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Today’s Labor Updates, May 3, 2018

NLRB Voids Hospital ID Policy that Bans Union Insignia Without Regard to Patient Visibility

By John Thomas on May 3, 2018 Posted in NLRB Decisions, Unfair Labor Practices, Unions, Workplace Rules

In Long Beach Memorial Medical Center, Inc., 366 NLRB No. 66 (April 20, 2018), the Board ruled that the hospital employer’s prohibition of non-approved pins and badges was unlawfully overbroad. As a general rule, employees are permitted to wear union insignia at work in the absence of “special circumstances.”  In hospitals, out of concern for the possible disruption to patient care, this general rule is modified and restrictions on wearing union insignia are presumed valid if they are limited to immediate patient care areas.  Restrictions on wearing union insignia in non–patient care areas, however, are presumed unlawful unless the hospital establishes “special circumstances” justifying the restriction.

Long Beach Memorial Health Services (“MHS”) operates two hospitals in the Long Beach, California area.  As is standard in hospitals, members of the MHS staff are required to wear identification badges either affixed to their uniform or attached to a retractable string pulley connected to a “badge reel.”  MHS maintained two policies challenged in this case.  First, MHS maintained a policy that required that “[o]nly MHS approved pins, badges, and professional certifications may be worn.”  Second, MHS maintained a policy applicable to direct care providers stating that “[b]adge reels may only be branded with MemorialCare approved logos or text.”  Thus, the policy prohibited direct care providers from wearing badge reels branded with union insignia.

Citing Healthbridge Mgmt. LLC, 360 NLRB 937, 938 (2014), enf’d 798 F.3d 1059 (D.C. Cir. 2015), the Board explained that MHS’s prohibition was not limited to those parts of the hospital involving direct patient care, and MHS failed to show “special circumstances” warranting the restriction.

The Board likewise held, against the vote of a dissenting Member, that the badge-reel restriction was likewise invalid.  The disagreement arose because the badge-reel restriction applied only to direct care providers.  The majority held that this did not save the policy because the critical question is not the person to whom the policy applied, but the area of the hospital in which it applied.  The badge-reel restriction was held invalid because it applied even in non-patient care areas.  As the majority noted, direct patient care providers necessarily move throughout the hospital and spend time in non-patient care areas.

It is worth noting that the Board issued this opinion after the December 14, 2017 opinion in The Boeing Corporation case. In Boeing, the Board overturned the Lutheran Heritage standard for determining whether the mere maintenance of a facially neutral work rule might still be found to violate the National Labor Relations Act because “employees would reasonably construe the language to prohibit Section 7 activity.”  Boeing replaced that standard with a more fact-intensive inquiry, taking into account the nature and extent of the potential impact on NLRA rights, and the employer’s legitimate justifications associated with the rule.  Despite having adopted the more fact-intensive standard in Boeing in December 2017, the majority in this case focused almost exclusively on the text of the policies in question.  This may not signal a quick departure from Boeing, but rather the Board’s interest in adhering to the principles in the more specific precedent dealing with union insignia in hospitals.  We will continue to monitor how these cases develop.

Whole Foods Can’t Erase NLRB Ruling Against Workplace Recording Policy

The federal labor board said in its ruling against Whole Foods that the agency does not have power to “modify an order that has been enforced by a court of appeals.” Last year, Whole Foods lost its challenge in the Second Circuit.

By Erin Mulvaney | May 02, 2018 at 06:58 PM

A federal labor panel has refused to overturn an Obama-era ruling that said the Whole Foods employee handbook unlawfully imposed broad workplace restrictions against recording conversations and taking photos.

Whole Foods Market Group Inc., represented by the law firm Proskauer Rose, unsuccessfully challenged the board’s 2015 order in the U.S. Court of Appeals for the Second Circuit. A federal appeals panel last year upheld the National Labor Relations Board order against Whole Foods, saying that certain prohibitions on workplace recording without management approval could “chill” workers’ labor rights.

The three-member board said in its order May 1 that the agency does not have power to “modify an order that has been enforced by a court of appeals.”

NLRB chairman John Ring and member William Emanuel recused without explanation in Monday’s order. Their former law firms—Morgan, Lewis & Bockius and Littler Mendelson—have provided legal services to Inc., the parent of Whole Foods. Ring’s financial disclosure identified Amazon as one of his former clients.

Lawyers for Whole Foods in January asked the board to reconsider the 2015 decision. They pointed to an Republican-led NLRB decision last year overturning a sweeping ruling that governed handbook policies.

Proskauer Rose partner Kathleen McKenna, a lawyer for Whole Foods, did not immediately respond to request for comment Wednesday.

Republican board members Emanuel, Marvin Kaplan and Philip Miscimarra in December voted to overturn the employee handbook standard the agency set in the 2004 case Lutheran Heritage Village-Livonia. That case set out a test for judging whether workplace handbook policies interfered with employees’ labor rights.

The Lutheran decision said a policy would violate the National Labor Relations Act, or NLRA, if workers “reasonably construed” the directives as limiting their right to engage in protected concerted activity, even if that is not the intent of the policy. The Republican board’s decision in December, in a case against The Boeing Co., specifically cited Miscimarra’s dissent in the Whole Foods recording policy dispute.

The President Donald Trump board’s new standard requires the agency to evaluate “the nature and extent of the potential impact on NLRA rights” and “legitimate justifications associated with the rule.” The board said its Boeing analysis would apply retroactively to all pending cases.

Lawyers for Whole Foods argued the board does have the power to modify post-court enforced orders. The attorneys also said making changes to the employee rules would pose a “monumental administrative and operational challenge.” Austin, Texas-based Whole Foods has 88,000 employers in 450 stores.

“Whole Foods has extremely strong arguments supporting the legitimate business purposes behind maintaining the rules at issue in this case,” the Proskauer attorneys wrote in a recent brief. “Therefore, the company is extremely interested in maintaining these policies.”

The NLRB general counsel’s office, in its brief, cited “long-standing board precedent” in arguing the board did not have authority to “rescind or substantively amend” an order that had been enforced by a federal appeals court.

The only pending matter, according to the NLRB general counsel, is “Whole Foods’ compliance with the Second Circuit’s order.”

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