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Case number 14-1101 at L. Health Bridge Management LLC at L versus National Labor Relations Board.

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Ms.

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Murphy for the petitioners, Mr. Cantor for the respondent.

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Good morning, Your Honors, and may I refuse the court?

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Erin Murphy, on behalf of the Petitioners, I'd like to reserve two minutes of rebuttal time.

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It's long been settled law that healthcare facilities presumptively have the right to prohibit their employees from wearing insignia in patient care areas in order to protect their patients from potential disruption or disturbance.

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The question in this case is whether healthcare facilities forfeit that right by deciding to assess the disruptiveness of insignia on a case by case rather than categorical basis.

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We submit that the answer to that question must be no.

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There's no sound basis

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for inferring from the decision not to prohibit all insignia that every decision to prohibit some insignia or even a single item is presumptively motivated by anti-union bias rather than genuine patient care concerns.

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And there's certainly no basis for drawing that kind of inference in a case like this one where it's undisputed that these facilities routinely permitted employees to wear union-related insignia and objected only when they found one particular item

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particularly disruptive, disturbing, and misleading.

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Haven't you waived this argument?

[00:02:01] Speaker 04:
I don't think we have, Your Honor.

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We accepted specifically to the findings and the legal conclusions with respect to insignia in patient care areas below.

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We repeatedly discussed in our... Where does it accept to the St.

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John's policy?

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Our exception itself doesn't specifically reference that, but in our briefs,

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We talk repeatedly about how at the time of our actions they were presumptively legal and that the rule changed in the interim and that the board adopted a new presumption.

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And this did seem to put the board itself on notice that we were making this argument because the board specifically addressed and reaffirmed its presumption over a dissent that said we don't think that this presumption of invalidity should apply in this area.

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Where did you argue in your brief set?

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If the rule changed in the interim, did that rule change or that policy change was wrong?

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We did not specifically put the argument in those terms, but the government hasn't pointed to any cases, and I haven't come across any that require that kind of specificity as a 10-E jurisdictional question.

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The cases instead generally turn on if you're trying to raise an entirely new issue.

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if we had only accepted to the bulletin board issue below and now we're here trying to accept to the sticker issue.

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That's the kind of issue that raises a 10E concern.

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The cases I've seen from this court don't really talk about that you can't shift the basis for your ultimate argument and here our ultimate argument really is just the same one we made below which is there's not substantial evidence to support this finding and the problem with the finding is

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that it's based on an inference that should not be drawn.

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It's based on a presumption that isn't supported by the facts that were actually adduced, which is the requirement of what presumptions must be.

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They must rest on a sound connection between the facts that were adduced and the facts that the board seeks to infer from those.

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So ultimately, whether you want to think about it as a question of whether the presumption here is a valid one or just as a question of

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simply whether there was substantial evidence in this record, I think you get to the same result.

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And I think you get to the same result if you think about it, too, as a special circumstances question.

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Because all of those just point to the same problem, which is that rather than produce actual evidence that called into question the uncontroverted testimony here, that these stickers were indeed likely to be disruptive in a way that... The uncontroverted testimony?

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I mean, the testimony was from a lawyer?

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and from an expert, and the expert hadn't spoken to any patients and didn't connect her opinion to past experience with any similar types of stickers, right?

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Well, I would dispute the second part of that.

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I mean, she testified about her experience working as a nurse on the floor for decades, working as a nursing care administrator, and basing it on the judgment calls that she made in that role.

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And the whole point

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testimony is that if you do have a concern about Ms.

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Crutchfield and want to question whether her judgment was reasonable, the expert witness is there to say, I'm an independent expert who looked at this and came to the conclusion that the judgment reached by Ms.

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Crutchfield was reasonable.

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Now, if the board wants to question that, it's entitled to put on its own expert witness who provides a different opinion, to put on other hospital administrators who say, this is crazy, nobody would ever make this conclusion.

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It didn't.

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It put on absolutely no evidence.

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It just dismissed out of hand our evidence, and when you look at its reasons for doing it.

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What, if anything, did the expert say to distinguish these stickers from the letters that Healthbridge sent out?

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what was discussed about the distinction between the letters and the stickers, and she was never actually presented with the letters.

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The board just gave her on cross-examination this hypothetical question of, if there were letters that told people they might lose their care, would that be troubling?

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She said yes, but when you look at the actual letters that were given to residents here, they say precisely the opposite.

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They detail at length, we are providing you with this letter because we want to assure you

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That whatever happens with the ongoing labor strike, it is not going to impact your care.

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And that's precisely the concern about these stickers.

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You had also told them that these people are likely to strike and that they do that type of thing, right?

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Yes, and again, our objection to the stickers is not that we don't believe residents should ever be able to learn of ongoing labor strike or unfair labor practices.

