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Case number 16-1328L, Capital Medical Center Petitioner vs. National Labor Relations Board.

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Mr. Roberts for the petitioner, Ms.

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Isbell for the respondent, and Mr. Ginsburg for the intervener.

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Good morning.

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Let's hold on one second.

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Okay, I think we can get started.

[00:00:57] Speaker 06:
Thank you.

[00:01:00] Speaker 07:
Thank you, honor.

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May it please the court.

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Capital Medical Center is an acute care hospital located in Olympia, Washington.

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The union represented a unit of approximately 200 service and technical employees.

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This dispute centers around some picketing that occurred on May 20th of 2013.

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The union representatives and employees were freely permitted to picket on public sidewalk, broad public sidewalk surrounding the three entrances to the hospital.

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We also permitted employees freely to distribute handbills and leaflets outside the front entrances to the hospital.

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The sole source of dispute or the sole point of dispute is whether we were required to allow them

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to bring picket signs and actually engage in picketing in front of the entrances.

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That was what we sought to restrict.

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Can I just ask you a factual question?

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Sure.

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As you described it, the question is whether there's picketing allowed near the entrances.

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What makes it picketing other than holding signs that are picket signs?

[00:01:59] Speaker 07:
Well, there were multiple employees for one thing.

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They were holding picket signs.

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They were milling about.

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There was not, we will concede, there was not the traditional patrolling, you know, was marching back and forth across that you may associate with picketing.

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But I think it's important to recognize that everyone treated it as picketing in this case.

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The board treated it as picketing.

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Yeah, I know.

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I understand that.

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And I don't mean to necessarily suggest it cuts in one direction or the other.

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I'm just wondering about the

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calling it picketing, because it seems to me that your argument is based on there being some kind of legally significant distinction between leafletting on one hand and picketing on the other.

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And I guess in order to understand whether there could be such a meaningful distinction between those, one would have to understand what picketing even means.

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And if picketing in this case just consists of holding signs, then I guess it's not entirely clear to me what's different between picketing and leafletting, where you're leafletting with a big sign.

[00:02:53] Speaker 07:
Well, I would respond in two ways, Your Honor.

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One is that the mirror, when you use a picket sign, the sign itself, which is two feet by three feet and it's on a yard, like a yardstick kind of wooden stick, that's perceived, and I would contend that's perceived as a picket line, at least if there's more than one employee, and some degree of movement.

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And it evokes responses.

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In fact, while there's not extensive evidence, there was at least one patron who commented that he didn't normally cross picket lines, but in this case he felt compelled to do so because he was visiting a patient.

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But the other point I would make is that the board's decision has ramifications.

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If the board wanted to distinguish this case and say this was only hand billing, it could have done so.

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We might be arguing something entirely different then, but the board did not do that.

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And this decision has ramifications even apart from whether this particular instance was

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would constitute picking if this were a g case in the union were arguing with that was a picking they didn't give the notice and they were arguing this was not picking then it would be entirely different issues but i thought this is that rationalization and i appreciate both your points as to the second one part of the board's explanation

[00:04:11] Speaker 00:
You can't have a blanket distinction between picketing on one hand and leafletting on the other, precisely because picketing, even if you call it that, can take many forms, some of which is disruptive and can affect adversely patient care, and some of which might not.

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And so you have to look at the facts of the particular conduct that's described as picketing.

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I understand what you're saying, Your Honor, but

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The point is, in all these generic situations, solicitation and hand-billing are exactly the same.

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They're not all equivalent.

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They're different.

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I mean, if you have 10 people hand-billing in front of the entrances, it presents a different issue than if one person's hand-billing.

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But the point is that the Supreme Court, at least under our view of it, Republic Aviation, Babcock, and Wilcox, and Hudgens in particular, which we think is a particularly important decision, because the picketing in Hudgens was

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entirely peaceful.

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There was no evidence in that case that anyone was restricted from going into the Butler shoe store that was involved, and the Supreme Court never suggested that Republic Aviation was the standard.

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What we're saying, Your Honor, is that the board is required to not just... Can hudges involve employees on their own premises?

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Well, it was off-site employees, but this court's ITT decisions and other decisions recognize that off-site employees are not...they have non-derivative Section 7 rights that are not materially different.

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Now, there's a slightly different access issue or reasons for off-site employees, but in that case, when it was remanded, in fact, the board

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I think the history of that case is important because in that case, the board shifted positions repeatedly.

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It started out under a First Amendment analysis, which was remanded by the Fifth Circuit because of certain intervening Supreme Court decisions.

