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By Michelle Amber
Saint John's Health Center in Santa Monica, Calif., unlawfully prohibited registered nurses from wearing union ribbons in immediate patient care areas during a union organizing drive, a divided National Labor Relations Board ruled Dec. 30 (Saint John's Health Ctr., 357 N.L.R.B. No. 170, 12/30/11 [released 1/5/12]).
In a 2-1 ruling, Chairman Mark Gaston Pearce and Member Craig Becker said that the hospital banned the ribbon saying, “Saint John's RNs for Safe Patient Care,” while allowing nurses to wear a hospital-endorsed ribbon, stating “Saint John's mission is patient safe care.”
While the board has created a presumption that an employer ban on the wearing of insignia in immediate patient care areas is valid, this presumption “does not protect a selective ban on only certain union insignia,” the majority said.
The majority also found that the hospital unlawfully promulgated and enforced a rule that limits off-duty employees' access to nonworking areas of the facility for some purposes, while permitting access to off-duty employees for other purposes. The hospital also did not provide adequate notice of the rule to employees, the majority found.
In dissent, Member Brian E. Hayes found that the hospital's ban on the union's ribbon was “presumptively lawful” because none of the other ribbons, buttons, or insignia that the hospital permitted nurses to wear were “critical of patient care safety.”
Hayes also disagreed with his colleagues that the rule limiting off-duty access to some employees was unlawful. He noted that the policy had two exceptions: allowing off-duty employees access to the cafeteria, with no apparent limitation on Section 7 activity in that location, and permitting off-duty employees access to the hospital to attend hospital-sponsored events such as baby showers and retirement parties.
“For my colleagues to suggest that an off-duty access rule which allows off-duty employees routine access to the cafeteria for Section 7 activity must nevertheless forbid off-duty employees from entering the hospital for occasional ‘retirement parties and baby showers’ in order to be lawful defies common sense,” he said.
In November 2008, during a union organizing drive, the California Nurses Association/National Nurses Organizing Committee gave nurses ribbons to wear calling for safe patient care. The hospital's vice president of human resources notified nursing directors to inform employees they could not wear the ribbons in immediate patient care areas because he was concerned that the ribbons were “detrimental and disruptive to patient care.” Several days later, four nurses were told they would be written up for insubordination if they did not remove the ribbons.
In January 2009, the hospital revised its solicitation and distribution policy to ban off-duty employees' access to working areas of the hospital, except for the cafeteria and to attend health-center-sponsored events such as baby showers and retirement parties.
The policy was posted on the company's intranet sometime in May 2009 and e-mailed to employees May 21, 2009. On May 14, the new access policy was enforced against off-duty employees who were campaigning for the union.
An NLRB administrative law judge found that the ribbon ban, which was limited to immediate patient care areas, was presumptively valid, but found the hospital violated Section 8(a)(1) of the National Labor Relations Act because the ban was enforced discriminatorily.
The ALJ found that the new solicitation and distribution policy was not valid because it was not clearly disseminated until after it was enforced against employees. The ALJ's recommended order did not require the hospital to rescind the policy but merely not to enforce it without providing notice to employees.
Turning first to the ban on the union ribbon, the majority reversed the ALJ's decision, ruling that he erred by finding the hospital's ban was presumptively valid.
“Having allowed other types of insignia to be worn in immediate patient care areas, the Respondent may not now rely on the protection of the presumption of validity applicable to an across-the-board ban to justify its selective ban of only the specific union insignia at issue,” the majority said.
The board also rejected the employer's contention that it was justified in banning the union ribbon because of “special circumstances.” Specifically the hospital argued that the ban was necessary because the ribbon was part of a larger campaign by the union to show that patient care at the facility was not safe. It also argued that it may ban any insignia that it reasonably believes may disturb patients.
According to the majority, the board will find special circumstances in a health care facility where a restriction is “necessary to avoid disruption of health-care operations or disturbance of patients.” In this case, it found, the hospital did not present any evidence that patients knew about the union's campaign so that the ribbon was likely to disturb patients or otherwise disrupt operations.
The hospital's justification is “further weakened” because it also distributed a virtually identical ribbon and allowed RNs to wear that ribbon in immediate patient care areas, Pearce and Becker said.
Addressing the off-duty employee access rule, the board majority said it violates Section 8(a)(1) and ordered the hospital to rescind the policy to the extent it allows access for certain purposes while barring access for other purposes.
Meanwhile, in an NLRB-supervised election conducted at the hospital May 26, 2011, CNA/NNOC won representation by a vote of 269-149.
Text of the decision may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=mamr-8qft8r.
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