NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Sacred
September 26, 2008
SUPPLEMENTAL DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On June 30, 2006, the National Labor Relations Board
issued its Decision and Order in this proceeding, finding that the Respondent,
Sacred Heart Medical Center, did not violate Section 8(a)(1) of the Act by
promulgating, maintaining, and enforcing a policy that prohibits its employees
from wearing “RNs Demand Safe Staffing” union buttons in those parts of the
Respondent’s medical facility where employees might “encounter patients or family
members.”[1] The
On May 20, 2008, the court granted the petition for review, reversed the findings of the Board, and remanded the case to the Board with instructions to “reinstate the ALJ’s Decision and Order.”[2] The judge had found that the Respondent’s conduct violated Section 8(a)(1) of the Act.
We accept the court’s remand as the law of the case.[3] Accordingly, as instructed by the court, we adopt the findings of the administrative law judge as set forth in her decision,[4] and we adopt the judge’s recommended Order as modified.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Sacred
Substitute the attached notice for that of the administrative
law judge.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not promulgate, maintain, or enforce a policy that unlawfully prohibits our employees from wearing union buttons.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by the Act.
We will rescind the memorandum of February 27, 2004, which requested that you not wear the buttons reading “RNs Demand Safe Staffing” in any area where you might encounter patients or family members.
Sacred
Stephanie Cottrell, Atty., for the General Counsel.
Bruce Bishoff, Atty., of
Linda Machia, Atty., of
DECISION
Statement of the Case
Mary Miller
Cracraft, Administrative Law Judge. The issue in this case is whether
Respondent,
On the entire record,2
including briefs filed by all parties, I make the following
Findings of Fact
i. jurisdiction and labor organization status
Respondent is a State of
Respondent admits, and I find, that the
ii. facts
Respondent and the
The parties stipulated that even though union buttons have been worn by
nurses throughout the hospital for many years, Respondent had no occasion to request
removal of a button until February 27, 2004, when Respondent requested that thebutton
depicted below the “Safe Staffing” button be removed pursuant to the terms of a
February 27, 2004 memorandum.
The February 27, 2004 memorandum referred to in the parties’ stipulation
is as follows:
It has come to our attention that some staff are wearing
buttons which say, “RNs Demand Safe Staffing.” We know that staff have worn a
variety of buttons over the years for different purposes, and we have no
objection to most messages. This message, however, disparages Sacred Heart by
giving the impression that we do not have safe staffing. We cannot permit the
wearing of these buttons, because patients and family members may fear that the
It is difficult for us to understand why nurses would wear
these pins at the risk of upsetting their patients, particularly since we have
come to agreement with [the
To assure that patients do not become alarmed or fearful about patient care at Sacred Heart, effective immediately, it is our expectation that no staff member will wear these buttons in any area on our campus where they may encounter patients or family members.
Other buttons worn by nurses during this same period of time included
the following:
WSNA SHMC RNs
REMEMBER
The parties also agreed that Respondent’s human resources personnel were
approached by certain nurse managers expressing their concern as to the impact
of the “Safe Staffing” button on patients and their families. Finally, the
parties agreed that two witnesses who were not called to testify would testify
similarly to witnesses who testified; that is, these witnesses would testify
that while they were wearing the “Safe Staffing” button, they were not questioned
by patients or patients’ families about the button.
There is no evidence that any employee was disciplined for wearing the
“Safe Staffing” button. Various employees were, however, asked to remove these
buttons following issuance of the memorandum.
Analysis
Employees have a protected Section 7 right to make public their concerns
about their employment relation, including a right to wear union insignia at
work. Republic Aviation Corp. v. NLRB, 324
Employer prohibitions on hospital employees’ right to wear union buttons
in nonpatient care areas, which refer to employment concerns, must be justified
by evidence that the rule is “necessary to avoid disruption of health care
operations or disturbance of patients.” Mt.
Clemens General Hospital, 335 NLRB 48 (2001), quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978) (hospitals
or other health care institutions may be justified in imposing more stringent
prohibitions in order to afford tranquil environment to patients).
