When Is The Medium (NOT) The Message? NLRB Prohibits Acute Care Hospital From Banning Picketing Unless Distressful To Patients

In Capital Medical Center 364 NLRB No. 69 (August 12, 2016), a majority of the Board recently concluded that a hospital violated Section 8(a)(1) of the NLRA, by threatening to discipline and arrest picketers and by summoning the police to its facility when the hospital  failed to prove that  the picketing disrupted patient care. The Board issued an order prospectively enjoining such threats and calls for police intervention.

Facts

Capital Medical Center, an acute care hospital, had a long-term relationship with the United Food and Commercial Workers Union (UFCW). The collective bargaining agreement had expired, and for approximately eight months, the parties had been negotiating a successor agreement.

During bargaining, the union decided to increase pressure on management. The day before a bargaining session, the union organized a campaign of handbilling and picketing on the hospital’s property and public sidewalk. These were areas through which hospitalized and out-patients passed, as did families and friends.

The union gave the 10-day written notice, required by the National Labor Relations Act, of its intent to picket. At 6:00 a.m., 20-30 employees who were not working at that time, gathered on the public sidewalks adjacent to entrances and exits from the hospital. They carried standard picket signs stating “Fair Contract Now,” “Fair Wages,” and “Respect Our Care.” At about 4:00 p.m. the group of off-shift employees expanded to 50-60 picketers. The picketing did not obstruct pedestrians or vehicle traffic.

At the same time, two off-shift employees who had been picketing and handbilling from the street moved on to hospital property immediately adjacent to the main lobby entrance. They were positioned where they would interact with patients and members of the public. They raised picket signs which said “Fair Contract Now,” “Fair Wages,” and “Respect Our Care.”

Hospital representatives told the picketers they could not picket but could handbill from those locations. The picketers disagreed.

After going back and forth with management over whether the picketing was legally permissible, the union withdrew the picket from the property. During this exchange, management communicated to the union staff and to at least one picketing employee, that the employees could be disciplined if they persisted.

The hospital summoned the police, and asked the officer who arrived to “remove” the picketing employees from the property. He declined because the employees were not blocking physical movement to and from the hospital during the half-hour he was on the scene. The officer urged the parties “to resolve their differences” and left.

Property Right To Ban Employee Pickets

The Supreme Court of the United States has consistently held that an employer’s constitutionally protected property rights permit the employer to ban conduct by employees (and nonemployees) on company property that disrupts efficient production and delivery of products and services. A ban on picketing is therefore legitimate even if the picketers’ conduct constituted traditional trade union behavior. Moreover, according to the Supreme Court, picketing during a labor dispute always carries an aggressive, confrontational message. Accordingly, in general, the constitutional protection of an employer’s property right to exclude individuals trumps employees’ rights under the NLRA, when exclusion is necessary to maintain operations.

In this case, the union argued that the picketing was only “informational.” The Board majority accepted that description despite the timing, location, and words on the picketing signs. Notably, after hours of picketing in a public forum that was removed from patient traffic, the picketers moved to a location where they would inevitably interact with patients. The picketer’s intent in moving locations may have been to put pressure on patients who would transmit that discomfort to hospital management in hopes that they would be motivated to move closer to the union’s terms for settlement. Presumably, the right to exclude picketers, including off-work employees, from the hospital’s property would have prevailed if the picketers’ message had reached the hospital patients and others entering and leaving the grounds.

Employer Takeaways

The current Board is committed to the position that on-premises picketing by off-duty employees is protected activity, absent a demonstration by the employer that the picketing was, in fact, disruptive. Hospitals, and other health care providers, will derive little comfort from learning that federal courts may allow them to preemptively ban all picketing by employees on hospital property when the picketing will, most probably, communicate an aggressive message to patients and family members.

Healthcare employers can, however, take certain steps to address off-duty picketing:

• Determine whether the required 10 days’ notice has been provided under Section 8(g) of the NLRA. If picketing takes place within the 10-day written notice of the union’s intention to engage in such activity, or the union fails to give notice at all, the conduct is not protected. In that case, the picketing/handbilling may be enjoined and the employees disciplined.
• If the union gives notice, take affirmative steps, within the 10-day period, to mitigate the impact on care. Offer to meet with the union and attempt to reach ground rules that will limit contact with the patient population.
• Involve local law enforcement in these early discussions. In most cases, law enforcement will tilt toward minimizing confrontation.

Thoughtful advance planning and appropriate responses to whatever develops will minimize threats to patient care.