NLRB Advice Memoranda, Biomedical Applications of California, Inc., d/b/a Fresenius Medical Care North America, National Labor Relations Board, (Aug 10, 2018)

The Region submitted this case for advice as to whether the Employer's “Solicitation and Distribution in the Workplace” policy is unlawfully overbroad because the policy's prohibition on solicitation and distribution would reasonably be construed to ban the exercise of Section 7 activity. We conclude that the policy is unlawful only with regards to the off-duty access provision, the definition of immediate patient care areas, and the restriction on email use. With regard to the policy's definition of immediate patient care areas, although that is overbroad under current Board law, the Region should use this case as a vehicle to argue that the Board should adopt a broader view of what constitutes an immediate patient care area and should include sitting/waiting rooms and nurses stations in that definition.

FACTS

Fresenius Kidney Care (Employer) provides comprehensive quality healthcare to patients with chronic kidney disease and end stage renal disease, including dialysis treatment services and patient support services. The Employer operates healthcare facilities located in San Bernardino and Colton, California, where patients receive services including hemodialysis, a treatment that is critical to a patient's long-term health.

On November 29, 2017, the Region authorized complaint in the instant case alleging that the Employer violated Section 8(a)(1) of the Act by, among other things, maintaining an overbroad solicitation and distribution policy. The Region now submits this matter to Advice in light of the Board's recent decision in The Boeing Company. [1]

The Employer maintains the following policy, in pertinent part:

“Solicitation and Distribution in the Workplace” Policy

Solicit or Solicitation

“Solicit” or “Solicitation” is any verbal or physical act that attempts to persuade individuals to:

Accept a principle or adhere to a philosophy,

Purchase a product or opportunity for chance,

Join, follow, or support an organization, or

Pay a gratuity or make a monetary contribution for a service or cause.

Examples include, but are not limited to fundraising efforts related to a child's school, selling cosmetic/beauty products, requesting employee participation in sports pools, and seeking donations for a charity or non-profit organization.

Distribute or Distribution

“Distribution” includes the handing out, laying out, displaying or delivery of any non-Fresenius written or printed material, product or good.

Work Rules—Solicitation and Distribution

An employee may not, for any purpose: solicit during his/her work time, solicit other employees during their work time, solicit in immediate patient care areas at any time, distribute, for any purpose, in work areas and immediate patient care areas at any time.

Note: Employees who are not scheduled to be at work may not solicit or distribute in the interior of any FMCNA facilities or in any work areas. Off duty employees are not prohibited from soliciting or distributing in parking lots and other outside non-work areas.

Definitions

Work Time – Any, and all time when an employee's duties require that he/she be engaged in work tasks.

Non-Work Time - The time when an employee's duties do not require that he/she be engaged in work tasks such as meal periods, authorized breaks, or time prior to or following a shift.

Work Areas – Any and all areas where employees would otherwise be expected to perform the duties of their job.

Non-Work Areas - Includes employee locker rooms, break rooms, restrooms, a cafeteria, parking lots, and employee entrances.

Immediate Patient Care Areas - Includes dialysis treatment rooms or areas, patient rooms, and all other places where patient care would be disrupted such as adjacent corridors, sitting/waiting rooms, and nurse's stations.

Prohibited Use of FMCNA Property or Venues of Communication

The use of FMCNA electronic communication or interoffice mail for unauthorized solicitation or distribution is prohibited.

Warning: A representative of Human Resources is responsible for approving in advance any postings on FMCNA bulletin boards or otherwise.

ACTION

We conclude that the Employer's policy is unlawful only with regard to the immediate patient care areas definition, the off-duty access provision, and the restriction on email use.

1. The Employer's Overall “Solicitation and Distribution in the Workplace” Policy

We first note that the Boeing decision did not alter the well-established standards regarding no-solicitation/distribution or no-access rules, where the Board has already struck a balance between employee rights and employer business interests. [2] Under extant law, employees presumptively have the right to solicit on their employer's premises during non-work time and to distribute literature on their employer's premises during non-work time and in non-work areas. [3] However, employers may lawfully ban work time solicitations when defined so as not to include times before or after regular working hours, lunch breaks, and rest periods.⁴ Additionally, an employer may lawfully prohibit distribution of literature in work areas. [4] Thus, we conclude that under extant law the Employer's “Solicitation and Distribution in the Workplace” policy lawfully restricts employees from soliciting during their own work time or the work time of other employees, from soliciting in immediate patient care areas, and from distributing in work areas and immediate patient care areas. Moreover, we would not allege the definition of “solicit/solicitation” or “distribute/distribution” in the policy as unlawful. Although they are broad enough to include Section 7 activity, the application of the definitions in the directive part of the policy does not restrain employees in the exercise of their Section 7 rights. However, we conclude that the following provisions within the Employer's “Solicitation and Distribution in the Workplace” Policy violate the Act.

