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Health Care Employer Legally Limits "Safe Staffing" Buttons
By Aaron A. Roblan and Mary E. Drobka
[July 2006]
Introduction
The National Labor Relations Board (NLRB) has ruled that a Medical Center can lawfully prohibit employees from wearing “RNs Demand Safe Staffing” buttons, “in any area on [its] campus where they may encounter patients or family members.” Sacred Heart Medical Center and Washington State Nurses Association, 347 NLRB No. 48 (2006). The Labor Board reached this conclusion in spite of the fact that the employer had a 20-year history of permitting employees to wear buttons without restriction. This decision is significant for all health care employers.
Facts
With their contract set to expire in January 2004, Sacred Heart Medical Center and the Washington State Nurses Association began negotiations in the fall of 2003. During negotiations, the parties exchanged proposals related to nurse staffing levels, and nurses began wearing buttons containing the message, “RNs Demand Safe Staffing.” Nurse Managers concerned with the effect this message might have on patients and their families told Human Resources about the buttons.
On Feb. 27, 2004, the Medical Center issued a memorandum explaining: nurses were generally permitted to wear buttons in the Medical Center as they had done for many years; however, the “Safe Staffing” button was different than other buttons because it would be likely to create fear among patients and their families; and therefore, nurses would not be permitted to wear the “Safe Staffing” buttons, “in any area on our campus where they may encounter patients or family members.” Thereafter, the Union filed unfair labor practice charges with the NLRB.
The Decision
For decades, the Labor Board has held that employer restrictions on union-related buttons in “immediate patient care areas” of health care institutions are presumptively valid. Outside “immediate patient care areas,” however, the Board had held that such restrictions are presumptively invalid. Restrictions on wearing union buttons outside of immediate patient care areas are only permissible if justified by “special circumstances” that establish that the restrictions are “necessary to avoid disruption of health care operations or disturbance of patients.”
In Sacred Heart the Labor Board concluded that “special circumstances” justified the Medical Center’s restriction on the “Safe Staffing” button. The Board stated:
A reasonable person would construe the “Safe Staffing” button as a claim that the Respondent’s staffing levels are unsafe. Such a claim is likely to cause unease and worry among patients and their families, and disturb the tranquil hospital atmosphere that is necessary for successful patient care. ...[I]n 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…
The decision also made clear that a health care employer is not required to show that the buttons caused “actual” disturbances as a precondition to imposing restrictions: "Evidence of actual disturbance is not required when…the hospital demonstrated special circumstances justifying a ban on solicitations in corridors and sitting rooms on patient floors through testimony from its officials that in their opinion such solicitations would disturb patients…[A] hospital need not wait for the awful moment when patients or family are disturbed by a button before it may lawfully be restricted."
Health care employers should also note that the Board, referencing the Medical Center's long-standing practice of allowing other union buttons, stated, “the mere fact that an employer has not previously forbidden union insignia does not foreclose that employer from ever imposing restrictions on buttons, particularly where, as here, that insignia is potentially disruptive.”
The Board was careful to point out that: (1) no employee had been disciplined for wearing a button; (3) the Medical Center 's restriction only related to one particular button while other buttons were permitted; (4) the Medical Center explained to its employees the reasoning behind the restriction; and (5) the restriction was limited to areas where employees would likely come in contact with patients and their families.
Recommendations for Employers
In light of this decision, health care employers confronted with issues related to union buttons should:
- carefully evaluate whether the content of the message displayed on buttons would be disruptive to its operations or patient care, from a “reasonable person’s” point of view;
- determine whether restrictions are necessary in “immediate patient care areas” and/or elsewhere on its property;
- narrowly tailor restrictions consistent with the institution's legitimate need to protect patient care and health care operations;
- craft a well-reasoned and detailed explanation for the imposition of any restriction; and
- seek counsel before imposing any form of employee discipline related to union buttons.
For more information, please contact:
This Advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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