Executive Summary: In a 2-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) held that a hospital’s policy that required direct patient care providers to wear hospital branded badge reels violated the National Labor Relations Act (NLRA or the Act) because that policy was not specifically limited to immediate patient care areas. See Long Beach Memorial Medical Center, Inc. and California Nurses Association/National Nurses Association (CAN/NNU), Case 21-CA-157007 (April 20, 2018).
Background
Generally, employees have a right under the Act to wear union insignia at work. However, due to concerns about the possibility of disruption to patient care, the Board has developed special rules applicable to healthcare facilities. While restrictions on wearing union insignia are presumptively invalid in non-patient care areas, the same restrictions are presumptively valid if they only apply in immediate patient care areas. If a restriction is presumptively invalid, an employer may still avoid a violation of the Act by demonstrating special circumstances warranting the restriction.
In this case, Long Beach Memorial Medical Center, a subsidiary of Memorial Health Systems (MHS), had two separate policies addressing the wearing of pins and badge reels as part of its grooming and dress code policy. The pin policy applied to all employees and provided that only “MHS approved pins, badges, and professional certifications may be worn.” The badge reel policy applied only to direct patient care providers and provided that badge reels “may only be branded with MemorialCare approved logos or text.” The hospital asserted that such policies were put in place to “promote an efficient, orderly, safe, professionally operated organization.” The General Counsel’s complaint alleged that the pin policy and badge reel policy violated the Act.
The Board’s Decision in Long Beach Memorial Medical Center, Inc.
In Long Beach Memorial, the Board agreed with the Administrative Law Judge (ALJ) that the pin policy was presumptively invalid because it was not limited to direct patient care areas, and MHS failed to show special circumstances warranting the restriction. Contrary to the ALJ, the Board also held that the badge reel policy was presumptively invalid. The Board found that, although the policy applied only to direct patient care providers, the rule did not expressly state that it applied to only immediate patient care areas. The Board stated that the “fact that the rule may only apply to ‘direct patient care providers’ does not establish that it only applies in immediate patient care areas,” and the language, at least, created an “ambiguity about the scope of the policy,” which is construed against the drafter. Furthermore, the Board noted that MHS did not present evidence demonstrating that employees disturbed patients or disrupted healthcare operations by wearing badge reels with the union insignia, or that the badge reel rule was narrowly tailored to address its concerns of providing a uniformed image of top quality patient care.
Member Emanuel’s Dissent
In his partial dissent, Member William Emanuel argued that the majority failed to read the badge reel rule in its entirety. Endorsing the ALJ’s analysis, he reasoned that because the badge reel policy was directed exclusively at patient care providers, it was understood that the policy only applied to immediate patient care areas, which is where direct patient care providers work. Additionally, he noted that the objectives of the policy (i.e. to prevent infection and promote patient trust) are only relevant in immediate patient care areas. Moreover, Member Emanuel believed that had the rule been applicable to all areas of the facility, special circumstances existed such that allowing union badge reels would reasonably interfere with the hospital’s public image.
Bottom Line
Notably, neither Chairman John Ring nor Member Marvin Kaplan, who were both appointed by President Trump, participated in this decision. The decision was issued by Members Mark Gaston Pearce and Lauren McFerran. Now that the Board has a full complement of five members, we expect to see far fewer decisions in which Republican appointees are in the dissent. Nonetheless, healthcare employers should ensure that their policies regarding dress code and grooming strictly comply with the Act and that any restrictions only apply to immediate patient care areas.
If you have any questions regarding this Alert, please feel free to contact the authors, Henry Warnock, hwarnock@fordharrison.com, a partner in our Atlanta office and member of FordHarrison’s Labor Relations and Healthcare Practice Groups, or Courtney Majors, cmajors@fordharrison.com, an associate in our Atlanta office. You may also contact the FordHarrison attorney with whom you usually work.
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