• Employer's Business Judgment Wins: The NLRB Upholds Hospital's Restriction On Nurses Wearing Union-Related Buttons
  • August 4, 2006 | Author: Ashley C. Pack
  • Law Firm: Dinsmore & Shohl LLP - Charleston Office
  • In a 2-1 decision, the National Labor Relations Board (NLRB) has held that a hospital's restriction on its registered nurses wearing "RNs Demand Safe Staffing" buttons is lawful. In Sacred Heart Medical Center, 347 N.L.R.B. 48 (2006), the Board held that the employer hospital satisfied the "special circumstances" exception to the general rule that an employer has only a right to restrict the wearing of union-related buttons in immediate patient care areas. The "special circumstances" exception was satisfied because the button's message related to issues of patient care and hospital safety and not to collective bargaining issues. Thus, the button restriction could be extended to all areas where a nurse may interact with a patient or a patient's family member. This decision represents a noteworthy expansion of the historically limited "special circumstances" exception.

    During contract negotiations between the union and the hospital, the registered nurses began wearing the “Safe Staffing” buttons. In response, the hospital issued a memorandum prohibiting the nurses from wearing the buttons in "any area on [its] campus where they may encounter patients or family members." Despite the fact that the hospital had previously allowed buttons, the hospital drew the line at this button because it gave "the impression that we do not have safe staffing." While the hospital did not discipline any nurses for wearing the buttons, it did request that several of the nurses remove them from their uniforms.

    In response, the union filed an unfair labor practice charge alleging that the hospital could not restrict the wearing of buttons in this manner. The Administrative Law Judge agreed, holding that the button restriction was overbroad because it extended beyond immediate patient care to areas where a nurse may encounter a patient or a patient's family member.

    On review, the Board, in a 2-1 decision (Chairman Battista and Member Schaumber, with Chairman Liebman dissenting), agreed with the Administrative Law Judge that the button restriction was presumptively invalid, but instead found that the hospital had satisfied the "special circumstances" exception which allowed the banning of the buttons in all areas where a nurse may interact with a patient and their families.

    The Board reasoned that the button's message that staffing be made safe sent a message to patients that their care was in jeopardy. In fact, according to the Board, this would cause worry among patients and their families disturbing the environment and purpose of the hospital. The Board was careful to distinguish this case from prior decisions in finding that the “Safe Staffing” button’s message was clear rather than cryptic and required no inference to conclude that a reasonable patient would be disturbed by the message. This is important because the Board explicitly rejected any argument that evidence of actual disturbance is required to show “special circumstances.” In contrast, Member Liebman, in dissent, argued that the hospital's evidence of disturbance was "mere speculation."

    What this means for Employers

    This decision reinforces the ability of employers in the healthcare industry to prohibit employees from wearing union-related buttons in immediate patient care areas. But, more importantly, these employers now possess the ability to control the wearing of certain union-related buttons as long as the employer can show “special circumstances.” According to this decision, this may be determined by an employer’s business judgment. But, employers should avoid imposing an overly broad restriction and should provide employees with a well-reasoned and detailed basis for any restriction.