October 2001
Jones Day
COMMENTARIES
Brockton Hospital: Tailoring the Definition of “Immediate Patient Care Areas”
In Brockton Hospital
Hospital, a divided National Labor Relations
Board (“NLRB” or “Board”) recently held that a health
care employer violated Section 8(a)(1) of the National
Labor Relations Act (“Act”) by maintaining an overly
broad solicitation/distribution policy. Specifically,
the Board’s majority held that the employer’s policy
was unlawful because it broadly prohibited employees
from soliciting other employees regarding unions or
distributing union-related literature in areas beyond
what the Board found to be “immediate patient care
areas.” In light of this decision, health care employers
may wish to examine their policies regarding employee
solicitation and distribution and may wish to review
which areas they define as patient care areas for the
purposes of those policies.
Background: Solicitation and Distribution in the Health
Care Industry
As most employers are aware, the Act provides the legal
framework for labor relations in this country. At its
core, the Act provides that, “[e]mployees shall have
the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” The Act
continues, “it is an unfair labor practice for an employer
to interfere with, restrain, or coerce employees in the
exercise of these rights.”
© 2001 Jones, Day, Reavis & Pogue. All rights reserved.
Nevertheless, the Board, the federal agency
charged with administering the Act, has long held
that an employer may, in certain circumstances,
limit solicitation and distribution by its employees
on the employer’s property. For instance, it is well
settled that an employer may prohibit solicitation and
distribution by an employee during all hours that the
employee is working, so long as the employer enforces
its prohibitions equally for all types of solicitation
and distribution. Furthermore, an employer may
ban distribution (but not solicitation), at all times,
in all “working areas,” in order to control litter in the
workplace.
With regard to health care settings, the Board has
recognized the need to maintain a tranquil atmosphere
for patients, and thus health care employers are granted
greater latitude to control solicitation and distribution
by employees on their premises. Although the
restrictions mentioned in the previous paragraph apply
in health care settings, a health care employer may also
ban employee solicitation and distribution in any area
necessary to avoid disruption to patient care. Generally
speaking, the Board presumptively permits health care
employers to prohibit solicitation and distribution in all
“immediate patient care” areas, although the burden is
on the employer to justify the need to limit solicitation
and distribution in such areas.
Unfortunately for the health care employers, the
Board has never provided a comprehensive definition
as to what constitutes an “immediate patient care area.”
The Board has broadly stated that this term includes
areas “such as patient rooms, operating rooms, and
places where patients receive treatment, such as x-ray
and therapy areas.” St. John’s Hospital
Hospital, 222 NLRB 1150
(1976). The Board has also indicated that halls and
corridors adjacent to patient rooms, operating rooms,
x-ray rooms, and like areas are extensions of immediate
patient care areas in which solicitation and distribution
may be presumptively prohibited. However, the Board
has rejected the notion that “immediate patient care
areas” include all areas patients may happen upon during
a visit to a health care facility. Thus, a doorway is not
necessarily considered an immediate patient care area
simply because a patient may be transported through
that particular door. See Medical Center Hospitals, 244
NLRB 742 (1979). Similarly, the Board has found, on
particular sets of facts, that front entrances, see NLRB v.
Harper Grace Inc., 737 F.2d 576 (6th Cir. 1984), lobby
areas, see Eastern Maine Medical Center, 658 F.2d 1
(1st Cir. 1984), and vestibules in front of cafeterias, see
Albert Einstein Medical Center, 245 NLRB 140 (1979),
are not immediate patient care areas.
well beyond what the Board had, in the past, found
to be patient care areas. The majority noted, “[o]n
its face, the [hospital’s policy] would even place off
limits all areas of the hospital used by patients, however
infrequently, including [the hospital’s] gift shop and
cafeteria and its vestibule area.” The Board found that
under existing precedent, the policy violated the Act
as a matter of law.
Board Member Hurtgen issued a strongly worded
dissent, however, arguing that the majority’s decision
ignored today’s health care realities. Member Hurtgen
cited evidence demonstrating that patients’ levels of
stress and anxiety are closely linked with their physical
health. Unions often employ scare tactics or “horror
stories” in their campaign materials, “likely to prove
extremely upsetting to any patients, families, or visitors.”
Thus, Member Hurtgen would permit hospitals to
prohibit solicitation and distribution of such campaign
materials in all areas in which patients or visitors spend
“a substantial amount of time.”
Effects of the Brockton Hospital Decision on Health
Care Institutions and Recommended Actions
Unfortunately for health care employers, Member
Hurtgen’s dissent did not carry the day. Furthermore,
the majority’s decision in Brockton Hospital may signal
that the Board will, in the future, pay increased attention
to solicitation and distribution issues in the health
care context, particularly in terms of how health care
employers define the term “immediate patient care
areas.” Accordingly, health care providers may now
wish to review their solicitation/distribution policies
and may wish to take the following actions:
• Review and revise current solicitation, distribution,
and other traditional employment-related policies
to narrow appropriately and clearly identify
immediate patient care areas.
The Brockton Hospital Decision
Brockton Hospital represents the Board’s current thinking
on the patient care area issue. The case arose from an
unfair labor practice charge filed by the Massachusetts
Nurses Association (“MNA”). The MNA alleged,
among other things, that Brockton Hospital maintained
an overly broad solicitation/distribution policy in that
the Hospital prohibited such union-related activity in
“halls and corridors used by patients.” The Hospital
asserted that this rule was necessary to maintain an
atmosphere of serenity at its facility, necessary for patient
care. The Board’s majority, however, rejected this
argument, noting that the Hospital’s policy extended
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•
•
Increase efforts to communicate effectively with
managers/supervisors regarding any revisions made
in solicitation, distribution, and other traditional
employment-related policies to ensure complete
understanding of the revisions and how the
revisions will affect employers and employees in
relation to their rights and obligations under the
National Labor Relations Act.
Implement and monitor enforcement of solicitation
and distribution policies to ensure, to the extent
possible, a uniform and nondiscriminatory
application of same.
Readers are urged to contact Bill Emanuel and
Roger King, who lead the Firm’s practice in this area,
or their regular contact attorney at Jones Day. Phone
numbers of Messrs. Emanuel and King and other Jones
Day attorneys active in the health care labor relations
area are listed below. General e-mail messages may be
sent to counsel@jonesday.com. We invite you to visit
our Web site at www.jonesday.com.
Atlanta
Chicago
Dan T. Carter
Lawrence C. DiNardo
Brian Easley
Cleveland
James A. Rydzel
Barbara J. Leukart
Columbus
G. Roger King
Colleen A. Deep
Todd L. Sarver
Jeffrey D. Winchester
E. Michael Rossman
Dallas
Stanley Weiner
Kasey L. Bond
Los Angeles William J. Emanuel
Harry I. Johnson, III
Pittsburgh
Richard F. Shaw
James S. Urban
Washington Willis J. Goldsmith
Andrew M. Kramer
Marshall B. Babson
Further Information
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Day, Reavis & Pogue and should not be construed
as legal advice on any specific facts or circumstances.
The contents are intended for general informational
purposes only and may not be quoted or referred to
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consent of the Firm, to be given or withheld at its
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an attorney-client relationship.
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