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They then applied a – the judge – the AOJ applied a Babcock analysis.

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The board, on appeal to the Fifth Circuit, shifted positions and claimed that republic aviation was the standard.

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When it got to the Supreme Court, they reverted back and said, no, it went back to a constitutional analysis.

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And the Fifth Circuit, or excuse me, the Supreme Court, in essence, if you read that decision, I believe, clearly said that the spectrum, that clearly took the position that republic aviation didn't apply, that it was a Babcock analysis.

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And when the board went back,

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And what all of the cases have done, there's a litany of cases in which the board and the courts have recognized that picketing on private property is permissible only when it cannot safely and effectively be done on surrounding public property.

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In Hudgens, it was an interior mall.

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The closest public area was 500 yards away.

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Here we're talking about a self-contained.

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But in that case, I'm looking at it again.

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I hadn't really regarded it as that important.

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They were not picketing on their employer's property.

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Well, they were picking on the mall's property.

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They were Butler Shoe warehouse employees were picketing in front of Butler Shoe retail stores.

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So it was their employee.

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It was private property, right?

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It was the mall's property.

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Well, it was the mall's property.

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And the mall was not Butler?

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No, the mall.

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But they were picketing in front of, they were picketing, you're correct, Your Honor, it was not their employer's property.

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It was at least property.

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It was immediately in front of the store.

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It says the property interest depended upon in this case were not those of the employer.

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against whom the section seven activity was directed but of another.

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Yeah, Hudgens was the landlord, your honor, and Hudgens was the owner of the mall, and Hudgens was the one who evicted or whatever.

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So Hudgens was the respondent in the case.

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Butler leased the premises or leased the store and used it.

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So you're correct that it was not their immediate employer.

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It was private property.

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But there are cases

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Even if Hudgens is not the leading case or the important case, there are multiple cases in which the board... Well, the ones you cite are strikes, correct?

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Some are strikes, not all are strikes.

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Providence... Or they involve non-employees.

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Or, well, your Babcock case is not employees.

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Babcock just supplies the analysis.

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It's a non-employee case.

[00:08:38] Speaker 04:
Yeah, but it's not employees.

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But I mean, my point, I guess, is that the Supreme Court has recognized these distinctions.

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And so that's why the board comes back and says, basically, you want

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the board to apply non-employee cases?

[00:08:55] Speaker 07:
No, Your Honor, we don't want them to apply non-employee, but I don't think the Supreme Court has ever held that picketing is the equivalent of solicitation and distribution.

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What we're saying is that the board has not adequately analyzed this issue.

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It has not explained why picketing should be treated the same

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as mere leafleting and distribution.

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And there are cases we've cited where they were the employer and where it was employees.

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The Providence Hospital, the Butterfield case, both of those, 40-41 Realty Company, there are multiple cases in which it was employees picketing

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On property owned by their employer.

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So the Supreme Court says that the interest that's at stake here is not the real property interest, but your management managerial.

[00:09:51] Speaker 04:
Well, that's what it says in East Tech.

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All right, so.

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That's still good Supreme Court authority, and it says the board ought to deal with these cases on a case-by-case basis.

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And I take your point about just because this was peaceful and didn't involve a lot of people stomping up and down.

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doesn't provide your client with sufficient guidance, protection, et cetera.

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And the board responds by saying that your client will be entitled to the protections that the board has recognized in these picketing cases that are like the picketing in the strike context.

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Or as you say, where there's a lot of noise, a lot of parading, a lot of disruption.

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But there's a burden on your client to come forth with evidence of that.

[00:10:45] Speaker 07:
Well, I would respond this way, Your Honor.

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One is that the burden that they impose is to show a likelihood of disruption of patient care, that we would say that that assumes that Republic Aviation is the standard.

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I mean, Republic Aviation sets forth guidelines, for example,

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You can prohibit distribution of literature in work areas by on-duty employees, even if there's no demonstration of any interference with work or interference with operations.

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In other words, there are parameters set up, there are presumptions, and only at that point do you shift the burden to the hospital or the employer to produce evidence.

[00:11:31] Speaker 04:
So what's your best case?

[00:11:34] Speaker 07:
Well, I think Providence Hospital is the closest on point.

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Now, the board said, well, that relied on precedent that was overruled by Lechmere, but Lechmere only dealt with

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overruled Gene Country, which was the precedent upon which Providence Hospital, actually there were two cases, Fairmont Hospital and Gene Country, but Providence Hospital dealt with picketing by employees on their hospital property in which the board applied this balancing analysis.

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Now, conceitedly, Lechmere overruled gene country, but specifically and limited only in so far as it applied to 9.4.

