Over the years, both the NLRB and the Courts have considered the issue of displaying pro-union insignia in healthcare settings.   The traditional rule was that restrictions on insignia in immediate patient care areas were presumptively valid because such insignia “might be unsettling to patients.”   However, a new NLRB case issued in December casts doubt on this rule and will make it harder for healthcare employers to restrict pro-union messages.

In the case — St. John’s Health Center, 357 NLRB No. 170 (2011) — several nurses wore a ribbon distributed by the union stating “Saint John’s RNs for Safe Patient Care.”   The hospital banned this ribbon in immediate patient care areas.   The hospital issued its own ribbon stating “Saint John’s mission is patient safe care,” which it allowed nurses to wear in immediate patient care areas.   Additionally, the hospital permitted nurses to wear other union buttons in immediate patient care areas—just not the specific ribbon that was considered critical of the hospital.   The NLRB found that the ban was not presumptively valid because it was selectively enforced—in that the hospital allowed the pro-employer ribbon and other union buttons to be worn in immediate patient care areas.

Without a presumption of validity, the Board then considered if “special circumstances” still justified the ban.   The Board will find special circumstances in a healthcare setting where the restriction is “necessary to avoid disruption of health-care operations or disturbance of patients.”   Here, the Board compared the language between the prohibited union ribbon and permitted employer ribbon and found that there was “no difference between the two messages as they would be perceived by a patient.”  Furthermore, the Board stated that the employer presented “no evidence” that patients were aware of the union organizing campaign, to the extent that the ribbon would disturb them or “disrupt healthcare operations.”   Thus, the Board found that the employer’s ban on the union ribbon violated the NLRA.

Employer Takeaway: Any policy or ban on union ribbons must be reconsidered in light of this case.   Such bans will only be entitled to presumptive validity if they are applied to all insignia in immediate patient care areas.   Healthcare employers cannot selectively prohibit either employer or union insignias and expect that such prohibitions will be found presumptively valid under this new rule.   It is possible that even without presumptive validity, “special circumstances”—such as a particularly strong union message—might render the ban lawful, but the employer will need strong evidence that the union insignia will “disturb patients or disrupt healthcare operations” in order to prevail.