One of the most emotional issues that health care employers are often forced to confront in the midst of union organizing or contentious contract negotiations is what to do about health care personnel — including nursing professionals — who choose to wear message buttons in support of their union’s positions. Such buttons, which may be seen by patients and their family members, are often deliberately designed to be as provocative as possible. And provoke they often do — especially managers. A decision this week by the Court of Appeals involving buttons worn by nurses at Sacred Heart Medical Center (Sacred Heart) in Spokane, Washington, however, dramatizes just how tight a rope health care employers seeking to control such messages may have to walk when and if they decide a message simply cannot be tolerated.
Many managers in health care have learned this lesson too late — after forcing an employee to remove the button or go home, or worse, after disciplining the employee for wearing the button. The NLRB has historically set a fairly onerous legal standard that an employer must meet before enforcing a ban on a button. In an “immediate patient care area,” a ban on such buttons is presumptively valid. Outside of immediate patient care areas, however, a ban can only be legally enforced upon a showing of “special circumstances.”
Despite numerous cases finding employers failing to satisfy this standard, a June 2006 NLRB decision involving Sacred Heart Medical Center seemed to signal a potential change in NLRB enforcement policy in the area and created a brief glimmer of hope for employers seeking a greater ability to control the messages their employees could share with patients.
In Sacred Heart, registered nurses began wearing buttons that said “RNs Demand Safe Staffing” during contentious negotiations for a new contract. Though the employer had previously allowed its nurses to wear certain union message buttons — even in front of patients — it found the message of this particular button particularly inappropriate and sent out a memo informing its employees that because the button implied that hospital staffing levels were unsafe, the button was banned in any area where staff members might encounter patients or family members.
In response, the union filed an unfair labor practice charge, and an NLRB administrative law judge found that Sacred Heart had committed an unfair labor practice because it had not shown that special circumstances justified its ban of the button outside of immediate patient care areas.
On review, two members of a three-member NLRB panel disagreed and reversed the administrative law judge’s finding. In the majority’s view, the message on the button was not a “garden-variety union button, with a slogan related to staffing concerns.” The majority opinion stated, “Rather, in the context of an acute-care medical facility, the button's demand that staffing be made safe sends a clear message to patients that their care is currently in jeopardy. In light of this message, the Respondent took appropriate steps to protect the atmosphere of patient care in the facility, not by banning all buttons, but by narrowly restricting the use of this single button, and only in locations where they might be seen by patients or their families.” In effect, the NLRB panel majority in the Sacred Heart case found the message on the button “inherently” disruptive and thus dispensed with any requirement that the employer introduce evidence of actual disturbances to patients and their family members having occurred, which the employer had not done.
Obviously, Sacred Heart was good news for health care employers. Many would say it was common sense. Or so we thought.
As so often happens in litigation, the tables turned yet again. On May 20, 2008, a three-judge panel of the Court of Appeals vacated the NLRB’s decision, finding that the conclusion that the buttons were disruptive conflicted with the NLRB’s own prior precedent and was not supported by substantial evidence. According to the Ninth Circuit, which has jurisdiction over California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho, and Montana, the NLRB’s 2006 decision in Sacred Heart simply could not be reconciled with prior NLRB decisions in which the health care employer was found not to have established the necessary special circumstances to ban the wearing of a button, including some prior cases where testimony addressing the issue of likely disruption of the patient care environment was in fact presented. In addition, the Court of Appeals noted that Sacred Heart had permitted the wearing of arguably more disturbing buttons for a period of months during the same negotiations without attempting to ban them and without receiving any patient complaints.
At the core, perhaps the most important lesson to be learned from the Sacred Heart decision is that when dealing with employees wearing union buttons in the midst of an organizing campaign or heated contract negotiations, health care employers need to proceed with caution and keep abreast of the latest legal developments. As Sacred Heart demonstrates, reasonable people, including judges, can hold very different opinions about whether an identical message is “inherently” disruptive in a health care environment. Health care managers who jump to conclusions based upon their own strongly held beliefs — however reasonable — may be walking into an expensive and time- and energy-consuming trap.
Richard M. Albert
Laurence R. Arnold
John H. Douglas
Lynn R. Goodfellow
Ellen C. Kearns