This petition by the Civil Service Employees Association, Local 1000, AFSCME, requires us to consider whether the National Labor Relations Board offered a defensible construction of section 8 of the National Labor Relations Act when it upheld a health care institution’s discharge of employees by reason of their participation in picketing for the purpose of securing recognition of a union as their collective bargaining agent without having given the ten-days notice that section 8(g) requires of a labor organization. We conclude that the Board’s construction was not defensible and grant the petition.
BACKGROUND
The Petitioner (“Union”) represents correctional officers at the Albany County Correctional Facility in Albany, New York, and sought to organize and represent employees of a health clinic located in the Albany facility operated by Correctional Medical Services, Inc. (“CMS”), the Intervenor.
1
In August 2002, the Union requested that CMS recognize it as the collective-bargaining representative of all clinic employees except physicians, super
The Union responded by organizing a demonstration at the facility without giving prior notice to CMS. On September 12, twenty individuals, including five clinic employees, walked in a circle in front of the facility’s main entrance for approximately 40 minutes, demonstrating and picketing for recognition of the Union by CMS as their collective bargaining agent. The entrance was used, among other things, by vehicles making daily deliveries of pharmaceuticals and other supplies to the clinic, and served as the point of exit for vehicles transporting inmates in need of off-site emergency medical care. None of the five picketing clinic employees was a member of the Union. None was on duty at the time. They did not block the entrance, and vehicles were able to enter and exit the facility unimpeded. The demonstration was peaceful.
The next day, CMS issued letters to its five employees who had participated. The letters stated that the Union’s picketing without advance notice had been illegal and that “[ejmployees who participate in an unlawful picket lose their protection under the Act.” The letters indicated that CMS intended to file charges with the NLRB (“Board”) and that, upon completion of the Board’s investigation, CMS would advise the employees of what it intended to do. On September 16, CMS filed charges alleging that the picketing violated section 8(g) because the Union failed to provide ten-days prior notice, as required by that section.
Subsequently, the Regional Office issued a complaint against the Union, alleging that it violated section 8(g). 2 Shortly thereafter, CMS fired the five employees for engaging in an “illegal picket.” CMS also posted a notice advising its employees of section 8(g)’s notice requirement and stating, apparently based on the issuance of the complaint alone, that “[t]he NLRB has ruled [the Union’s] picket was illegal.” One month after the employees’ dismissal, CMS reinstated them without backpay.
In October 2002, the Union filed charges with the NLRB alleging that CMS had violated the Act by terminating the five employees. The Regional Office issued a complaint alleging that, notwithstanding the Union’s prior violation of section 8(g), CMS violated section 8(a)(1) and (a)(3) by dismissing the participating employees. The parties agreed to waive a hearing before an Administrative Law Judge and provided the NLRB with a stipulated record.
On May 31, 2007, a divided panel of the NLRB held that CMS’s dismissal of the employees did not violate the Act. The majority reasoned that:
[t]he Union violated Section 8(g) of the Act by conducting picketing of a health care institution without giving the required advanced notice. The employees who engaged in the picketing were not protected by the Act, and, accordingly, [CMS] did not violate the Act by discharging them.
The majority contended that, even though section 7 had been interpreted to permit employees to engage in picketing, an “employee who pickets in violation of section 8(g) is engaged in unprotected conduct, and is thus vulnerable to employer discipline.” For support, the majority cited NLRB precedent that identified picketing that violated sections 8(b)(4) and 8(b)(7) as unprotected conduct that interfered with the “legitimate interests of the employer.” Finally, the majority rejected
The dissenting member argued that “Congress [chose] to preclude employers from taking action against picketing [health care industry] employees” because, unlike its treatment of health care employees who engage in an improperly noticed strike, section 8(d) does not eliminate the “employee” status of health care workers who engage in improperly noticed pickets. According to the dissenting member, the majority’s approach rendered superfluous section 8(d)’s different treatment of improperly noticed striking, on the one hand, and improperly noticed picketing, on the other, because the net effect is that “[b]oth strikers and picketers could be lawfully discharged without reference to [s]ection 8(d) solely because [s]ection 8(g) proscribes both kinds of conduct.” Moreover, unlike picketing under section 8(b), where Congress left “the Board free to fashion its own rule with respect to sanctions,” the dissent argued that “[w]here picketing of health-care employers is concerned ... [s]ection 8(d), in conjunction with 8(g), provides an express limitation on the Board’s authority.” She argued that the majority’s decision exceeded this limitation because sections 8(d) and 8(g) show “Congress itself chose not to treat employees’ picketing, as opposed to striking, as lawful grounds for discharge, notwithstanding the unlawfulness of the Union’s failure to provide proper notice of the picketing.”
DISCUSSION
A. Standard of Review
We review the NLRB’s decisions with deference so long as the result is based on a construction of the Act that does not extend the NLRB’s authority beyond what Congress assigned. As a general matter, we “review[ ] the Board’s legal conclusions to ensure they have a reasonable basis in law,” and “afford the Board a degree of legal leeway” when it interprets the Act.
