Securing Your Premises in an Active Union Environment, AHA Health Care Labor Report Newsletter, American Hospital Association (AHA)

Roger King is a partner in the Columbus office and Rebekah Bennett is an associate in the San Diego office of Jones Day where they are members of the Labor & Employment practice group.

During union organizing initiatives or difficult labor negotiations, hospitals increasingly are pressured to permit various types of access to their facilities. While it may take electronic or virtual form, access most often is of a “physical” nature. This article discusses physical access issues that private-sector health care providers should consider in the context of union organizing initiatives or labor contract negotiations and when one union raids (attempts to displace) an existing union. A future issue of Health Care Labor Report will address electronic and virtual access issues.

Whether employers legitimately can limit union solicitation, including restricting distribution of union literature and access to the employer’s premises, depends in large part on whether the solicitation is undertaken by non-employees or employees. Generally, private sector hospitals may restrict access rights of non-employees who have no legitimate business reason to be on the premises. However, in public hospitals, non-employees will likely have greater access rights to public areas, depending on state law. Without a legitimate business reason, non-employees in both private and public sector settings have virtually no right to be in patient care areas. But restrictions on employee access rights are analyzed differently: The National Labor Relations Board (NLRB) requires that the right of employees to engage in concerted (organizing) activity be balanced against the property rights of the employer and its interest in maintaining an efficient, secure and operational workplace.

Hospitals need to develop valid no-solicitation/no-distribution policies before they are engaged in a union organizing campaign or difficult labor negotiations. Maintaining a no-solicitation/no-distribution policy and applying it in a non-discriminatory manner is essential to effectively managing labor organizing activities on hospital property and ensuring compliance with the National Labor Relations Act (NLRA).

Non-Employee Access
The NLRA generally confers rights on employees, not unions or non-employee organizers. Generally, non-employees are not entitled to access a hospital’s property to solicit and distribute union literature. However, there are three exceptions to this general limit on a union’s access rights:

(1) Inaccessibility – A union may be permitted to enter an employer’s premises to communicate with employees if the workplace location and the employees’ living quarters place employees beyond the reach of reasonable union efforts to contact them. Most hospitals are unlikely to be affected by this exception; however, it might apply to a health care facility in a remote location, such as a mining or construction camp.

(2) Discrimination – An employer may not be able to exclude union representatives who wish to access its property to communicate with employees where the employer has permitted other outside entities to enter its property to communicate with its employees (such as selling jewelry, or to campaign for a political candidate). Hospitals that prohibit outside vendors and campaigners from entering their property likely will not be subject to this exception and therefore will be able to lawfully exclude non-employee union representatives.

(3) By agreement – Where an employer and a union have come to an agreement (such as through the collective bargaining process or via a neutrality agreement) that permits union officials to enter the employer’s property, the employer must abide by the terms of this agreement.

In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the U.S. Supreme Court held that employers may validly prohibit non-employee distribution of union literature if reasonable efforts through other available channels of communication will enable the union to reach the employees, and if the employer does not discriminate by permitting non-union distribution. “Other available channels of communication” would include the use of mail and telephones, newspaper advertisements, home visits, and solicitation of employees in the public areas near the employer’s property. Hospital employees are almost never considered beyond the reach of traditional communication sources; therefore, as a general rule, hospitals may bar non-employee union organizers from their premises. The courts have found that hospitals, for example, may lawfully ban non-employee union organizers who solicit employees in the hospital cafeteria.

Courts also have held that employers do not yield their property rights to non-employee solicitors who are attempting to communicate with the employer’s customers. Therefore, where it maintains a valid non-discriminatory “no-solicitation” policy, a hospital may prohibit non-employee union organizers from entering the hospital’s property in order to communicate with patients or their family members.

The keys to protecting hospital property against non-employee solicitation are:

  • Maintaining a no-solicitation policy that prohibits individuals who are not hospital employees from entering or remaining on hospital property to solicit and distribute literature; and
  • Applying this no-solicitation policy in a non-discriminatory manner.

Non-employee solicitation may be prohibited in both a unionized and a non-unionized environment. Except to the extent negotiated with a union, or where special circumstances exist, organized facilities are not required to permit non-employee union access provided the employer applies its non-employee access policy in a non-discriminatory manner.

