- NLRB Rules in Favor of Hospital's Broad Ban of Particular Union Button
- August 23, 2006
- Law Firm: Duane Morris LLP - Philadelphia Office
Would you be worried if your nurse in a hospital setting wore a union button proclaiming "RNs Demand Safe Staffing"? Buttons with this message were distributed by the union representing 1,200 nurses and worn by on-duty nurses during the contract negotiations period with a Spokane, Washington, hospital. Acting after some nurse managers reported concern with the message presented to patients' families by the nurses' wearing such buttons, the hospital banned the wearing of the "Safe Staffing" button in all areas of the hospital campus open to patients or their families.
In a 2-1 decision, the NLRB determined that a reasonable person would construe the "Safe Staffing" button as a claim that the hospital's staffing levels were unsafe. The NLRB reiterated the long-held principle for healthcare facilities that restrictions on the wearing of union-related buttons by staff members are presumptively valid in immediate patient care areas, but are presumptively invalid outside such areas. A hospital or healthcare facility may rebut the presumption of invalidity by a showing of "special circumstances," i.e., that the restriction is necessary to avoid the disruption of healthcare operations or disturbance of patients.
Applying these principles, the NLRB found that the "RNs Demand Safe Staffing" button presented a message that would inherently disturb patients and send a clear message to patients that their care was in jeopardy. The NLRB found that the hospital took appropriate steps by banning the "Safe Staffing" button in hospital areas open to patients or their families, but not in all areas of the hospital. The hospital also continued its prior policy of not banning the wearing of other, more innocuous, union-related buttons in non-immediate patient care areas. The NLRB favorably considered the hospital's providing a written explanation of the reason for its ban of the "Safe Staffing" button in a memorandum distributed to the nurses. Thus, the NLRB concluded that the hospital's policy against wearing the "Safe Staffing" button was taken out of concern for its patients and their families and not out of an anti-union animus. The NLRB concluded that the hospital had rebutted the presumption of invalidity for bans on union-related buttons in non-immediate patient care areas and dismissed the union's unfair labor practices charge against the hospital.
Significance of Decision to Employers
Employers in the healthcare field should proceed cautiously when considering whether to ban union-related buttons or other clothing outside of immediate patient care areas. In affirming the "special circumstances" exception that allowed the hospital to ban the wearing of the union's button anywhere on the campus where patients or their families had access, the NLRB was persuaded that the hospital was acting for non-discriminatory reasons. The factors relied upon by the Board in reaching this determination — namely, the incendiary union message regarding patient safety, the employer's past history evidencing a lack of anti-union animus and the employer's provision of a written explanation to the union of the reasonable basis for its action — should be evaluated in any given situation before a healthcare employer bans union buttons in non-patient care areas.