Feb 07, 2012

Hospital’s Policies Regarding Employees’ Non-Official Insignia and Off-Duty Access Violated National Labor Relations Act

The National Labor Relations Board (“NLRB”) recently ruled that it was unlawful for Saint John’s Health Center to prohibit registered nurses from wearing a union ribbon that stated “Saint John’s RNs for safe patient care” during a union organizing drive in the immediate patient care areas, while permitting the nurses to wear a hospital-approved ribbon that stated “Saint John’s mission is patient safe care” in all areas of the hospital. In the same decision, the NLRB ruled that the hospital’s policy prohibiting off-duty employees from returning to the hospital except when specifically permitted to do so violated the National Labor Relations Act (“NLRA”).

There is a long-standing general rule that “restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions on insignia in other areas of the hospital are presumptively invalid.” The reasoning behind the general rule has been that the insignia or solicitations “might be unsettling to patients.” The hospital argued that it believed that the union ribbon would disturb patients because it was part of the union’s campaign to show that the hospital was not providing safe patient care. However, the hospital permitted RNs to wear a variety of other union buttons in immediate patient care areas. The NLRB ruled that the hospital failed to meet its burden to demonstrate that the selective ban on the union’s ribbon was “necessary to avoid disruption of health-care operations or disturbance of patients.” Instead, the NLRB found “There is nothing in the record that indicates that patients would be any more concerned about the quality of patient care after seeing the Union’s ribbon that said, ‘Saint John’s RNs for safe patient care,’ than they would be by the [hospital’s] ribbon that said, ‘Saint John’s mission is patient safe care.” Therefore, the NLRB ruled that the ban on the union’s ribbon violated the NLRA.

The hospital also had a policy that prohibited off-duty employees from accessing the hospital except “to attend Health center sponsored events, such as retirement parties and baby showers.” However, the past practice of the hospital was to permit off-duty employees on the premises for a variety of reasons, including “collecting personal belonging, picking up items ordered from other nurses, checking the schedule . . . and visiting with friends and coworkers.” After the union organizing campaign started, the hospital enforced the policy against off-duty employees who were on the premises for the purpose of campaigning on behalf of the union.

In Tri-County Medical Center, 222 NLRB 1089 (1976), the NLRB established that an employer’s rule barring off-duty employees from access to its facility is valid only if the following three-part test is met: “(1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees, and (3) applies to off duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.” Because Saint John’s Health Center narrowly enforced its policy against off-duty employees “who were on the premises to campaign for the Union,” the NLRB ordered it to rescind the policy and to cease enforcement against any employees.

Lesson to be Learned

As this decision clearly states, policies must be consistently enforced. Any insignia policy must ensure the hospital’s ability to regulate and maintain patient safety and minimize concerns by patients without violating employees’ NLRA rights. Permitted employee identification badges should be specifically identified in the policy, and the hospital should consider banning the wearing of all other pins and insignia. Of course, employees must be informed of the policy, and supervisors, managers, and charge nurses must be trained on the limits of the policy and the importance of uniformly enforcing the policy.

Similarly, policies must clearly inform off-duty employees that they have no authority to access the company’s facility, just as any member of the general public. Off-duty employees may not be permitted access for any reason to the restricted areas of the company because employees may then access those areas for union organizing efforts.

If you have any questions about this issue, be sure to contact your employment counsel at Smith, Gambrell & Russell, LLP.

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