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It's just about the messaging.

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These stickers said, busted for violating the law, and there was nothing.

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All that did is raise the concern of, am I going to be able to continue to raise care here?

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Whereas the letters, yes, they raise that concern, but then they answer that concern by reassuring patients, we have in place a plan

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to make sure that if there is a strike, it's not going to disrupt your care.

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But under our deferential standard of review, would it be reasonable for a board to say, we can't really give this expert testimony much weight because

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the experts distinction between the stickers and the letters doesn't really hold much water and and therefore you know the company's position here can't really be sustained I mean it was isn't that a rational

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I don't think it is, actually.

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I mean, I would say two things.

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First of all, I don't think that it's a rational conclusion to say that there's no difference between presenting the problem of disruption and presenting it with the answer of don't worry, it won't disturb you.

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But beyond that, it would also point you to the Supreme Court.

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Yes, it says busted for violating the law without reassuring patients, elderly Alzheimer's patients, this isn't going to get in the way of your care or their family members, that this isn't going to get in the way of your care.

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But I would also point you, the Supreme... The strike isn't going to get in the way of their care?

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Excuse me?

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They wouldn't be concerned that the strike might get in the way of their care?

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Which is precisely why the letters go on to say, we know you may know that a strike might happen and we want to reassure you

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it won't get in the way of your care.

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But I would like to point you to the Supreme Court's language in the Baptist Hospital case.

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And there, the Court specifically admonished the Board that it can't just ignore uncontroverted testimony from health care providers about what is and is not likely to disrupt patients when there isn't actually evidence that points in the other direction.

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You make a lot in your briefing of the notion that the board's rule restricts more speech than your approach would, but can you address more?

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I mean, there are real dangers of the selective ban, and that's why

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The board adopted a presumption against and that and it seems like some of these interpretive questions about what did the busted sticker communicate and you know how disruptive was it that is it's precisely that kind of inquiry that the board thought.

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is difficult to do post hoc, and that allowing selective bans was really to invite suppression of employee expression.

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And I'm just not sure you've accounted for that in your opposition to the presumption against selective bans.

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Well, sure, let me give you two responses to that.

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I mean, I think there are ready ways for the board to identify evidence that suggests that there's something pretextual and speech-related going on instead of trying to target real concerns about patient care.

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One is, is it a selective ban that's applied across the board to the union?

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I mean, that's obviously problematic, and we're not here defending the notion.

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that if the board had a presumption that said, if you allow everything but union-related insignia, you know, that then you're going to have a problem.

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Another way is, in the St.

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John's case, there was evidence there, you know, it wasn't just that they'd prohibited, they'd permitted other insignia in the past.

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the hospital had distributed a button that had almost the identical message that was on the button that was then distributed by the union and in that circumstance it was quite easy to say well wait a second you thought it was okay and put it out there for employees for residents to see and now you're objecting just because the union wants to do the same thing that was similar in this court's decision

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in the Stanford case.

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That's another case where the court looked at the fact that the hospital had put up its own anti-union flyers in the same place and then objected when the board or when the union wanted to have union-related solicitation.

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So there's ready tools for the board to identify when there are circumstances that suggest that something else is going on.

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But all we're saying is the mere fact

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that you prohibited one thing instead of everything isn't in and of itself good enough to infer bias.

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What are HealthBridge's objective criteria for selecting what's disruptive and what's not?

[00:11:16] Speaker 04:
So what was discussed in the testimony below was the combination of the wording that was used and the images used with it.

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So it was the... But that's kind of

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post-hoc, if you were to articulate what their approach is, is there anything in the record that says how do they make those determinations other than in reaction?

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For one thing, it's by nature kind of an impressionistic inquiry when you're looking at insignia to determine what it's likely to do.

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For another thing, to the extent that there's not a lot of practice developed in this area, it's because up until about a year and a half ago, every health care facility thought that it had a presumption of validity in this area.

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So we weren't aware that we needed to develop some sort of legal criterion that we were going to need to defend in court to defend judgments that a particular insignia was more disruptive than others.

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The things that were looked at here was the use of the word busted along with a judge's gavel and the clear message of this center has violated the law.

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That is what they believed distinguished this item from anything else that had been permitted in the past because none of the other items.

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Of course a resident might react negatively to you supporting a presidential candidate different from the one they prefer or

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not like the fact that there's strife between the employer and employee, but there's something fundamentally different about insignia that bears the message of your center violated the law.

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That's going to put into residents' minds concerns about what does that mean?

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What does that mean for my care?

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What is going to happen at the center in light of the fact that it violated the law?

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So that is

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precisely what Ms.

