On May 31, 2007, the National Labor Relations Board ("NLRB") ruled that a health care employer may terminate employees who picket on behalf of a union when the union has failed to provide the mandatory 10-day advance notice of picketing.

The employer in this case, Correctional Medical Services ("CMS"), a client whom Baker & Daniels has represented nationally on employment and labor law matters for more than 20 years, operates a health care clinic at the Albany County Jail in Albany, New York. A union sought to represent the CMS staff (nurses and other support health care personnel) and CMS refused to grant recognition. To support its organizing effort, the union engaged in a brief, 45-minute, picket at the clinic entrance. In addition to approximately 15 union officials, five CMS employees participated in the picketing. Four of the CMS employees had just finished their work shift, the fifth was on an approved lunch break. The employees and union officials carried signs containing slogans promoting the unionization of CMS employees, wore pro-union tee shirts, and chanted pro-union slogans. The participants patrolled the sidewalks in front of the clinic entrance, speaking to passersby and those entering and exiting the clinic. There was no blocking of ingress or egress.

CMS notified each of the participating employees that it believed their conduct was unlawful picketing, the Company was filing a charge against the union with the NLRB, and once the NLRB ruled on that charge, CMS would take appropriate action against the employees. CMS also notified the employees that so long as they engaged in only lawful activities, CMS would take no action against them. CMS then filed a charge against the union claiming the picketing violated § 8(g) of the National Labor Relations Act ("Act"). Section 8(g) forbids picketing at a health care facility without 10 days' prior written notice to the employer, the Federal Mediation and Conciliation Service, and the State labor mediation agency. In this instance, the union had given no notice.

Within a few days, the NLRB Regional Office at Albany concluded the union's picketing was illegal, since, admittedly, it had given no notice. The union argued the activity was not picketing, but was a "demonstration." CMS immediately terminated the five employees who participated in the picketing activity and warned other employees that a repeat of such conduct would result in their discipline as well. The union filed a charge against CMS, claiming the terminations were illegal.

Since the Act's 1974 health care amendments, prohibiting picketing without 10 days' prior written notice, Baker & Daniels has represented many health care employers in situations identical to that involving CMS at Albany. That is, it is not an uncommon occurrence for unions to hold "rallies" or "press conferences" or engage in other similar activity outside health care facilities, and not give the requisite 10-day notice. In each instance, the unions have claimed the activity was "a demonstration" and no notice was required. Health care employers have consistently terminated employees for engaging in such conduct, and Baker & Daniels has repeatedly counseled them to do so. Of course, the unions have always challenged the employees' terminations, but the NLRB Regional Offices have consistently dismissed the union's charges, finding that since the picketing was illegal, the employees' participation was "unprotected activity," and the employees were subject to termination. The NLRB General Counsel in Washington, D.C. had consistently sustained that position.

However, the NLRB General Counsel in the CMS case decided to issue complaint against CMS and take the matter for review to the NLRB. The NLRB General Counsel was forced to argue that even though the employees admittedly engaged in unprotected picketing and, therefore, their conduct was unprotected, an employer did not have the right to terminate them. We, of course, argued that if the picketing was unlawful, an employer should have the right to terminate the picketers.

More than five years after the picketing and terminations occurred, the NLRB has finally issued its decision. The NLRB quickly concluded the union's conduct at Albany was unlawful picketing. The NLRB brushed aside any theory that the carrying of signs and patrolling of entrances to an employer's facility is a "demonstration." Such conduct is picketing, and the fact it lasted a brief period (45 minutes) does not diminish the nature of the conduct. Thus, the NLRB found the union's "demonstration" was picketing in violation of § 8(g) of the Act, because the union had failed to provide the required 10-day notice. The NLRB also had no trouble concluding the employees "participated" in the picketing since they carried signs, walked in the patrol in front of the facility entrance, and engaged in pro-union chants. The NLRB deemed the picketing was in furtherance of the union's organizing campaign, consistent with the slogans on the union's picket signs.

As to the lawfulness of the terminations, the NLRB cited a host of cases for the proposition that where employees engage in picketing that is either not protected or is illegal under the Act, the employees may be terminated for such conduct. The cases spanned 60 years of NLRB history and are consistent. Indeed, there is no NLRB case in which employees engaged in unprotected activity, but the employer was not permitted to terminate them. Thus, the NLRB reasoned that where employees engage in conduct specifically prohibited by the Act (i.e., picketing a health care employer without prior notice), they are subject to discipline up to and including discharge, at the employer's discretion. Ironically, the NLRB noted that the claim an employee could not be terminated for engaging in unprotected picketing was "counterintuitive" and most certainly employees who engage in unprotected or unlawful activity may be terminated.

The teaching of this case for employers is that where employees engage in unprotected or illegal activity, they may be terminated. Further, please note the care followed by CMS in the steps it took before terminating the employees. That is, CMS immediately notified the employees their picketing was unlawful and they were subject to discipline following the completion of an NLRB investigation. CMS then, immediately, filed a charge with the NLRB claiming the union's picketing was illegal. Only after the NLRB Regional Office ruled that the union's picketing was illegal did CMS then terminate the employees. Thus, CMS at all times acted consistent with the NLRB's own investigation and rulings and never exposed itself to a claim of unlawful terminations until after the NLRB had ruled the picketing illegal. This notice to employees that the conduct was illegal and subject to an NLRB investigation, prior to termination, is a key cautionary step.
Baker & Daniels was pleased to represent CMS in this matter.