The Board and courts have long held that under the test established in Republic Aviation,[1] there is a presumption that an employer cannot prohibit off-duty employees from soliciting support for the union or distributing union literature in nonworking areas on the employer’s property. To overcome this presumption, the employer must show its prohibition is necessary to maintain discipline and production.
In Capital Medical Center,[2] employees of a hospital were picketing on a public sidewalk and, with the employer’s consent, handbilling on the hospital’s property. When a few employees began holding picket signs near the hospital’s entrance, the employer ordered them off the property and eventually called the police. The Obama Board held that the Republic Aviation framework applied to informational picketing activity, and held that the employer violated Section 8(a)(1) of the Act by ordering the stationary picketers off the hospital’s property.
Recently, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Board’s decision.[3] This is the first time a federal court has held that the Board can apply the Republic Aviation framework to employee-picketing on the employer’s property. Thus, under current law, off-duty employees may engage in informational picketing on their employer’s property unless the employer shows it has a legitimate justification for banning such activity.
There
are, however, important limitations to this holding. First, the Board and court
both emphasized the non-disruptive and non-coercive nature of the picketing –
specifically, there were only two to four employees picketing, and they did not
chant, march, or obstruct people from leaving or entering the hospital. Second, the Board and court made clear the Republic
Aviation framework applies where the employer permits off-duty employees to
come onto the premises for some purposes, but prohibits them from engaging in
certain forms of Section 7 activity. The Board applies a different test when the
employer has a blanket prohibition against off-duty employees accessing company
property. Finally, the Republic
Aviation framework only applies in cases involving off-duty employees. It
does not apply to cases involving nonemployees, such as union organizers.
[1] Republic Aviation Corp. v. NLRB, 324 U.S. 793, 89 L. Ed. 1372 (1945).
[2] Capital Medical Center, 364 NLRB No. 69, 207 LRRM (BNA) 1426 (Aug. 12, 2016).
[3] Capital Medical Center v. NLRB, 909 F.3d 427, 211 LRRM (BNA) 3420 (D.C. Cir. 2018).