Nonemployee Union Solicitation Activity

In October, the union began an organizing drive involving nursing personnel employed at the Medco Hospital (the employer). In November, Medco’s management revised a portion of the existing no solicitation and distribution policy to read as follows: “Visitors, patients and other nonemployees may not solicit or distribute literature on any hospital property for any purpose at any time.”

The hospital operates a cafeteria that is open to serve employees, patients, and the general public. On December 4, two (nonemployee) union organizers entered the hospital cafeteria accompanied by some off-duty nursing employees. The off-duty nursing employees proceeded to distribute union literature provided to them by the two union organizers. The two union organizers did not personally hand out any union literature or attempt to solicit any employees to sign a union authorization card. The two union organizers did remain seated in the cafeteria for approximately 5 hours and answered questions initiated by interested employees about the union. Sitting on the table where the two (nonemployee) union organizers were seated was an open box containing union literature.

On December 10, the two union organizers accompanied by several off-duty nursing employees, again entered the hospital cafeteria and engaged in the same actions as those previously described as occurring on December 4. After approximately 30 minutes, the human resources (HR) manager for the hospital entered the cafeteria and spoke to the two union organizers. The HR manager informed the two union organizers that they were in violation of the hospital’s no-solicitation and distribution rule. The HR manager gave the two union organizers permission to stay for 15 minutes to have a drink or 30 minutes to eat a meal, after which time they would be arrested if they refused to leave. The two union organizers left the hospital cafeteria voluntarily and proceeded to file an unfair labor practice charge, alleging the hospital unlawfully barred their access to the hospital cafeteria. There was no evidence to show that the employer had ever allowed solicitation or distribution activity by nonemployees to occur on its premises in the past.

Questions

1. Did the employer unlawfully deny the two non-employees union organizers access to the hospital’s cafeteria? If so, what should be the appropriate remedy?

2. Would the employer’s no-solicitation policy prohibit the two nonemployee union organizers from entering the hospital’s property anywhere at any time?