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Can I ask this?

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So I understand your argument, I understand their argument, but precedents kind of mixed up here because of all the changes.

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Maybe you can distinguish it, maybe you cannot, can't, maybe they can.

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There's clearly no case that directly decides this except the case that without

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significant discussion.

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Here's the first case that has significant discussion.

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So it seems to me this isn't really a case about precedent, it's a case about

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the court's obligation to defer to the agency's interpretation of the National Labor Relations Act when it's being reasonable.

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And so we're really at, in a way, a first principle here.

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What's unreasonable about the rule that they're adopting here, as long as it protects patient areas, including the hallways, as a result of the Supreme Court's opinion on our own?

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But it doesn't protect that.

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under Republic Aviation.

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I don't want to pretend there weren't any of these cases.

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They've established Republic Aviation as modified by the Supreme Court's hospital cases, right?

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That's what they say the rule is.

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And that's what I'm trying to say.

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Republic Aviation as modified by Baptist Hospital in Beth Israel permit under this interpretation of the Act

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employees during their break, on duty employees during their break and lunch periods would be permitted to pick it in the cafeteria, in the vestibules, in the gift shop, in any non-immediate patient care areas.

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It doesn't recognize any of the employer's property rights.

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Property right includes the right to decide the purposes.

[00:14:02] Speaker 06:
You could say the same thing about

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Republic Aviation and about the Supreme Court's hospital cases.

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They allow solicitation in those areas, right?

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Correct.

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Okay.

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So it's not a question not recognizing property rights.

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It's a question of balancing Section 7 rights against property rights, which is what the Supreme Court says is the obligation of the NLRB.

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It's not that they didn't recognize them.

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It's that they didn't balance them the way you want.

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Why is their balancing an unreasonable balance?

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Well, I don't think they actually sought to balance because there's no consideration of the property rights of the employer to decide what purposes it will use its property.

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These were off-duty employees.

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They weren't the on-duty employees that were involved in Republic Aviation.

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But what's unreasonable about it, I would say, is this, is that

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Picketing, number one, carries with it consequences that are, like I said earlier, are somewhat implicit in the very act of picketing.

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Without regard to whether we can show actual proof of harm, having picket signs and requiring patrons of a hospital, and some of these were outpatient entrances where patients were coming in for treatment, having them cross

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a picket line, which is what this would require is that if there were a true picket line, if there were 10 people picketing the hospital, they still would presumptively be entitled to do that.

[00:15:34] Speaker 00:
But the board specifically says, we can easily envision circumstances not present here where picketing on hospital property would disrupt operations or interfere with patient care.

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while solicitation and distribution would not.

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In such cases, the restriction on picketing would be lawful.

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So it seems like if you had picketing that did have some of the consequences that you just spelled out, the board is allowing for the possibility that in that situation, the picketing could be lawful.

[00:15:58] Speaker 07:
But how are you to know that in advance, Your Honor?

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I mean, you know, the premise of republic aviation in those cases is it allows an employer to establish certain guidelines that are at least presumptively lawful.

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In this case, how is the employer?

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The employer has to wait and see how many pickets come.

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It has to see whether there's actual disruption or not.

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I don't think that's an appropriate standard.

[00:16:24] Speaker 04:
But your view then would say no picketing whatsoever.

[00:16:28] Speaker 07:
No, no, no.

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We're saying that if... At the entrances.

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Picketing would be permitted under what we believe is the historical precedent if there was a showing that it could not safely and effectively be conducted in surrounding public property.

[00:16:46] Speaker 04:
I know, so that's what I'm trying to understand what your basis for that is when you do have Supreme Court precedent.

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that looks at this slightly differently.

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I agree with you, not precisely this case.

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And the board here says we are not, as suggested by the dissent, invalidating all the restrictions on employee on-premises hospital picketing.

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And then it goes on to say that where the employer shows restrictions are necessary to maintain discipline and production.

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All right?

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And then they translated that sort of in the hospital context.

[00:17:26] Speaker 07:
But Hudgens and Babcock speak of deciding in each generic situation and recognizing that different Section 7 rights have different strengths and different consequences.

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And what we think that the board has done in this case is simply

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a subsumed all section seven activity under republic aviation is not decided in this generic situation where picketing there are multiple court cases that clearly say picketing is conduct it's more than just communication it does involve conduct and what we're suggesting is that the board should at least

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should be remanded to the board to at least acknowledge that there's somewhat tortured precedent here, but to both face this issue in picketing and set standards.

