Buttons Worn by Union Employees, Quirky Question # 44

Quirky Question # 44:

I am a nursing supervisor working in a 250-bed acute care hospital.  We have been engaged in protracted contract negotiations with the union representing our registered nurses for several months.  Negotiations have bogged down over the nurses’ demand that their contract be amended to delete any provision for mandatory overtime to be assigned to nurses under any circumstances.  For the past couple of weeks, a number of our nurses have come to work wearing buttons reading, “Refuse to Lose – No Forced Overtime.”

I am concerned that our patients or their family members will conclude from this that they may not be receiving an appropriate level of care.  I have recommended to the Hospital Director that we publish a rule prohibiting nurses from wearing this button in any areas of the hospital where they may encounter patients or patient’s family members.  However, our Human Resource Director has expressed reservations about this, suggesting that this might be unlawful.  I can’t believe that we must permit this in a hospital setting.  Who is right?

Dorsey’s Analysis:

As counterintuitive as this may seem, your Human Resource Director is appropriately concerned.  In Washington State Nurses Ass’n v. NLRB, 526 F.3d 577 (9th Cir. 2008), the U.S. Court of Appeals for the 9th Circuit recently reversed a decision of the National Labor Relations Board (the Board) which had concluded that a hospital lawfully could prohibit nurses from wearing similar buttons.  The Court of Appeals held instead that the hospital’s rule violated the rights of the nurses under the National Labor Relations Act (NLRA) because the hospital failed to establish that there were “special circumstances” permitting the hospital to ban such buttons under its rule.

The NLRA provides employees of covered employers certain rights, including the Section 7 right “to self-organization, to form, join or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  Section 8 of the NLRA provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed . . . .”  Over the years, the Board, the federal agency charged with administering the NLRA, has developed an intricate set of rules about union-related communications in the workplace, attempting to balance the statutory rights of employees under the NLRA with employers’ rights to maintain control of their premises and to operate their businesses.

The rules adopted by the Board and the courts over the years for application in hospital workplaces have traditionally distinguished between patient care areas within an acute care hospital and all other areas.  In those non-patient care areas, attempts to ban the wearing or display of union insignia are presumptively invalid, but the presumption may be overcome by demonstrating that the ban is necessary to avoid disruption of health care operations or the disturbance of patients – i.e., “special circumstances.”  Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978).  Traditionally, the employer proposing such a ban in areas outside direct patient care areas has the burden to prove that such special circumstances are present.

In the Washington State Nurses case, the hospital contended that buttons worn by nurses reading, “RNs Demand Safe Staffing” involved a clear suggestion that the hospital’s staffing levels were unsafe and that such a message was “inherently disturbing” to patients, thus establishing, without more, the requisite special circumstances.  The record in the case contained no evidence of any actual disturbance of patients, nor of complaints by patients or members of their families, and no evidence that either patients or family members had even raised questions concerning the buttons.  The hospital did offer proof that various nurse managers had expressed their own concerns about the potential effect of the union button on patients and their families.

In the Washington State Nurses case, an administrative law judge had issued a decision that the hospital’s action unlawfully interfered with employee rights under the NLRA and therefore violated Section 8.  However, in reviewing the judge’s decision, the Board itself ruled 2-1 that the hospital’s ban of the “Safe Staffing” button was justified, finding that the message on the button at issue would “inherently disturb” hospital patients, thus satisfying the requirement of “special circumstances” to justify the enforcement of a ban outside of direct patient care areas.

The Board’s decision was appealed by the union to the U.S. Court of Appeals.  In reviewing decisions of the Board, the Courts of Appeals are obliged by Sections 10(e) and (f) of the NLRA to affirm the Board’s findings of fact if they are “supported by substantial evidence on the record considered as a whole.”  In reviewing the Board’s determination that the hospital had established “special circumstances” justifying its rule banning these buttons throughout the premises (even in non-patient care areas), the Court of Appeals concluded that there was no substantial evidence in the record to support the Board’s finding that these buttons had a disruptive effect on the hospital’s health care operations or its patients.  Rather, the Court characterized the Board’s finding as inherently speculative, citing the absence of any record evidence of patient complaints, expressions of concern or even questions concerning the button.  The Court also noted that this was true even though nurses had worn the very button at issue for several months before it was banned and had displayed a different – but arguably even more controversial – button prior to that for a number of months.  Accordingly, after examining the record as a whole, the Court of Appeals concluded that the Board’s finding that the hospital had met its burden to establish “special circumstances” was not supported by substantial evidence, requiring its reversal.

In your question, there is no indication that the button worn by your nurses has prompted any expressions of concern or other indications of disturbance of patients or their family members to date.  In the absence of any evidence that the button is actually having such an effect, it will be difficult to establish the special circumstances required to ban the wearing of such buttons throughout the hospital.  Note that different considerations may apply in the event you wish to ban the wearing of these buttons only in direct patient care areas.

Dorsey & Whitney

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