The 9th U.S. Circuit Court of Appeals has overturned a decision by the National Labor Relations Board related to a hospital’s prohibition on union buttons.  According to the Ninth Circuit, prohibiting the buttons violated nurse/employees’ rights under the National Labor Relations Act.  Washington State Nurses Ass’n v. NLRB, 9th Cir., No. 06-74917, May 20, 2008.

Washington State Nurses Association (WSNA) is a union representing approximately 1200 registered nurses at Sacred Heart Medical Center, an acute care hospital in Spokane, Washington.  In the fall of 2003, WNSA and Sacred Heart began negotiations for a new collective bargaining agreement, as the then-existing agreement was to expire in January 2004.  Those negotiations continued well into 2004, extending past the CBA’s expiration date.

During the period of negotiations, nurses at Sacred Heart wore buttons that included a number of different union-related messages, specifically including one that said: “RNs Demand Safe Staffing.”  On February 27, the hospital issued a memo that banned the nurses from wearing that particular button in any areas where the nurses “may encounter patients or family members.”  The memo stated the reason for the prohibition as “patients and family members may fear that the Medical Center is not able to provide adequate care.”  No nurse was disciplined for wearing that button.

Within a week after the memo, WSNA filed an unfair labor practice charge with the NLRB.  After a hearing, an Administrative Law Judge found that the hospital had engaged in an unfair practice by prohibiting the button.  A three-member panel of the Board subsequently reversed that decision, finding that “special circumstances” supported the prohibition, since the button’s message could “disturb patients.”

A federal appellate court can overturn the findings of an agency such as the NLRB when those findings are not supported by substantial evidence on the record considered as a whole.  Applying that rationale, the Ninth Circuit overturned the Board’s decision, with direction to reinstate the ALJ’s original holding in favor of the WSNA.  The Court found that the Board has long recognized that union members have a protected right to wear union insignia in the workplace and, in fact, that restrictions on the wearing of union insignia in immediate patient care areas are presumptively invalid, unless special circumstances exist to preclude those insignias.  The employer bears the burden of proving such special circumstances, including, presumably, any adverse impact on patient care.

The Ninth Circuit held that there was no evidence in the record to support the hospital’s assertion of “special circumstances,” as there was no actual testimony that any patients had been disturbed or upset by the message on the buttons.  Although the Board concluded that the button’s “inherently disturb[ing]” message was enough to support a finding of special circumstances, that approach was contrary to the basic principle – specifically cited by the Ninth Circuit – that conjecture is no substitute for evidence.  Without more, the hospital did not carry its burden, and the Board’s decision could not stand.

The message to employers is clear: special circumstances justifying a restriction on union insignia must be established by substantial evidence in the record.  Speculation or conjecture related to the effect of a union-related message or insignia will not be sufficient to defend against a claim of unfair labor practices.  Witness testimony, affidavits by management or HR personnel, and documentation of complaints are evidence of the type that can effectively support such a defense.


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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