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Crestfield testified gave her concern here and it's precisely what Dr. Warner-Murrone testified gave her concern when she distinguished this from the other stickers and insignia that was presented to her and was asked, you know, do you think these are equally troubling?

[00:13:13] Speaker 05:
I don't know that you have to go that far as far as, I mean it is a

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Here's the sticker, the size of it.

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I mean, if that were on the chest of a nurse who is feeding me, I'm 90 years old, and I see my health care facility, Danbury Health Care Center, has been busted for a violation of the federal labor law, that's far different from the St.

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John's which said RNs for safe patient care and St.

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John's for safe patient care.

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What I mean by you don't have to go that far is,

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In Baptist, their expert testimony, who I think was one of the hospital administrators, said, we have found that any time we do anything that lets a patient or their family see that we have our mind on anything but patient care,

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And to me, that's what this did.

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I mean, this nurse is supposed to be taking care of this patient.

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And what does she have?

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A huge button that says busted.

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I mean, it seems to me that she has her mind on something else.

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And Baptist goes on to say, the board, even though it's the one that creates these presumptions and we defer to it,

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It should constantly be revising those presumptions and its orders in recognition of the not only sui generis nature of hospitals and patient care and particularly nursing homes where the patients are completely helpless.

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that they have to, in recognition of that characteristic and the characteristic being so susceptible to disruption or fear or whatever it is they're trying to do in managing these patients,

[00:15:13] Speaker 04:
We couldn't agree more with everything you just said.

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And I think that the thing that's fundamentally important to recall here is this is a case about patient care areas.

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It's not a case about other parts of health care facilities.

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It's about where the patients get cared for and what they're going to see.

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And that is why there has always been a different role in patient care areas than there is in areas where patients are unlikely to be present.

[00:15:39] Speaker 03:
And that argument, though, doesn't apply to the flyers.

[00:15:42] Speaker 04:
Well, the flyers issue is limited to the lounges.

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There's no question about those not being seen by patients.

[00:15:50] Speaker 03:
On the stickers, you said we had no reason to think that there was any presumption against selective bans until recently.

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What about

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I guess I have two aspects of that question.

[00:16:01] Speaker 03:
What about Mount Clemens, which really didn't articulate it fully that way, but it reasoned against selective bans and also is there anything showing that there was in fact reliance by Healthbridge?

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Anything that you can point to?

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I can't recall whether there was testimony specifically about the presumption itself.

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There was testimony that Ms.

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Crutchfield consulted with outside counsel before she made the decision, so presumably in consulting with outside counsel, the point of that was to

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you know, she did in the email, I believe, reference that it was their understanding that this was consistent with law, you know, so there's evidence that they, you know, were taking into account what they understood the law to be.

[00:16:45] Speaker 03:
In this instance, but not sort of previously or in general?

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This is the only incident that we're aware of where anybody, where the facilities actually tried to restrict the wearing of insigia in patient care areas, so I don't think

[00:16:58] Speaker 03:
But it would also come into play in developing your policies and your approach in bargaining to whether you wanted to say, you know, we're going to have a complete ban because we're worried about these patients.

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And as you say, it's an impressionistic inquiry.

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And so rather than put yourselves in that position, you know, there are a lot of health care facilities do have a fuller ban.

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You know what I think a lot more will have?

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complete bans if the rule is going to be that if you have anything less, you're probably going to violate the law, which is exactly why I think it's not only bad policy for health care facilities, but it doesn't seem to be good labor law policy to say that you're going to treat these selective bans as presumptively illegal when

[00:17:39] Speaker 04:
You may just have health care facilities that are really trying to say, our facility is a little bit different than a traditional hospital, or for whatever reason, we think we can take a different approach here.

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If they're told that they'll lose all of their discretion by doing that, they're not going to take another approach.

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I do want to just address the other part of your question.

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I think that the best reading when you look at the Mount Clemens case is,

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at least in the proceedings below, what was going on was overcoming the presumption.

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And yes, the presumption was deemed overcome based on some things that are somewhat similar, arguments that aren't totally different from the ones made here, but the insignia in that case was very different than the insignia in this case.

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And some of the things that were said ultimately when the Court of Appeals affirmed that decision, I don't think are consistent with this court's case law because they do suggest that you need actual evidence of disruption and all of that, which this court has said that's not right.

[00:18:38] Speaker 04:
So, but as to the question of whether it was clear that Mount Clemens had reversed the presumption, it doesn't say anywhere in that decision that it's reversed the presumption.

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The best reading of it is simply it announces at the beginning that there's a presumption and then decides that it has been overcome under the specific circumstances of that case.

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Your answer to Judge Pillard about the objective criteria

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You said it's sort of, or basically impressionistic.

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I don't know how it could be anything other than that because when you take the topic of pornography and

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We've tried for years to define what it is, and you almost do have to wait until you see it.

