In a recent case affecting health care employers uniquely, the NLRB decided in Correctional Medical Services, Inc., 356 NLRB No. 48, that employees’ picketing was protected activity, despite the fact that the union committed an unfair labor practice by not giving proper notice of picketing.  In doing so, the Board reversed its earlier ruling in the case and found that Correctional Medical Services, Inc. (“CMS”) unlawfully threatened, interrogated, and terminated its employees in violation of the National Labor Relations Act for their participation in the picketing. 

On September 12, 2002, the Civil Service Employees Association, Local 1000, AFSCME conducted a peaceful 40 minute picket at Albany County Correctional Facility in Albany, New York, where CMS operates.  Despite Section 8(g) of the NLRA requiring labor organizations to give at least 10 days’ written notice to any health care institution before engaging in picketing, the union failed to give any prior written notice to CMS.  

CMS sent letters to the five employees that engaged in the picketing to inform them that the employer did not condone their conduct, it would be initiating an investigation into the activity, and the employees might be subject to disciplinary action because of their participation.  CMS’s outside counsel met with the employees to question them about their participation, who solicited them to participate, and which other employees participated.  Based on its investigation, CMS terminated the five employees, finding they engaged in “unlawful picketing.”

On May 31, 2007, the Board found that the union violated Section 8(g) of the NLRA when it failed to give the proper advance notice before it began picketing.  Because of the union’s failure, the Board found that the picketing was not protected activity under the NLRA, and CMS’s termination of the five employees was not unlawful. 

The union then petitioned the United States Court of Appeal for the Second Circuit for review of the Board’s ruling.  The Second Circuit found that the picketing was a protected activity under the NLRA.  Specifically, the Second Circuit found that employees who picket peacefully absent 8(g) notice, as opposed to striking, have not acted contrary to law in their individual capacity or forfeited the protections of Section 7.  Rejecting the Board’s finding that the picketing was unprotected activity, the Second Circuit remanded the case to the Board.

Based upon the Second Circuit’s holding that the picketing was protected activity, the Board revisited the original charges that CMS unlawfully threatened, intimidated and terminated the employees in violation of the NLRA.  First, the Board determined that there was no question that CMS terminated the employees for picketing, and therefore, it concluded, CMS had interfered with the employees’ rights to act collectively.  Second, the Board found that prior to conducting its investigation, CMS also unlawfully threatened the employees with termination because of the picketing..  Finally, the Board found that CMS’s interrogation regarding the picketing was “coercive,” and CMS’s good-faith belief that its actions were not coercive or that the picketing was not protected was no defense. 

Especially in light of the current Board’s expansive view of Section 7 rights, healthcare employers should heed the specific warnings of this case, while all employers must exercise caution in disciplining employees engaged in arguably protected, concerted activity.

This entry was written by Sarah Silvester.