Brockton Hospital v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2002 Decided June 28, 2002

No. 01-1219

Brockton Hospital,

Petitioner

v.

National Labor Relations Board,

Respondent

Massachusetts Nurses Association,

Intervenor

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 Rela-

tions Board holding that the Hospital violated s 8(a)(1) of the

National Labor Relations Act, 29 U.S.C. s 158(a)(1), by pre-

venting 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 ex-

cept 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 Brock-

ton 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 cam-

paign," 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 ad-

verse effect on patients caused by downsizing and restructur-

ing 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). The Hospital

reasonably characterizes the literature as containing "shock-

ing 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 con-

cerning the Hospital's interference with the distribution of

literature, as well as its policies limiting solicitation and

distribution and delineating the nurses' obligations with re-

gard to confidentiality. The General Counsel thereafter is-

sued 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 s 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 reason-

ing, 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 s 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 s 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. s 157. Section 7

"necessarily encompasses the right effectively to communi-

cate with one another regarding self-organization at the job-

site." Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978).

A. The prohibition of distribution

A hospital is presumptively allowed to prohibit the distribu-

tion 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 (1979). Outside

work areas a hospital may ban solicitation and distribution

only as "necessary to avoid disruption of health-care opera-

tions or disturbance of patients." Id. at 779. 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 distri-

bution 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 "credi-

bly 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 present-

ed evidence the prohibition was necessary, to wit, the disturb-

ing 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

782. Finally, the Hospital asserts the Board failed to consid-

er "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, disrup-

tion or disturbance, see Baptist Hosp., 442 U.S. at 781 n.11;

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 -- 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. Further-

more, 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 frequent-

ly 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 (upholding solicitation

ban in corridors and sitting rooms) and Baylor, 662 F.2d at 65

(indicating that prohibition of solicitation in cafeteria during

specified times may be lawful), is misplaced. In both cases,

as the Board points out, the hospital presented evidence that

the prohibited activity was likely to disturb patients or to

disrupt operations. Baptist Hosp., 442 U.S. at 784; Baylor,

662 F.2d at 60 n.5, 62. Finally, although the availability of

alternative means of communicating with employees is an

important consideration in some cases, see Beth Israel, 437

U.S. at 505; Baylor, 662 F.2d at 63-64, we agree with the

Board that "the possible availability of alternative areas for

distribution of union literature is of marginal importance

when," as in this case, "the employer has not demonstrated

an impact on patient care." See NLRB v. Southern Md.

Hosp. Ctr., 916 F.2d 932, 936 (4th Cir. 1990).

The Hospital also challenges the Board's conclusion that

the vestibule is not a work area. The Hospital points out that

employees assist discharged patients through the vestibule,

janitors clean the area, and a guard is sometimes stationed

there. Here the Hospital relies upon Pikeville United Meth-

odist Hosp. of Ky. v. NLRB, 109 F.3d 1146 (6th Cir. 1997),

where the court referred to a patient drop-off area as a work

area. In the alternative the Hospital argues that the vesti-

bule should be considered part of the lobby, which it contends

is also a work area.

The Board in its order correctly relied upon two of its prior

cases for the proposition that cleaning, guarding, and escort-

ing patients do not a work area make. Brockton Hosp., 333

N.L.R.B. No. 165 at 9 (citing United States Steel Corp., 223

N.L.R.B. 1246 (1976), and Medical Ctr. Hosp., 244 N.L.R.B.

742 (1979)). As for the reference in Pikeville to the contrary,

it is unsupported by any analysis -- not surprising, for the

matter seems not to have been disputed, 109 F.3d at 1158 --

and the same circuit has since held that an area in which

minimal work occurs is not a work area, see United Parcel

Service, Inc. v. NLRB, 228 F.3d 772, 775-77 (6th Cir. 2000)

(check-in area where instructions were sometimes given to

drivers was not a work area); accord Valmont Indus., Inc. v.

NLRB, 244 F.3d 454, 472-73 (5th Cir. 2001) (upholding ALJ's

determination that entranceway with desk at which foreman

occasionally sat was not work area). Finally, the Board's

decision to treat the vestibule -- "a self-contained area be-

tween the lobby and the outside entry," Brockton Hosp., 333

N.L.R.B. No. 165 at 8 -- as a room distinct from the lobby

was reasonable. The areas were, after all, separated by glass

doors.

