Introduction

The U.S. Court of Appeals for the Second Circuit recently held that employees of a health clinic may lawfully picket a health care provider without giving the provider 10-days’ notice as required under the National Labor Relations Act (NLRA or the Act). Civil Service Employees Assoc. v. NLRB (Civil Service Employees).1 In so holding, the Second Circuit set aside National Labor Relations Board precedent,2 which traditionally has held such activity to be unprotected and, therefore, hospitals could discipline or discharge employees who engaged in such action.

Although the appellate court’s decision is limited to one federal jurisdiction, it may have a resounding effect on the balance between hospitals’ right to provide uninterrupted patient care and employees’ right to organize under the NLRA. In 1974, Congress amended the Act to afford hospitals certain protections against organizing activity so that they could ensure the uninterrupted delivery of quality patient care. Unions and employees have had to provide at least 10-days’ notice to hospitals before picketing or striking.

The holding in Civil Service Employees arguably limits hospitals’ protection under federal law, decidedly tilting the balance in favor of employee rights. Further, if the current prounion labor Board adopts the Second Circuit’s holding, the ability of hospitals to provide continuous and safe patient care may be significantly compromised. For example, if employees of a hospital unexpectedly picket, this could prevent delivery and ambulance drivers from crossing the picket line, thus obstructing the delivery of blood, critical hospital supplies and patient care.

Not only would such activity threaten a hospital’s ability to care for its patients, hospitals also would have no recourse against these employees. This result essentially dissolves the protection Congress intended to afford hospitals with regard to organizing activity.

It is uncertain whether the Board and/or federal appellate courts will adopt, or potentially expand upon, the Second Circuit’s holding. Hospitals, however, are encouraged to identify now the potential consequences of unannounced employee picketing and how to respond accordingly.

Civil Service Employees Association v. NLRB

In Civil Service Employees, the Civil Service Employees Association, Local 1000, AFSCME (the Union) tried to organize employees at a health care clinic operated by the Correctional Medical Services (CMS), located in the Albany County Correctional Facility in Albany, New York. When CMS refused to recognize the Union as the employees’ bargaining representative, the Union organized a picketing demonstration in which five clinic employees participated.

CMS filed charges against the Union with the Board because the Union failed to give the clinic 10-days’ notice as required under Section 8(g) of the Act. Section 8(g) provides that a union has to provide at least 10-days’ notice to a health care institution before striking or picketing the institution. After the Regional Office of the Board concluded that the Union violated the Act, CMS then discharged the five employees who picketed the clinic, but rehired them a month later. The Union filed charges against CMS, alleging that CMS violated the employees’ organizing rights under the Act when it terminated them.

The Board held that CMS lawfully terminated the employees. It reasoned that by virtue of the Union violating Section 8(g) of the Act, the employees’ participation in the unlawful picket of the health care clinic removed their protected status under Section 7 of the NLRA. Section 7 protects employees who form and join labor organizations and who engage in concerted activity “for the purpose of collective bargaining or other mutual aid or protection,” including picketing. The Board, however, held that “an employee who pickets in violation of section 8(g) is engaged in unprotected conduct, and is thus vulnerable to employer discipline.”

On appeal, the Second Circuit disagreed. The court held that the Board failed to advance a “defensible construction of the Act.” The court stated that Section 8(g) of the Act only requires labor organizations, not employees, to provide 10-days’ notice “before engaging in any strike, picketing, or other concerted refusal to work at any health care institution.” The court distinguished Section 8(g) from Section 8(d),3 which strips employees of their status as employees under the Act if they engage in any strike at a health care institution without the labor organization providing 10-days’ notice. It concluded that Congress intended a clear distinction between the two sections. Section 8(g) explicitly prohibited labor organizations from picketing or striking without providing the requisite notice. In contrast, Section 8(d) limited the loss of employment status only to employees who strike. The court emphasized that Congress has only prohibited peaceful picketing “where it is used as a means to achieve specific ends which experience has shown are undesirable.”

It noted that the Union’s picketing of the health care clinic was peaceful, it caused no disruption to the clinic and the employees were off-duty. The court also stated that health care institutions have “potent remedies” under the NLRA in cases of strikes or “unioninspired disruptive activity,” such as cease-and-desist orders and injunctive relief. While the court recognized that protected picketing could potentially disrupt the operations of a health care facility to deliver patient care, it posited that the only answer is for the Board to petition Congress to “fix” any imbalance between competing interests in the governing labor statutes.

Practical Suggestions

The court’s holding in Civil Service Employees may provide labor yet another arrow in its quiver for organizing health care employees, especially if the current pro-labor majority Board achieves its agenda. Employees’ free reign to picket hospital providers without providing any notice may disrupt hospitals’ day-to-day operations, compromise the delivery of quality patient care and increase hospitals’ susceptibility to organizing activity.

Whether the Board and/or other federal appellate courts will adopt the Second Circuit’s holding or even extend the protection to picketing employees covered by a broad “nostrike” provision in a collective bargaining agreement or employees who disrupt a health care provider’s delivery of patient care remains to be seen. The appellate court based its holding on a narrow construction of the NLRA given the facts of the case: the employees who picketed the clinic were off-duty and did not disrupt the facility’s operations. Indeed, it is likely that the holding in Civil Service Employees will not apply to on-duty employees, especially if the employees’ picketing conduct threatens the health and safety of patients.

Although the holding in Civil Service Employees is limited in scope, hospitals may consider drafting a policy to respond to unannounced employee picketing, taking aggressive action to protect their patients and community reputation. Such action may entail hospitals reviewing and modifying security and staffing policies, and training management in the event such picketing occurs. Hospital organizations should also be aware of remedies they have under the Act when unions sponsor employee picketing without providing adequate notice. In the final analysis, providers must be prepared when faced with employee picketing.