• Bans on Buttons and Insignia in Health Care Settings Must be Consistently Enforced, NLRB Advises
  • January 27, 2012 | Author: Howard M. Bloom
  • Law Firm: Jackson Lewis LLP - Boston Office
  • Recognizing that health care employers are justifiably concerned with maintaining a safe environment for their patients and residents, the National Labor Relations Board for many years has permitted these employers to maintain and enforce rules banning employees from wearing buttons and insignia in “immediate patient care areas,” including patient rooms, corridors outside those rooms, treatment areas, and patient dining rooms.  Indeed, the Board has long held that such bans are “presumptively valid” (proof by the employer of “special circumstances” not required) as necessary to avoid disruption of health-care operations or disturbance of patients and residents.  Health care employers have applied these rules to prohibit the wearing of a variety of buttons, including union-related buttons, and even disciplined employees who violate them.

    The Board recently has clarified its “immediate patient care area” presumption in Saint John’s Health Center, 357 NLRB No. 170 (Dec. 30, 2011).  The Board decided that, where it is shown that the employer previously had allowed employees to wear buttons other than official employer buttons (e.g., name tags) in immediate patient care areas (even solely union-related buttons), the presumption no longer applies.  In such a case, in order to ban a particular button, the employer will have to prove special circumstances — evidence to support a “reasonable belief that the ban was necessary to ‘avoid disruption of health-care operations or disturbance of patients.’”  (Of course, if there is proof that the employer allowed non-union-related buttons, but banned a union-related button, the Board also may find discriminatory enforcement and, therefore, a separate violation of the National Labor Relations Act.)

    The Board’s clarification on banning buttons in immediate patient care areas underscores the importance of employers’ maintaining and consistently enforcing such rules.  If an employer cannot rely on the presumption that its ban is valid, it will have to present evidence that its ban on the particular button is nevertheless justified and lawful.  This could involve having to interview patients or residents to determine their awareness of the particular button and what the impact is on them.  Health care employers will be hesitant to involve their patients and residents in their labor disputes in this way.

    Efforts to avoid the disruption caused by employees wearing controversial union buttons require careful factual and legal assessment.  Health care employers are urged to consult with legal counsel before preparing policies and procedures addressing this and other labor-related expressive activities.