Labor Relations and NLRB Decisions: 1996 - Present, SACRED HEART MEDICAL CENTER and WASHINGTON STATE NURSES ASSOCIATION., 2006-07 CCH NLRB ¶17,153, National Labor Relations Board, (Jun 30, 2006)

From Text of Board's Decision

On March 24, 2005, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Respondent filed exceptions with supporting argument, and the Charging Party filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing a policy that prohibits its employees from wearing an “RNs Demand Safe Staffing” union button in those parts of the Respondent's medical facility where employees might encounter patients or their families. The Respondent excepts to the judge's finding and contends, among other things, that the restriction on this particular button is justified by special circumstances. We agree. Accordingly, we shall reverse the judge's decision and dismiss the complaint.

I. FACTS

The pertinent facts, largely stipulated to by the parties, are as follows. The Respondent operates an acute care medical center in Spokane, Washington. The Union represents approximately 1200 of the Respondent's nurses. The parties have had a longstanding collective-bargaining relationship dating back at least 20 years.

The nurses have worn a variety of union buttons over the years without any objection on the part of the Respondent. Messages stated on those buttons included “Together Everyone Achieves More—WSNA,” “WSNA-SHMC RN's Remember ‘98,” and “Staffing Crisis—Nursing Shortage—Medical Errors—Real SolutioNs WSNA.” [1]

In the fall of 2003, the parties began negotiating a contract to replace the agreement set to expire in January 2004. [2] Nursing staff levels were among the subjects of bargaining. [3] During the course of negotiations, nurses wore a new button that read “RNs Demand Safe Staffing.” In response to this button, the Respondent's nurse managers expressed concern to the Respondent's human resources department over the button's impact on patients and their families.

On February 27, the Respondent issued a memorandum limiting the areas of the hospital in which the “Safe Staffing” button could be worn. The memorandum carefully explained the basis for the prohibition:

We know that staff have worn a variety of buttons over the years for different purposes, and we have no objection to most messages. This message, however, disparages Sacred Heart by giving the impression that we do not have safe staffing. We cannot permit the wearing of these buttons, because patients and family members may fear that the Medical Center is not able to provide adequate care.

It is difficult for us to understand why nurses would wear these pins at the risk of upsetting their patients, particularly since we have come to agreement with [the Union] at the bargaining table on issues related to staffing and how staff will be involved when staffing issues arise.

To assure that patients do not become alarmed or fearful about patient care at Sacred Heart, effective immediately, it is our expectation that no staff member will wear these buttons in any area on our campus where they may encounter patients or family members.

The Respondent did not discipline any nurse for wearing the “Safe Staffing” button. Several nurses were, however, asked to remove the buttons from their uniforms following the issuance of the memorandum.

II. ANALYSIS

In healthcare facilities, restrictions on the wearing of union-related buttons are presumptively valid in immediate patient care areas. Casa San Miquel, 320 NLRB 534, 540 (1995). Outside immediate patient care areas, such restrictions are presumptively invalid. Id. An employer may rebut the presumption of invalidity, however, by showing “special circumstances,” i.e., that the restriction is “necessary to avoid disruption of health care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, [ 81 LC ¶13,193] 437 U.S. 483, 507 (1978).

Applying these principles here, we agree with the judge that the Respondent's restriction on wearing the “RNs Demand Safe Staffing” button is presumptively invalid because it extended beyond immediate patient care areas to areas where employees might encounter patients or their families. Contrary to the judge, however, we find that the Respondent has rebutted the presumption of invalidity by showing “special circumstances” that justify the restriction. [4]

First, the Respondent established that the message presented by the button is one that would inherently disturb patients. A reasonable person would construe the “Safe Staffing” button as a claim that the Respondent's staffing levels are unsafe. [5] 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. See NLRB v. Baptist Hospital, [ 86 LC ¶11,351] 442 U.S. 773, 784 (1979) (“ ‘[I]n the context of healthcare facilities, the importance of the employer's interest in protecting patients from disturbance cannot be gainsaid.' ”) (quoting Beth Israel v. NLRB, supra, 437 U.S. at 505)). [6]