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It could still, if it comes back and then says we've decided based on this to

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to lay out whatever analysis it may be.

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And then we could logically or cogently argue why or why not that was appropriate.

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But all they do is conclude that it's applicable.

[00:18:27] Speaker 04:
On remand, why wouldn't the board just issue an order telling the court to read page four of its decision?

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I mean, what more would it say other than adopt your total bar position?

[00:18:44] Speaker 07:
Your Honor, I respectfully not taking a total bar position.

[00:18:47] Speaker 04:
Well, you say it's okay at the front entrance but not at the side entrances where patients are coming for care.

[00:18:54] Speaker 07:
My position is that at least under the historical precedent,

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that it's permitted if there's a showing that it cannot safely and effectively be conducted.

[00:19:04] Speaker 04:
And what is that historical precedent?

[00:19:06] Speaker 07:
Well, I think Providence Hospital.

[00:19:08] Speaker 07:
I think Hudgens suggests that.

[00:19:11] Speaker 07:
I think the Third Circuit's decision in Visaglia.

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I think all the strike cases in which picketing occurred, Paul Mueller company.

[00:19:22] Speaker 07:
I think the cases in our, yes, they're all different contexts.

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But some of them do involve employees

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picketing on their own employer's property.

[00:19:30] Speaker 04:
So do you see a distinction between picketing and strikes?

[00:19:35] Speaker 07:
Well, I think that's the question I think the board should be forced to answer.

[00:19:40] Speaker 07:
Do strikers have less of a Section 7 right than picketers for informational purposes?

[00:19:46] Speaker 07:
I'm not sure what authority there is for saying that strikers, if strikers can't picket,

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on the employer's property, which this court's Beverly Health Care case and multiple board cases hold that picketers can't trespass on to picket.

[00:20:02] Speaker 07:
Why do off-duty employees have a greater right than strikers?

[00:20:06] Speaker 07:
I think that's a legitimate question, but it's not been faced here.

[00:20:10] Speaker 07:
It's not been answered.

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And what we're suggesting is that the board

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didn't really weigh the property rights.

[00:20:15] Speaker 07:
It did not decide in this generic situation.

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It needs to set parameters for picketing so that all hospitals and non-hospital employers can have guidance and unions can have guidance.

[00:20:27] Speaker 07:
And I would say that

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In the history of the Act, they've only cited one case, that county and country case, in which Republic Aviation was cited, and that was a hand-billing and picketing restriction case.

[00:20:41] Speaker 07:
And there's no analysis in that case of any of the cases that we've cited.

[00:20:45] Speaker 04:
So why wouldn't the Board simply respond that under our decision in this case,

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we have provided parameters where it's peaceful, it's not noisy, it's not disrupting, there's no evidence that patient care and patient entry is in any way

[00:21:03] Speaker 04:
adversely affected?

[00:21:05] Speaker 07:
Well, I would say that that doesn't weigh our property rights.

[00:21:10] Speaker 07:
It's not managerial rights we're talking about here.

[00:21:12] Speaker 07:
These are off-duty employees.

[00:21:14] Speaker 07:
Their only right to come on the premises under a republic aviation is to handbill and solicit on outside areas.

[00:21:25] Speaker 07:
The right to control the use of property is important.

[00:21:29] Speaker 07:
The board doesn't acknowledge that.

[00:21:31] Speaker 07:
A hospital, for whatever reason it wants, at least if we forget Section 7 rights, if we say this case didn't involve Section 7 rights at all, it was some third party wanted to conduct some kind of event on the hospital property, we would have the right to decide for any reason that we didn't view that as consistent with our mission.

[00:21:53] Speaker 07:
And I would say that that's the property right, and there's no weighing of that right.

[00:21:59] Speaker 07:
The only right we're given is a managerial right.

[00:22:02] Speaker 07:
The managerial right to somehow regulate, if we can show actual harm, then we can regulate it.

[00:22:10] Speaker 07:
But that doesn't give any weight to the actual property right to decide

[00:22:14] Speaker 07:
what purposes we will allow employees to use the property for the exterior.

[00:22:21] Speaker 07:
I just respectfully do not believe that the precedent that exists at this point is adequate to just cavalierly say, OK, you can prove actual disruption.

[00:22:32] Speaker 07:
That's not deciding in each generic situation where the appropriate accommodation lies, at least not without a lot more consideration of picketing and what it actually involves, the inherent.

[00:22:44] Speaker 07:
All right, thank you, Your Honor.

[00:22:47] Speaker 06:
I'll hear from the NLRB.

[00:22:55] Speaker 03:
May it please the Court.

