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NLRB: Hospital wrongly barred off-duty workers in its public cafeteria from soliciting others on nonworking time

By Ronald Miller, J.D.

An employer’s solicitation and distribution policy was overbroad because it prohibited off-duty employees, who were permissibly on the employer’s property, from engaging in Section 7 activities, ruled a three-member panel of the NLRB. Having granted off-duty employees access to its cafeteria, the employer could not at the same time prohibit them from soliciting other employees in the cafeteria who were on nonworking time. Additionally, the Board agreed with an administrative law judge that the employer’s unwritten rule prohibiting employees from leaving nonwork-related materials in nonworking areas was overbroad (UPMC, UPMC Presbyterian Shadyside dba UPMC Presbyterian Hospital, August 6, 2018).

Solicitation and distribution policy. The employer stipulated that since September 15, 2015, and continuing to the present, it maintained the same solicitation policy in its “UPMC Policy Manual,” at all of its facilities involved in this proceeding. On March 10, 2016, an employee was in the employer’s cafeteria, with a union organizer, talking to employees, handing out union flyers, and asking employees to sign a union petition. He was not on duty at the time. The record also established an ongoing union organizing drive at the employer’s facilities during the relevant time period. Further, it was established that the employer’s cafeteria was typically used by employees, patient families, and the public.

At some point, the employee was approached by a supervisor, who asked his name and whether he was on duty. After the employee advised the supervisor that he was not on duty, he was advised that he could not hand out flyers or have people sign the petition.

In this instance, the hospital permitted off-duty employees access to its cafeteria, but prohibited them from soliciting (or being solicited by) employees on nonworking time, both in the cafeteria and other nonworking and non-patient care areas of the hospital. An administrative law judge found that the employer had not satisfied its burden of demonstrating that the prohibition of off-duty solicitation was necessary to avoid disruption of healthcare operations or disturbance of patients.

The Board adopted the law judge’s findings that the employer violated Section 8(a)(1) by maintaining a policy that prohibited off-duty employees from soliciting or being solicited, and that it unlawfully enforced the policy against an off-duty employee who engaged in union solicitation in the employer’s cafeteria.

Unwritten rule. The Board also agreed with the ALJ that the employer’s unwritten rule prohibiting employees from leaving nonwork-related materials in nonworking areas was overbroad. The unwritten rule was not simply a ban on litter, and the employer was not merely engaged in normal housekeeping. Rather, the rule barred an employee on nonworking time from placing union literature in an employee break room (a nonworking area) to be read later on by another employee on nonworking time. Such activity is a form of distribution and the employer failed to justify its ban against such union activity.

Accordingly, the Board found that the employer violated Section 8(a)(1) by maintaining an unwritten rule prohibiting employees from distributing union literature in nonworking areas of the hospital during nonworking time. Additionally, the employer violated Section 8(a)(1) by enforcing that rule in its employee-only break room when a management official discarded union literature and other pamphlets while informing employees that there would be no more papers unrelated to the hospital’s official business put out on the break room table.