Today’s Labor Updates:

United States: Divided NLRB Penalizes Health Care Center For Selectively Banning Union Insignia

Summary of NLRB Decisions for Week of June 16 – 20, 2014

United States: Divided NLRB Penalizes Health Care Center For Selectively Banning Union Insignia

Last Updated: June 25 2014

Article by Gary S. Marshall, Christopher M. Michalik, Michael J. DiMattia, Sabrina A. Beldner, Teri L. Danish and John E. Thomas, Jr.

Employers generally can ban union insignia worn by their employees only in limited “special circumstances.” However, due to concerns about the possibility of disruption to patient care, health care facilities have long been allowed to ban union insignia so long as the ban was limited to immediate patient-care areas. With its decision in HealthBridge Management, LLC, a three-member panel of the National Labor Relations Board (NLRB) recently backpedaled on the presumptive validity of such prohibitions and split over whether a Connecticut health care center could ban employees from wearing certain union stickers in the presence of patients.

Case Background

In HealthBridge Management, LLC, employees at six Connecticut health care facilities managed by HealthBridge created flyers and stickers indicating that the employer recently had been “busted” by the NLRB.

HealthBridge prohibited employees at two facilities from wearing the “busted” stickers anywhere on the employer’s premises, which was well outside the general exception traditionally adopted by the NLRB. However, HealthBridge adopted more limited prohibitions at its other four locations, barring employees from wearing the stickers only when in patient-care areas or while providing patient care.

A split panel of the NLRB eroded the presumptive validity of such bans, ruling that the HealthBridge prohibition was “a selective ban on only the ‘Busted’ sticker” and therefore unlawful. One member dissented, explaining that the panel’s opinion would require a categorical ban on all buttons and insignia, including innocuous buttons worn in HealthBridge facilities that read “Make a Difference” and “Certified Nursing Assistants Make Every Day Brighter,” as well as a pin with the image of an angel.

Of equal importance to health care employers, the NLRB majority also held that, to demonstrate the “special circumstances” necessary to justify a ban on union insignia, an employer must present evidence of more than an experienced hospital administrator’s subjective concern that the insignia will disturb patients. In this case, the senior vice president of labor relations and an outside expert witness – both of whom had extensive experience administering health care facilities and policy – testified to their belief that the stickers would upset patients.

Calling their testimony “speculative” and “conjecture,” the NLRB majority dismissed the testimony because it “was not based on any specific experience with a patient, family member, or employee.” The outside expert (who was not consulted until after the unfair labor practice hearing) was further discounted because “she never spoke to any patients, family members, or care givers in the facilities at issue.” As a practical matter, the majority’s holding potentially makes it difficult for health care employers to ban union insignia in patient-care areas without first receiving a complaint from patients or their families.

Employer Take-Aways

Health care facilities in particular should pay careful attention to this decision. To avoid the lessons learned by HealthBridge, follow these guidelines:

• Make and enforce a categorical ban on all insignia in immediate patient-care areas. Do not wait until the issue arises to make and enforce a “selective” ban on such items.
• Deliver communications to the workforce in a unified manner. Do not rely on various managers to deliver important messages orally.
• Train managers and employees alike on the appropriate circumstances and locations in which union insignia will be permitted.
• Document any special circumstances that warrant a prohibition on buttons, stickers or other union displays. The documentation should include specific evidence gleaned from patients, family members or caregivers demonstrating that the insignia disrupted the “restful, uncluttered, relaxing, and helpful atmosphere” of the health care facility. This may require temporarily permitting the insignia to determine if such evidence exists.
• Remember that employers may not categorically prohibit employees’ use of the company logo. In this case, the company logo was prominently displayed on the stickers.

To view a copy of the decision, click here

Summary of NLRB Decisions for Week of June 16 – 20, 2014

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

Summarized Board Decisions

Starbucks Corporation d/b/a Starbucks Coffee Company  (02-CA-037548; 360 NLRB No. 134) New York, NY, June 16, 2014.

On August 26, 2010, the Board issued a decision in this case, finding, among other things, that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating an employee, an open union supporter.  The employee, while engaged in union activity during off-duty hours, uttered profanities at a Starbucks manager in the presence of customers.  The Board adopted an administrative law judge’s finding that, under the standard set forth in Atlantic Steel Co., 245 NLRB 814 (1979), the employee’s conduct was not so egregious as to lose him the protection of the Act.  The United States Court of Appeals for the Second found that the four-factor Atlantic Steel test is inapplicable to an employee’s use of obscenities in the presence of an employer’s customers.  The Court remanded the case to the Board for further proceedings consistent with the Court’s opinion.  A Board panel majority consisting of Members Hirozawa and Schiffer found that, even assuming that an employee lost the protection of the Act by his outburst, the Respondent failed to show that it had, in fact, terminated him for that outburst, and therefore concluded that the Respondent had unlawfully discharged the employee for engaging in prior protected concerted activity that had not lost the protection of the Act.  Member Miscimarra, concurring, would have made the specific finding that under the applicable standard the employee’s outburst caused him to lose the Act’s protection, but agreed that the Respondent discharged the employee for engaging in prior protected activity that had not lost the protection of the Act.  Charge filed by Local 660, Industrial Workers of the World. Administrative Law Judge Mindy E. Landow issued her decision on December 19, 2008.  Members Miscimarra, Hirozawa, and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

