By Nelson Cary and James Pauley III
A healthcare employer with six different locations recently found itself in hot water after banning employees from wearing stickers with the word “BUSTED” in bright red lettering; the NLRB found that the prohibition violated the NLRA. The employer banned the stickers in patient care areas in four of its locations, and in all areas in two of its locations.
In general, employees are permitted to wear union insignia at work unless there are "special circumstances." In the healthcare industry, however, the NLRB has adopted certain presumptions given the possibility of an impact on patient care. Thus, restrictions on wearing union insignia are presumptively valid in immediate patient care areas, and presumptively invalid in nonpatient care areas, though the employer can still show special circumstances to justify a prohibition on union insignia. However, this presumption of validity “does not apply to a selective ban on only certain union insignia in immediate patient care areas,” and in such a case, the employer will still have to show special circumstances.
Here, in addition to the word “BUSTED” in red lettering, the stickers listed the employer’s name in the top third of the sticker, and stated in the bottom third, “March 21, 2001 By National Labor Board for Violating Federal Labor Law.” They were issued to employees shortly after a regional office of the NLRB filed a complaint against the employer alleging various unfair labor practices.
The NLRB majority held that the prohibition on wearing the “BUSTED” sticker in all areas of the healthcare facility (at two locations) was presumptively invalid. But notwithstanding the more limited ban at the other facilities, the NLRB majority also found the ban in patient care areas only presumptively invalid. The NLRB reasoned that a ban on only the “BUSTED” sticker was a “selective” ban because the employer had permitted other union insignia to be worn in immediate patient care areas. The NLRB further held that the employer failed to show special circumstances, finding that the evidence submitted was nothing more than “generalized speculation or subjective belief about potential disturbance of patients or disruption of operations.”
Member Miscimarra (R) disagreed. First, the “BUSTED” sticker prohibition was presumptively valid in the immediate patient-care areas. Second, the employer demonstrated “special circumstances” justifying the prohibition, namely that the employer was concerned about the impact of the sticker on residents and their care.
The majority discounted this evidence because the employer did not show that the stickers actually upset residents. But Member Miscimarra rejected this requirement, noting that actual disturbance was simply not a requirement found in prior case law. Taken to its extreme, the actual harm requirement would mean that a truly objectionable button would have to be permitted unless and until it actually did upset patients or their family.
For labor professionals, this case serves as a reminder of the intricacies of the NLRA, particularly as they relate to when employees can be prohibited from wearing union insignia. Moreover, the majority’s reasoning demonstrates that the NLRB is willing to go quite far in permitting concerted communications in the work place. Even if the presumption of validity should apply, an employer should be prepared to submit as much evidence as possible in order to show that “special circumstances” exist to justify prohibiting any union insignia or messages. If not, you may find yourself BUSTED by the NLRB.