Thus, contrary to our dissenting colleague, we do not view the message on this button as a “garden-variety union button, with a slogan related to staffing concerns.” Rather, in 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. In light of this message, the Respondent took appropriate steps to protect the atmosphere of patient care in the facility, not by banning all buttons, but by narrowly restricting the use of this single button, and only in locations where they might be seen by patients or their families. [7]

Second, the nurses' direct supervisors, who work on the hospital floor and are in a position to gauge patients' reaction to the button, expressed concern over the impact the button may have on patients. This evidence supports a finding of special circumstances. NLRB v. Baptist Hospital, supra, 442 U.S. at 782-784. [8]

The judge and our colleague suggest that special circumstances cannot be shown in the absence of evidence of actual disturbance of patients. We disagree. In NLRB v. Baptist Hospital, the Supreme Court made clear that evidence of actual disturbance is not required when it held that 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. Id. at 782-784. The Board's decision in the case makes clear that there was no evidence of actual disturbance. Baptist Hospital, 223 NLRB 344, 357 (1976). Nevertheless, the Supreme Court, deferring to the reasoned judgment of health care professionals, found that special circumstances had been established. [9]

St. Luke's Hospital, [ 1981-82 CCH NLRB ¶19,083] 314 NLRB 434 (1994), cited by the judge, is not to the contrary. In rejecting the respondent's special circumstances defense in St. Luke's, the Board relied not only on the absence of evidence of patient complaints, but also on the innocuous “message conveyed by the buttons” (“United to Fight for our Health Plan”). Id. at 435. In the instant case, the message is not innocuous. Unlike St. Luke's, the wording on the button is likely to disturb patients and their families.

Further, as the Supreme Court made clear in NLRB v. Baptist Hospital, a hospital need not wait for the awful moment when patients or family are disturbed by a button before it may lawfully be restricted. As the Board has previously observed in the retail context, an employer “need not await customer complaint before it takes legitimate action to protect its business.” Nordstrom, Inc., [ 1982-83 CCH NLRB 15,025] 264 NLRB 698, 701 fn. 12 (1982). See also Pathmark Stores, Inc., 342 NLRB 1264 (2004) (upholding grocery store's ban on union insignia with the slogan “Don't Cheat About the Meat!” notwithstanding the absence of evidence that any customer decided not to buy store's meat because of slogan). An employer's interest in preventing disturbance of its patients is certainly no less strong in the healthcare context, where patients' health and welfare is at stake. NLRB v. Baptist Hospital, supra.

We also disagree with the judge's and the dissent's conclusion that this case is controlled by Mt. Clemens General Hospital, 335 NLRB 48, 50 (2001), enfd. [ 148 LC ¶10,206] 328 F.3d 837 (6th Cir. 2003). Instead, we find that Mt. Clemens is factually distinguishable. In Mt. Clemens, the respondent broadly prohibited employees from wearing a union button with a line drawn through the letters “FOT” in many areas of the hospital, including areas not visited by patients or families. [10] The respondent maintained that it was disruptive for RNs to wear this button because patients might ask questions about the button that would force RNs to enter into a dialogue with them over the reasons why the RNs were upset with the hospital's policy regarding mandatory overtime. In rejecting the respondent's defense, the Board relied on the absence of evidence that the wearing of the button caused such a dialogue to take place, resulted in complaints from patients or their families, or otherwise interfered with patient care or safety in any way.

Mt. Clemens is distinguishable in two important respects. First, in Mt. Clemens, the button's message was cryptic, and the respondent's rationale for banning it rested on a chain of inferences: that patients would ask what “FOT” meant, and that nurses would respond with an explanation that disturbed the patients. Here, by contrast, the “RNs Demand Safe Staffing” button sends a clear message to patients: current staffing levels at the hospital are unsafe, and medical care is thus being compromised. No inferential leap is required in order to conclude that a reasonable patient would be disturbed by this message.

