An employer’s ability to prohibit picketing on its property was dealt a serious blow when the National Labor Relations Board (NLRB) recently ruled in Capital Medical Center that an acute care hospital violated Section 8(a)(1) of the National Labor Relations Act when it sought to prevent off-duty employees from picketing on hospital property by threatening the picketers with discipline and calling the police on them.

Capital Medical Center (CMC) was in the midst of contract negotiations with UFCW Local 21, the collective bargaining representative of CMC’s technical employees, when the Union and some off-duty employees engaged in handbilling and picketing to publicize the lack of progress in negotiations. Initially, the picketing took place on the public sidewalk bordering the hospital and employees distributed handbills on CMC’s property outside the main lobby entrance and the entrance to the physicians’ pavilion. CMC did not interfere with either of those activities. However, when a few off-duty employees stationed themselves with picket signs on CMC property near the main lobby and physicians’ pavilion entrances, CMC intervened. After repeatedly asking the employees to leave, CMC called the police, who declined to remove the picketers because they were not disruptive and did not block entry to or exit from the facility.

The NLRB ruled that CMC violated its employees’ right to engage in protected concerted activity when it tried to halt the picketing on CMC property. In reaching its decision, the NLRB applied a balancing test which weighed employees’ Section 7 rights of self-organization against an employer’s property rights. Here, the NLRB determined that an employer cannot restrict Section 7 activities, such as picketing, unless it shows the restriction is necessary to maintain discipline and production. In an acute care hospital setting specifically, an employer may only prohibit Section 7 activities in non-patient care areas if it demonstrates that the prohibition is necessary to prevent patient disturbance or the disruption of healthcare operations.

The NLRB ruled that CMC failed to establish that the presence of the picketers at the main lobby and physicians’ pavilion entrances caused a disturbance to patients or disrupted healthcare operations. The picketers’ actions did not meet the threshold necessary to permit CMC to intervene because they did not patrol the doorways, march in formation, chant, or create any real or symbolic barrier to the hospital entryways, and were no more disruptive than the on-property handbilling permitted by CMC.

Member Miscimarra dissented from the majority decision. He faulted the majority for applying the test governing solicitation and distribution of literature on an employer’s property to the on-premises picketing that occurred in this case. In his view, the majority should not have treated the two activities the same when balancing the employees’ Section 7 rights against CMC’s property interests because picketing is more coercive and disruptive than handbilling.

After CMC, employers faced with on-premises employee picketing should exercise caution and carefully gather and evaluate all relevant facts before taking action. Whether an employer can prohibit this on-property picketing is a fact-based inquiry that depends on the unique circumstances of each case. Although this case does not create an absolute right for employees to picket on employer property, the NLRB’s CMC decision tilts the scale in favor of employees.

Grace Urban, a second year law student at Loyola University Chicago School of Law, is a Loyola Labor and Employment Practicum Student. The Practicum, part of Loyola's labor and employment law curriculum, was created to provide law students with practical experience at labor and employment law firms and organizations. Students receive academic credit for their Practicum experience.