Sometimes having a good No-Solicitation and No-Distribution Policy is not good enough when supervisors warn about activities that aren’t covered by otherwise lawful policies. In this case a hospital that was having problems with its incumbent union had previously established a pretty good policy. That policy provided:
“Solicitation/ Distribution. Employees are forbidden from soliciting for any purpose in immediate patient care areas, such as patients’ rooms, and places where patients receive treatment, such as therapy areas, or in other areas that that would cause disruption of health care operations or disturbance of patients, such as corridors inpatient treatment areas and rooms used by patients for consultations with physicians or meetings with families or friends. Employees are also forbidden to distribute literature at any time, for any purpose in working areas. Working areas are all areas in the hospital, except employee lounges and parking areas”
The policy was lawful and the NLRB had no problem with it. But the hospital got into trouble when a supervisor told one employee that she had heard that the employee had been “talking to co-workers” about the union and that she (the supervisor) preferred that the employee talk about the union while on break and in the break room. The NLRB found this statement to be unlawful interference with the employee’s rights and violated the NLRA. According to the NLRB, the policy didn’t prohibit “talk” – – only “solicitation” was prohibited by the policy. Because there was no evidence that the employee was actually “soliciting” the hospital was ordered to rescind any discipline issued for mere union “talk“.
A different supervisor was found to have committed a similar sin when she told an employee who was distributing union literature to another nurse in the hallway of the postpartum department to “stop all union activities.” While it was true that the employee was in violation of the no-distribution policy, the NLRB said that it didn’t matter because the supervisor’s warning to cease “all union activity” was overbroad in any event and unlawfully interfered with the employee’s rights.
The lesson here is that even though you might have a perfectly fine policy – – it’s what the supervisors actually say that really counts. Employers need to make sure that your supervisors know the subtle legal rules when it comes to dealing with employee rights to “talk” about unions.
Fremont-Health Group, (357 NLRB No. 158)
If you have questions regarding this topic, please contact Steve Lyman at slyman@hallrender.com, Bruce Bagdady at bbagdady@hallrender.com or your regular Hall Render attorney.