UHS-Corona, Inc. d/b/a Corona Regional Medical Center  (21-RC-094258)  Corona, CA, June 17, 2014.  The Board found no merit in the Employer’s objections to an election held January 3 and 4, 2013, and certified the Petitioner Union as the representative of nonsupervisory nurses at the Employer’s hospital.  The Board adopted the hearing officer’s findings that the Employer’s physicians are not managers under the Act, and clarified that those physicians are neither the Employer’s supervisors nor its agents.  Petitioner—United Nurses Associations of California / Union of Healthcare Professionals.  Members Miscimarra, Johnson, and Schiffer participated.

C Cases

Wanigas Credit Union  (07-CA-118028)  Saginaw, MI, June 17, 2014.  Order denying Respondent’s motion to dismiss and motion for summary judgment.  A Board panel majority consisting of Chairman Pearce and Member Schiffer stated that the Respondent is free to raise with the administrative law judge any factual issues regarding the Section 10(b) issue and regarding its affirmative defenses on the merits of the allegations.  Member Miscimarra would issue a notice to show cause and grant summary judgment in the Respondent’s favor unless the Region identified specific disputed material facts or otherwise indicated with specificity why summary judgment is unwarranted based on the Respondent’s defense that it was independently required to report the employment terminations to its bonding agency.  Member Miscimarra agreed with his colleagues that the Respondent is not entitled to dismissal of the Complaint on Section 10(b) grounds.  Charge filed by Local 393, Office and Professional Employees International Union (OPEIU), AFL-CIO.  Chairman Pearce and Members Miscimarra and Schiffer participated.

The Heil Co., Inc. d/b/a Heil Environmental  (10-CA-114054, et al.)  Fort Payne, AL, June 20, 2014.  The Board denied the General Counsel’s request for special permission to appeal the Administrative Law Judge’s approval of a unilateral Settlement by Consent Order.  Both the General Counsel and the Charging Party Union objected to the Judge’s approval of the settlement.  The Board found that that a recent non-Board settlement, which no party sought to set aside, and a 30-year old unrelated unfair labor practice case were insufficient bases for concluding that the Respondent had a history of violations of the Act, and found that the Settlement by Consent Order substantially remedied the violations alleged in the Complaint. The Board also noted that it has evaluated settlements by consent order under the factors set forth in Independent Stave Co., 287 NLRB 740 (1987). A panel majority consisting of Chairman Pearce and Member Schiffer expressed grave concerns about approval of a settlement by consent order over the objections of the General Counsel and the Charging Party, and stated that they believe the inclusion of default language in settlement agreements and consent orders best conserves Board resources, prevents duplicative expenses and delay, and ensures compliance.  Member Johnson did not share his colleagues’ concerns in the circumstances of this case, and found no need to comment generally about the need for default language.  Charges filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO-CLC.  Chairman Pearce and Members Johnson and Schiffer participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board decisions to report.

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Administrative Law Judge Decisions

Daycon Products Company, Inc.  (05-CA-035687, et al.; JD-34-14)  Upper Marlboro, MD.  Administrative Law Judge Eric M. Fine issued his supplemental decision on June 16, 2014.  Charges filed by Drivers, Chauffeurs and Helpers Local Union No. 639 a/w International Brotherhood of Teamsters.

Professional Janitorial Service of Houston, Inc.  (16-CA-112850; JD(NY)-28-14)  Houston, TX.  Administrative Law Judge Joel P. Biblowitz issued his decision on June 16, 2014.  Charge filed by Service Employees International Union.

Gates & Sons Barbeque of Missouri, Inc.  (14-CA-110229; JD-37-14)  Kansas City, MI.  Administrative Law Judge Paul Bogas issued his decision on June 17, 2014.  Charge filed by Workers’ Organizing Committee, Kansas City.

International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada Local No. 151 (SMG and The Freeman Companies d/b/a Freeman Decorating Services, Inc.)  (14-CB-101524; JD-38-14)  Des Moines, IA.  Administrative Law Judge Christine E. Dibble issued her decision on June 20, 2014. Charge filed by an individual.

Daycon Products Company, Inc.  (05-CA-035687, et al., JD-34-14)  Upper Marlboro, MD.  Errata.  Administrative Law Judge Eric M. Fine granted the General Counsel’s motion to correct his supplemental decision issued on June 16, 2014 by finding that the correct amount of total backpay due is $1,115.593.06.