Heath care institution employers should take note of a recent decision of the National Labor Relations Board (“NLRB”), which now gives them latitude to fire picketing employees if the union fails to give the required ten days’ notice. Although it has long been held that health care institutions can terminate workers who strike without providing ten days’ notice to both the employer and the government, it was often assumed that this did not extend to picketing employees. On May 31, 2007, however, in Correctional Medical Services, Inc., 349 N.L.R.B. No. 111 (2007), the NLRB clarified that employers may lawfully fire employees who merely picket and do not strike in violation of the ten days’ notice requirement, as set forth in the National Labor Relations Act. Virtually any organization with a patient care component is considered a health care institution pursuant to Board law.

The Decision

Correctional Medical Services (“CMS”) operates the medical clinic at the Albany County Correctional Facility, providing chronic, emergency and dental care, lab services, and minor surgical services to the inmates. In August 2002, in support of an organizing drive by the Civil Service Employees Association (“the Union”), about 20 individuals, including five CMS employees, picketed in front of the facility. None of the employees went on strike; instead, they appeared at the picket line either after their shifts ended or during their meal break. The Union did not give advance notice of this action to CMS or the Federal Mediation and Conciliation Service, and CMS terminated the five picketers.

In response to an unfair labor practice charge filed by the Union, the NLRB ruled that CMS was allowed to fire the employees because they picketed without providing the requisite ten-days notice. The NLRB arrived at its decision based on the wording of Section 8(g) of the Act, which states that a labor organization must provide ten days’ notice “before engaging in any strike, picketing or other concerted refusal to work.” The Board found that this “overarching principle” trumped even the specific language in Section 8(d) of the Act, which states that only an employee “who engages in a strike . . . shall lose his status as an employee of the [health care] employer.” The Board found that extending the right to discipline a picketer was consistent with the notice provision’s larger purpose to “assure continuity of patient care.”

The Take-Away

This case is “big news” for health care institution employers, who face increasingly aggressive organizing and picketing efforts by unions. It provides added protection against unions taking precipitous action that can affect patient care and operations generally. Although employers should be cautious in terminating any picketing employees, and are advised to check with their legal counsel, health care institutions may now lawfully terminate employees who participate in pickets—and not only strikes—if the union has not provided ten days’ notice. Above all, this decision may help reel in unions and foster compliance with both the letter and the spirit of the law.