"Busted" by Buttons — When Union Propaganda May Be Permitted in Patient Care Areas

by Foley & Lardner LLP
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Nurses and other health care workers are usually allowed to wear pro union buttons, stickers and other insignia at work absent special circumstances. However, one area of health care facilities, such as hospitals, where health care workers are typically not allowed to wear such propaganda is in “patient care areas” because of concerns over disrupting patient care. In fact, the U.S. Supreme Court has recognized that patients and their families are entitled to a “restful, uncluttered, relaxing, and helpful atmosphere” in patient care areas that is free from such insignia.

In a recent decision, an employer that provides health care informed employees they could not wear stickers with the word “Busted” on them in patient care areas. The stickers were created by a union after an National Labor Relations Board administrative law judge issued an unfair labor practice complaint against the employer.

In this pro-union decision, two NLRB Members ruled that the employer improperly banned the stickers, with one Board Member disagreeing. The majority ruled that because the employer had applied a “selective ban” on only certain union insignia in patient care areas, the ban was not entitled to a presumption that it was valid. The majority also ruled the employer had not presented enough evidence to prove that patient care was disrupted, since no information about actual patient experiences with the facilities or their staff was presented. The majority noted that the employer had not spoken to any patients, family members or caregivers about the stickers or how they felt about them.

Because of this recent ruling, health care providers that have policies or practices prohibiting employees from wearing certain union insignia in patient care areas should review them to ensure that such bans are not selectively enforced. According to the current majority Board view, employers must ban the use of all insignia in immediate patient care areas in order for bans on union insignia in those areas to be presumptively valid. The current majority view means that employers must prohibit the wearing of all buttons or stickers, even those promoting a “relaxing and helpful atmosphere.” Therefore, employers likely need to prohibit even things like “smiley face” buttons in patient care areas if they wish to enforce these union insignia bans.

In addition, if an employer wishes to ban such buttons or stickers, it should be prepared to present specific evidence that they actually upset patients or their families. The current majority Board view seems to require very specific evidence. If an employer finds itself in a situation in which employees are wearing buttons, stickers, or the like in patient care areas, the employer unfortunately now needs to either wait for a patient or family member to complain or even go so far as to ask whether they were upset.

The waters about solicitation in health care settings have been muddied, and care needs to be taken or employers may be “busted” by a button.

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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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