2. The definition of “immediate patient care areas”

In recognition of the fact that a hospital's primary function is patient care, and “that a tranquil atmosphere is essential to carrying out that function,” the Board, with Supreme Court approval, has given health care institutions some latitude in restricting the exercise of Section 7 rights. [5] Therefore, under Board law, health care facilities may prohibit solicitation in “immediate patient care areas,” such as patients' rooms, operating rooms, X-ray areas, therapy areas, and other places where patients receive treatment. [6] However, the Board has long held that in other non-immediate care areas to which patients and visitors have access (such as lobbies, cafeterias, and hallways) such bans on solicitation are presumptively unlawful “where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients.” [7] “On balance, the interests of the patients well enough to frequent [non-immediate patient care areas] do not outweigh those of the employees to discuss or solicit union representation.” [8] Thus, in areas other than patient rooms, operating rooms, and places where patients receive medical treatment, the employer bears the burden of demonstrating that solicitation and/or distribution may have an adverse impact on patients or patient care to justify a complete ban. [9]

For example, in UCSF Stanford Health Care, the Board found that the hospital's policy banning solicitation in waiting areas and hallways outside of units, which were defined as immediate patient care areas, was unlawful. [10] In that case, the hospital's only justification for including the areas as immediate patient care areas was its claim that any non-patient-care related activity in those areas would disrupt patients. [11] However, the facts showed that the hospital did not prohibit employees from eating, sleeping, or having personal conversations in these areas and it failed to explain why solicitation was more likely to disrupt patients than the other activities. It also failed to show that patients used all the hallways and lounges or that any complaints were generated by solicitation and distribution activities in these areas. [12] In another case, Brockton Hospital, the Board held that the hospital's ban on solicitation was facially unlawful because it included hallways and corridors in its definition of immediate patient areas. [13] The Board pointed out that the rule, on its face, banned solicitation in the hospital beyond those areas which the Board has defined as immediate patient care areas. [14] Because the hospital had presented no evidence regarding why it included the areas in its definition, the Board did not have to evaluate whether including them in the definition was justified. [15] On the other hand, in Intercommunity Hospital, the Board held that the application of the hospital's lawful no solicitation rule to halls and corridors adjacent to the immediate patient care areas was valid because they were an extension of the immediate patient care areas. [16] In that case, the hospital had shown that the halls and corridors were used for patient overflow, to store vital equipment, for therapy procedures, and as an outpatient waiting area. Additionally, the hospital had shown that its central corridor was used to move patients to treatment, diagnostic evaluations, and from operations to post-operation recovery rooms and back to the patient rooms. [17] And in another case, Presbyterian/St. Luke's Medical Center, the Board affirmed an ALJD finding that a hospital's no solicitation rule that included hallways and stairways in the definition of patient care areas was lawful. [18] The ALJ relied upon testimony regarding the use of the hallways, stairways, and corridors by staff during emergency situations, which also involved the movement of emergency equipment, as a valid justification for including the areas as patient care areas. [19]

Similarly, the Board requires justification for including nurses stations as immediate patient care areas. [20] For instance, in Rocky Mountain Hospital, the Board adopted the ALJ's decision that because the Board never extended its definition of immediate patient care areas to include nurses stations, the record evidence must show that solicitation may adversely impact patient's care in order to include it as an immediate patient care area. [21] The ALJ concluded that since there was no record evidence regarding the work done at the nurses stations or whether patients even entered the locations, or whether the nurses stations were separated from immediate patient care areas, the hospital had not overcome the Board's presumption that a ban at these locations interfered with the employees' Section 7 rights. [22] On the other hand, in Intercommunity Hospital, supra, the Board concluded that because desk areas at the nurses stations were not enclosed; patients in nearby rooms could hear conversations at the nurses station; gravely ill patients were placed closest to the nurses stations; and during the day, up to as many as seven nurses and doctors could be using the stations to provide patient care, the hospital had justified is ban on solicitation in the areas. [23] Also, in St. Joseph's Hospital, the Board adopted the ALJ's decision holding that the hospital had presented sufficient evidence to justify a ban on solicitation at its nurses stations because the evidence showed that the maternity ward nurses station was located immediately adjacent to the labor and prep rooms; the other six stations were located between 8 feet and 16 feet from the nearest patient rooms; none of the stations were enclosed; and all of the stations were separated from patient care areas by, at most, a counter that was below chin-height to someone standing nearby. [24]

