Hospital's Selective Application of Solicitation and Distribution Policy Violates NLRA

Last week, the Seventh Circuit Court of Appeals upheld the National Labor Relations Board's decision against St. Margaret Mercy Healthcare Centers for its handling of union-related solicitation and distribution.   St. Margaret Mercy maintains a written policy prohibiting solicitation and distribution in areas of the hospital occupied or used by patients.  However, the policy permits solicitation and distribution in employee break areas during non-work time. 

During a union organizing drive, St. Margaret Mercy management prevented nurses from distributing union materials in the employee breakroom while anti-union literature was allowed to be posted in the breakroom.   The hospital management's decision was based, at least in part, on the breakroom's proximity to patient-care areas.

In addition, one nurse was disciplined for asking another employee to sign a union authorization card while located in an area where solicitation was prohibited.   However, St. Margaret Mercy had not disciplined other employees because they had solicited co-workers for charitable donations or the sale of products and other goods.

In finding that St. Margaret Mercy violated the National Labor Relations Act, the Court recognized the need to balance the employer's interest in operating its business free from disruptive interference by union organizers and an employee's organizing activities.   Nonetheless, St. Margaret Mercy's selective application of the solicitation and distribution policy was impermissibly focused on union activities in violation of federal labor law.

Bottom Line:

In order to maintain an efficient workplace, health care employers are encouraged to have written policies that prohibit solicitation for any activity while either the employees doing the soliciting or the employees being solicited are on working time or anytime in resident care areas.   However, in order to be lawful under the National Labor Relations Act, "working time" cannot include scheduled break or meal periods. 

Moreover, health care employers should also have written policies that prohibit the distribution of literature by employees on working time or in working or resident care areas at any time.   Also, health care employers should maintain written policies providing that non-employees are prohibited from soliciting or distributing literature on employer property at any time.

However, as discussed in St. Margaret Mercy, employers must be certain that they uniformly enforce their no-solicitation/no-distribution policies.  Employers are not permitted to selectively enforce such polices against only union-related solicitations/distributions.