Recently, a three member panel of the National Labor Relations Board (the “Board”) issued a decision that many health care employers will find sobering. The Board panel invalidated a rule requiring employees working in patient care areas to only wear badge spools with “approved logos or text” throughout its facilities.
Though consistent with well-established standards for rules on employees wearing union insignia at work, the decision highlights the challenges facing healthcare employers on this issue.
The Standard
The Board’s well-established standard for wearing union insignia in health care settings is that absent special circumstances, rules prohibiting employees from wearing union insignia at work are presumptively unlawful. However, rules prohibiting union solicitation, distribution of union literature, and/or wearing union insignia in direct patient care areas are presumptively valid. The question often is whether the “special circumstances” exception permits a ban on such insignia outside the direct care areas.
In deciding against the employer’s rule, two of the Board members determined that the employer did not put forward sufficient evidence to show that the more broadly stated rule was necessary to avoid disruption and/or disturbance. They dismissed the argument that the rule was justified because it provided “a standardized, easily-identifiable, customized, consistent and professional look in accordance with [the employer’s] business strategy of providing quality patient care.”
They also expressly rejected the argument that a rule requiring employees to remove union insignia before entering direct patient care areas would be impractical or disruptive of healthcare operations, noting that the items in question (badge reels) could be easily removed and exchanged prior to entering a direct patient care area.
Hope Offered By the Dissent
The one dissenting Board member offered an alternative analysis that gives hope that a different three-member panel in a future case may issue a decision friendlier to employer interests. The dissent noted, for example, that the rule in question and the manner in which it was enforced demonstrated that the rule was understood actually to apply only to “direct patient care employees” working in immediate patient care areas.
The dissent also contended that because the hospital’s policy was designed to “promote ‘an image of high quality, professional healthcare to the communities [the employer] serve[s.],’” it also fell within the special circumstances exception recognized by the Board.
Bottom Line
Until this decision is overturned, health care organizations should review dress code and grooming policies to determine if those policies could reasonably be interpreted to prohibit or limit wearing union insignia in non-direct patient care areas. If so, and you feel that the policy is important, consider gathering the evidence you may need to demonstrate the policy is not overbroad and/or that special circumstances apply.
The ability to show when and how inappropriate apparel has resulted in a disruption to healthcare operations or disturbed or detracted from patient care will be very helpful should your policy be challenged by the Board.