NLRB Finds Health Care Employer Unlawfully Removed Union Flyers and Prohibited Employees From Wearing Union Insignia

by Faegre Baker Daniels
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On May 22, 2014, the National Labor Relations Board (NLRB) issued its decision in Healthbridge Management, finding that Healthbridge Management, LLC violated the National Labor Relations Act (NLRA) by removing flyers from union-designated bulletin boards and prohibiting employees from wearing union stickers.

Healthbridge manages nursing homes and health care facilities in multiple states. In 2011, the NLRB issued a complaint that alleged six of the health care facilities Healthbridge managed violated the NLRA in several respects. A few days later, in reference to the complaint, the union representing employees in those facilities posted a flyer on each facility's union-designated bulletin board that said "BUSTED" and accused Healthbridge of scare tactics and fear-mongering, among other things. The union also distributed stickers to its members that similarly said "BUSTED," and below it stated "By National Labor Board For Violating Federal Labor Law."

That same day, Healthbridge's labor relations director instructed each facility to remove the flyer from its bulletin boards and to inform employees they must remove the stickers when in patient care areas. Four of the six facilities followed these instructions, but the other two categorically prohibited employees from wearing the stickers in all areas of the facilities.

With respect to the flyers, Healthbridge argued its removal was lawful under its labor contracts with the union that required the employer to furnish a bulletin board for the union to post "proper union notices." The NLRB disagreed because the term "proper" was undefined and nothing in the labor contract or otherwise suggested Healthbridge could unilaterally decide what was "proper." As such, it found that the flyers were "proper" (even though they were inaccurate) because their content amounted to nothing more than permissible pro-union bias. For this reason, the NLRB held that Healthbridge's removal of the flyers violated the NLRA.

The NLRB also found against Healthbridge on the sticker issue. In most workplaces, employees have a protected right under the NLRA to wear union insignia at work absent "special circumstances." However, an exception to this general rule applies to health care facilities, which may establish a presumptively valid rule restricting employees from wearing union insignia in patient care areas. Based on these rules, the NLRB found the two facilities that prohibited employees from wearing stickers at all acted unlawfully.

With respect to the four facilities that only prohibited employees from wearing the stickers in patient care areas, the NLRB likewise found their prohibition to be unlawful because it applied only to the "busted" sticker and to no other insignia; therefore, the discriminatory nature of the rule negated the presumption of validity. Healthbridge argued that special circumstances justified such a prohibition because the stickers would upset their patients. But the NLRB again disagreed because (1) Healthbridge did not present any specific evidence that the stickers would upset its patients; and (2) Healthbridge's reasoning was solely based on the labor relations director's belief and conjecture. The NLRB majority's decision on this discrete issue drew a dissent from Member Miscimarra, who reasoned that the prohibition was entitled to the presumption of validity that attaches to decisions prohibiting insignia in patient care areas regardless of whether the ban applied to all insignia or just this sticker.

The NLRB's decision in Healthbridge establishes that health care facilities must ban all insignia in patient care areas if they intend to rely on the presumption of validity. Otherwise, a health care facility must prove that special circumstances warrant a ban on a particular insignia by offering specific substantiating evidence. Given the NLRB's posture on this issue, health care facilities should carefully evaluate whether they should ban all insignia in patient care areas or, alternatively, only ban the wearing of insignia in special circumstances, knowing they must be prepared to offer the required evidence on a case-by-case basis when the situation arises.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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