Second, in Mt. Clemens, even if patients and their families were able to understand the button's message, they would have discerned that the union-management dispute concerned the RNs' own terms and conditions of employment. The complaint was not that “forced overtime” would harm patients. Rather the complaint was that employees would be forced to do something that they did not wish to do. Here, by contrast, the message on the “RNs Demand Safe Staffing” button relates directly to issues of patient care and hospital safety. Thus, while our colleague would characterize the button in the instant case as similarly relating to working conditions, unlike the button in Mt. Clemens, the “RNs Demand Safe Staffing” message speaks primarily to safety and not simply to bargaining over staffing levels.

That the Respondent allowed other buttons to be worn during the relevant time period does not establish the violation. Rather, that fact supports the Respondent. In essence, the Respondent permits the wearing of buttons except where they may jeopardize patient welfare and disrupt the “peaceful and relaxed atmosphere” central to the hospital's mission. NLRB v. Baptist Hospital, 442 U.S. at 783, fn. 12. Thus, Respondent's long history of tolerance of more innocuous buttons, including those sponsored by the Union, militates against a finding that the Respondent's limited restriction on one particular button, which trumpets concerns about the safety of the hospital's staffing, was unlawful. [11] Indeed, any claim that the Respondent discriminated against buttons implicating Section 7 activities—or restricted the wearing of this button for that reason—is simply untenable under these circumstances. [12]

This is true even though one of the permitted buttons included the message “Staffing Crisis—Nursing Shortage—Medical Errors.” Our dissenting colleague argues that the Respondent undermined its claim (that it restricted the “Safe Staffing” button out of concern for its patients) by allowing this union button, which had a “much more controversial message.” We disagree. Both buttons related to the pending negotiations. If the Respondent had targeted the “Safe Staffing” button solely because of that fact, it obviously would have banned both. But the Respondent did not ban both, nor did it seek to undermine the Union, with whom it had a longstanding bargaining relationship, or impose any other restrictions on employee Section 7 activities. When it announced the limitations on the wearing of the “Safe Staffing” button, the Respondent took pains to explain that the justification was concern over patient welfare. On these facts, the limitations imposed by the Respondent would not tend to coerce, restrain, and interfere with employees in the exercise of their Section 7 rights. [13]

This case is thus in stark contrast to Mt. Clemens, where the hospital broadly prohibited the wearing of the targeted button in areas of the hospital where patients and families would not be encountered and even removed the buttons from RNs' mailboxes. As noted above, the Respondent did not proscribe the “Safe Staffing” button in areas where patients or their families were not present. Moreover, unlike the hospital in Mt. Clemens, it carefully explained to the RNs, in writing, the reasons for the limited restriction it imposed. For these reasons, we cannot agree that employees would conclude that the Respondent was not acting out of concern for its patients from the fact that it limited the wearing of only one of the Union's many buttons.

Moreover, 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. In essence, the Act does not forbid a hospital from concluding that certain insignia are more disruptive than others. The Respondent has reasonably determined that one union button is distinguishable from another and is not as likely to disturb patients or their families. We would not second guess its business judgment or condemn its decision not to broaden its ban to include both buttons. See, e.g., NLRB v. Columbus Marble Works, [ 30 LC ¶69,974] 233 F.2d 406, 413 (5th Cir. 1956) (“[A]s we have so often said: management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision.”).

III. CONCLUSION

The Respondent did not violate Section 8(a)(1) of the Act by prohibiting its employees from wearing an “RNs Demand Safe Staffing” button in any part of its facility where patients or their families might be present. The Respondent has rebutted the presumption of invalidity by showing special circumstances that justify the restriction. Therefore, we shall dismiss the complaint.