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You can't even quite define it by content, because some of it is the visual, the images that are with it.

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So it really does have to turn on the collective looking at all of this.

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And as you suggested earlier, there just is a common sense element to all of this.

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I don't think it's that hard.

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to look at these stickers and understand that they might be concerning to an elderly cognitively impaired patient.

[00:19:46] Speaker 05:
I have one more question about the facts and that is the Board, I think the Board majority makes an issue out of there was no evidence that residents or family members complained.

[00:20:00] Speaker 05:
These were only

[00:20:02] Speaker 05:
for what, six hours, right?

[00:20:04] Speaker 04:
Yeah, if that.

[00:20:05] Speaker 04:
It's unclear to what extent they were worn.

[00:20:08] Speaker 04:
It's nothing like, you know, there's a few cases where something was worn for six months with no complaint.

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Here, they were barely worn at all, and there's no testimony even about the question of whether there were complaints or not.

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It just simply wasn't addressed because they were basically not worn for any meaningful period of time.

[00:20:26] Speaker 02:
The busted sticker says, just so that the record is clear, busted by the National Labor Board for violating federal labor law.

[00:20:38] Speaker 02:
That's right.

[00:20:39] Speaker 02:
You made an argument earlier that there would be lots of potential patient concerns about their health and safety or is there, you know, some other type of violations where there would be shut down or something like that.

[00:20:56] Speaker 02:
How do you get to that?

[00:20:58] Speaker 02:
Anymore from this sticker than you would from what the letter sent by health group?

[00:21:03] Speaker 04:
You get there from the reality that patients aren't legal experts who understand that a violation of labor law and the differences between the implications for a violation of labor law versus other forms of law.

[00:21:14] Speaker 04:
they have no idea what kind of violation of labor law it is, how extreme it is, and what the consequences may be, and what that violation is going to have in terms of an effect on the people who are giving their care on a regular basis.

[00:21:25] Speaker 04:
So I think it's an awful lot to expect these patients to look at that and understand, oh, well, this is the kind of legal violation that isn't really a big deal.

[00:21:33] Speaker 02:
What does a person think that a violation of labor law means?

[00:21:39] Speaker 02:
I mean, why, I mean,

[00:21:44] Speaker 02:
You're making an argument that being told that there's a violation of labor law is one to raise the specter of all kinds of parades of horrors.

[00:21:55] Speaker 02:
Well, at the same time saying that, well, you know, a two or three page letter that talks about a potential strike, et cetera, isn't going to raise the same types of praise or horrible words?

[00:22:05] Speaker 04:
Once again, we don't dispute that informing patients that there might be a strike is going to raise concerns.

[00:22:13] Speaker 04:
Our only contention is that's why the letters are different because they

[00:22:17] Speaker 04:
They go on.

[00:22:19] Speaker 04:
They don't end with, there might be a strike sincerely the centers.

[00:22:22] Speaker 04:
You know, they say there might be a strike.

[00:22:24] Speaker 04:
And in light of that, we want to assure you that the strike is not going to impact your care.

[00:22:29] Speaker 04:
We've been working with agencies to make sure that we continue to comply with all our obligations, to ensure that we can get other people in here to do the job if the striking workers aren't able to do it.

[00:22:40] Speaker 04:
That's just fundamentally different from raising the prospect of disturbance without answering the question.

[00:22:45] Speaker 03:
But Ms.

[00:22:46] Speaker 03:
Murphy, there is a way in which the more you distinguish those two communications, the more content-based your line sounds.

[00:22:55] Speaker 03:
And I do think that's at the core of what otherwise seems sort of counterintuitive, this idea that you have to either allow, you know,

[00:23:05] Speaker 03:
much speech, much employee expression, except if you really can show with some concreteness that it's going to be disruptive or not allow any.

[00:23:15] Speaker 03:
And so the concern is really that when you're in the driver's seat deciding, you know, what's disruptive and what's not, on the one hand, of course you have

[00:23:25] Speaker 03:
your expertise as providers of health care.

[00:23:27] Speaker 03:
By the other hand, you have your interests as an employer.

[00:23:29] Speaker 03:
If it's fine for employees to say, hey, I belong to a union, but as soon as they say, and my union thinks this employer is treating me unfairly, it's like, oh, actually, you can't say that.

[00:23:41] Speaker 04:
But that's the thing, I don't think we went that far.

[00:23:43] Speaker 04:
The example I'd give you is the difference between the Grinch sticker and this sticker.

[00:23:49] Speaker 04:
And the Grinch sticker says that health bridges the Grinch who stole Christmas and whatever.

[00:23:54] Speaker 04:
That's clearly saying we think we're being treated unfairly.