Third-Party Property Rights - Property Interest Requirements. While a hospital has the right to bar non-employee organizers from its own property, it does not have the right to bar non-employees from property owned by others. Therefore, to the extent a hospital leases property from a third party, the hospital may not have the right to prohibit non-employee organizing from a sidewalk in front of the hospital that has not been conveyed in the lease. In Drummond Thriftway, 292 NLRB 331 (1989) for example, the NLRB held that a grocery store operator who held a sublease that did not convey the sidewalk in front of the store had no property interest, and thus no authority to exclude non-employees from the sidewalk during an organizing campaign. Hospitals that lease buildings, particularly satellite locations and/or clinics, should consider requesting that the land surrounding the leased premises be conveyed in the lease and/or that the lessor adopt and enforce a no-solicitation and no distribution policy with respect to the surrounding areas.

Property Rights Granted By Contract. Hospitals also should be wary of property and access rights granted by contract. For example, an employer may not deny a union access to a jobsite where the union seeks to communicate with the represented employees of a subcontractor when a visitation clause in the contract between the subcontractor and the union permits access. In this situation, the host employer’s property rights may be superseded by the union’s contractual rights with the subcontractor by virtue of the employer’s “invitation” to the subcontractor to work on the employer’s property. The host employer may require the union’s agents to comply with reasonable non-discriminatory rules regarding site access – i.e., requiring the union’s agents to sign in at a designated location. Hospitals that contract with a third-party for construction work or other jobs (such as hiring an outside company to construct a new parking structure) should be aware whether the third-party contractor’s employees are unionized and the collective bargaining agreement between the third-party contractor and the union contains a visitation clause. In this circumstance, the hospital’s property rights may be affected by the union access provisions in the contractor’s collective bargaining agreement.

Employee Access – Special Treatment for Hospitals
Solicitation and distribution at certain times and in certain areas by a hospital’s own employees is generally permitted on hospital property. Employers that have valid no-solicitation/no-distribution policies may also limit employee solicitation to non-working time – i.e., both the solicitor and the solicitee must be on non-work time. The NLRB specifically distinguishes between no-solicitation/no-distribution policies that prohibit union activity during work hours as opposed to work time. Prohibiting union activity during work hours is unlawful because it might suggest to employees that solicitation during breaks or lunchtime is prohibited.

Hospitals may further prohibit solicitation and distribution in immediate patient care areas and at any time solicitation would disrupt health care operations. Immediate patient care areas include patient, operating and treatment rooms; but generally they do not include hospital lobbies, cafeterias, waiting areas on patient floors or hallways unless a hospital can establish that special patient care circumstances exist in these areas. Distribution may also be prohibited in any work area, including immediate patient care areas and restricted to non-work time.

Hospital employees also generally are permitted to solicit and distribute to patients’ families and other visitors, provided that the solicitation occurs on non-work time and in non-patient care areas. Distribution, as noted above, can be prohibited at any time in work areas and immediate patient care areas.

Off-Duty Employees. Hospitals may prohibit off-duty employee solicitation only where it has a valid rule restricting off-duty employee access to the premises. Such a rule is valid only if it:

  • Limits access solely with respect to the interior of the facility and other working areas;
  • Is clearly disseminated to all employees; and
  • Applies to off-duty employees seeking access to the facility for any purpose and not just to those employees seeking access to engage in union activity.

In a case involving the right of off-duty employees of a nursing home to solicit co-workers in the parking lot of another facility, for example, the court concluded that “welfare, peace, and tranquility” of the residents was no more likely to be disturbed than it would be by the presence of a deliveryman at the door of the premises. Accordingly, a broad rule prohibiting employee access to “company property after hours without authorization” would generally be found to violate the NLRA.

Similarly, the NLRB has found that broad “no loitering” rules are unlawful because employees could reasonably interpret these rules as a prohibition on lingering on the employer’s premises after the end of a shift in order to engage in protected organizing activity. However, in its 2008 decision in Tecumseh Packaging Solutions, Inc., 352 NLRB No. 87, the NLRB noted that a narrowly tailored rule or policy aimed at the prevention of violence or avoidance of liability for accidents and injuries may be lawful.

Off-Site Employees. For multi-facility hospitals and hospitals affiliated with universities, another issue that may arise is whether off-site employees (i.e., employees of the university or another facility who do not work regularly or exclusively within the hospital) are entitled to access hospital property to solicit on-site employees. The NLRB has held that off-site employees have generally the same right to access the employer’s property to organize as on-site employees who are off-duty. Except where justified by business reasons (such as employee identification, security and traffic control), off-site employees specifically have a protected right to access the outside, nonworking areas of the employer's property. Thus, an employer must permit off-site employees to solicit in an employer’s parking lot or an outside break area.

