Labor & Employment Law Daily NLRB: Employer’s ban on wearing union buttons not narrowly tailored to patient safety or public image
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Wednesday, December 16, 2020

NLRB: Employer’s ban on wearing union buttons not narrowly tailored to patient safety or public image

By Ronald Miller, J.D.

The private ambulance company’s ban was unlawfully overbroad because it was applied to employees even when they did not have contact with patients or the public.

In the absence of special circumstances justifying an employer’s prohibition on employees wearing union buttons in the workplace, a three-member panel of the NLRB ruled that the employer’s ban violated Section 8(a)(1) because it was overbroad. The employer asserted that the ban on the buttons was justified by concerns for patient safety and its public image. However, the Board observed that the employer banned the wearing of buttons even in situations where patient safety and public image concerns would not be present (American Medical Response of Southern California and American Medical Response West, December 10, 2020).

Wearing union buttons. In two related cases, the parties disputed whether the employer’s ban on union insignia violated Section 8(a)(1). The employer is a private ambulance company operating throughout California. The employer and the union were parties to a collective bargaining agreement that was in effect from July 1, 2015, through December 31, 2018. Although the CBA required the wearing of a company uniform, it was silent as to the issue of union insignia or buttons. Instead the employer regulated the wearing of buttons through its “Uniforms/Hygiene Operational Guideline.”

In October 2018, officials of the employer determined that it was not appropriate for employees to wear “campaign style buttons.” The employer reasoned that the buttons detracted from patient care and didn’t “present a consistent message of “we’re here for the patient.” Thereafter, on several occasions, employees were directed to remove buttons.

An administrative law judge found that the employer failed to meet its burden to establish that “special circumstances” existed to justify restricting employees’ Section 7 rights. He observed that the employer’s broad proscription against the wearing of the buttons was not narrowly tailored to any special circumstance that would lawfully justify maintenance of the rule.

Special circumstances. The Board adopted the ALJ’s finding that the employer violated Section 8(a)(1) by directing employees to remove and not wear several union-provided buttons. As an initial matter, the Board found that buttons bearing messages supporting a “fair contract,” and opposing a voter proposition aimed at ambulance employees constituted protected union insignia. As such, the employer’s ban on employees wearing those buttons was presumptively invalid in the absence of special circumstances.

Moreover, the Board rejected the employer’s argument that the ALJ erred in applying the special circumstances test rather than the test articulated in Boeing Co.

The employer asserted that its ban on union buttons was justified by concerns for patient safety and its public image. However, it directed employees to remove the buttons even when they were in nonpublic areas and were not interacting with patients or the public. Thus, even assuming the special circumstances identified by the employer could justify a more tailored restriction on the employees’ right to wear the union buttons at issue, the prohibition here extended beyond those circumstances to prohibit employees from wearing such buttons even in situations where patient safety and public image concerns would not be present.

Accordingly, the Board agreed with the ALJ that the employer’s ban was overbroad and violated Section 8(a)(1).

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