Additionally, the union button or insignia must be related to an employment
concern and not so disloyal, reckless, or maliciously untrue as to lose the
Act’s protection. Mountain Shadows Golf
Resort, 330 NLRB 1238, 1240 (2000), relying on NLRB v. Electrical Workers Local 1229 (
The General Counsel and the Charging Party argue that this case is
controlled by Mt. Clemens General Hospital,
supra, arguing that Respondent has failed to show “special circumstances”
privileging its prohibition. Additionally, they argue that Respondent’s
prohibition is presumptively invalid because it includes both immediate patient
care areas as well as nonpatient care areas. In agreement, I find that
Respondent’s prohibition of the “Safe Staffing” button in areas other than
those devoted to patient care obviously runs afoul of Beth Israel Hospital, supra, and its progeny, unless Respondent’s
prohibition was “necessary to avoid disruption of health care operations or disturbance
of patients”3 or unless the button is
not protected by Section 7 of the Act.4
Respondent argues that its prohibition is valid because the “Safe
Staffing” button would likely disturb patients, citing Mesa Vista Hospital, 280 NLRB 298, 298–299 (1986). However, as
Respondent concedes, there is no direct evidence that the “Safe Staffing”
button actually disturbed patients. Nevertheless, Respondent relies on the
logical import of the language of the “Safe Staffing” button, arguing that one
might logically deduce from the language “Nurses Demand Safe Staffing” that
Respondent’s current staffing levels were deemed “unsafe” by its nurses. Such
an assertion, in Respondent’s view, would likely disturb patients and patients’
families because they would reasonably fear that their medical care was unsafe.
Respondent’s argument that its prohibition is privileged by “special
circumstances” must fail. First, Respondent bears the burden of proving
“special circumstances.” See, e.g.,
Second, Respondent did not limit its prohibition to patient-care areas.
Respondent’s rule required that the “Safe Staffing” buttons be removed in areas
where patients or patients’ families might see the buttons. This wide and
unspecified geographic area is an overly broad prohibition on Section 7 activity.
See, e.g., Medical Center of Beaver
County, 266 NLRB 429, 430 (1983), relied upon by the Charging Party.
Third, the language on the “Safe Staffing” button did not disparage
Respondent’s services nor is it alleged to be disloyal, recklessly made, maliciously
false, vulgar or obscene. Rather, the somewhat generalized statement, “RNs
Demand Safe Staffing,” presents a legitimate workplace concern and is protected
by Section 7. See, e.g., St. Luke’s
Episcopal-Presbyterian Hospitals, 331 NLRB 761, 762 (2000) (employer
violated Sec. 8(a)(1) and (3) by discharging a nurse who gave a TV interview in
which she made a statement about inadequate staffing levels of medical teams in
her department).
Finally, Respondent did not historically limit union insignia in
patient-care areas. Thus, the “special circumstances” analysis applied in many
cases where such patient-care area bans are present, is inapplicable here. See,
e.g., Evergreen Nursing Home, 198
NLRB 775, 779 (1972) (bright yellow union buttons approximately 2 inches square
were lawfully prohibited by the nursing home which had long maintained strict
rule limiting all-white uniform adornment to name tag and professional affiliation
only).
Conclusion of Law
By promulgating, maintaining and enforcing a policy prohibiting employees from wearing a union button “in any area on our campus where they may encounter patients or family members,” the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusion of law and on the entire record, I issue the following recommended5
ORDER
The Respondent, Sacred Heart Medical Center, Spokane, Washington, its officers, agents, successors, and assigns, shall cease and desist from promulgating, maintaining, and enforcing a policy prohibiting employees from wearing a union button “in any area on our campus where they may encounter patients or family members” and in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
Take the following affirmative action necessary to effectuate
the policies of the Act: Rescind the February 27, 2004 memorandum and, within
14 days after service by the Region, post at its facility in
Dated: March 24, 2005
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not prohibit our employees from wearing the button which states, “RNs Demand Safe Staffing” “in any area on our campus where they may encounter patients or family members.”
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.
We will rescind the memorandum of February 27, 2004, which requested that you not wear the button which states “RNs Demand Safe Staffing” in any area where you might encounter patients or family members.
Sacred