Local Hotel Workers March for Union Rights

Employees Want to Organize, Citing Health Care Expenses and
Inability to Make Ends Meet

In the midst of headlines drawing attention to new union organizing campaigns and public demonstrations for union rights, the United States Court of Appeals for the Seventh Circuit—which has jurisdiction over employers located in Indiana, Illinois and Wisconsin—has reminded employers of their obligation to strike a fair balance between employee-organization rights and employer property rights. In St. Margaret Mercy Healthcare Ctrs. v. NLRB, 7th Cir., No. 07-2752, 3/11/08, the Seventh Circuit affirmed a National Labor Relations Board decision which found that a hospital had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by unlawfully interfering with the right of its nurses to organize and unlawfully discriminating against one of the nurses by disciplining her for engaging in union solicitation at her work station. This case is important because it demonstrates the difficulties that an employer faces in balancing its employees' interest in organizing with its own interest in keeping its business operation free from disruptions by union organizers.

In this case, the hospital had a policy that prohibited employees from "soliciting other employees or distributing any materials at any time in patient care areas." When nurses or other employees were on break, however, the policy provided that union solicitation was permitted in "non-work areas" (defined to include "employee break areas"). Although the policy itself was lawful, the Board found—and the Seventh Circuit agreed—that the hospital nonetheless violated it by forbidding union activities in employee break areas. The hospital argued that its employees' breakrooms were so close in proximity to the hospital's intensive-care unit that it was as if they actually were "patient care areas," but Judge Posner, as he often does, adopted a common-sense approach and noted that the hospital could easily prevent employee conversations from carrying into patient care areas by requiring that the doors of the breakrooms be shut except when someone is entering or leaving. In fact, Judge Posner noted that such doors could even be on a spring that would cause them to close automatically whenever opened.

With respect to the unlawful discrimination of a nurse for engaging in union solicitation at the work station, Judge Posner noted that such conduct was lawfully forbidden by the hospital's rule. However, the hospital violated the National Labor Relations Act by discriminatorily applying the rule only to employees who solicit in favor of unions. The Seventh Circuit found that the hospital's management impermissibly prohibited pro-union solicitations while at the same time permitting, and even participating in, solicitations for things such as sales of Girl Scout cookies, the United Way, Secretary's Day, "going away" parties, birthday parties, and—a solicitation that Judge Posner appeared to take delight in describing—a beach balm to control "bikini line irritation." Judge Posner wrote, "it is far from obvious that a patient in intensive care will be less disturbed by a nurse hawking bikini lotion or organizing a birthday party than by a union organizer." Accordingly, the court held that the "singling out of the union-supporting nurse for rebuke was discrimination against union activities."

With organizing campaigns cropping up in greater frequency, and the possibility that pending legislation will cause more to surface, an employer must be cautious when attempting to keep its business operation free from disruptions by union organizers. Lawful policies are certainly an effective means to protecting an employer's property interests, but they must be consistently—not discriminatorily—applied.

Ryan Metzing is an associate in Ice Miller's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.