By Brian Liss and Richard Siegel
The 7th U.S. Circuit Court of Appeals affirmed a National Labor Relations Board (NLRB) decision finding that hospitals interfered with the right of nurses to organize when the hospitals prohibited solicitations in employee break rooms. The court also upheld the NLRB’s finding that the hospitals discriminated against a union activist who was barred from soliciting on behalf of the union at a nurses’ station when other, nonunion solicitations were permitted.
The hospitals prohibited employees from soliciting other employees or distributing materials at any time in patient care areas, including patient, operating and treatment rooms, as well as in halls and corridors adjacent to such rooms and other areas used by patients. The hospitals, however, did not prohibit such soliciting in “nonwork areas,” including employee break areas. Notwithstanding this policy, the hospitals decided to prohibit solicitation in break rooms because they alleged patients could hear conversations that took place in the break rooms.
The NLRB unanimously adopted an administrative law judge’s findings that the hospitals violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by applying their no-solicitation rule to employee break rooms and by removing union literature from employee break rooms, thus interfering with the nurses’ right to organize in accordance with the NLRA.
Judge Richard Posner for the 7th Circuit concluded that there was little evidence to suggest that break room conversations could be heard from patient care areas when the two areas are separated by an 18- to 20-foot corridor. The 7th Circuit noted further that the actual distance was likely even greater given that there would be some distance between the entrance to the break room and where the nurses were talking, as well as some distance between the entrance to the patient care rooms and where the patients actually were situated. The court noted that even if conversations could carry such a distance, the “obvious solution” was to require that the doors to the break rooms be shut or to have a door that automatically closed.
The appeals court also agreed with the NLRB’s finding that the hospitals’ rule prohibiting solicitations was applied discriminatorily when it was enforced against a union activist but not against other forms of solicitation. The solicitations that did not draw the ire of management were both commercial, including nurses selling lotions to their colleagues, and noncommercial, including solicitations for Girl Scout cookies and March of Dimes donations as well as party invitations.
The 7th Circuit concluded that patients likely would be no more disturbed by union organizing than by the sales of lotions and party invitations that had not been challenged, particularly given that the unionizing activities were related to the nurses’ professional duties while the other solicitations were not.
St. Margaret Mercy Healthcare Centers v. NLRB , 7th Cir., Nos. 07-2752, 07-3110 (March 11, 2008).
Professional Pointer: Hospitals cannot prevent union solicitation in employee nonwork areas by claiming that such unionization interferes with patient care, unless such interference is both obvious and unavoidable. If employers wish to avoid union solicitation efforts in certain settings, they must not permit other types of solicitation, including charitable solicitations, in those same settings.
Brian Liss and Richard Siegel are attorneys with the firm Sheppard Mullin Richter & Hampton LLP in Washington, D.C.
Editor’s Note: This article should not be construed as legal advice.