The Latest News from the NLRB to Hospitals: The Right to Picket Trumps Patient Care

Authored by Robert S. Seigel

Aug 16, 2016

In a decision issued last week, the National Labor Relations Board (“NLRB” or the “Board”) gave off-duty employees of acute care hospitals carte blanche authority to picket outside hospital entrances. The NLRB’s ruling is alarming in its cavalier disregard for the intrinsic negative impact that such activities have on patient care.

In Capital Medical Center, 364 NLRB No. 69 (2016), off-duty employees of an acute care hospital picketed at Hospital entrances to protest the Hospital’s bargaining tactics used during negotiations over a collective bargaining agreement. The NLRB concluded that the Hospital violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by attempting to prevent the off-duty employees from picketing, threatening the employees with discipline and arrest for engaging in picketing, and summoning the police to the scene. The Board relied on previous cases authorizing picketing by off-duty employees on the premises of retail employers.

In its decision, the NLRB purported to balance the rights of employees to engage in union activities under the NLRA against the mission of acute care hospitals to provide appropriate patient care. The Board ruled that a hospital can restrict (or possibly even prohibit) picketing by off-duty employees near hospital entrances if it can establish that such restrictions are necessary to prevent “patient disturbance or disruption of health care operations.” In this case, the Board found that the hospital offered no convincing evidence of any disturbance or disruption.

This case is disturbing because the Board’s stated intention to balance competing interests of the hospital and its employees is illusory. To an objective observer, it seems clear picketing at the entrance to a hospital inherently causes disturbance to patients and disruption of operations. Indeed, despite the assertions to the contrary by unions, this disturbance and disruption is precisely the intention of the employees engaging in the picketing. Moreover, in order to present convincing non-hearsay evidence of patient disturbance, a hospital would necessarily be forced to solicit testimony from patients. This creates an unfair and intolerable burden on the hospital, and makes satisfying the NLRB’s test almost impossible. As a result, in most situations, off-duty employees at acute care hospitals will now be permitted to picket at hospital entrances with impunity.

The challenges presented by this case make it all the more critical that hospitals prepare in advance for off-duty employee picketing by formulating a strategy for satisfying the Capital Medical test. The experienced attorneys at Lowenbaum Law are available anytime to assist you in this process.

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