On November 14, 2014, an Administrative Law Judge fired another round in the continuing skirmish between the National Labor Relations Board (NLRB) and the federal courts over the rights of union representatives to enter an employer’s property to conduct organizing activity. UPMC and its Subsidiary UPMC Presbyterian Shadyside and SEIU Healthcare Pennsylvania CTW just might signal an aggressive effort by the NLRB to limit hospital employers’ property rights in the waning years of the Obama administration. 

The facts at issue in UPMC are the following: The hospital operates a cafeteria that is open to the public. Union organizers arrived around the lunch hour, sat down at a table and began meeting with hospital employees. The union representatives did not distribute flyers or other union materials, although flyers were on their table and were distributed by hospital employees.

About an hour later, a hospital security officer approached the organizers and asked them and some of the hospital employees for ID. He did not approach other patrons of the cafeteria with similar requests. The officer told the organizers that they would have to leave the cafeteria when they had finished their lunch. Approximately one hour later, the union organizers were still at their table when they were approached by the security officer who was accompanied by uniformed University of Pittsburgh police officers. The group of police officers escorted the union representatives and employees out of the cafeteria.

The general counsel of the NLRB contended that the employer violated the National Labor Relations Act when it escorted the union organizers off of the premises. In support of this contention, he cited several decisions of the NLRB that allow union organizers to enter a hospital and solicit employees in nonworking areas during nonworking time, even if the areas may be accessible to patients. The employer begged to differ, citing several decisions of courts of appeals that disagreed with the NLRB on this issue.

Siding with the general counsel, the ALJ concluded that union organizers may not be barred from engaging in solicitation in a restaurant operated by the employer so long as the organizers “conduct[ ] themselves in a manner consistent with that of other restaurant patrons.”

In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) the U.S. Supreme Court decided that union organizers could have access to an employer’s property only if employees were otherwise inaccessible. Prior to Lechmere, the NLRB used a framework that examined whether the employer discriminates against union solicitation when it bars union organizers from its premises. (Montgomery Ward & Co., 288 NLRB 126 (1988)).

Although the NLRB is bound by decisions of the Supreme Court, the NLRB has long tried to avoid the implications of Lechmere. (See Farm Fresh, Inc., 332 NLRB 1424 (2000)). What is more troubling about this decision is the ALJ’s determination to fashion a “rule” for healthcare employers that the NLRB itself has not adopted. In addition, the ALJ ignored NLRB precedent that does consider the property rights of employers. See Indio Grocery Outlet, 323 NLRB 1138 (1997).

It remains to be seen whether the NLRB will adopt the ALJ’s decision. However, a 2011 decision involving a healthcare facility in Northern California (The Fremont-Rideout Health Group d/b/a/ Fremont Medical Center and Rideout Memorial Hospital, 357 NLRB 158 (2011)) suggests that the NLRB may seize the opportunity to adopt a broad union access rule.

While awaiting the NLRB’s decision, healthcare employers are well advised to consider their approach to union organizing in public areas.