By Ashley Laken

Seyfarth Synopsis: U.S. Court of Appeals for the D.C. Circuit rules that the NLRB properly found that a hospital violated the NLRA by threatening employees with discipline and arrest for peacefully picketing on hospital property.

On August 10, 2018, in Capital Medical Center v. NLRB, No. 16-1369, the U.S. Court of Appeals for the D.C. Circuit agreed with the NLRB that off-duty employees at a hospital had the right under Section 7 of the National Labor Relations Act to peacefully hold picket signs on hospital property next to an entrance.  In reaching this conclusion, the court observed that the NLRB had permissibly balanced the employees’ rights against the hospital’s interests in controlling its property.

The Facts

On May 20, 2013, a large number of off-duty hospital employees picketed and chanted on the public sidewalks around the hospital to advocate for a new collective bargaining agreement.  Then, late in the day, a handful of them began distributing leaflets and holding picket signs on hospital property next to an entrance.  The picket signs contained the messages “Fair Contract Now” and “Respect Our Care.”

The hospital informed the employees that they could continue distributing leaflets but they could not stand on hospital property with their picket signs.  The employees refused to comply, and the hospital threatened them with discipline and called the police.  The employees chose to leave a short time later, and an unfair labor practice charge against the hospital followed.  The NLRB found that the hospital’s conduct violated the NLRA, and the hospital petitioned the D.C. Circuit for review.

The Court’s Ruling

The court denied the hospital’s petition for review.  The court observed that when employees seek to exercise Section 7 rights on employer property, their rights are balanced against the employer’s property interests and management prerogatives.  The court found that the NLRB had properly examined whether prohibiting the employees’ conduct was necessary to avoid disrupting patient care, and had properly concluded that the hospital had failed to make that showing, thereby violating the employees’ rights by attempting to bar their conduct.

In reaching this conclusion, the court observed that the employees were holding signs near a nonemergency entrance “without any patrolling, chanting, or obstruction of the entrance,” and that the hospital had therefore failed to meet its burden to show that it needed to bar the picketing to prevent patient disturbance or disruption of health care operations.  The court further noted that the NLRB “presumably will develop principles on a case-by-case basis that will guide employers about the circumstances in which they can prohibit picketing on company premises.”

Employer Takeaways

The permissibility of restricting on-premises picketing is a highly fact-specific inquiry that will depend on an examination of both the employees’ conduct in picketing and the employer’s interest in avoiding disrupting its operations.  Employers would therefore be well-advised to consult labor counsel before restricting off-duty employees from picketing on company premises.

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Howard is an associate in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state…

Howard is an associate in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state agencies, including the National Labor Relations Board, Equal Employment Opportunity Commission, Department of Labor, New York State Division of Human Rights, New Jersey Division on Civil Rights and the New York State Public Employment Relations Board.  In this role, Mr. Wexler has extensive experience defending both single and multi-plaintiff discrimination/harassment cases, class and/or collective actions, as well as lawsuits initiated by the EEOC.  He has represented employers in class and collective actions and multi-plaintiff claims involving discrimination/harassment on the basis of age, race, gender, national origin, and other protected classifications. His wage-and-hour experience includes the defense of major class action claims involving meal breaks, rest breaks, misclassification, and work-off-the-clock allegations.