The Hospital next contends there is not substantial evi-

dence that it prohibited the Union from distributing literature

at the rear and Emergency/Outpatient entrances. The Hos-

pital concedes that it failed to raise this issue before the

Board, see 29 U.S.C. s 160(e) ("No objection that has not

been urged before the Board ... shall be considered by the

court"), but asks the court to consider the argument because

the ALJ did not make clear that he found the Hospital had

prohibited distribution at those entrances and therefore the

Hospital did not argue to the Board that it had not prevented

distribution there. Although the ALJ's decision is indeed

ambiguous, the Board's decision is not, see Brockton Hosp.,

333 N.L.R.B. No. 165 at 1 n.5; yet the Hospital did not seek

reconsideration by the Board. Consequently, the Hospital's

argument is not properly before the court. See Woelke &

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982).

Next, the Hospital argues that the literature distributed by

the nurses disparaged the Hospital's services and its distribu-

tion was therefore unprotected pursuant to NLRB v. Local

Union No. 1229, Int'l Bhd. of Elec. Workers, 346 U.S. 464

(1953) (Jefferson Standard). For two reasons, we cannot

agree. First, as the Board pointed out in its order, "it is

agreed by all the parties to this litigation that the articles did

not refer to Brockton Hospital as being the hospital where

any of the mishaps in the articles happened." Brockton

Hosp., 333 N.L.R.B. No. 165 at 7. In other words, Brockton's

services were not expressly disparaged. Second, insofar as

the implication was that the same problems could occur at

Brockton if it downsized its nursing staff, that inference could

be drawn only by the Hospital's nurses, not by the public,

because the distribution was limited to the nurses. In these

circumstances the concern underlying Jefferson Standard,

that activity "reasonably calculated to harm the company's

reputation and reduce its income" rather than further collec-

tive bargaining be excluded from the protection of the Act,

346 U.S. at 471, simply is not present.

Finally, the Hospital contends that the Board has ignored

its "heavy continuing responsibility to review its policies

concerning organizational activities in various parts of hospi-

tals," Beth Israel, 437 U.S. at 508. According to the Hospital,

that review should have led the Board to decide that a

hospital may presumptively ban solicitation and distribution

in any area "to which patients, their families and visitors have

regular access."

The Board clearly did appreciate its continuing duty to

keep current its approach to distribution and solicitation in

hospitals; it simply found "no support in the record for

departing from ... well-settled principles." Brockton Hosp.,

333 N.L.R.B. No. 165 at 2. Indeed, the Hospital does not

even purport to have provided evidence that solicitation and

distribution in all areas to which patients, their families, and

visitors have access is disruptive or disturbing. Hence, the

Board was not obligated to change its presumptions, and the

Hospital's only defense of its policies limiting solicitation and

distribution must fail.

B. Confidentiality Policy

The Board held that the Hospital's confidentiality policy

was overbroad and therefore unlawful. That policy states:

"Information concerning patients, associates [that is, nurses],

or hospital operations should not be discussed either inside or

outside the hospital, except strictly in connection with hospital

business." Brockton Hosp., 333 N.L.R.B. No. 165 at 10. The

Board held the policy overbroad because "it would have a

tendency to cause nurses who read it to believe it restricted

his or her [sic] right to discuss hours, wages, and other terms

and conditions of employment." Id.

According to the Hospital, the policy "merely protects the

confidentiality of patient information," making the Board's

decision contrary to this court's teaching in Aroostook County

Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 213 (1996),

and the Board's prior decision in Lafayette Park Hotel, 326

N.L.R.B. 824 (1998). Not at all. The policy on its face

prohibits nurses from discussing with each other, let alone

Union officials, "information concerning [themselves]," which

the Board argues the nurses could reasonably read to include

their wages, hours, and working conditions -- the very stuff

of collective bargaining. The employer in Aroostook, by

contrast, prohibited discussion only of "office business," which

the court expressly understood not to cover the wages, hours,

and working conditions of employees. 81 F.3d at 212-13.

Considering the terms of the confidentiality policy in this

case, the Board reasonably applied the standard set forth in

Lafayette Park, namely, whether a rule "would reasonably

tend to chill employees in the exercise of their Section 7

rights," 326 N.L.R.B. at 825.

