Divided NLRB Penalizes Health Care Center for Selectively Banning Union Insignia

Employers generally can ban union insignia worn by their employees only in limited “special circumstances.” However, due to concerns about the possibility of disruption to patient care, health care facilities have long been allowed to ban union insignia so long as the ban was limited to immediate patient-care areas. With its decision in HealthBridge Management, LLC, a three-member panel of the National Labor Relations Board (NLRB) recently backpedaled on the presumptive validity of such prohibitions and split over whether a Connecticut health care center could ban employees from wearing certain union stickers in the presence of patients.

Case Background

In HealthBridge Management, LLC, employees at six Connecticut health care facilities managed by HealthBridge created flyers and stickers indicating that the employer recently had been “busted” by the NLRB.

HealthBridge prohibited employees at two facilities from wearing the “busted” stickers anywhere on the employer’s premises, which was well outside the general exception traditionally adopted by the NLRB. However, HealthBridge adopted more limited prohibitions at its other four locations, barring employees from wearing the stickers only when in patient-care areas or while providing patient care.

A split panel of the NLRB eroded the presumptive validity of such bans, ruling that the HealthBridge prohibition was “a selective ban on only the ‘Busted’ sticker” and therefore unlawful. One member dissented, explaining that the panel’s opinion would require a categorical ban on all buttons and insignia, including innocuous buttons worn in HealthBridge facilities that read “Make a Difference” and “Certified Nursing Assistants Make Every Day Brighter,” as well as a pin with the image of an angel.

Of equal importance to health care employers, the NLRB majority also held that, to demonstrate the “special circumstances” necessary to justify a ban on union insignia, an employer must present evidence of more than an experienced hospital administrator’s subjective concern that the insignia will disturb patients. In this case, the senior vice president of labor relations and an outside expert witness – both of whom had extensive experience administering health care facilities and policy – testified to their belief that the stickers would upset patients.

Calling their testimony “speculative” and “conjecture,” the NLRB majority dismissed the testimony because it “was not based on any specific experience with a patient, family member, or employee.” The outside expert (who was not consulted until after the unfair labor practice hearing) was further discounted because “she never spoke to any patients, family members, or care givers in the facilities at issue.” As a practical matter, the majority’s holding potentially makes it difficult for health care employers to ban union insignia in patient-care areas without first receiving a complaint from patients or their families.

Employer Take-Aways

Health care facilities in particular should pay careful attention to this decision. To avoid the lessons learned by HealthBridge, follow these guidelines:

• Make and enforce a categorical ban on all insignia in immediate patient-care areas. Do not wait until the issue arises to make and enforce a “selective” ban on such items.
• Deliver communications to the workforce in a unified manner. Do not rely on various managers to deliver important messages orally.
• Train managers and employees alike on the appropriate circumstances and locations in which union insignia will be permitted.
• Document any special circumstances that warrant a prohibition on buttons, stickers or other union displays. The documentation should include specific evidence gleaned from patients, family members or caregivers demonstrating that the insignia disrupted the “restful, uncluttered, relaxing, and helpful atmosphere” of the health care facility. This may require temporarily permitting the insignia to determine if such evidence exists.
• Remember that employers may not categorically prohibit employees’ use of the company logo. In this case, the company logo was prominently displayed on the stickers.

To view a copy of the decision, click here.

Source: McGuire Woods