Nursing Home Couldn't Ban ‘Busted' Stickers

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By Lawrence E. Dubé

Aug. 18 — HealthBridge Management LLC, a nursing home operator, violated federal labor law when it banned union fliers and stickers that described the employer as being “busted” for unfair labor practices, the U.S. Court of Appeals for the District of Columbia Circuit affirmed Aug. 18.

Writing for the court to uphold rulings by the National Labor Relations Board, Judge Robert Leon Wilkins said there was substantial evidence the union's message was not unduly disturbing to HealthBridge residents. The company argued “elderly, vulnerable folks” would worry the union was suggesting there was a threat to their safety, but the NLRB and the court disagreed.

Judge Karen LeCraft Henderson dissented. Finding the nursing home operator was motivated by a legitimate concern for the welfare of its residents, she said HealthBridge “should be lauded—not rebuked—for its efforts.”

Stickers Related to Labor Dispute

HealthBridge operates six health care facilities in Connecticut, where employees have been represented by New England Health Care Employees Union District 1199, Service Employees International Union.

According to the court and NLRB records, the union prepared fliers and stickers in 2011 stating that HealthBridge had recently been “busted” when an NLRB regional director issued an unfair labor practice complaint against the company.

HealthBridge removed “busted” fliers from nursing home bulletin boards and directed employees not to wear “busted” stickers on their clothing when they were in patient care areas or were providing patient care.

NLRB Found Unfair Labor Practices

Section 7 of the National Labor Relations Act gives employees the right to engage in a variety of union activities. Section 8(a)(1) prohibits employer interference, restraint and coercion of employees who participate in NLRA-protected union activity.

A three-member board panel held that HealthBridge interfered with employee rights in violation of Section 8(a)(1) of the National Labor Relations Act by removing the union fliers (360 N.L.R.B. No. 118, 199 LRRM 1497(2014).

The members divided on the exclusion of union insignia from patient care areas, but the board majority found the exclusion was unlawful, and the appeals court agreed.

Backs Board's Decision

Wilkins said the board concluded the company's ban on wearing stickers in patient care areas was selective and was supported only by “speculative” testimony that patients would be disturbed by seeing the union stickers on employees.

The court said the board had substantial evidence to support its unfair labor practice findings and properly evaluated the union's stickers and fliers in the context of a charged union-management dispute in which HealthBridge was warning residents the union might launch a strike.

Wilkins wrote that “[t]he Board was justified in finding that it would be irrational to assume that residents would become distraught and traumatized by a two-and-a-half inch, ten-word sticker suggesting their nursing home had been caught violating labor law, but would be reassured by HealthBridge’s repeated and detailed letters to residents and their family members threatening an imminent Union strike that could lead to replacement of the entire staff that cared for their most basic needs.”

Finding “[t]he Board was within reason” in concluding that the company's sticker ban was unlawful, the court enforced the NLRB's unfair labor practice order.

Dissent Argues ‘Reality' of Nursing Homes

Henderson agreed with the majority that HealthBridge unlawfully removed “busted” notices from bulletin boards, but she dissented from the court's ruling that the union stickers were improperly banned from patient care areas.

Stating that the board and the court disregarded “a poignant reality, nursing homes provide critical care for the most vulnerable Americans,” Henderson argued the board improperly faulted the employer for not providing specific evidence that the “busted” messages were harmful to nursing home residents.

Stating that the union's sticker display interfered in the important relationship between patients and caregivers “in a callous and dangerous manner,” Henderson concluded that HealthBridge “acted reasonably, legally and compassionately” in excluding the union stickers from patient care areas.

Judge Cornelia T. L. Pillard joined in the majority opinion

Bancroft PLLC represented HealthBridge Management LLC. NLRB attorneys represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Healthbridge_Management_LLC_et_al_v_NLRB_Docket_No_1401101_DC_Cir.