A federal appeals court just approved the right of off-duty hospital employees to picket their employer under certain circumstances.
Is picketing on premises presumptively permissible?
Capital Medical Center of Olympia, WA, was engaged in a labor dispute with the union representing their technical employees. The hospital gave permission to a small group of off-duty employees to enter their property to hand out leaflets at two non-emergency entrances. However, without approval, additional employees began joining in while holding picket signs containing the messages “Respect Our Care” and “Fair Contract Now.” When the hospital became aware of the picketing activity, they told those employees that they could not picket by the entrance, threatened disciplinary action, and called the police.
After the union filed unfair labor practice charges, the National Labor Relations Board (NLRB) determined that the hospital’s actions violated the employees’ Section 7 rights under the National Labor Relations Act. Section 7 protects an employee’s rights to support a labor union, as well as solicit support both from co-workers and from non-employees (e.g. customers and the general public). Employers violate the law when they “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights.
NLRB Applies Republic Aviation to on-site picketing
When employees seek to exercise their Section 7 rights on their employer’s property, their rights are balanced against the employer’s property interests and management prerogatives. Section 7 protects an employee’s rights to support a labor union, as well as solicit support both from co-workers and from non-employees (e.g. customers and the general public). Employers violate the law when they “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights.
When employees seek to exercise their Section 7 rights on their employer’s property, their rights are balanced against the employer’s property interests and management prerogatives. In 1945, the United States Supreme Court ruled in Republic Aviation Corp. v. NLRB that an employer’s decision to prohibit solicitation of union support on company property by off-duty employees was presumptively unlawful unless the employer presented evidence that special circumstances require the prohibition so as to maintain production or discipline. In the health care setting, the NLRB has applied the Republic Aviation decision so that the employer’s prohibition on employee solicitation of union support is presumptively invalid unless the hospital can demonstrate a need for the restriction in order “to avoid disruption of health-care operations or disturbance of patients.”
The NLRB had not previously applied the Republic Aviation standard to picketing directly on hospital property but they did so in this case, finding that the union’s stationary and peaceful picketing activity fell within the scope of Section 7 protection. As such, the hospital’s interference with on-site picketing that did not disrupt operations or otherwise interfere with patient care violated the National Labor Relations Act.
The hospital appealed the ruling to the United States Court of Appeals for the D.C. Circuit, but to no avail as the appeals court found the NLRB’s application of the Republic Aviation principles to be reasonable. They explained that in order to overcome the Republic Aviation presumption of protected activity, the hospital was only required to show a likelihood of disruption or disturbance. However, the hospital here could only point to “speculative and exaggerated contentions” that were “not supported by the record,” and thereby failed to overcome the presumption.
The Appeals Court noted that the Republic Aviation framework only applied to “non-patient care areas” and echoed the NLRB’s warning that its decision did not mean that “on-premises picketing must be permitted to the same degree as on-premises solicitation and handbilling.” Whether or not other picketing activity meets the Republic Aviation standard will depend on the particular facts of each case.
It is crucial to note that this case does not mandate that that all employee picketing on hospital property is per se permissible. Instead, it simply means that employee picketing in non-patient care areas is permissible unless the hospital is able to point to some evidence to support the contention that allowing employees to picket would disturb operations or interfere with patient care.
This decision provides useful guidance for hospital employers as to when they might act to prevent on-site picketing by off-duty employees. They must be able to point to some evidence that the activity is likely to create a disruption of operations or a disturbance to patient care. Otherwise, they risk a finding that they violated the employees’ Section 7 rights.