In a groundbreaking expansion of union rights, the National Labor Relations Board has ruled that off-duty employees have the right to picket on an employer’s premises, unless the employer can prove under the National Labor Relations Act that a ban on picketing was necessary to prevent a disruption of health care operations. Capital Medical Center, 364 NLRB No. 69 (Aug. 12, 2016). While this decision arose with a unionized health care institution, the Board may apply it under similar facts to any employer, unionized or non-union.
Picketing by Off-Duty Employees on Medical Center Property
Capital Medical Center, an acute care hospital, was negotiating a successor collective bargaining contract with UFCW Local 21 covering the Medical Center’s technical employees. Frustrated by the lack of progress, the union decided to engage in informational picketing and handbilling for the day before a scheduled bargaining session to pressure the Medical Center.
A group of 50 to 60 picketers with picket signs began congregating on the public sidewalk adjacent to the Medical Center’s driveway at 6:00 a.m. and distributing handbills. Since they were on public property, the Medical Center did not interfere.
Shortly after 4:00 p.m., however, some of them went onto Medical Center property. They took their picket signs to the Medical Center’s main lobby entrance and stood in line with the pillars in front of the entranceway. Some employees with picket signs left the line to distribute handbills to people entering the Medical Center.
The Debate on the Law
On learning that off-duty employees were picketing on Medical Center property outside the main lobby entrance, the Security Manager told the picketers they were welcome to stand outside the doorway and distribute handbills, but they could not picket on Medical Center property or stand on the property with picket signs.
A union official disagreed, saying their attorney said they had the right to picket on the property. The Medical Center’s attorney told the union they could not and, if they could not resolve the situation, the Medical Center would have to discipline the employees or call law enforcement. When the authorities arrived, the debate continued, but no disciplinary actions were taken and no arrests were made.
Nevertheless, the Board concluded the Medical Center’s threat to discipline the employees and summon the authorities was unlawful interference since the picketing was peaceful and no one blocked patients from entering the Medical Center.
The Medical Center’s Response
To defend a claimed violation of union rights, the Medical Center or other healthcare employer must produce concrete evidence that patients were disturbed and healthcare operations were disrupted or that disruption was reasonably certain or imminent based upon objective evidence.
The Medical Center argued the picketing was disruptive or might disturb patients. A witness testified that she heard a visitor say he usually would not cross a picket line, but he needed to visit a patient.
The Board pointed out the Medical Center had the burden of proving by record evidence that the picketing, in fact, disturbed patients or disrupted operations. The Board found the Medical Center “having based its argument on speculative and exaggerated contentions about potential harm that could result from the picketing has not succeeded in making the required showing.”
Expanded Union Rights
In this case, without considering the potential impact on the employer, third parties, and patients, the Board has expanded union rights by applying the same rules relating to on-premises solicitation and distribution to on-premises picketing.
The Board relied on the Supreme Court’s Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), to reach its conclusion that off-duty employees had the right to picket on employer property. Republic Aviation sought to balance the rights of employers and employees. The Court ruled that “employers may not bar employees who are not on working time from engaging in solicitation or distribution of literature in non-working areas of its property unless such bar is necessary to maintain discipline and production.”
The Board acknowledges that Republic Aviation did not involve or address picketing specifically and it did not equate solicitation and distribution of literature with picketing. Moreover, in the more than 50 years since it was decided, no court has applied Republic Aviation to permit on-premises picketing by off-duty employees. However, the Board majority came close to equating picketing with solicitation and distribution, despite the significant jurisprudence to the contrary.
Picketing is Different from Solicitation and Distribution
Courts and the Board often have concluded that picketing is not the same as solicitation and distribution. Therefore, they have applied different rules to picketing.
In his dissent in this case, Member Philip Miscimarra noted, “[T]he Supreme Court and the Board have repeatedly recognized that picketing has a significantly greater impact on legitimate employer interests than solicitation, distribution and other forms of communication.” He pointed out that the Supreme Court in Edward J. DeBartolo Corp., 483 U.S. 568, 580 (1988), stated that “picketing is qualitatively different from other modes of communication…it is a mixture of conduct and communication and the conduct element often produces the most persuasive deterrent to third persons about to enter a business establishment.”
