Though it may come as a surprise to some employers, the NLRB generally recognizes the right of employees to wear union insignia (pins with union logos, etc.) while at work. This rule applies to hospitals, but the Board and the courts, in recognition of the sensitive nature of working in medical facilities, have restricted employees’ rights to wear union insignia in “direct patient care areas.” A recent case, Long Beach Memorial Medical Center, 366 NLRB No. 66 (April 20, 2018), addressed this rule as it applies to hospitals, but also provided a signal that the Board, now with 3-2 Republican-appointed majority, may be willing to change the rule in a future case.
Section 7 of the NLRA grants employees the “right to … form, join, or assist labor organizations … and to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 has been construed to give employees the right to engage in activity to advance a union cause, including wearing union insignia to demonstrate their support for a union seeking certification or to further its bargaining aims once certified as the employees’ exclusive representative.
Section 7 rights, however, are balanced with the rights of employers to operate their businesses and manage their property. Under this balancing test, an employer might be able to restrict an employee from wearing an entire outfit covered in union decals, assuming it had a neutral uniform policy. But, an employer would have great difficulty in attempting to ban a small union pin worn on an employee’s lapel. The Board has held that an employer seeking to assert a complete ban on union insignia must show “special circumstances,” usually involving a unique set of facts that are not normally present at most places of employment. Regular uniform policies will not meet this stringent test.
In the medical realm, the balancing test is not applied and, instead, the Board looks to whether the employer’s prohibition on union insignia applies to “direct patient-care areas” or other areas of the hospital in question. In Long Beach, the Board found that the Hospital’s rule prohibiting union insignia was overbroad because, by its own terms, it was not limited to “direct patient-care areas.”
A bright-line rule against union insignia in direct patient-care areas can streamline the discussion of the legality of a “no-pin” rule and simplify the law for all parties. By contrast, the traditional balancing test demands that employers show specific facts to demonstrate that their interests override the Section 7 rights of employees. The Long Beach decision, therefore, was not controversial because it merely applied the test applicable to medical facilities.
However, the (very) short discussion of uniform policies at the end of Member Emanuel’s dissenting opinion highlighted a long-standing disagreement between Democratic and Republican Board members about whether uniform policies constitute “special circumstances” that are strong enough to overcome employees’ Section 7 rights. Emanuel found that one aspect of the employer’s policy, which applied to name badge lanyards, was limited to direct patient-care areas. He, therefore, believed that that portion of the rule should have been upheld. However, Emanuel noted that even if the lanyard rule applied to non-patient care areas, he would have found the restriction lawful as part of a neutral uniform policy. Emanuel’s inclusion of this topic most likely constitutes a signal to practitioners that the Republican-majority Board will be more receptive to arguments from employers that uniform policies are sufficient to justify a prohibition on union insignia at work. If this signal proves correct, the Board may be ready to allow employers, especially hospitals, to restrict the wearing of union insignia at work. Stay tuned.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.