Drawing a distinction between picketing and striking, the 2d U.S. Circuit Court of Appeals has held that a New York health clinic unlawfully fired five employees for joining a picket line, even though the picketing itself was an unfair labor practice by the union.  Civil Serv. Employees Assn. Local 1000 v. NLRB, 2d Circ., No. 07-5041, June 19, 2009. 

The American Federation of State, County and Municipal Employees (AFSCME) represents correctional officers at a state facility in Albany where Correctional Medical Services (CMS) operated a health clinic.  Local 1000 of that union attempted to organize the employees of the clinic, asking CMS to recognize the union as a bargaining agent for all of the clinic’s employees other than physicians, supervisors, and clerical workers.  When CMS refused that request, the union established a picket line in which 20 individuals peacefully picketed in front of the clinic’s main entrance for less than an hour, without blocking access to the facility.  Those 20 individual include five off-duty, non-union CMS employees.

Section 8(g) of the National Labor Relations Act (NLRA) includes a provision that requires a labor organization to provide at least 10 days advance notice before engaging in “any strike, picketing, or other concerted refusal to work” at a healthcare entity.  In this case, no such notice was given, and the five CMS employees received a letter on the following day informing them that the picketing had occurred without the required 10-day notice and, therefore, was illegal.  Shortly after receiving those letters, the five employees were fired, based upon CMS’ reading of the NLRA.

CMS filed a charge against the union under Section 8(g); acting on that charge, the NLRB director issued a Section 8(g) complaint against the union.  Local 1000 settled the complaint against it, but filed a charge against CMS, alleging that the employees’ firings were illegal.  In May 2007, the NLRB ruled that the clinic’s discharge of employees did not violate the NLRA.  Local 1000 petitioned for review of that decision.  On appeal, the Second Circuit ruled that the NLRB improperly construed Section 8 of the NLRA related to healthcare workers. 

Under Section 8(a) of the NLRA, an employer commits an unfair labor practice if it interferes with an employee’s right to organize.  Picketing is generally considered to be a protected activity under the Act.      However, in the 1974 amendments to the NLRA, Congress modified Section 8 of the Act, adding a restriction – Section 8(g), mentioned above – related to picketing or striking against a healthcare entity, and requiring a 10-day notice of such activity by “labor organizations.”  That particular sub-section does not state that an individual employee who participates in such activity commits a violation.  Under modified Section 8(d), however, an employee who engages in “any strike” at the healthcare entity without the required notice is no longer an “employee” under the NLRA, losing all protection under the Act.  This is the language cited by CMS to support its discharge of the five picketers. 

However, the Second Circuit pointed out that while Section 8(d) provides that an employee who engages in a strike without proper notice “shall lose his status as an employee of the employer engaged in the particular labor dispute,” Section 8(d) does not include a comparable provision about employees who participate in picketing conducted by the union in violation of those notice requirements.  Therefore, while a “labor organization” is subject to sanctions for either striking or picketing without observing the appropriate notice under Section 8, the Act specifically sanctions only those individuals who participate in a strike against a healthcare entity, and not in picketing of that same employer (unless those individuals are actually “agents” of the union under a separate Section of the NLRA).

This case is one of which healthcare entities must be aware, especially in light of current efforts toward unionization of healthcare employees.  However, we may not have seen the last of this issue.  The Second Circuit points out in its opinion that this circumstance involved only “peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic,” but states that it could “conceive of certain circumstances where protected picketing could cause disruption in the ability of a health care facility to deliver health care.”  While the Court states that its opinion in this case is based upon the clear wording of the statute, it suggests that “[i]f the balance is imperfect, the Board should petition Congress to fix it.”  


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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