Today’s Special: What May Be On Your Hospital Cafeteria Menu Soon

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...