NLRB Rules Employers Can Bar Union Solicitation by Nonemployees on Company Property Open to the Public



In the latest in a series of business-friendly decisions, the National Labor Relations Board (NLRB) has ruled that employers may legally bar union solicitation by nonemployees on company property that is otherwise open to the public. [UPMC N.L.R.B., 368 N.L.R.B. No. 2, Opinion 6/14/19.] The NLRB’s 3-1 ruling expressly overturns a nearly 40 year old Board precedent, referred to as the “public space exception”. Under that now reversed precedent, nonemployee union organizers could not be denied access by employers to cafeterias and restaurants open to the public if the organizers used the facility in a manner consistent with its intended use and were not disruptive.   The case began with a 2013 incident in which two union organizers met with six employees in the cafeteria of a Pennsylvania hospital to discuss organizing a union campaign. Union flyers and pins were displayed on the tables at which the union representatives were sitting. The hospital cafeteria was accessible to hospital employees, patients, their families and other visitors. After an employee complained of the union solicitation, hospital security requested to see the identification of the union representatives, and subsequently requested they leave the premises. The two women refused to leave, and the head of security then called 911. Six police officers arrived and escorted the union representatives from the cafeteria. While the hospital cafeteria was open to the public, it had been the hospital’s regular practice to remove nonemployees who were engaged in promotional activity, including soliciting or distributing literature, in or near the cafeteria. Prior to the union incident, the hospital had previously escorted off the property a group soliciting for money, as well as a religious group engaged in solicitation.   In ruling that the hospital did not engage in an unfair labor practice by ejecting the union representatives, the NLRB held that because the hospital uniformly prohibited any groups or individual from soliciting on its property. “[w]e therefore hold that an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution, in its public cafeteria so long as it applies the practice in a nondiscriminatory manner by prohibiting other nonemployees from engaging in similar activity.”   The decision is being applauded by business groups for giving employers more control over who can access company property. However, the Board’s sole dissenting member has blasted the majority’s decision as inconsistent with Supreme Court precedent, and stating of the hospital’s actions “[i]f this was not [anti-union] discrimination, then it is hard to know what is.”   While this latest decision is welcomed by employers, companies should always proceed cautiously and seek legal counsel before taking actions concerning union activity or any other situations potentially implicating protected concerted activity under the National Labor Relations Act (NLRA).   Other significant ruling by the majority GOP NLRB may be on the horizon. Back in 2014, under the Obama administration, the then Democrat-controlled NLRB issued a controversial ruling that declared employers, generally, cannot prohibit employees from using a company’s e-mail system for union organizing purposes or other activities protected by the NLRA. The current NLRB has sought to revisit that decision, and possibly overturn it, by soliciting public comment.



THE EEOC CATCHES THE FLU BUG

 

Back in June, when flu season was still just a sneeze on the horizon, I reported in “Religious Discrimination or Infectious Insubordination?” on how the Equal Employment Opportunity Commission (“EEOC”) was suing a Massachusetts hospital for religious discrimination over its policy of mandatory flu shots.

 

While not as infectious as the influenza virus itself, the EEOC’s litigation over this issue also appears to be spreading across the country.  In  EEOC v. Saint Vincent Health Center, the EEOC has filed suit against a Pennsylvania hospital, alleging the facility violated Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of six employees and terminating their employment.

According to the EEOC's lawsuit, in October 2013, Saint Vincent Health Center implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season instead of receiving the vaccination.

In its lawsuit, EEOC alleges that the six employees requested religious exemptions from the flu vaccination requirement based on religious beliefs, and that the facility denied their requests. When the employees continued to refuse to get a flu shot, they were fired.  The lawsuit makes a point of noting that during the same period, the hospital granted 14 vaccination exemption requests based on non-religious medical reasons. 