C. Removal of the union meeting notice

The Hospital argues that the General Counsel lacked au-

thority to include in the complaint the allegation that remov-

ing the notice of a union meeting violated s 8(a)(1) because

the removal was neither the subject of nor closely related to

any unfair labor practice charge filed by the Union. Section

10(b) of the Act, 29 U.S.C. s 160(b), gives the Board the

power to issue a complaint only when "it is charged that any

person has engaged in or is engaging in any ... unfair labor

practice." The Supreme Court has interpreted this provision

to allow the Board to prosecute an allegation not charged if it

is "related to those alleged in the charge." NLRB v. Fant

Milling Co., 360 U.S. 301, 309 (1959). Subsequently, this

court accepted the Board's position that s 10(b) allows the

Board to pursue an uncharged or untimely charged allegation

if it is "closely related" to a timely charged allegation, which

question turns upon the examination of three factors: wheth-

er the two allegations (1) involve the same legal theory; (2)

arise from the same factual circumstances or sequence of

events; and (3) would elicit similar defenses. See Drug

Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1020-21 (D.C.

Cir. 1995) (uncharged allegation); Lotus Suites, Inc. v.

NLRB, 32 F.3d 588, 590-91 (D.C. Cir. 1994) (uncharged

allegation); Ross Stores, Inc. v. NLRB, 235 F.3d 669, 672

(D.C. Cir. 2001) (allegation in untimely charge).

The Board concedes that the Union did not charge the

Hospital with an unfair labor practice involving the removal

of the notice but argues that the removal was closely related

to the allegation in the timely charge concerning the Hospi-

tal's interference with the distributions in March, 1997, and in

a charge not otherwise at issue in this petition concerning a

negative performance evaluation given to a certain nurse.

We conclude that the removal of the notice was not legally or

factually related to any charged allegation and that the Board

therefore lacked authority to pursue a complaint about it.

As the Board observes, removal of the notice and the

prohibition of distribution implicate the same section of the

Act, s 8(a)(1), but the specific legal basis for each allegation is

different. As the Board itself held, the prohibition of distri-

bution violated the employees' s 8(a)(1) right to distribute

union literature in non-work areas, whereas the removal of

the notice violated s 8(a)(1) only because the Hospital allowed

comparable postings for other causes. See Brockton Hosp.,

333 N.L.R.B. No. 165 at 10-11.

Turning to the factual content of the respective allegations,

we note that the distribution and removal incidents occurred

five months apart, cf. G.W. Galloway Co. v. NLRB, 856 F.2d

275, 280-81 (D.C. Cir. 1988) (allegations one day apart not

factually linked); and there is no indication that the employee

who posted the notice participated in the distributions or that

the supervisor who removed the notice in August was in-

volved in stopping the distributions, cf. Ross Stores, 235 F.3d

at 671-74 (same employee, different supervisor, no factual

relatedness). As the Board points out, both incidents oc-

curred as the Union was rallying its troops for contract

negotiations, but "[t]he coincidence of ... two separate viola-

tions during the same organizing campaign does not of itself

create a close factual relationship." Id. at 674. So, too, with

separate alleged violations during the same pre-bargaining

season. The Board's conclusion that the allegations are

closely related because they both involve "issues of communi-

cations between the Union and unit members and among unit

members," Brockton Hosp., 333 N.L.R.B. No. 165 at 11, is

pitched at too high a level of generality; two issues may

involve such communications and yet be factually poles apart.

Finally, the Board argues that the Hospital's defense of its

removal of the notice is similar to one of its defenses of the

ban on distribution -- namely, there were alternative chan-

nels of communication open to the Union and the employ-

ees -- and to one of its defenses of the negative performance

evaluation -- to wit, the Hospital had a non-discriminatory

reason for its action. As to the former asserted similarity, it

is a stretch to say that the Hospital relies upon the availabili-

ty of "alternative channels of communication" in defense of its

removal of the notice; in fact the Hospital's defense is that

under their collective bargaining agreement nurses have no

right to post notices on their lockers. Even if the Hospital

could be said to raise alternative channel defenses to both

allegations, however, the alternative channels are not the

same, being the bulletin board as an alternative to the lockers

and mail and other locations as alternatives to the vestibule.

As to the latter claim of similarity, the Board does not even

attempt to show that the non-discriminatory justifications

offered by the employer in this case are in any way similar

beyond being non-discriminatory, which does little to narrow

the field.

III. Conclusion

The Hospital's petition for review is granted with respect to

removal of the union notice but denied in all other respects.

Accordingly, the Board's cross-petition for enforcement is

granted except with respect to removal of the notice.

So ordered.