The complaint filed against Crozer Chester Medical Center by the NLRB Regional Director Dennis Walsh underscores the value of written rules and the difficulties in enforcing them.

Crozer has had a long-standing dispute with the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) over a renewal contract. The negotiations for a new contract have been bogged down over the concessions the hospital says it needs to continue to operate and make contributions into the union's defined benefit pension plan. The dispute has been punctuated by brief strikes and constant demonstrations that include leafleting.

According to the Regional Director's Complaint, the hospital violated the law when it ejected a number of off duty nurses from leafleting both immediately outside and inside the hospital's main entrance.

The rights of off-duty employees to solicit other employees, vendors, and customers has been the subject of Board litigation on several occasions recently. Here is the rule: Off-duty employees cannot be prohibited from soliciting in non-work areas in or around an employer's facility unless the employer has a written rule that permits off-duty employees to solicit in non-work areas outside of any facility but prohibits soliciting by these employees inside any facility. Consequently, an employer without a written rule may have to put up with a pro-union off-duty employee sitting in its lunchroom trying to get employees who are on break to sign union authorization cards or, as in this case, leafleting anyone who may be in the lobby seeking to obtain their support in a labor dispute. However, if the employer has a written no-access policy, the off-duty employees can be prohibited from being in any building.

The lesson – put it in writing!  Apparently, Crozer didn't.

One more thing – once a dispute arises or once union organizing commences, you cannot promulgate a no-solicitation, no-distribution, no access rule for the first time and expect it to be effective.  The rule will be invalid because it would have been issued for the obvious purpose of curtailing protected activity.

Another one more thing – a valid no-access rule can become invalid if it is enforced discriminatorily. So, if you want to keep union related soliciting by off duty employees out of your building(s), you must prohibit all access into your building(s) by all off-duty employees for all reasons, even to attend a social affair or to resolve a pay dispute. If this complete prohibition offends your culture, then you will have to permit the soliciting inside of your building(s) because your written no-access rule will be invalidated the first time an off-duty employee enters one of your buildings to attend a baby shower.

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