A nursing home operator operates six healthcare facilities represented by the Service Employees International Union. The Union prepared flyers and stickers stating that the operator had recently been “busted” when an NLRB regional director issued an unfair labor practice complaint against the Company. A complaint is just an allegation, so the Company was not “busted.” The Company removed the “busted” flyers from nursing home bulletin boards and directed employees not to wear “busted” stickers when they were in patient care areas or providing patient care.
The Board found that the Company interfered with employee rights by removing the Union flyers and excluding the Union insignia from patient care areas. The U.S. Court of Appeals for the District of Columbia Circuit upheld the Board’s decision explaining that the ban on wearing stickers in patient care areas was supported only by “speculative” testimony that patients would be disturbed by seeing employees wearing the union stickers. The Court contrasted the stickers to repeated letters the company issued warning patients that a union strike could lead to replacing the staff that cared for their basic needs. The Court did not believe that these stickers would make the patients “distraught and traumatized” given the detailed warnings they had already received regarding the effects of a strike.
Companies have more leeway in restricting union insignia for employees in patient care areas than for employees who do not work directly with patients. However, here the Board placed significant emphasis on the fact that the patients already knew about the labor dispute given the notice to them about an imminent union strike. The Company’s information “opened the door” for the Union’s stickers, it seems. It is difficult to discern a bright line rule regarding banning union insignia, and as demonstrated here, all of the circumstances must be considered before implementing any such ban.