The National Labor Relations Board ("NLRB" or "Board") recently held that a healthcare employer violated the National Labor Relations Act (NLRA) by prohibiting employees from wearing union protest stickers.
Executive Summary: The National Labor Relations Board ("NLRB" or "Board") recently held that a healthcare employer violated the National Labor Relations Act (NLRA) by prohibiting employees from wearing union protest stickers. See HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118 (June 22, 2014). In the 2-1 decision, the Board found that HealthBridge could not prohibit employees from wearing union protest stickers inside or outside patient care areas because its rules were only selectively enforced, and HealthBridge could not establish "special circumstances" to justify the ban.
Background: In response to an earlier complaint issued against HealthBridge, the union prepared flyers and stickers stating that HealthBridge had been "busted" by the NLRB for violating federal labor law. The "busted" flyers subsequently were posted on the union's bulletin boards at each of HealthBridge's six Connecticut health care facilities, and employees at each of the facilities wore the "busted" stickers. HealthBridge immediately removed the flyers from the union bulletin boards and instructed employees at four of the six facilities to remove the stickers when in patient care areas or while providing patient care. Employees at the remaining two facilities were prohibited from wearing the stickers in all areas.
It is well-established that employees, including nonunion employees, have the right to wear union pins, stickers, buttons and other union insignia at work in the absence of "special circumstances." In healthcare facilities, however, the NLRB and the courts have refined that rule because of concerns about the possibility of disruption to patient care. In nonpatient care areas, restrictions on wearing union pins, stickers, buttons and other union insignia are presumptively invalid, and it is the employer's burden to establish special circumstances justifying such decisions. Restrictions on wearing insignia in patient care areas are presumptively valid; however, that presumption does not apply if the restriction is a selective ban on only certain pins, buttons and other union insignia. In those circumstances, it remains the employer's burden to establish special circumstances to justify its action and prove that the action was "necessary to avoid disruption of health-care operations or disturbance of patients." Beth Israel Hospital v. NLRB, 437 U.S. 438, 507 (1978).
Employers' Bottom Line: Consistent application of workplace rules is critical. An employer cannot prohibit employees from wearing union buttons – even when "special circumstances" exist – if the employer permits employees to wear political or other buttons or stickers in the workplace. Moreover, according to the Board, healthcare facilities must establish "special circumstances" with specific evidence, not general or speculative testimony regarding how patients may be affected. In the end, absent "special circumstances," it is an unfair labor practice for employers to prohibit employees from wearing union pins, stickers, buttons and other union insignia.
If you have any questions regarding this Alert or other labor or employment related issues, please contact Louis Britt, lbritt@fordharrison.com, a partner in our Memphis & Nashville offices or Bari L. Goldstein, bgoldstein@fordharrison.com, counsel in our West Palm Beach office. You may also contact the FordHarrison attorney with whom you usually work.