On August 26, 2011, a National Labor Relations Board administrative law judge ruled in Columbia Memorial Hospital that a Hudson, New York hospital did not violate the National Labor Relations Act when it prohibited employees from wearing “inflammatory” buttons while the hospital was negotiating with SEIU for a collective bargaining agreement.  Although employees in non-healthcare settings generally are permitted to display union insignia while at work, the NLRB has granted healthcare facilities special latitude to restrict union activity in patient-care areas.  In fact, restrictions on the wearing of insignia in patient care areas are presumptively valid unless the healthcare facility has enforced its restrictions for discriminatory reasons or on a disparate basis.  The reason, as explained by the U.S. Supreme Court in NLRB v. Baptist Hospital, Inc., is simple:  patients need a “restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sick bed.” 

In this case, the hospital’s professional image policy permitted employees to wear certain types of insignia, but prohibited employees from displaying buttons or stickers that carried “inflammatory or controversial messages” while in patient care areas.  In this regard, the hospital allowed employees to wear a variety of union and non-union buttons, pins and other accessories in both patient-care areas and non-patient-care areas of the hospital, such as lanyards that read “1199 SEIU United Healthcare Workers East,” small pins that read “1199 SEIU New York’s Health & Human Services Union,” and other items that referred to, among other things, the employee’s educational alma mater, firefighting activities, and various personal interests. 

The hospital, however, drew the line when employees began wearing insignia in patient care areas the hospital considered to be “inflammatory or controversial.”  One sticker, which depicted a giant boot stomping on a defenseless man, expressed the union’s belief that the hospital wanted to step on employees during contract negotiations.  Another button, which was three inches in diameter, stated “PROUD 1199 SEIU Member.”  The union also circulated a button with “ACCESS DENIED!  Ask the Boss WHY?,” which protested the hospital’s refusal to allow union representatives access to the hospital’s satellite clinics.  Finally, the hospital prohibited employees from wearing a sticker that read “HAVE A HEART DO YOUR PART.” 

The ALJ concluded the hospital did not unlawfully prohibit employees from wearing the “stomp” sticker in patient care areas because it could interfere with the “restful, uncluttered, relaxing, and helpful atmosphere” that the Supreme Court has recognized patients require.  Similarly, the hospital lawfully prohibited employees from wearing the “ACCESS DENIED!” button because some patients reading the button might believe that the hospital was denying them care or services. 

The ALJ determined, however, that the hospital unlawfully prohibited employees from wearing the “PROUD 1199 SEIU Member” button because it was no different than the other “statement of affiliation” buttons the hospital previously allowed employees to wear in patient care areas.  The ALJ also found that the hospital unlawfully prohibited the “HAVE A HEART” sticker because the sticker communicated a “facially benign, even warm, sentiment” and could not be construed as conveying any “inflammatory” or “controversial” message.

Although the NLRB has provided healthcare facilities with latitude in restricting the wearing of insignia in patient-care areas, such employers must ensure that their policies are consistently enforced and not subject to attack due to discriminatory or disparate enforcement related to union activities.