Narrow Bans on Union Insignia in Patient Care Areas, Unlike Broad Bans, Not Presumptively Lawful: NLRB

Practical Law Legal Update 6-517-1772 (Approx. 6 pages)

Narrow Bans on Union Insignia in Patient Care Areas, Unlike Broad Bans, Not Presumptively Lawful: NLRB

by PLC Labor & Employment

Key Litigated Issues

The NLRB issued a decision in Saint John's Health Center, dated December 30, 2011, where it determined whether a hospital's narrow ban on wearing union insignia in immediate patient care areas and limiting in part off-duty employees' rights to access the interior of the facility violated the NLRA. The key issues in the case were:

Whether a hospital that can lawfully prohibit its employees from wearing any union insignia in immediate patient care areas under NLRB and Supreme Court precedent, can lawfully prohibit employees from wearing only select union insignia in immediate patient care areas.
Whether an employer that can lawfully prohibit its off-duty employees from accessing interior working areas of its facility at all times for any purpose under NLRB precedent, can prohibit them from accessing a portion of the interior working areas in the facility except at limited times and limited purposes (such as company-sponsored events including baby showers and retirement parties), so long as it grants them access to another portion of the interior working areas of the facility at all times for any purpose.

Background

Saint John's Health Center, issued a policy in 2008 barring employees from wearing union ribbons reading "Saint John's RNs for Safe Patient Care" in immediate patient care areas. Hospital management explained that there was a concern that the ribbons were detrimental and disruptive to patient care. Before and after the ban, the employer allowed nurses to wear a variety of insignia, including political buttons and other union buttons, in patient care areas.

On May 21, 2009, the employer e-mailed a new policy to employees prohibiting off-duty employees from accessing the building, with exceptions for access to:

The health center cafeteria.
Other parts of the building for events sponsored by the health center such as retirement events and baby showers.

On successive days, the employer enforced the new policy against:

Off-duty employees who were on the premises to campaign for the union.
An employee who arrived to retrieve his wallet.

An NLRB administrative law judge (ALJ) found that the employer's ban on the union ribbon was presumptively valid, but that the employer violated the NLRA through enforcing the ban discriminatorily.

The ALJ also found that the employer violated the NLRA by promulgating and enforcing its access rule before disseminating it to employees. However, the access rule was otherwise lawful. Both the employer and the union filed exceptions to a five-member panel (Board) heading the NLRB's judicial functions.

Outcome

A three member panel of the Board reviewed the exceptions to the ALJ's decision. In a two-to-one decision, the Board majority (Member Hayes dissenting) held that the employer violated the NLRA by:

Selectively banning the union ribbon. The Board majority did not address the ALJ's conclusion that the rule was discriminatorily enforced.
Maintaining an off-duty employee access rule that does not uniformly prohibit or grant access to off-duty employees.

A unanimous Board held that the employer violated the NLRA by promulgating and enforcing its off-duty access rule without clearly disseminating the policy to all employees.

The Ban on the Union Ribbon

The Board majority confirmed long standing precedent that:

Employees have a protected right to wear union insignia at work in the absence of special circumstances (Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).
Health care facilities' restrictions on employees wearing union insignia in:
- immediate patient care areas are presumptively valid; and
- outside of immediate patient care areas are presumptively invalid.
(NLRB v. Baptist Hosp., 442 U.S. 773 (1979).)

The Board majority held that the presumption of validity applies to bans on all nonofficial insignia in patient care areas, but it does not protect selective bans on certain union insignia. An employer must demonstrate special circumstances to justify a selective ban.

The Board found the employer failed to show special circumstances and maintained an unlawful selective ban because:

There was no evidence that patients were aware of the union campaign such that the ribbon was likely to disturb patients or otherwise disrupt health care operations.
The union ribbon contained language ("Saint John's RNs for Safe Patient Care") nearly identical to another ribbon, distributed by the employer ("Saint John's mission is patient safe care"), which employees were permitted to wear in immediate patient care areas.

Member Hayes dissented, asserting that:

In the absence of a discriminatory purpose, the presumption of validity applies to both selective and general bans on insignia in immediate patient care areas.
The Board majority's addition to the presumptive validity standard leads to uncertainty and improperly hinges the lawfulness of narrow bans in immediate patient care areas on the hospital's past practice instead of the disruption to patient care that the particular insignia would cause.

The Off-duty Employee Access Rule

Under the NLRB's decision in Tri-County Medical Center, an employer's rule barring off-duty employees from accessing its facility is valid only if it:

Limits access solely with respect to the interior of the facility and other working areas.
Is clearly disseminated to all employees.
Applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.

The Board majority held that to satisfy the third prong an employer must:

Uniformly prohibit access by off-duty employees seeking entry to the property for any purpose.
Justify narrow exceptions for entry with evidence of special circumstances.

The Board held that the employer's rule was not a uniform prohibition of off-duty employee access to interior portions of the facility for any purpose. Moreover, the employer's exceptions for its own sponsored events was too broad an exception.

In dissent, Member Hayes asserted that the Board majority interpreted the third prong of theTri County test too narrowly. He argued that the third prong does not require an employer to prohibit off-duty entry for all purposes so long as the rule, and any limited exceptions to it, does not discriminate against union activity. Hayes also noted that there was no evidence of discrimination because employees were not barred from engaging in union activity in the hospital cafeteria.

Practical Implications

The Board's decision establishes stringent rules governing employer policies on wearing insignia in the workplace and off-duty work access, and emphasizes for employers the importance of closely scrutinizing both the language of these policies and their dissemination to employees.

Under the Board's decision, only blanket bans on all insignia in immediate patient areas or all off-duty access will be entitled to a presumption of validity. To justify selective restrictions of union insignia in patient areas, or selective exceptions to an employer rule prohibiting off-duty access to the workplace, employers will need to make a showing of special circumstances. Employers should also be cognizant of the need to clearly disseminate any off-duty access policy to all employees before attempting to enforce the rule.

As Member Hayes noted in his dissent, the decision has a peculiar result. The Board majority requires an employer to prohibit Section 7 activity to the fullest extent permissible under Board and Supreme Court precedent, or not at all.

Narrow Bans on Union Insignia in Patient Care Areas, Unlike Broad Bans, Not Presumptively Lawful: NLRB | Practical Law