[00:23:58] Speaker 04:
That's different from saying, your center violated the law.

[00:24:02] Speaker 04:
And if you view that as a content-based distinction, I don't think you should be too troubled about saying, you know what, it is different to have content that tells patients that their healthcare provider is in violation of the law.

[00:24:16] Speaker 02:
And at that point, we... It didn't say violation of the law, it said violation of the labor law.

[00:24:21] Speaker 02:
So then the inference is that they're not treating their workers fairly.

[00:24:26] Speaker 02:
How's that different than the Grinch statement?

[00:24:29] Speaker 04:
I think because a resident is not going to look at that and know what the implications are.

[00:24:35] Speaker 04:
They're not going to know what the consequences are for a violation of federal labor law, whether that's the kind of thing that might affect the way they continue to get care or not get care at their facility.

[00:24:48] Speaker 04:
It's charging residents with an awful lot of knowledge to expect them to look at it and say, oh, never mind, I'm not concerned because they were only busted for a violation of labor law.

[00:24:58] Speaker 04:
And labor law is just something different that should never concern me.

[00:25:01] Speaker 04:
So I think the real difference is this connotation without any context of a legal violation.

[00:25:08] Speaker 04:
That to me is something that is categorically different from the other kinds of messages.

[00:25:12] Speaker 04:
And if you want to have

[00:25:14] Speaker 04:
that one area of, you know, if Insignia raises that concern, then we are going to look more closely at it.

[00:25:21] Speaker 04:
I don't think that's an unreasonable amount of discretion to give health care facilities.

[00:25:26] Speaker 02:
So they can say our employer is treating us unfairly, but they can't say a judge or a board has found that our employer is treating us unfairly and that violates the law?

[00:25:38] Speaker 04:
Once again, I think it's all about the message.

[00:25:41] Speaker 02:
Can I say the second thing?

[00:25:43] Speaker 04:
It depends how they say it.

[00:25:45] Speaker 02:
They say it just the way I said it.

[00:25:47] Speaker 04:
If they had a sticker that said simply, there has been a labor law violation here.

[00:25:51] Speaker 02:
No, answer my question.

[00:25:54] Speaker 02:
The sticker says, the employer treats us unfairly and the judge found that they violated labor law.

[00:26:02] Speaker 04:
I think it would still be within the discretion of a health care facility to determine that that was the kind of thing that was disruptive.

[00:26:08] Speaker 04:
And if the board wants to question that judgment, it needs to put on its own evidence of its own witnesses, its own experts, its own health care specialists who say that is something that will not reasonably disrupt or disturb patients.

[00:26:23] Speaker 05:
You're way too young to put yourself in the place of a 90-year-old, and so is Judge Wilkins.

[00:26:28] Speaker 05:
I'm not.

[00:26:29] Speaker 05:
But if I saw this, and my eyesight were poor, and I saw that judge's gavel, that's what I would see.

[00:26:37] Speaker 05:
I would see busted in red, and I would see the judge's gavel.

[00:26:40] Speaker 05:
Do you even know, does the NLRB use a gavel?

[00:26:43] Speaker 05:
I doubt it.

[00:26:44] Speaker 04:
I do not know that they do, and I certainly, you know,

[00:26:47] Speaker 04:
Share the same intuition that many of these residents wouldn't see the words that were on this at all and that that is another reason why it's this particular sticker and the way that it was the Characteristics of it that made it different from anything else here Unless the court has any questions about the flyer issue.

[00:27:05] Speaker 04:
I'm happy to all right.

[00:27:07] Speaker 04:
Thank you.

[00:27:07] Speaker 05:
We'll give you a couple minutes Mr.. Cantor

[00:27:35] Speaker 01:
Go ahead.

[00:27:36] Speaker 01:
May it please the court, Jared Cantor, on behalf of the National Labor Relations Board.

[00:27:40] Speaker 01:
And I want to make a point, just in case it doesn't disappear, that there were two findings with regards to the sticker.

[00:27:48] Speaker 01:
There is the selective ban in patient care areas, but there was the global ban at the other two centers as well.

[00:27:56] Speaker 05:
And it's our position that... That raises a question, because

[00:28:00] Speaker 05:
The ALJ said that it was stipulated that the respondent permitted his employees to wear all the pins and stickers above at all material times and in all places in the facility for each of the health care centers.

[00:28:15] Speaker 05:
And then he separates out two of the six for banning it throughout the center when other stickers were allowed.

[00:28:27] Speaker 05:
And why did he do that when the other four, according to the stipulation, also allowed or banned it?

[00:28:36] Speaker 05:
Well, they didn't, did they?

[00:28:37] Speaker 05:
They only banned it in the patient care.

