By Nelson Cary and Emily Papania
Recently, the NLRB held in a 2-1 decision that a California hospital’s policies barring employees from wearing unapproved pins or badge reels violated the NLRA. Interestingly, the NLRB did not cite its new Boeing test in either the majority or dissenting opinions.
At issue were two hospital policies impacting the wearing of union insignia. The first policy stated that only hospital approved pins, badges, and professional certifications could be worn by employees. The second stated that direct care employees could only use badge reels branded with hospital approved logos or text.
The NLRB has long recognized that employees have a protected right to wear union insignia in the workplace absent special circumstances. However, the NLRB has also long held that there is greater flexibility to this general rule as it applies to healthcare facilities.
As a result, restrictions on the wearing of union insignia in patient care areas are presumptively valid, while those in non-patient care areas are presumptively invalid in the absence of special circumstances. The NLRB holds that special circumstances only arise in the healthcare setting where a restriction on union insignia is necessary to avoid disruption of healthcare operations or disturbance of patients.
Applying these established rules, the NLRB found that the hospital’s policies in this case were presumptively invalid as they were not limited to direct patient care areas. Thus, the employer was required to establish special circumstances. The NLRB majority rejected the employer’s argument that maintaining a consistent professional look constituted a special circumstance.
In his dissent, Member Emanuel (R) took issue with the majority’s decision only as it pertained to the badge reel rule. Emanuel pointed to the fact that the badge reel rule was only directed towards “direct care providers,” and argued that those employees would understand that it only applied in patient-care areas. Emanuel also would have found the badge reel rule justified by special circumstances, namely the hospital’s desire to maintain their public image.
For labor professionals, the NLRB’s decision puts employers on notice that the Boeing decision did not “change everything” when it comes to employee handbook rules. Instead, Boeing should be viewed as a way to bring common sense back to the interpretation of some of these rules — those that are “facially neutral,” which means they do not (among other things) “expressly restrict Sec[tion] 7 activity….” Where a long-established NLRA right exists – as in the case of union insignia and employer dress codes – and the employer’s rule would limit that right, the NLRB appears inclined to follow its established analytical model, and not apply Boeing.
In the end, more decisions from the NLRB will be necessary to assess fully the ultimate significance of Boeing. Stay tuned to this blog for coverage of those future decisions.