[00:22:58] Speaker 03:
The Board balanced the interests of the employees in this case who were engaged in a quiet, stationary, two-person picket.

[00:23:05] Speaker 03:
with those of the employer.

[00:23:07] Speaker 03:
It's the board's responsibility to weigh those competing interests, and its decision is a reasonable interpretation of the act.

[00:23:15] Speaker 04:
So let me ask you.

[00:23:17] Speaker 04:
These are off-duty employees.

[00:23:19] Speaker 04:
Yes, Your Honor.

[00:23:21] Speaker 04:
Does the board view them as having the right to be on the employer's property?

[00:23:25] Speaker 03:
Yes, Your Honor.

[00:23:26] Speaker 03:
The board, under

[00:23:31] Speaker 03:
The board's Tri-County Medical Center decision.

[00:23:34] Speaker 03:
When an employer wants to restrict the access of off-duty employees to the property, it can set certain rules, access rules, but those access rules are limited to the interior of the plant.

[00:23:47] Speaker 03:
You can't keep someone who's an off-duty, on-site employee off your premises unless there's a significant business justification there.

[00:23:56] Speaker 04:
So what about the problem that isn't

[00:24:01] Speaker 04:
highlighted here, but there's some secondhand evidence about somebody coming to the hospital to see a patient who says, normally I don't cross picket lines.

[00:24:11] Speaker 04:
We don't have any evidence of patients coming to the hospital saying, you know, I can't go in because there's a picket line.

[00:24:19] Speaker 04:
But what about that aspect?

[00:24:20] Speaker 04:
There is something different in the air between leafleting and picketing.

[00:24:27] Speaker 04:
Piggybacking on Judge Sreenivasan's question, you could argue

[00:24:31] Speaker 04:
that in one sense picketing is less intrusive because I don't have to receive anything that you're giving me in the way of a leaflet but on the other hand it's a large sign and so that in itself creates a barrier.

[00:24:46] Speaker 03:
Well as you've noted the board's decision is

[00:24:50] Speaker 03:
is restricted to the facts of this case where there were just two employees there holding signs quietly.

[00:24:56] Speaker 03:
There was only the one person who said he doesn't normally cross picket lines, but there is no evidence, remember there was a picket line off property.

[00:25:03] Speaker 03:
So I can't tell from reading the record if his comment was

[00:25:06] Speaker 03:
directed towards those two people standing at the door or the picket line he might have had to cross to come forward.

[00:25:13] Speaker 03:
But the hospital would need to show under Republic Aviation combined with Beth Israel and Baptist Hospital that there's a likelihood or potential for disruption to patient care or its managerial interest in operating the hospital.

[00:25:27] Speaker 04:
So if I own the property and two pickets are there and then later in the afternoon there are 20 pickets,

[00:25:34] Speaker 04:
later in the evening, there are 50 pickets.

[00:25:37] Speaker 04:
I have to call the local police, and the police have to come and decide whether or not there are too many pickets here.

[00:25:44] Speaker 03:
Well, we're assuming you're a hospital, right?

[00:25:49] Speaker 03:
OK.

[00:25:49] Speaker 03:
OK.

[00:25:53] Speaker 03:
This decision only applies to these specific facts.

[00:25:57] Speaker 04:
Do you understand what I'm getting at?

[00:25:58] Speaker 03:
I do.

[00:25:59] Speaker 04:
And I think that's what the petitioner is

[00:26:02] Speaker 04:
getting at, in my view.

[00:26:05] Speaker 03:
But the employees have the right under Republic Aviation and Babcock and Eastax to be on their employer's property.

[00:26:14] Speaker 03:
the employer's property interests are not impinged by having off-duty on-site employees on that property.

[00:26:21] Speaker 03:
So without this board's decision, they would still have, it would still be the issue of who and how many employees could be on that property exercising their Section 7 rights.

[00:26:31] Speaker 00:
Can I ask this question?

[00:26:33] Speaker 00:
So you wouldn't disagree that the analysis would be different under Providence Hospital, or would you?

[00:26:38] Speaker 03:
Well, my read of Providence Hospital is, first of all, there's the issue with Fairmont and Gene Country being overruled.

[00:26:47] Speaker 00:
Just put that aside.

[00:26:48] Speaker 00:
So assume that nothing happened after Providence Hospital, and Providence Hospital is the latest and best word from the board on how to analyze the situation.

[00:26:56] Speaker 03:
As I read the facts of that case, there were both employees and non-employees picking.

[00:27:02] Speaker 03:
So under the board's decision here,

[00:27:05] Speaker 03:
That would be a different case.