[00:28:39] Speaker 05:
So the stipulation is, I think, incorrect.

[00:28:43] Speaker 01:
Your Honor, I'd have to pull it up and look at it.

[00:28:45] Speaker 01:
It's my understanding that... Do you have it?

[00:28:49] Speaker 01:
The stipulation from the... No, do you have the AALJ's order?

[00:28:53] Speaker 01:
Yes, Your Honor, I do have the decision in order.

[00:28:55] Speaker 05:
It's on page 12, right-hand line, first full paragraph.

[00:29:08] Speaker 01:
Yes, Your Honor, that referred to the testimony that in all of the exhibits introduced as to all the other stickers that had been worn, so that at all six facilities, all the stickers that had been introduced other than the bus that had been worn everywhere, and that at these two facilities, it seems like

[00:29:27] Speaker 01:
the instruction from Lisa Crutchfield was lost in translation and that what was told to the employees at two out of the six was a garbled message that they just couldn't wear it at all.

[00:29:39] Speaker 01:
And so I just want to make clear that there is that finding as well, which the petitioners don't seem to be challenging at this point.

[00:29:50] Speaker 03:
Can you speak to the contention by HealthBridge that your evidentiary standard is impossible to satisfy without exposing residents at healthcare facilities to the very disruption that they're trying to avoid?

[00:30:05] Speaker 01:
We're honored the board addresses that in fact in a footnote and says, you know.

[00:30:10] Speaker 01:
Footnote eight.

[00:30:10] Speaker 01:
Yes, Your Honor.

[00:30:12] Speaker 01:
It's looking for specific evidence here and that does make sense because if the board were to have found in their favor, the board decision itself would have to be supported by substantial evidence.

[00:30:22] Speaker 01:
And as we saw in the most recent case addressing this issue, Washington, the Washington State Nurses Association, the board found that there had been no violation there and then the Ninth Circuit said,

[00:30:33] Speaker 01:
know that you need substantial evidence to support your finding that special circumstances was met and the evidence offered by the evidence that the board relied on there was not enough.

[00:30:45] Speaker 05:
So are you saying that they should have let these buttons stay on more than six hours in patient areas until, that isn't right, until a patient started crying or

[00:30:58] Speaker 05:
yelling or something that the family member did?

[00:31:00] Speaker 01:
No, Your Honor.

[00:31:01] Speaker 01:
It's very clear that actual evidence of harm is not needed, but what's clear from this court's decision in Stanford as well, and it cites Brockton, and the board's decisions is that the fact that there ended up being no complaints, there were no problems, undercuts a claim of special circumstances based on subjective beliefs, speculation, and essentially

[00:31:27] Speaker 01:
surmise as to what might happen.

[00:31:30] Speaker 03:
I tell you what the board was saying in note eight, though, was we need something that's more facility-specific.

[00:31:36] Speaker 03:
We need something about the types of patients here or their vulnerabilities or past disruptions to which this might be analogized.

[00:31:43] Speaker 03:
Is that the position?

[00:31:46] Speaker 01:
Yes, Your Honor.

[00:31:46] Speaker 01:
That certainly could be one way.

[00:31:48] Speaker 01:
You know, the board has the footnote citing to Baptist Hospital where the people who testified were doctors and an administrator from

[00:31:56] Speaker 01:
the actual hospital itself, who were familiar with the patients that were actually being treated there, and that one or two of them testified as to incidents in the past that had led to disruptions and why the ban on solicitation and distribution in that case was reasonable.

[00:32:12] Speaker 01:
And in other cases where the board has found special circumstances, for instance, another one was where the union distributed

[00:32:23] Speaker 01:
carnations with a ribbon around it and employees were wearing it in the hospital or the facility decided to ban it because their concern was that it was held together by a long pin and that as nurses would interact with patients they might get stuck by the pin and the board there from the ALJ agreed that that was a special circumstances that it was reasonably likely that as

[00:32:44] Speaker 01:
patients were handled by caregivers that they could in fact be injured.

[00:32:50] Speaker 03:
But that seems like you could analogize that to just the kind of evidence that health experts put in here.

[00:32:54] Speaker 03:
There's an expert in gerontology or

[00:33:00] Speaker 03:
this kind of care, and the expert knows that there are people with dementia, there are people with mobility issues who rely very heavily on their care providers and might feel extremely vulnerable, and they just say, well, this kind of, you know, and there are people with impaired eyesight, and they can't necessarily discern all the details.

[00:33:19] Speaker 03:
There are people with whatever level of sophistication about the government that wouldn't distinguish between a board and a court and labor and, you know,

[00:33:28] Speaker 03:
safety or OSHA or whatever standard.

[00:33:32] Speaker 03:
So why isn't that kind of expertise enough?

