Stanford Hosp. and Clinics v. N.L.R.B.

• Citation: 325 F.3d 334
• Decision Date: 18 April 2003
• Docket Number: No. 01-1454.,01-1454.
• Parties: STANFORD HOSPITAL AND CLINICS, Successor to UCSF Stanford Health Care, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Service Employees International Union, Local 715, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 334

325 F.3d 334

STANFORD HOSPITAL AND CLINICS, Successor to UCSF Stanford Health Care, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Service Employees International Union, Local 715, Intervenor.

No. 01-1454.

United States Court of Appeals, District of Columbia Circuit.

Argued January 21, 2003.

Decided April 18, 2003.

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

Laurence R. Arnold argued the cause for petitioner. With him on the briefs was John H. Douglas.

Steven B. Goldstein, 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 Margaret A. Gaines, Supervisory Attorney.

Benjamin I. Sachs argued the cause for intervenor. With him on the brief were Judith A. Scott and Craig Becker.

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

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Petitioner, a hospital, adopted a policy prohibiting its employees from, among other things, soliciting and distributing materials to (1) fellow employees in areas adjacent to patient units and (2) all nonemployees throughout the hospital. Finding that Petitioner failed to demonstrate that such activities were likely to disturb patients, the National Labor Relations Board concluded that the policy was overbroad in violation of the National Labor Relations Act. The Board also found that Petitioner committed an unfair labor practice when it discriminatorily evicted a nonemployee union organizer from its premises. Finding the Board's decision regarding the solicitation and distribution policy consistent with Board precedent and supported by substantial evidence, we deny the petition for review and grant the Board's cross-application for enforcement. Because the Board's eviction decision is contrary to law, however, we grant the petition with respect to that issue and deny the Board's cross-application.

I.

In 1997, the Stanford University Medical School and the University of California at San Francisco merged certain of their medical facilities into a new entity known as UCSF-Stanford Health Care (USHC). The events at issue in this case occurred on the USHC South facility, located on Stanford's Palo Alto, California campus. Employing some 7,000 persons, including approximately 1,400 service employees, the facility consists of two hospitals: the 663-bed Stanford Hospital Center and the 162-bed Lucile Packard Children's Hospital.

In late November 1997, following consummation of the USHC merger, Intervenor Service Employees International Union, Local 715 began a drive to organize the hospital's service and maintenance employees. During the campaign, which culminated in a majority vote in favor of representation, hospital employees and full-time union organizers regularly solicited employees and nonemployees both inside and outside the hospital and distributed union literature to them.

Responding to the union's solicitation activities, USHC promulgated an employee solicitation and distribution policy intended to "avoid disrupting patient care and to prevent disturbing our patients and their families." UCSF Stanford Health Care & Serv. Employees Int'l Union, Local 715, 335 N.L.R.B. No. 42, at 23 (Aug. 27, 2001). The policy prohibited (1) solicitation of employees on hospital premises during work time and in "patient care areas at any time"; (2) literature distribution on hospital premises during work time, and in work areas at any time; and (3) solicitation of nonemployees or distribution of literature to them at all times throughout the entire facility. Id.

The policy defined patient care areas as including "patient rooms, patient treatment and procedure rooms or areas, patient admitting or registration areas, patient waiting rooms, lounges used by patients and their families or visitors, and the hallways immediately adjacent to all such areas." Id. This definition of patient care areas includes what the parties refer to as "patient units." Reached in each facility by walking down a hallway and passing through a set of double doors, patient units contain: patient rooms; treatment rooms for radiology, surgery, and other medical purposes; and lounges or sitting areas for use by patients, families, and visitors. Areas outside patient units but covered by the patient care area definition include a separate set of lounges and waiting areas that patients, families, and visitors also use.

In unfair labor practice charges filed with the Board, the union claimed that the solicitation and distribution policy violated sections 7 and 8(a)(1) of the National Labor Relations Act. 29 U.S.C. §§ 157, 158(a)(1). Following a two-day evidentiary hearing, an administrative law judge upheld the policy as applied to patient units, admitting and registration areas, and day rooms used by employees. UCSF Stanford Health Care, 335 N.L.R.B. No. 42, at 41. With respect to hallways and lounges outside patient units, however, the ALJ found that because USHC had failed to demonstrate that solicitation and distribution activities in those areas were likely to disturb patients, the policy was overbroad in violation of NLRA sections 7 and 8(a)(1). Id. at 46-49. According to the ALJ, the prohibition against soliciting nonemployees and distributing materials to them was also overbroad because USHC had failed to demonstrate "special circumstances," such as a likelihood of patient disturbance, that would justify the ban. Id. at 49-50. Finally, the ALJ found that USHC violated NLRA section 8(a)(1) when, during the organizing campaign, it evicted several nonemployee union organizers from the hospital's premises, including one Bruce Harland, whose eviction is at issue in this case. Id. at 38. The Board affirmed. Id. at 1.

Stanford Hospital and Clinics, the successor to USHC (the merger was dissolved in April 2000) now petitions for review, challenging the Board's conclusion that its solicitation and distribution policy and its eviction of Harland violated the NLRA. The Board cross-applies for enforcement. Because Stanford does not challenge the Board's finding that it violated NLRA section 8(a)(1) by excluding and attempting to exclude full-time union organizers other than Harland, we grant the Board's petition to enforce that portion of its order. See Int'l Union of Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778 n. 1 (D.C.Cir.1992) (unchallenged Board findings are entitled to summary enforcement).

II.

In reviewing Stanford's challenges, we "give considerable deference to the Board's interpretation of the NLRA, and must accept the Board's determinations if they are supported by substantial evidence." Lucile Salter Packard Children's Hosp. v. NLRB, 97 F.3d 583, 588 (D.C.Cir.1996). Decisions regarding witness credibility and demeanor "`are entitled to great deference, as long as relevant factors are considered and the resolutions are explained.'" Breakfast Prods., Inc. v. NLRB, 901 F.2d 1130, 1130 (D.C.Cir.1990) (unpublished disposition) (quoting NLRB v. Louton, Inc., 822 F.2d 412, 414 (3d Cir.1987)). With this highly deferential standard of review in mind, we consider each of Stanford's challenges.

Solicitation and Distribution Activities Directed at Fellow Employees in Non-Patient-Care Areas

NLRA section 7 guarantees employees "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 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7]." 29 U.S.C. § 158(a)(1). The Supreme Court has repeatedly recognized that the right of employees under section 7 "necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite." E.g., Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). Employees' right to "self-organization at the jobsite," however, is not unlimited, conflicting as it does with employers' property rights and managerial interests. Thus, because "the undisputed right of self-organization assured to employees under the ... Act and the equally undisputed right of employers to maintain discipline in their establishments ... are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee," the Board must "work[] out an adjustment" between these competing rights. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-98, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). "Accommodation between [employee-organization rights and employer property rights]," the Court later explained, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 100 L.Ed. 975 (1956).

The Supreme Court has allowed the Board to implement these section 7 prescriptions by adopting a series of presumptions regarding restrictions on solicitation and distribution activities. Republic Aviation Corp., 324 U.S. at 804-05, 65 S.Ct. 982 (explaining that Board presumption is like "a statutory presumption or one established by regulation"). For example, "restrictions on employee solicitation during nonworking time, and on distribution during nonworking time in nonworking areas, are violative of § 8(a)(1) unless the employer justifies them by a showing of special circumstances which make the rule necessary to maintain production or discipline."...