Saul C. Glazer, Editor
Axley Brynelson, LLP

Vol. 17, No. 5
May 2008

UNION ORGANIZING

Enforcement of no-solicitation/no-distribution rule attacked

Leslie A. Sammon

No-solicitation/no-distribution rules are common workplace policies. Generally, to be lawful, the rules can prohibit solicitation and distribution of materials only during working time and cannot extend the prohibition to break periods or other nonworking time or to break rooms or other nonworking areas. No- solicitation/no-distribution rules most often come under attack under the National Labor Relations Act (NLRA) when employees who want to solicit in favor of a union's organizational efforts are stopped or disciplined. In this case involving a hospital's no-solicitation/no-distribution rule, the National Labor Relations Board (NLRB) and the Seventh U.S. Circuit Court of Appeals (which covers Wisconsin) found fault with how the hospital applied its policy in the context of union organizational efforts among its nursing staff.

Facts

St. Margaret Mercy Healthcare Centers owns and operates two acute-care hospitals in Indiana. It has a workplace solicitation and distribution rule that prohibits its employees "from soliciting other employees or distributing any materials at any time in patient care areas." The rule describes patient care areas as including not only patient, operating, and other treatment rooms but also halls and corridors adjacent to those rooms as well as other areas used by patients. The rule provides that when employees are on break, solicitation is permitted in nonworking areas, defined to include break rooms. St. Margaret's rule has been in place since 1995.

In fall 1999, the Service Employees International Union began a campaign to organize St. Margaret's nurses. During the organizing drive, hospital management met with employees to remind them of the solicitation and distribution rule. At the meetings, management informed employees, in conflict with the written rule, that solicitation and distribution weren't allowed in the lounges or break rooms. St. Margaret also disciplined one of its nursing employees, Deborah Plenus, for soliciting a fellow nursing employee to sign a union card while her coworker was working at the nurses' station.

The union filed charges with the NLRB alleging violations of the NLRA. It claimed that St. Margaret's enforcement of its rule as it applied to break rooms was too broad. It also alleged that the hospital's enforcement of the rule against Plenus was discriminatory, singling out union solicitations while allowing nonunion solicitations.

The NLRB agreed with the union and decided that St. Margaret violated the NLRA. The case eventually ended up before the Seventh Circuit, which agreed with the Board. The court enforced the NLRB's order requiring St. Margaret to cease and desist from enforcing its rule too broadly and in a manner that discriminated against union activities and to rescind the disciplinary action against Plenus.

Court's reasoning

The court set forth the general balancing principle that applies to determinations of whether an employer is unlawfully interfering with union activities. That analysis weighs the employees' interests in organizing against the interests of the employer and others in being free from disruptive interference in the business' operation. The court recognized that the NLRB allows hospitals to prohibit union activities in patient care areas as an accommodation of employee organizational rights and employer property rights.

The lawfulness of St. Margaret's workplace solicitation and distribution rule wasn't disputed. The two problems alleged by the union and confirmed by the NLRB and the court arose out of the manner in which St. Margaret enforced and applied its rule.

The first problem involved St. Margaret's application of the rule to prohibit union solicitation activities in employee break rooms, where nurses and hospital staff relaxed while off duty. The hospital argued that the break rooms were opposite patient rooms in the intensive care unit, separated only by a corridor, and that the doors to the break rooms were usually left open. It argued that patients could hear employees talking in the break rooms, so it was as if the break rooms were "patient care areas."

The Seventh Circuit rejected St. Margaret's argument. The court considered the width of the corridor, which was at least 18 to 20 feet, noting there was only slight evidence that employee conversations could carry from a break room at one side of the corridor to a patient's room at the other side. The court also reasoned that if indeed conversations were to carry so far, the obvious solution would be to require that the break room doors be shut. That solution would protect the interests of the hospital and the interests of the employees without any sacrifice by either.

The second problem involved St. Margaret's enforcement of the rule as a basis for disciplining Plenus when she solicited for the union at the nurses' station. Her solicitation at the nurses' station was properly forbidden by St. Margaret's rule. However, the NLRB determined ― and the court agreed ― that the hospital discriminatorily applied its rule to her.

The evidence showed that solicitation at the nurses' station was a common practice for a wide variety of organizations and causes, including Girl Scout cookies, March of Dimes, United Way, Secretary's Day and Boss' Day, as well as going-away parties, birthday parties, and other social occasions. The court was particularly struck by solicitation for "beach balm," a product "created by a registered nurse to control bikini line irritation." St. Margaret's management was apparently aware of those solicitations and even participated in some of them.

The court reasoned that St. Margaret's rule forbids solicitations in patient care areas regardless of whether they're charitable, social, or commercial, yet the only solicitations the hospital took action to censure were those in support of unionization. The court commented that it was far from obvious that an intensive care patient would be less disturbed by a nurse selling bikini lotion or organizing a birthday party than by a union organizer. It therefore agreed with the NLRB that singling out the union-supporting nurse for discipline under the rule was discrimination against union activities and a violation of the NLRA. St. Margaret Mercy Healthcare Centers v. NLRB, Nos. 07-2752, 07-3110 (7th Cir., 03/11/08).

Bottom line

No-solicitation/no-distribution rules are useful tools for protecting your business operations and customers from the interference that can result from those activities during employee working time. It isn't uncommon for employers to adopt no-solicitation/no-distribution rules partly to discourage unionization efforts in the workplace. However, as this case points out, a rule is only as good as its enforcement.

You cannot prohibit solicitations in favor of unions while allowing other types of solicitations. You also cannot extend enforcement of the rule into areas like break rooms during employees' nonworking time. In the end, the best way to ensure that your no-solicitation/no-distribution rule withstands scrutiny is to communicate it to your employees and enforce it consistently.

You can catch up on the latest court cases involving solicitation and distribution rules in the subscribers' area of www.HRhero.com, the website for Wisconsin Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 50 Employment Law Letters. Need help? Call customer service at (800) 274-6774.

Copyright 2008 M. Lee Smith Publishers LLC

WISCONSIN EMPLOYMENT LAW LETTER provides information about current employment law issues under Wisconsin and federal law. It is designed to alert you to legal issues and does not constitute legal advice. Questions about your company's problems and issues should be presented to the employment law attorney of your choice.