[00:33:34] Speaker 01:
Well, Your Honor, I think in a case it might be enough, but the board found here that she was not familiar.

[00:33:42] Speaker 01:
She had no interaction with the actual facility, understanding of the patient population at each one of these.

[00:33:48] Speaker 01:
And again, it was at four different centers.

[00:33:52] Speaker 01:
She was no specialist in psychology or psychiatry.

[00:33:54] Speaker 01:
She was an expert in treating

[00:33:56] Speaker 05:
What difference would that make?

[00:33:58] Speaker 05:
I mean, are you saying she should know that they were between the ages of 80 and 90, or 70 and 80, or 90 and 100, that they were all bedridden, that they were all dementia?

[00:34:09] Speaker 01:
That sort of testimony might play in, Your Honor, and as the

[00:34:14] Speaker 01:
court criticized the Board of Washington State Nurses to just rely on someone at a high level speculating as to what might happen.

[00:34:22] Speaker 05:
Well, she's a nursing home administrator, or she was at some point in her career.

[00:34:27] Speaker 01:
Correct.

[00:34:27] Speaker 01:
And if this had happened at a facility where she was the actual administrator for and could testify with specific evidence.

[00:34:35] Speaker 01:
And as to Lisa Crutchfield, she's a corporate executive who's

[00:34:38] Speaker 01:
whose business was labor relations.

[00:34:41] Speaker 01:
And so she certainly would know labor law.

[00:34:43] Speaker 01:
And she was not based at any of these facilities.

[00:34:48] Speaker 01:
She's at Elkridge's corporate headquarters.

[00:34:50] Speaker 05:
So once again, that was... I can see a difference in facilities with hospitals if you're not in intensive care and you're in rehab or something.

[00:35:01] Speaker 05:
But I can't see that there's that much difference among nursing homes.

[00:35:07] Speaker 01:
Well, Your Honor, that would have been something that they could have put on it.

[00:35:14] Speaker 01:
She said as much.

[00:35:15] Speaker 01:
I mean, she's the expert.

[00:35:18] Speaker 01:
Yes, Your Honor, but each facility could have different populations.

[00:35:23] Speaker 01:
It would be speculating to say that maybe at one facility, for whatever reason, there's a lot of people in their 50s or 60s.

[00:35:30] Speaker 05:
There was no independent living unit in these hospitals, as I read it.

[00:35:35] Speaker 05:
these are pure nursing homes, or am I wrong?

[00:35:38] Speaker 01:
Your Honor, I'd have to go back and double-check whether these had

[00:35:43] Speaker 01:
components or whether these were, in fact, just nursing homes.

[00:35:47] Speaker 01:
But there was no testimony, again, from anyone at the facility as to what the actual patient populations were.

[00:35:54] Speaker 01:
Was everyone catatonic?

[00:35:56] Speaker 01:
Was everyone in very, very good health at a facility?

[00:35:59] Speaker 01:
And the fact, again, that there ended up being no complaints, there were no disruptions, the tissue was conducted, no follow-up, that there had been any incidents.

[00:36:09] Speaker 05:
I don't know how you could argue that when they took them down immediately.

[00:36:13] Speaker 01:
The stickers, Your Honor?

[00:36:15] Speaker 05:
Yes, or when they told them to take them off within six hours.

[00:36:19] Speaker 01:
Yes, well, I mean, they wore them for a good part of the day, Your Honor, from the beginning shift at 7 or 8 in the morning all the way through, I believe, 3 o'clock, somewhere 3, 3.30 near the end of, I guess would have possibly been the second shift or the first shift.

[00:36:35] Speaker 01:
And that's something that the board and the courts have found before that undercuts special circumstances is that nothing ended up happening.

[00:36:44] Speaker 05:
You don't have to wait for that.

[00:36:46] Speaker 05:
The Supreme Court has said that.

[00:36:48] Speaker 01:
Correct, Your Honor.

[00:36:50] Speaker 01:
But again, as the cases we cite mention, that does cut against a special circumstances showing when all that there is is speculation as to these parade of horribles, and then there is no horribles.

[00:37:03] Speaker 01:
Nothing ends up happening.

[00:37:06] Speaker 01:
And again,

[00:37:08] Speaker 01:
the board found that based on the witnesses here, that's all it could do.

[00:37:12] Speaker 01:
And whether it had Washington State nurses on its mind, that it would be opening itself up to a challenge, just deciding on this rather thin evidence.

[00:37:22] Speaker 01:
Because again, the board's decision, if it had gone the other way, would also need to be supported by substantial evidence.

[00:37:28] Speaker 01:
And having been, and as the cases make clear,

[00:37:34] Speaker 01:
specific evidence had to be put on by the petitioner and the board did not find that they're based on its two witnesses.

