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.