Posted: January 13, 2017 

The NLRB’s back at it, expanding the right of unions to disrupt the workplace while restricting an employer’s ability to maintain effective operations.  In Capitol Medical Center, 364 NLRB No. 69, the NLRB created a brand new right allowing employees to picket on an employer’s private property.

The case involved a medical hospital.  The hospital and the union were engaged in negotiations for a new collective bargaining agreement.  In an effort to exert pressure on the hospital to accede to union demands, a number of employees decided to handbill and picket the employer the day before a negotiation session was scheduled to occur.

About fifty employees arrived during the early morning hours and picketed and passed out handbills from the public sidewalk close to the hospital’s driveway.  However, later in the afternoon a number of employees started handbilling and picketing on the hospital’s private property – in front of the main entrance.

Hospital security told the employees that they could continue to pass out handbills from hospital property, but that they could not picket.  Employees refused to comply with the hospital’s order.  In response, hospital security indicated the police would be called and that employees could be disciplined.  Police were called, but no arrests were made nor were any employees disciplined. 

The union filed an unfair labor practice, alleging the hospital violated employee rights by threatening to take disciplinary action against employees.  The hospital defended its actions, accurately stating that employees have never been recognized to have the right to picket on an employer’s private property.  Instead, it had generally been recognized that an employer may prohibit employees from picketing on private property.

The NLRB expanded upon a decision reached by the United States Supreme Court in 1945 to rule, for the first time ever, that employee’s may engage in on-site picketing of private property.  However, the 1945 decision did not involve picketing, but instead allowed off-duty employees to engage in much less disruptive conduct, such as passing out leaflets, in the non-work areas of an employer’s property.  The NLRB ignored this important distinction, which had been accepted for over seventy years, to greatly enlarge a union’s ability to significantly disrupt employer operations. 

The NLRB’s decision to allow employees to picket in the non-work areas of an employer’s premises is extremely problematic.  Picketing is widely acknowledged as the most disruptive form of union activity.  Notwithstanding, employers now face the threat of opening up their private property to this detrimental union conduct. 

A union’s ability to picket on an employer’s property is not unlimited.  A union cannot physically block access to the employer’s location and cannot create a safety hazard.  Likewise, a union cannot make threats, damage property, or engage in violent activity.  However, the line of demarcation between what is acceptable and what is prohibited is not always clear, and an employer is well advised to consult with experienced labor council to make these distinctions. 

If you have any questions regarding on-site picketing or any other labor or employment related matters, contact Masud Labor Law Group.

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail: .(JavaScript must be enabled to view this email address). ©Masud Labor Law Group 2011.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

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