[00:27:08] Speaker 03:
Once you have non-employees joining the picket line, those non-employees are trespassers.

[00:27:12] Speaker 03:
They do not have Republic aviation rights to the property.

[00:27:16] Speaker 00:
I understand that with respect to non-employees.

[00:27:17] Speaker 00:
I'm talking about the employees in Providence Hospital.

[00:27:20] Speaker 00:
I thought that the board accepted that the analysis with respect to employees under Providence Hospital would have been different, but the board's point was that Providence Hospital is no longer the governing framework.

[00:27:30] Speaker 00:
Or maybe I misunderstood that.

[00:27:31] Speaker 03:
Providence Hospital is not the governing framework.

[00:27:33] Speaker 03:
And as the board pointed out in New York, New York, which is court-enforced, it does not apply the reasonable alternative means test, that was the whole point of Providence Hospital and G Country, to employees

[00:27:45] Speaker 00:
acting on their own employers property reasonable alternative means and i thought i thought providence hospital was employee employees on their own property off to pickets included non-employee included on employees with respect to the employees i thought providence hospital would have resulted in a different framework i didn't i didn't realize that the board's view was that providence hospital

[00:28:09] Speaker 00:
only applies to employees when they're combined with non-employees.

[00:28:12] Speaker 03:
I thought- At this point, the board is not relying on Providence Hospital at all.

[00:28:17] Speaker 03:
It is saying that post Fairmont and Jean Country and Leachmere, no Providence Hospital.

[00:28:21] Speaker 00:
I guess what I'm trying to get to is this.

[00:28:22] Speaker 00:
If I thought that Providence Hospital

[00:28:25] Speaker 00:
contemplated a different legal framework with respect to employees, often the employees that are on the employer's premises.

[00:28:33] Speaker 00:
Let's just ignore for a moment the fact that Providence Hospital involved non-employees.

[00:28:38] Speaker 00:
It did involve employees.

[00:28:40] Speaker 00:
And if I thought that Providence Hospital had a different framework for employees, I guess my question would be, what do we do with Providence Hospital?

[00:28:48] Speaker 00:
Now, there's nothing wrong with an agency deciding that a rule it used to have

[00:28:52] Speaker 00:
just is no longer the way we look at things.

[00:28:55] Speaker 00:
And so the agency would presumably explain, you know, we have this framework before with respect to employees, we've rethought it, here's a different way of looking at it.

[00:29:03] Speaker 00:
That's what the agency would normally do when it was reconsidering an approach that existed before with respect to employees.

[00:29:11] Speaker 00:
What the board did in this decision is to say,

[00:29:14] Speaker 00:
Well, Providence Hospital, that whole framework was just tossed aside because of Leachmere and other cases that came along and said that Providence Hospital is no longer the governing framework.

[00:29:26] Speaker 00:
That's true with respect to non-employees.

[00:29:28] Speaker 00:
So then the question becomes, what do you do with Providence Hospital with respect to employees?

[00:29:32] Speaker 00:
Is it enough just to say Providence Hospital is no longer good, see Leachmere, even though Leachmere involved non-employees?

[00:29:40] Speaker 03:
I would say also see New York, New York, where the board fully explained why it does not apply a reasonable alternative means test to employees acting on their own employer's property.

[00:29:52] Speaker 03:
They are not trespassers.

[00:29:54] Speaker 03:
They have the right to be on that property.

[00:29:57] Speaker 03:
And so I think once you take into account New York, New York, which is a solicitation and distribution case, then the board has shown private hospital is not going to be applied.

[00:30:06] Speaker 00:
Right.

[00:30:06] Speaker 00:
It didn't involve picketing.

[00:30:08] Speaker 03:
No.

[00:30:09] Speaker 00:
New York didn't.

[00:30:09] Speaker 00:
No.

[00:30:10] Speaker 00:
Right.

[00:30:10] Speaker 00:
So I mean, I think, so you would say that New York, New York, it's like town and country that whatever applies to hand billing, to leafletting, just by nature applies to picketing too.

[00:30:25] Speaker 03:
Well, it applies to the picketing at issue in this case.

[00:30:28] Speaker 03:
Of course, if we had different facts, the board could have come out differently.

[00:30:34] Speaker 03:
If there were 20 people at that door.

[00:30:37] Speaker 06:
Could have come out differently as a matter of the rebuttal to the presumption, or could have come out differently with respect to the existence of the presumption in the first place?

[00:30:47] Speaker 03:
in application of the balancing test, Your Honor.

[00:30:50] Speaker 06:
Well, balancing test begins with a presumption.