Congress recognized the potential risks of picketing a healthcare institution when it enacted Section 8(g) of the Act, requiring a union to provide at least 10 days’ written notice of its intent to strike or picket a healthcare institution. Moreover, if the NLRB, after receiving a charge, finds reasonable cause to believe notice was not provided, it may seek an injunction against the picketing if the union does not desist immediately. Soliciting or distributing literature at a healthcare institution does not require any notice.
Despite the Supreme Court’s recognition of the impact of picketing on third parties and Congress’ special concern over the impact of picketing on healthcare institutions, the Board’s choice of a medical center setting to establish the right of “on-premise picketing” is remarkable.
No prior Board decision specifically and exclusively focused on picketing equated on-premises picketing with on-premises solicitation and distribution by off-duty employees. However, in Capital Medical Center, the Board relied on Town & Country Supermarkets, 340 NLRB 1410 (2004), a case where the employer threatened and caused the arrest of off-duty employees for distributing literature and some picketing was involved. Yet, Town & Country did not focus on picketing as an activity distinct from handbilling or analyze picketing as comparable to solicitation or distribution. Since that employer had threatened and had employees arrested for distributing literature, the decision naturally applied to both types of activity.
Troubling Precedent for All Employers
Based on the record in Capital Medical Center, the Board reasonably concluded that the picketing in this case did not disturb patients or disrupt healthcare operations.
While the picketing at the Medical Center was limited and peaceful, there are many examples of labor disputes in which patients and visitors are disturbed and hospital operations are disrupted. Disruption has occurred more often when picketers have strayed from the public sidewalks and were allowed to enter the property to engage patients, visitors, and others trying to enter the Medical Center. Confrontation is the very nature of picketing.
By giving off-duty employees greater license to picket on the Medical Center’s property, healthcare employers focused on healing and saving lives may be distracted with crowd control responsibilities on the outside and on the inside.
Once Pickets Enter Premises, It May be Hard to Get Them Out
If, unlike in Capital Medical Center, 50 to 60 off-duty picketers were parading directly outside the doors to a medical center and disturbing patients and disrupting operations, the Board offers a simple, but impractical, suggestion: the employer legally may bar them from picketing on the premises. However, in reality, it would be hard, if not impossible, to “bar” them when they are already parading through the campus.
Picketing Inside Medical Center
Capital Medical Center does not rule out picketing inside a hospital. The Board’s decision gives off-duty employees the statutory right to picket wherever solicitation and distribution would be permitted. As noted, the conditions under which solicitation and distribution by off-duty employees must be permitted are as follows:
employers may not bar employees who are not on working time from engaging in solicitation or distribution of literature in non-working areas of its property unless such bar is necessary to maintain discipline and production.
Non-working areas of the employer’s property include areas inside the facility, as well as non-working areas outside the facility. Capital Medical Center did not involve picketing inside the Medical Center. However, the ruling could be interpreted as permitting picketing in interior non-working areas by employees who were not on working time, unless the employer could prove that it disturbed patients, disrupted operations, or violated a non-discriminatory and properly enforced off-duty access rule.
Employers can take certain steps to prepare for the possibility of on-premises picketing or other demonstrations.
First, the employer’s General Counsel, Chief Human Resources Officer, or Director should be familiar with Capital Medical Center and the rules now in place.
Second, the employer should review and revise contingency plans to anticipate and effectively deal with union activity on employer property.
Third, anticipate and identify events that could trigger on-premises activity, such as a picketing or a mass presentation of a petition or grievances, and consider ways to respond and limit disruption without violating employee rights.
Fourth, consider policies relating to and restricting access to the interior of employer facilities without violating employee rights.
Please contact Jackson Lewis for preventive strategies to help employers navigate these situations while minimizing the risk of litigation.