB, 215 F.3d 11, 15 (D.C.Cir.2000).

The Hospital challenges all the Board's determinations that it violated § 8(a)(1). That provision makes it an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of" their § 7 rights, among others, to "assist labor organizations ... 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 "necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite." Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978).

A. The prohibition of distribution

A hospital is presumptively allowed to prohibit the distribution of literature in any work area and to ban solicitation more narrowly in "immediate patient-care areas." NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 778-79, 99 S.Ct. 2598, 2601-02, 61 L.Ed.2d 251 (1979). Outside work areas a hospital may ban solicitation and distribution only as "necessary to avoid disruption of health-care operations or disturbance of patients." Id. at 779, 99 S.Ct. at 2602. In this case the Board determined that the Hospital unlawfully prohibited employees from distributing union literature in the vestibule and at the other entrances because those areas are not work or immediate patient care areas and the Hospital had not demonstrated that the prohibition was necessary to avoid disruption or disturbance. See Brockton Hosp., 333 N.L.R.B. No. 165 at 7-10. The Hospital attacks these conclusions on several grounds, none of which we find persuasive.

The Hospital's primary contention is that prohibiting distribution in the vestibule was necessary to avoid disturbing patients. The Hospital first argues that the ALJ, whose opinion the Board adopted on this point, failed altogether to address this issue. Not quite. The ALJ's decision could have been more precise, but we agree with the Board that it is clear enough the ALJ was of the opinion the Hospital had not shown a likelihood of patients being disturbed: The ALJ acknowledged that the Hospital's expert witnesses had "credibly testified that if patients or their families saw these articles they could become upset and anxious," but went on to find "there was not a shred of evidence that any patient or family member saw any of this literature," the Hospital "received no complaints about the literature," and "[t]here was no evidence that any patient was ever disturbed or inconvenienced by the distribution of this literature." Id. at 7-8.

Turning to the merits, the Hospital argues that it presented evidence the prohibition was necessary, to wit, the disturbing nature of the literature; the testimony of three doctors that if patients saw the literature they could experience stress and become distrustful; the number of patients that use the vestibule to enter and exit the Hospital; and the testimony that literature (which may have been distributed in the vestibule) was left in various parts of the Hospital. The Hospital's position is that it was not required to show actual disruption or disturbance, but only that the distribution "may adversely affect patients," quoting Baptist Hosp., 442 U.S. at 781, 99 S.Ct. at 2603. Finally, the Hospital asserts the Board failed to consider "the availability of alternative means of communication," as required by Baylor Univ. Med. Ctr. v. NLRB, 662 F.2d 56, 63 (D.C.Cir.1981). The Board and the Union argue that the Board reasonably concluded the Hospital failed to show a likelihood of disturbance.

The Board and the Union concede, and we agree, that the Hospital had to show only a likelihood of, not actual, disruption or disturbance, see Baptist Hosp., 442 U.S. at 781 n. 11, 99 S.Ct. at 2603; but substantial evidence supports the Board's decision that the Hospital did not meet even this standard. The Hospital's experts testified that if patients saw or heard about the content of the literature they would be upset, Brockton Hosp., 333 N.L.R.B. No. 165 at 7-8; the Hospital presented no reason, however, to believe patients were likely to learn of the content of the literature. As the Board points out, when the Hospital stopped the nurses from distributing the literature in the vestibule, the nurses made clear that they intended to distribute it only to members of the Union — a practice approved by the Supreme Court in Beth Israel, 437 U.S. at 503 n. 23, 98 S.Ct. at 2475 n. 23 — and so they did. As the Board further notes, the Hospital produced no evidence that any patient or patient's family ever saw the literature, and there is no evidence of any complaint by a patient or a patient's relative. In Beth Israel the Court found the same lack of evidence regarding patients being disturbed "[e]specially telling." Id. at 502, 98 S.Ct. at 2474. Furthermore, the Board reasonably discounted the significance of the Hospital's evidence that some literature was found in the lobby and near the cafeteria because "the lobby was frequently policed by the cleaning staff and there was no evidence any patient or family or visitors ever picked up and read or even saw the literature." Brockton Hosp., 333 N.L.R.B. No. 165 at 8.

We also agree with the Board that the Hospital's reliance upon Baptist Hosp., 442 U.S. at 782-86, 99 S.Ct. at 2603-06 (upholding solicitation ban in corridors and sitting rooms) and Baylor, 662 F.2d at 65 (indicating...