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Employees of Unionized Facility Should Have Been Permitted to Distribute Union Literature at Nonunion Facilities

By Roger P. Gilson Jr.
  • October 31, 2003

A nursing home employer in California violated its employees' rights to organize by prohibiting its unionized employees from distributing union literature in outside, nonwork areas at another nonunion site. In a 2-1 decision, the U. S. Court of Appeals for the Sixth Circuit ruled that under the National Labor Relations Act, the employees' right to access nonworking areas of the facility outweighed the nursing home's property rights. (First Healthcare Corp. v. NLRB, 6th Cir., No. 01-2478, 9/19/03 ).

In ejecting the off-duty employees and several nonemployee organizers, the nursing home was enforcing a handbook "no solicitation and distribution" rule. One provision of the policy forbid off-duty employees from returning to the facility unless to pick up a paycheck or with prior authorization. A second provision prohibited non-employees from soliciting or distributing materials on facility property. The employer enforced the second provision against the unionized employees from the other facilities, as well as against the non-employee organizers.

The National Labor Relations Board found the employer had violated the NLRA by enforcing against its own employees the policy prohibiting solicitation and distribution. Although the employer contended the off-site employees were like nonemployees, the Labor Board found the employees had the right to organize at the nonunion facilities and could not be denied access without a justifiable business reason.

On appeal to the Sixth Circuit, the court took the position of the Labor Board and made no distinction between the off-duty employees and other employees. The court affirmed that the basis of the right to organize rests in the individual's status as an "employee." Drawing a distinction between off-duty employees and other employees "would do violence to the plain language of the Act." The court further reasoned that off-duty employees seeking to encourage unionization among fellow workers are acting to further their own interests, as well as those of their fellow workers.

Although the employer argued that it was necessary to deny access to the off-site employees to preserve the peace and tranquility of the residents, the court disagreed. The off-site employees were not attempting to enter the nursing home, the court noted. While the employer also asserted its concern that security would be compromised by the presence of the off-duty employees who might be mistaken for strangers, the court was not persuaded. The employees had identified themselves to avoid any such confusion, and the Labor Board had guaranteed the authority of the employer to take appropriate measures to secure the facility, control traffic, or handle other difficulties resulting from the presence of too many off-site employees. On balance, the court found there was substantial evidence to find the employees' right to organize outweighed the employer's private property rights. [First Healthcare Corp. v. NLRB, 6th Cir., 9/19/03).]

Editor's Note: An enforceable no solicitation and no distribution rule can be an effective method for limiting the opportunities for union organizers to gain access to nonunion employees. The parameters for such rules in the health care industry are tricky, and competent labor counsel should be consulted to avoid a possible unfair labor practice charge. It should also be noted the court agreed with the Labor Board that the employer had violated the NLRA by maintaining the rule prohibiting off-duty employees from entering the employer's nonwork premises unless authorized. Jackson Lewis attorneys are available to assist health care employers with no solicitation/no distribution rules, as well as other policies that, when consistently enforced, are effective in maintaining union free status.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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