In addition to this newest case in Pennsylvania, and the one in Massachusetts, the EEOC also has filed a similar lawsuit against a hospital in North Carolina for failing to accommodate employees’ religious objections to mandatory flu shots.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a much lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

Whether the EEOC or the healthcare facilities will prevail in these lawsuits will likely hinge on whether it is an undue hardship to offer an accommodation to a policy aimed at protecting the health and safety of patients.  In the Massachusetts and Pennsylvania cases, an accommodation of wearing a facemask to prevent contagion was refused by employees.  In the North Carolina case, the failure to accommodate claim is based on the employee requesting an exemption after the deadline for getting a flu shot already had passed.

According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose.  While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.

Back in August of this year, a federal court in Pennsylvania dismissed a similar lawsuit brought by a hospital employee in Fallon v. Mercy Catholic Medical Center.  In dismissing the plaintiff’s Title VII religious discrimination, the court’s opinion focused on the fact that the employee’s secular objections to receiving a flu shot simply were not entitled to the religious protections of Title VII:

In sum, Fallon clearly fails to state a claim for religious discrimination under Title VII. He does not belong to a religious congregation, nor does he claim that his reasons for refusing to be vaccinated are based on “religious beliefs,” sincerely held or otherwise. To the contrary, Fallon’s stated opposition to vaccinations is entirely personal, political, sociological and economic—the very definition of secular philosophy as opposed to religious orientation. To adopt Fallon’s argument that he need only show a strongly held moral or ethical belief in lieu of a sincere religious belief would contravene Third Circuit and Supreme Court precedent and would potentially entitle anyone with “strongly held” beliefs on any topic to protection under Title VII’s religious discrimination provision.

However, it remains to be seen whether the court’s ruling in Fallon will be of much help to the Pennsylvania hospital in the EEOC’s latest lawsuit.  Title VII and courts generally construe religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. 

Sun Worshipping Atheist Loses Religious Discrimination Suit

In religious discrimination cases under Title VII, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. The cases usually hinge on whether the employer reasonably accommodated the employee’s religious conflict with a workplace policy, or whether the requested accommodation imposed an undue hardship on the employer.  As noted in my original article “The Employee with the Dragon Tattoo”, even tattoos and piercings have been recognized as sincerely held religious practices.

However, the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” is not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours. [Marshel Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4^th Dist.)]

When hired at the prison, Marshel Copple was told there was mandatory overtime. However, shortly after being hired, he requested to work only 8 hour shifts based on Sun Worshiping Atheism’s religious tenets of praying in the sun, exercising, socializing, getting fresh air, sleeping well and being skeptical in all things.  When the prison declined to accommodate his request, he refused to work three overtime shifts and subsequently resigned, claiming constructive discharge. He filed an EEOC Charge, which was dismissed and and subsequently brought suit under California’s Fair Employment and Housing Act.  Following a summary judgment ruling against him in a lower court, he appealed the adverse ruling.

In affirming the dismissal of the lawsuit, the California appellate court held that religions address “fundamental and ultimate questions having to do with deep and imponderable matters”, and that Sun Worshiping Atheism was simply a practice of living a healthy lifestyle, with none of the trappings of a religion.

In my post “Sign of the Beast Hand Scanning Case Provides Valuable Lesson to Employers", I discussed how an employer’s failure to accommodate an employee’s religious beliefs resulted in a high dollar jury verdict for the employee.  In that case, the employee was denied a reasonable accommodation to his religious belief that the technology behind the employer’s hand scanning time clock system had a connection to the “mark of the beast”  as alluded to in the Book of Revelation in the New Testament of the Bible. 

However in a recent similar case, the United States Court of Appeals for the Sixth Circuit found in favor of the employer, where the employee refused to provide a Social Security number because he considered it the “mark of the beast.”  In Yeager v. FirstEnergy Generation Corp. (6^th Cir.), the Sixth Circuit held an employer has no duty to accommodate a religious belief where such an accommodation would violate a federal statute, which in this case, required the employer to collect and report the Social Security numbers of their employees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com