[00:30:52] Speaker 06:
Yes, Your Honor.

[00:30:53] Speaker 06:
So as I understand, I'm not saying this is correct.

[00:30:58] Speaker 06:
One way to read this opinion is we are treating picketing and hand billing the same purposes of Republic.

[00:31:12] Speaker 06:
for purposes of hospital cases, but it can be overcome by the appropriate showing.

[00:31:18] Speaker 06:
And in a circumstance where the picketing is coercive rather than non-coercive, disruptive rather than non-disruptive, you will overcome the presumption.

[00:31:28] Speaker 06:
That's one way to read the opinion.

[00:31:30] Speaker 06:
Another way to read the opinion is we are treating hand billing and non-disruptive slash non-coercive picketing the same.

[00:31:41] Speaker 06:
And they, there's a presumption.

[00:31:43] Speaker 06:
And that can be overcome.

[00:31:44] Speaker 06:
But we're not, maybe we're not telling you yet how we're going to treat coercive picketing for purposes of presumption.

[00:31:52] Speaker 06:
Which of the two is the way in which you read this?

[00:31:54] Speaker 03:
And I think at this point, I have to go with your second option.

[00:31:57] Speaker 03:
I mean, the board, these cases, one reason why we don't have a list of cases to discuss is because this just, it seems strange to me.

[00:32:06] Speaker 03:
having gotten into this, that there just aren't that many picketing cases on employer's property involving only employees.

[00:32:13] Speaker 03:
It just says the same thing.

[00:32:13] Speaker 06:
So you're saying that the board has not yet resolved the question of whether coercive picketing, I'm just going to use that as a phrase, I don't mean it in any, as anything particular, would fit, would be treated the same as hand billing for the purposes of presumption.

[00:32:30] Speaker 06:
That'll come in another case when that's the issue in the case.

[00:32:34] Speaker 03:
I think that's correct, Your Honor.

[00:32:36] Speaker 03:
I see I've gone way over the top.

[00:32:38] Speaker 04:
Can I just ask you then, in line with the Chief Judge's questions, where the board says even, it says first, we do not view the availability of locations off the employer's property as an adequate alternative in cases involving Section 7 rights, citing the East Tech case.

[00:33:00] Speaker 04:
But then it goes on to say that even if we were to consider

[00:33:05] Speaker 04:
the validity of alternative means, we would find no adequate alternative means in this case.

[00:33:15] Speaker 04:
Does that affect your answer to the Chief Judge at all?

[00:33:20] Speaker 03:
I don't think so, Your Honor, just because under the facts of this case, when the employees were standing quietly, not impeding ingress or egress, holding

[00:33:30] Speaker 03:
two by three signs.

[00:33:33] Speaker 03:
So on the facts of this case, I don't think it would change.

[00:33:36] Speaker 04:
Well, you went with the chief judge's second alternative as to the way to read the opinion.

[00:33:44] Speaker 04:
And I'm trying to understand when the board says there's no evidence in this case that merely holding stationary pickets on near an entrance to a hospital was likely to be any more disruptive or disturbing than the distribution of literature

[00:34:00] Speaker 04:
which the respondent did not restrict.

[00:34:05] Speaker 04:
Don't you have to go with the chief judge's first way to read this opinion?

[00:34:11] Speaker 03:
Well, the first option was that the board has decided that Republic Aviation applies in all picketing cases, including presumably strikes.

[00:34:22] Speaker 03:
and coercive picketing.

[00:34:23] Speaker 03:
And I'm just not sure on the facts of this case and the board's decision that I can go that far.

[00:34:29] Speaker 00:
Well, I don't know about strikes because there may be special situations while at that, but just use disruptive picketing because I don't know if there's a legally significant

[00:34:38] Speaker 00:
connotation with coercive picketing but I thought that it had the way to read the decision is that the presumption applies to picketing on premises and that the way the board accounts for the possibility of disruptive picketing is in the application of the balance that results from the presumption because on page four the board says we're not as suggested by the Senate balloting all restrictions on employee on-premises hospital picketing so that's the category of cases.

[00:35:02] Speaker 00:
on-premises hospital picking.

[00:35:04] Speaker 00:
Under the long-standing holding of Republic Aviation, such restrictions are valid if the employer shows that they are necessary to maintain discipline and production.

[00:35:12] Speaker 00:
And so it seemed like the board's view is the Republic Aviation presumption just applies.

[00:35:21] Speaker 00:
And the way that the hospital's interests get accommodated is in the application of the balance that results from the presumption, not on an

[00:35:30] Speaker 00:
question of whether the balance applies, the presumption applies in the first place.