Cibao Meat Prods., Inc. v. NLRB,
The dispositive issue for us is whether the NLRB advanced a defensible construction of the Act when it concluded that, after the 1974 amendments, picketing for the purpose of collective bargaining that does not accord with the notice section 8(g) requires of the labor organization exposes employees who participate in such picketing to discharge, notwithstanding “employee” protections under section 7 of the Act. This exercise in statutory analysis
Section 7 grants “[e]mployees” the right to form, join and assist “labor organizations,” and undertake concerted activity “for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The Supreme Court and the NLRB have long recognized employee picketing not prohibited by the Act as activity protected under this provision.
See Bristol Farms, Inc.,
In 1974 Congress amended the Act in a number of ways. Before the amendments, the Act defined “employer” not to include “any corporation or association operating a hospital, if no part of the net earnings inure[d] to the benefit of any private shareholder or individual.” Pub.L. No. 80-101, sec. 101, § 2(2), 61 Stat. 136, 137 (1947). The amendments eliminated this
Under the modified section 8(d), an employee who engages in “any strike ” at the institution that does not satisfy the ten-day notice requirement is no longer an “employee” under the Act, thereby becoming ineligible for the section 7 rights that employee status confers. 29 U.S.C. § 158(d) (emphasis added). 4 But section 8(d) does not include a comparable provision about employees who participate in picketing conducted by the labor organization in violation of those notice requirements. We conclude that Congress intended a clear distinction. While labor organizations are subject to sanction for either striking or picketing without observing the notice requirement specified by section 8(g) because of the obligation that section attributes to them, the statute specifies sanctions for employees who participate in the violation only in the case of strikes and not in the case of picketing (unless the employees are agents of the labor organization and have violated section 8(b)).
We believe this interpretation is consistent with the design of the statute. In the 1974 amendments, Congress extended the protections of the Act to employees of hospitals and other health care organizations by eliminating an exclusion that had exempted these entities. At the same time, Congress imposed in section 8(g) a ten-day notice requirement on labor organizations organizing strikes or pickets of healthcare institutions but did not extend the notice requirement to individual employees. Congress also provided in section 8(d) that employees who strike after a labor organization fails to give the required notice lose their status as employees protected by the Act, and, as a result, could be discharged or otherwise disciplined. Section 8(d), however, did not extend the “loss-of-status” sanction to employees who merely picket.
This interpretation of section 8(g) comports with the role section 8 as a whole plays in the structure of the Act. Section 7 functions as a broad conferral of rights upon employees.
See supra
p. 2209. Section 8 defines unfair labor practices by employers and labor organizations, serving both to protect employees’ section 7 rights and identify behavior that Congress has judged impermissible.
See
29 U.S.C. § 158. A construction of section 8(g) that
Other provisions of section 8 that limit picketing support our interpretation.
See, e.g.,
29 U.S.C. § 158(b)(4), (7). For example, section 8(b) prohibits “a labor organization
or its agents”
from picketing
for
certain purposes. 29 U.S.C. § 158(b) (emphasis added). In contrast to our interpretation of section 8(g), the NLRB has held that, in certain circumstances, this subsection applies to individual employees.
See, e.g., Rapid Armored Truck Corp.,
Considering the 1974 amendments in the light of the legal landscape in place at the time of their enactment reinforces the view that employees who picket peacefully for the purpose of collective bargaining without providing the notice section 8(g) requires have generally not acted contrary to law in their individual capacity or forfeited the protections of section 7. On multiple occasions prior to 1974, the Supreme Court recognized peaceful picketing as conduct protected by the First Amendment.
See, e.g., Amalgamated Food Employees Union v. Logan Valley Plaza,
Finally, the General Counsel contends that unless the picketing employees are subject to discipline, health care facilities would be at risk and employers would be without remedy for non-compliance with section 8(g). But this case involves peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic. Although we are not required to decide the issue, we note that health care facilities confronted with strikes or union-inspired disruptive behavior are not without potent remedies in appropriate cases.
See Montefiore Hosp. & Med. Ctr. v. NLRB,
CONCLUSION
The petition for review is GRANTED, the decision and order of the NLRB are VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
Notes
. The parties agree on the relevant facts.
. The Union later entered into an informal settlement agreement of the case with a non-admissions clause.
. The Act’s definition of “labor organization” does not include employees in an individual capacity who are not yet part of a union, even if their purpose is to promote union organization, unless they are acting as an “employee representation committee or plan.” 29 U.S.C. § 152(5). There is no allegation that the five CMS employee-picketers were acting as an "employee representation committee or plan.”
. "Any employee ... who engages in any strike within the appropriate period specified in [29 U.S.C. § 158(g)] ... shall lose his status as an employee of the employer engaged in the particular labor dispute....” 29 U.S.C. § 158(d).
. We express no view whether the employees who were dismissed were subject to sanctions for violation of section 8(b)(7), as the Board did not proceed in that theory and made no finding that any were acting as an “agent” of the labor organization.
. On appeal, the Board argues that at the time of the 1974 amendments, Congress was aware of a clear distinction between an employee's
loss of status
under the Act, which makes a worker vulnerable to discharge for any reason, and
unprotected conduct,
which makes an employee vulnerable to discharge for engaging in that conduct.
See Fort Smith Chair Co.,