[Dissent]

Member Liebman, dissenting: Reversing the judge, the Board today holds that the Respondent established “special circumstances” permitting it to broadly ban the wearing of a garden-variety union button throughout the Respondent's hospital. [14] The majority's decision is flawed in two critical respects. First, the Respondent has not even come close to showing that its “special circumstances” defense is supported by anything other than mere speculation that the button's message would likely disturb patients and their families. Second, the undisputed fact that the Respondent imposed no restrictions whatsoever on the wearing of a second button with a much more controversial message completely undermines its asserted reasons for broadly prohibiting the wearing of the button at issue. Accordingly, on this record, there should be no doubt that the Respondent violated Section 8(a)(1) of the Act.

I.

In a February 27, 2004 [15] memorandum, the Respondent adopted a policy prohibiting the wearing of an “RNs Demand Safe Staffing” button “in any area on our campus where [employees] may encounter patients or family members.” [16] Nurses had been wearing the button in support port of the Union's position on staffing issues in contract negotiations with management since the fall of the previous year, [17] and no one had had ever complained about the button. Nevertheless, as justification for the ban, the Respondent's memorandum stated that the button “giv[es] the impression that we do not have safe staffing” and “patients and family members may fear that the Medical Center is not able to provide adequate care.” Both before and after the issuance of the February memorandum, the Respondent imposed no restrictions at all on the wearing of a second button with the message, “Staffing Crisis,” “Nursing Shortage,” and “Medical Errors.” In other words, the Respondent allowed the second button to be worn in both patient care and non-patient care areas.

As the judge and the majority correctly recognize, the Respondent's prohibition on the wearing of the “RNs Demand Safe Staffing” button is presumptively invalid because it extended beyond immediate patient care areas. Contrary to the majority, however, the judge properly concluded that the Respondent failed to rebut the presumption by showing “special circumstances” justifying the ban.

II.

The Board's decision in Mt. Clemens General Hospital, 335 NLRB 48 (2001), enfd. 328 F.3d 837 (6th Cir. 2003), cited by the judge, is directly on point. The union button at issue there depicted the letters “FOT” with a line drawn through the center of the button, symbolizing nurses' opposition to the hospital's forced overtime policy. 335 NLRB at 49. The hospital banned the button from all areas of the hospital, asserting that special circumstances justified the restriction because the button “could interfere with the welfare of patients or operations of the Hospital.” Id. at 50. In rejecting the respondent's affirmative defense, the Board relied on the judge's dual findings that the respondent (1) did not prohibit the wearing of any other insignia or union buttons in all areas of the hospital, including patient care areas; and (2) failed to introduce any evidence in support of its claim that the wearing of the “FOT” button in patient care areas of the hospital could cause possible disruptions in patient care. Thus, the Board found that the respondent's asserted reason for banning the button was belied both by the respondent's inconsistent enforcement of its own policy, and the absence of any complaints from patients or their families that the wearing of the “FOT” button was disruptive to patient care or had caused a dialogue to take place with the RNs. Id. at 50-51. Enforcing the Board's order, the Sixth Circuit agreed on both counts, noting that the hospital's attempt to justify the ban “depend[s] primarily on speculation about the possible effect of the buttons,” and that the hospital's prior policy of allowing nurses to wear union buttons in all areas of the hospital, including buttons that were arguably more controversial than the one at issue, “undercuts the Hospital's contention that wearing the buttons would interfere with patient care.” Mt. Clemens, 328 F.3d at 847-848.

The Mt. Clemens rationale applies with equal if not greater force here. In lieu of presenting credible evidence to support its affirmative defense, the Respondent offers (I) its bald assertion that the text of the message, “RNs Demand Safe Staffing,” is inherently disturbing; and (2) sheer speculation that its nurse managers were concerned that the button might cause unease among patients and their families. [18] The Board rejected these types of speculative and conclusory arguments in Mt. Clemens, and it should do so again today. Here, although nurses were seen wearing the “RNs Demand Safe Staffing” buttons by patients and their families, nothing happened. There was no evidence of reports from patients or questions from family members. Rather, the nurses wore the button for months without incident. This evidence shows that the buttons did not, in fact, disturb patients, their families, or the tranquil atmosphere of the hospital. By contrast, the majority points to absolutely no evidence in support of its conclusion that the button's message is reasonably likely to disturb patients and their families. Simply put, the majority's assumption as to how patients would “likely” interpret the button's message is unfounded.