[00:35:36] Speaker 03:
Yes, Your Honor.

[00:35:36] Speaker 03:
That is, in future cases, the Board will apply this exact balancing test.

[00:35:41] Speaker 03:
But in the next case, if there are 50 people at the

[00:35:46] Speaker 03:
at the door, I can't tell you that the board would then find that to be always okay or always.

[00:35:52] Speaker 00:
No, I think what would happen in that situation presumably is the question would be whether the employer rebuts the presumption.

[00:35:58] Speaker 00:
And what the board itself says in this decision is that in other situations involving different types of picketing in different circumstances, it may well be that the employer can carry its burden.

[00:36:09] Speaker 00:
But it seems like the burden is on the employer whenever you have

[00:36:14] Speaker 00:
on premises picketing to show that there's an interference with patient care.

[00:36:17] Speaker 03:
Yes, Your Honor.

[00:36:18] Speaker 03:
Absolutely.

[00:36:19] Speaker 03:
And that is the board's decision.

[00:36:21] Speaker 03:
They have to show that there's interference with patient care or the patients themselves.

[00:36:26] Speaker 00:
So then the presumption does apply?

[00:36:28] Speaker 03:
The board is looking at this more as a balancing test, that they are going to look at what the employees are doing and what the employer brings forth.

[00:36:38] Speaker 03:
But yes, it would apply.

[00:36:42] Speaker 03:
Thank you.

[00:36:43] Speaker 03:
There are no further questions.

[00:36:44] Speaker 06:
Thank you.

[00:36:44] Speaker 06:
We'll take the matter under submission.

[00:36:47] Speaker 04:
Oh, I'm sorry.

[00:36:48] Speaker 06:
I'm sorry.

[00:36:48] Speaker 06:
I apologize.

[00:36:53] Speaker 01:
Matt Ginsburg on behalf of Local 21, the union.

[00:36:58] Speaker 01:
I just want to take my few minutes to address a couple of the questions that have come up.

[00:37:02] Speaker 01:
I agree with Judge Garland's first explanation that it's a balancing test.

[00:37:09] Speaker 06:
So you think that picketing of all kinds come within the presumption but can be overcome if they're coercive or

[00:37:17] Speaker 01:
Yes, that's correct.

[00:37:18] Speaker 01:
And to piggyback onto one of Judge Rogers' questions, in a circumstance where, for example, there were multiple picketers and the hospital believed that there was some interference with patient care, in a case like this, they could have come up to the picketers, which they did here.

[00:37:33] Speaker 01:
But instead of saying, we have a property right to exclude you altogether, they could have said, hey, look.

[00:37:39] Speaker 01:
Don't lock the doors.

[00:37:40] Speaker 01:
Stand to the side.

[00:37:41] Speaker 01:
And if you don't, we're kicking you off.

[00:37:43] Speaker 01:
And we think that that's the sort of,

[00:37:46] Speaker 01:
approach that could take place.

[00:37:48] Speaker 01:
Also, as we know from many of the hospital cases, this court has decided hospitals oftentimes pass rules about where activity can be undertaken.

[00:37:56] Speaker 01:
There's no rule at issue here.

[00:37:57] Speaker 01:
An appropriately tailored rule could provide some limits to the type of activity that could take place.

[00:38:02] Speaker 01:
But again, all that just highlights the point that the board was correct to apply Republic Aviation and Beth Israel as the proper test.

[00:38:11] Speaker 01:
This picketing or holding picket signs in this case, I'll just point out that at Joint Appendix 329 you have a photo of the two employees.

[00:38:20] Speaker 01:
standing 10 to 12 feet away from the door with their signs is not the sort of coercive or interfering type of picketing.

[00:38:30] Speaker 01:
But the board was correct to apply Republican aviation to the holding of signs, which is a core Section 7 right.

[00:38:37] Speaker 01:
And it's appropriate to apply Republic aviation and Beth Israel when you have employees on their own employer's property exercising those rights.

[00:38:44] Speaker 01:
So then it just becomes a matter of the employer showing

[00:38:48] Speaker 01:
In the non-hospital setting, the interference with production or discipline, or in the hospital setting, they have the lower burden of showing interference with hospital operations or for patient care.

[00:38:57] Speaker 01:
If there are no further questions, we'll rest on our brief and ask that the board's order be in court.

[00:39:04] Speaker 06:
All right.

[00:39:04] Speaker 06:
We'll take the matter under submission.

[00:39:05] Speaker 06:
Thank you both very much.