[00:37:39] Speaker 02:
What if any response do you have to the argument made by petitioners that this was not waived because they did effectively raise the point before the board?

[00:37:51] Speaker 01:
With regards to St.

[00:37:52] Speaker 01:
John's changing the law, Your Honor, as the Board points out in its brief, we argue that that is, in fact, ten-eid.

[00:37:59] Speaker 01:
As many decisions from this Court make clear, including the one that strings to mind is Pace University,

[00:38:06] Speaker 01:
a party has to accept, raising their exceptions to the point that they are challenging and that even though there's a board, even though the board ends up discussing an issue, as happened here between the majority and the dissenting member, Pace University citing a long line of DC Circuit cases makes clear that that's not enough for 10E, that 10E is very specific and that the obligation was on them.

[00:38:30] Speaker 01:
And as we note in our brief, it's not only not in their exceptions, but their brief to the board cites St.

[00:38:37] Speaker 01:
John's and presents their case as if St.

[00:38:39] Speaker 01:
John's was the governing decision.

[00:38:41] Speaker 01:
But there was nothing in their brief even saying, we're proceeding under protest that St.

[00:38:48] Speaker 01:
John's is the governing law.

[00:38:51] Speaker 01:
And so I think that sheds light on the board's position that when you look at their exceptions, that there was nothing there, and then obviously in their exceptions brief, St.

[00:39:01] Speaker 01:
John's is cited repeatedly and they make the position that they satisfy special circumstances.

[00:39:07] Speaker 01:
If there are no further questions, the board respectfully requests that its order be enforced in full and we rest on our brief.

[00:39:15] Speaker 05:
I have one.

[00:39:15] Speaker 01:
Oh, sorry, Your Honor.

[00:39:16] Speaker 05:
It's off the record, but do you know whether your board uses a gavel?

[00:39:21] Speaker 01:
Your Honor, I have never sat in on a board board hearing.

[00:39:26] Speaker 01:
I don't believe the administrative law judges use a gap.

[00:39:29] Speaker 05:
Okay, that's a better question.

[00:39:31] Speaker 05:
Thank you.

[00:39:32] Speaker 05:
All right, does Ms.

[00:39:33] Speaker 05:
Murphy have any time?

[00:39:34] Speaker 05:
Okay, why don't you take a couple minutes.

[00:39:39] Speaker 04:
Thank you, and I only want to make a couple of quick points.

[00:39:42] Speaker 04:
First of all, Baptist Hospital, there wasn't evidence of specific actual disruption.

[00:39:47] Speaker 04:
The evidence was just like this.

[00:39:48] Speaker 04:
It was hospital, a healthcare facility, healthcare providers who testified.

[00:39:53] Speaker 04:
Based on our experience in general, we're concerned about disruption that might occur.

[00:39:57] Speaker 04:
It was no different than this testimony that's dissent on the board pointed out.

[00:40:02] Speaker 04:
The board also raises this notion of, you know, well here it cuts against us that there wasn't disruption.

[00:40:08] Speaker 04:
The cases in which it cut against the hospital that there wasn't disruption.

[00:40:12] Speaker 04:
It was a sticker there or a button or whatever it was that was worn for several months, in one case a full year I believe,

[00:40:18] Speaker 04:
without incident.

[00:40:19] Speaker 04:
Sure, in that circumstance, you might have a reason to say, hey, this actually was worn and didn't present a problem.

[00:40:26] Speaker 04:
Here, we're talking about a matter of hours, and it's not even clear if or how often it was worn at these facilities.

[00:40:32] Speaker 04:
So I don't think that there's really much to take from that.

[00:40:36] Speaker 04:
The final thing I'd say is I appreciate that the board is feeling in a difficult position because of the Washington State case, where it essentially got itself reversed by deferring to a hospital.

[00:40:45] Speaker 04:
But for one thing, I think that there is distinctions between the Insignia and the Washington State case and this one.

[00:40:52] Speaker 04:
And the other thing I would just note is Washington State is not a precedent of this court, and it is not consistent with the precedents of this court to the extent it does seem to have some language that suggests that anything forward-looking is inherently speculative and must be dismissed.

[00:41:07] Speaker 04:
This court has specifically considered that question and specifically rejected both in the Brockton Hospital case

[00:41:13] Speaker 04:
And in the Stanford Hospital case, the notion that you have to wait for actual disruption to occur before you can try and prevent it.

[00:41:21] Speaker 04:
If there are no questions, we would ask that you do not enforce the board's order.

[00:41:26] Speaker 04:
All right.

[00:41:26] Speaker 04:
Thank you.

[00:41:28] Speaker 05:
Thank you.

[00:41:32] Speaker 05:
Give us a break, please.