Furthermore, just as the respondent in Mt. Clemens failed to justify its banning of the “FOT” button, while allowing arguably more controversial buttons, the Respondent here has offered no satisfactory explanation for banning the “RNs Demand Safe Staffing” button, yet allowing the “Staffing Crisis,” “Nursing Shortage,” and “Medical Errors” button to be worn without restriction. The Respondent's inconsistent policy completely undermines its assertion that the “RNs Demand Safe Staffing” button would likely disturb patients and their families. [19]

In its attempt to factually distinguish Mt. Clemens, the majority suggests that patients and their families would be able to discern that the “FOT” button in Mt. Clemens concerned a union-management dispute about the RNs' terms and conditions of employment, while they would interpret the “RNs Demand Safe Staffing” button to express a message concerning patient safety, not employees' employment conditions. Their reasoning is unpersuasive. Whether a button protests “forced overtime” or demands “safe staffing,” both messages obviously relate to the impact of inadequate staffing levels on the hours RN's are required to work and the conditions they labor under. It is wholly undiscerning for the majority to suggest otherwise. Mt. Clemens, 328 F.3d at 844 fn. 6 (“[T]he buttons do demonstrate support for the Union's position that the Hospital should not employ forced overtime to resolve staffing shortages. ”) (emphasis added). See generally Waters of Orchard Park, 341 NLRB 642, 644 (2004) (citing with approval Misericordia Hospital Medical Center, [ 1979-80 CCH NLRB ¶16,514] 246 NLRB 351 (1979), enfd. [ 89 LC ¶12,098] 623 F.2d 808 (2d Cir. 1980)), for the proposition that “staffing levels and the number of patients to be cared for” are issues “directly related” to nurses' working conditions, and that for nurses “to complain about their own staffing levels and the impact on patients ” constitutes protected concerted activity.”) (emphasis added); Community Hospital of Roanoke Valley, [ 1975-76 CCH NLRB ¶16,219] 220 NLRB 217, 222 (1975), enfd. [ 79 LC ¶11,499] 538 F.2d 607 (4th Cir. 1976) (nurse's public comments about hospital understaffing were protected because they expressed dissatisfaction with nurses' conditions of employment). Anyone viewing the “RNs Demand Safe Staffing” button, which bears the union's insignia, would likely identify it for what it really is: a garden-variety union button, with a slogan related to staffing concerns, worn by RNs during the course of labor negotiations with management over the terms and conditions of their employment.

The majority also mischaracterizes St. Luke's Hospital, [ 1981-82 CCH NLRB ¶19,083] 314 NLRB 434 (1994). There, the Board, reversing the judge, concluded that the Respondent did not prove special circumstances to justify its ban on nurses' wearing of “United to Fight for our Health Plan” buttons and stickers. Id. at 435. To be clear, the Board rejected the respondent's affirmative defense for the same reason it should today: a failure of proof. St. Luke's simply does not support the majority's holding that a respondent may prove its affirmative defense of special circumstances on the basis of nothing more than sheer speculation.

III.

In concluding that the Respondent has shown special circumstances to justify its broad ban, the majority has excused the Respondent's failure to meet its burden of proof. [20] While some Board cases suggest that an employer need not wait until patients are actually disturbed before taking action, I cannot agree with the majority's willingness to excuse the Respondent from producing at least some credible evidence to support its special circumstances defense. [21] Because our precedent requires us to hold a party to its burden of proof, and to reject affirmative defenses that are so obviously lacking in evidentiary support, I dissent.