Here, although the Employer may lawfully prohibit solicitation and distribution in immediate patient care areas and may lawfully limit solicitation in other work areas to non-working time, its ban is facially overbroad under current law to the extent that it includes adjacent corridors, sitting/waiting rooms, and nurses stations as part of its definition of “immediate patient care areas” without demonstrating that such an expansive definition is necessary to avoid disruption of patients or patient care. [25] The Employer has failed to present any evidence about these spaces, much less evidence sufficient to establish a likelihood that such activities would disturb patients and/or disrupt operations in these areas. [26]

However, the General Counsel is of the view that both sitting/waiting rooms and nurses stations should be recognized as inherent “immediate patient care areas” subject to complete bans on solicitation without further justification. Hospital sitting/waiting rooms are designated for use by patients and their families, unlike areas such as cafeterias, gift shops, and lobbies, which are generally publicly-accessible and not intended for specific use by patients and their families. [27] When Congress amended the Act to cover hospitals, it was not “the intent of Congress to require hospital patients and family members to hear ‘negative’ and ‘disparaging comments’ about the ‘professional capabilities’ of doctors and nurses.” [28] And nurses stations are integral to the delivery of patient care. They are work areas where nurses and doctors meet to confer about patients and where someone is almost always on duty and engaged in some aspect of patient care. Additionally, patients and their families routinely visit nurses stations to discuss the patients' care. [29] By contrast, hospital corridors have mixed uses (e.g., some corridors are frequently used to transport patients to and from treatment and some corridors are rarely used for such purposes) and warrant the case-by-case consideration the Board grants in areas other than “immediate patient care areas.”

Therefore, the Region should issue complaint alleging that the Employer's definition of immediate patient care areas, as written, is unlawful under current Board law because it includes adjacent corridors, sitting/waiting rooms, and nurses stations as part of its definition. However, the Region should also argue for the Board to revisit its definition of immediate patient care areas in order to classify sitting/waiting rooms and nurses stations as part of its definition of immediate patient care areas.

3. The provision restricting off-duty employees from entering the interior of the facility for the purpose of solicitation and distribution

The Board analyzes rules governing the access rights of off-duty employees to an employer's facility under the three-part test articulated in Tri-County. [30] There, the Board held that a rule prohibiting access to off-duty employees would be valid only if it “(1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.” [31] In the instant case, the Employer's off-duty access provision fails the third prong because the provision restricts off-duty employees from entering the interior of the facility only for the purpose of solicitation and distribution. Therefore, it does not meet the requirement of the third prong of Tri-County and the Employer violates Section 8(a)(1) of the Act by maintaining it.

4. The prohibition on the use of electronic communication for solicitation or distribution

As noted above, the Board's recently-adopted Boeing standard does not apply to solicitation/distribution rules. [32] In addition, it only applies to facially neutral rules. This rule is facially overbroad because it seemingly permits some personal use of the Employer's email system while prohibiting “unauthorized” solicitation or distribution. [33] Employees use the email system in the course of their work, are permitted to use it for some kinds of personal emails, and will likely understand the rule's restriction on solicitation and distribution as encompassing Section 7 protected emails. [34] Since the prohibition is not limited to working time, it is overly broad. Further, the rule, as written, requires “authorization” to engage in Section 7 activities. The Board has repeatedly explained that any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on employees' free time is unlawful. [35]

Accordingly, the Region should issue complaint, absent settlement, alleging that the policy is unlawful with regards to the definition of immediate patient care areas, the off-duty access provision, and the restriction on email use.

/s/

J.L.S.

H:ADV.31-CA-202972.Fresenius Medical Care