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.