United States: When And Where Can The "Line" Be Drawn? NLRB Considers When Off-Duty Employees May Picket A Hospital Employer

The National Labor Relations Board (the "Board") recently addressed hospital employers' ability to prohibit picketing by off-duty employees on their own premises.  Although the Board concluded that a hospital employer may lawfully ban off-duty employees from picketing on its premises when picketing would disturb patients or disrupt health care operations, the Board offered hospital employers little guidance as to the evidence necessary to support such a ban.

In Capital Medical Center, 364 NLRB No. 69 (Aug. 16, 2016), the Board purported to give "recognition of the special considerations involved in an acute care hospital setting" in weighing the interests of the employer to prohibit picketing near an entrance to its facility. Yet, ultimately, the Board held that the off-duty employees' interests in picketing outweighed the employer's business interests, even in the special context of a hospital. Therefore, the Board found that the hospital employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by threatening to discipline or arrest off-duty employees picketing its non-emergency entrances.  

Despite that result, the Board conceded that it could "envision circumstances . . . where picketing on hospital property would disrupt operations or interfere with patient care[,]" (emphasis added) and stated that, in those circumstances, "a restriction on picketing would be lawful." However, the hospital employer in this case failed to meet its burden to show that the ban on off-duty employee picketing at the hospital entrance was "necessary to maintain discipline and production or that the prohibition was necessary to prevent patient disturbance or disruption of healthcare operations."

While the hospital employer in Capital Medical Center argued that the picketers patrolled the doorways and "subjected these most vulnerable Hospital patrons to additional stress[,]" the Board did not find these claims compelling.  The Board emphasized that the picketing at issue consisted of two off-duty employees holding signs and distributing handbills outside of a non-emergency entrance to the hospital facility. The picketers were "outside the main pathways to the doors," and remained generally stationary and quiet. The Board pointed to the lack of any evidence "that the employee picketers 'patrolled the doorway, marched in formation, chanted or made noise, [or] created a real or symbolic barrier to the entryways . . .'" The Board also noted that the employer raised no objection to the distribution of handbills in the same area as the picketing.

According to the Board, the employer's burden is high to not only prove it reasonably believed the picketing would cause a disruption or interference to patients or healthcare operations, but also to show that such a disruption or interference in fact occurred as a result of the picketing.1 The standard established by the Board also appears to suggest that hospital employers may need to wait until a disruption or interference occurs, or is at a minimum highly likely to occur, before it can restrict picketing in front of an entrance to its facility.

The Board repeatedly declared that it was not creating a categorical right to picket on hospital employer premises, but the Board's ad-hoc analysis did little to clarify where the line can be drawn. Given the retrospective assessment of whether the picketing activity caused any disruption or interference in hospital operations, the Board has set a fairly nebulous standard for hospital employers to rely on in establishing restrictions on picketing. Ultimately, it will be imperative to watch how the Board and courts apply this newly extended standard to determine the circumstances under which a hospital employer's interests and patient care concerns will take precedence over employees' right to picket. For now, prudent hospital employers should be sure that any limitations on employee picketing are directly necessary to avoid interference with patient care or hospital operations.

Footnote

1 The Board pointed to the fact that "the only evidence of any potential disruption caused by the picketing is that . . . one visitor state[d] that he usually did not cross picket lines, but that he had to in order to visit a patient."  

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