NLRB “Clarifies” Hospital Rules on Union Buttons And Access For Off-Duty Employees

The NLRB recently issued a decision that should prompt health care institutions to review their policies and practices concerning the wearing of union buttons and the access of off- duty employees to the health care facility.
In Saint John’s Health Center, 357 NLRB No. 170, the NLRB, in a 2 to 1 decision, found that a hospital had violated the National Labor Relations Act by its publication and application of rules with respect to the wearing of insignia in patient care areas and the presence of off duty employees on the hospital’s premises.
The Board stated that in healthcare facilities –
“restrictions on wearing insignia in immediate patient care areas are presumptively valid, while      restrictions  in other areas of a hospital are presumptively invalid.”
However, as the Board noted, this presumption does not protect a selective ban on only certain union insignia.  In this case, the hospital allowed employees to wear hospital endorsed ribbons and buttons, including in immediate patient care areas.  Accordingly, the Board found it unlawful when the hospital banned the wearing of a union ribbon with the legend “Saint John’s RNs for Safe Patient Care”, since it was a selective enforcement of the rule.
Saint John’s previously had a rule that prohibited off-duty employees from being on the hospital’s premises with the exception of allowing them to be there to visit a patient.  This rule was later revised to allow off-duty employees to also have access to the hospital cafeteria and to the hospital building for hospital sponsored events, such as retirement parties and baby showers.   After the new rule was posted, the hospital enforced the rule against off-duty employees who were at the hospital to campaign for a union.
The Board stated that a rule barring off-duty employees from their employer’s  premises is valid only if it meets all of the following criteria:
“Limits access solely with respect to the interior of the facility & other working areas;
is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaged in union activities.”
The Board found that Saint John’s revised rule did not ban access to the premises for any purpose and was therefore invalid.
Suggestion -  Hospitals should review, and, if necessary, revise their current rules regarding the wearing of insignia and access to the premises by off-duty employees to ensure that they meet the criteria required by the Board for these rules to be valid.  In addition, supervisory employees should be instructed to apply these rules on a uniform, not selective, basis.