Case law, however, suggests that an employer is not required to permit off-site employees into interior non-working areas. A recent opinion of the NLRB’s General Counsel illustrates this point. Yale New Haven Hospital had denied access to off-site employees of Yale University who were seeking to handbill at the entrance of one of the hospital’s clinics. The General Counsel advised that an unfair labor practice charge filed against the hospital be dismissed. The General Counsel found that the off-site employee handbillers could have stationed themselves further away from the front entrance to the clinic and effectively communicated their message in

that manner. Importantly, the General Counsel also discussed the fact that the clinic, while open to a “limited subset of the general public” (i.e., patients) did not “extend an open invitation to the public generally” to use its property. The General Counsel further emphasized that, as a provider of diagnosis and treatment for patients with cancer and other medical conditions, the hospital had an interest in maintaining an appropriate atmosphere for such medical diagnosis and treatment to succeed.

Hosted Employees – Tenants, Subcontractors & Others
Distinguishing between employees and non-employees is crucial to properly monitoring and enforcing hospital no-solicitation/no-distribution policies. But the question of who are the hospital’s employees may not always be clear. The nurses, technicians and administrative staff who are directly employed by the hospital clearly are hospital employees. However, many hospitals are faced with an “employer-within-employer” circumstance. For example, hospital cafeterias may be run by an outside vendor, or a hospital may house a Starbucks™, an independent pharmacy or even a dry cleaner on the campus – all of which may be staffed by non-hospital employees. The NLRB recently took up this issue of whether individuals working for a contractor on another’s premises should be considered employees or non-employees of the property owner.

The case involves New York New York (NYNY), a Las Vegas casino that contracted with Ark Las Vegas Restaurant Corporation (Ark) to operate several restaurants on casino property. Off-duty employees of Ark stood on casino property and distributed literature to casino customers informing them that Ark did not have a union contract. NYNY informed the Ark employees that they were trespassing and asked them to leave. When the Ark employees refused, NYNY called local law enforcement and had them cited for trespass. The union filed unfair labor practice charges, alleging that NYNY unlawfully interfered with the Ark employees’ right to organize.

The NLRB held that even though Ark’s employees were not “employees” of the casino, they had the right to solicit and distribute in non-working areas. The U.S. Court of Appeals for the D.C. Circuit, however, refused to enforce the NLRB’s decision, specifically holding that the NLRB did not address the Supreme Court’s express recognition of a distinction between employees and non-employees. The court sent the case back to the NLRB to resolve a number of issues, including whether Ark employees should be considered “non-employees” when they distribute literature on the casino’s property outside of Ark’s leasehold. The case, New York New York Hotel LLC d/b/a New York New York Hotel & Casino, Case No. 28-CA-14519, is pending before the NLRB.

The NLRB’s - and perhaps the federal court’s - ruling will have important implications for hospitals that host other entities on their premises. In this case, NYNY’s employees were organized, but the Ark employees were not. If the represented NYNY casino employees had gone out on strike, it is uncertain whether the Ark employees would be entitled to support the casino employees by distributing handbills in non-work areas outside of the Ark leasehold. A health care organization might address this issue by incorporating into its tenant’s and subcontractor’s lease agreements provisions that describe the lessee’s employees as non-employees of the host-employer

and place limits on their rights to access the host-employer’s property. Further, such lease provisions should require the employees of any contractor or tenant to abide by the same no-solicitation/no-distribution and access rules that are in place for the hospital’s employees.

Union Raiding
To increase membership, unions are using raids – one union attempts to raid an existing bargaining unit of another union and thereby replace the incumbent union as the bargaining representative for the unit. Raiding union representatives are clearly non-employees and, as a general rule, would not have rights to access a hospital’s property that are any greater than a member of the general public. Therefore, the restrictions on non-employee access rights outlined above would generally apply to such situations.

Thoughtful and careful drafting and implementation of employer policies in the solicitation, distribution, and access areas can not only assist hospitals in avoiding unnecessary legal entanglement, including having to respond to Unfair Labor Practice Charges under the NLRA, but also greatly assist hospitals in prohibiting unwelcome intrusion onto their private property by third parties. Indeed, such policies may be of considerable assistance to medical facilities to protect employee information and control and monitor and restrict union card signing if the Employee Free Choice Act is enacted into law in 2009.