St. Joseph's Hospital

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Joseph's Hospital and North Central Texas Labor- ers' District Council. Case 16-CA-6019 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On December 9, 1975, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions ' and a supporting brief, Charging Party filed exceptions - and a supporting brief, and Respondent filed a brief in answer to exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board had considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent they are consistent herewith. The Administrative Law Judge concluded that Re- spondent did not violate Section 8(a)(1) by prohib- iting employees from wearing union insignia while at work. We disagree. Respondent has dress codes which stress the neat- ness of appearance of employees at all times. Para- graph 4 of the nursing services code reads: Some jewelry is permitted to be worn with uniforms: a. wedding rings b. engagement rings c. class rings d. ear studs for pierced ears e. nurse's class and school pins f. service pins g. Medident necklaces or bracelets Paragraph 4 of the dietary service code reads: "No jewelry except a wedding band and a watch may be worn while on duty." On April 16, 1975, three hospital employees wore union buttons on their uniforms while on duty. The buttons, 2-1/4 inches in diameter, bore legends which stated "Vote for Health Care Division, 'Respondent objected to the General Counsel's exceptions on the grounds that said exceptions failed to conform to Sec 102 46 of the Board's Rules Respondent's contention is without merit LIUNA, AFL-CIO." Respondent asked each to re- move the button and each complied. Respondent has previously permitted employees to wear items on their uniforms which, as the Adminis- trative Law Judge found, were comparable to the union buttons worn by the three employees. Thus, in 1971, 1972, and 1973, Respondent asked employees to wear buttons on their uniforms in celebration of Hospital Week. The 1973 button, approximately 2 inches in diameter, contained the message "We Care For You; St. Joseph's Hospital." This button was worn by most, but not all, of Respondent's employ- ees from May 6 through May 12, 1973. Again at Respondent's request, in March 1972 and 1973, em- ployees pinned to their uniforms slips of paper con- taining a message in honor of Doctors' Day. The pieces of paper were comparable in size to the "We Care For You" buttons. Historically, on St. Patrick's Day Respondent prepared some type of green device to be worn by employees on their uniforms. In 1975, Respondent did not follow this practice but LPN Rena Blumberg purchased in the hospital's gift shop a green and white button which stated "Kiss me, I'm Irish." Blumberg wore the button throughout her shift without any comment from a supervisor, after which she gave it to the assistant director of nursing services, Bartley, who pinned it to her uniform. The Board has long recognized that an employee had the protected right to wear union insignia while at work. In the absence of "special circumstances," a rule prohibiting the wearing of such insignia is viola- tive of Section 8(a)(1). The Administrative Law Judge found, citing Evergreen Nursing Home and Re- habilitation Center, Inc., 198 NLRB 775 (1972), that the application of Respondent's longstanding dress code to the union button herein was a legitimate part of the hospital's function of shielding its patients from controversial issues. He felt that the nature of the Hospital Week and Doctor's Day messages, as distinguished from the controversial nature of the union button, justified them since they showed the patients that Respondent cared for them. He found that the only exception to Respondent's enforcing its dress code in the best interests of its patients, when Blumberg wore the "Kiss me, I'm Irish" button, was an isolated and insignificant incident. In disagreement with the Administrative Law Judge, we find that Respondent discriminatorily en- forced its dress code to prohibit the wearing of union buttons. Although Respondent's rule literally bans all types of buttons, insignia, etc., as enforced it was merely a prohibition against the wearing of union insignia. The Ohio Masonic Home, 205 NLRB 357 (1973). Thus, employees were permitted to wear not only the Hospital Week and Doctor's Day messages 225 NLRB No. 28 ST. JOSEPH'S HOSPITAL but also various items on St. Patrick's Day, including a "Kiss me, I'm Irish" button.' In these circum- stances, we conclude that enforcement of the dress code was not to meet any legitimate need to protect patients but was designed to thwart the Union's or- ganizing campaign. In thus discriminatorily enforc- ing its rules, we find that Respondent acted in viola- tion of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, we shall order Respondent to cease and desist therefrom. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, St. Joseph's Hospital, Fort Worth, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any employee in the ex- ercise of his or her protected rights by the unequal enforcement of its dress codes. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices at or near Fort Worth, Texas, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 16, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 2 Although the Administrative Law Judge concludes that the wearing of this button was an isolated and insignificant incident , it is clear that it was not at all unusual for employees to wear some type of St Patrick's Day insignia each year Thus, the incident was not isolated 3In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX 349 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against any em- ployee in the exercise of his or her protected ac- tivities by unequally enforcing our dress codes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. ST. JOSEPH'S HOSPITAL DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge was filed on April 18, 1975, and amended on May 13. The complaint was issued on September 16. The hear- ing was held in Fort Worth, Texas, on November 7. The issue litigated was whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, when it enforced its dress codes on April 16 by having employees remove from their uniforms a button soliciting employees to vote for the Charging Party. For the reasons set forth below, I find that it did not. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of oral argument, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a nonprofit Texas corporation , operates a general hospital in Fort Worth, Texas. During the year prior to issuance of the complaint it grossed more than $250,000 and received goods valued in excess of $50,000 directly from suppliers located outside the State of Texas. IL THE UNFAIR LABOR PRACTICE A. Facts Respondent has had a dress code for its nursing services employees and another for its dietary service employees for many years. Each code requires the wearing of a uniform. Each stresses neatness and sets forth in some detail provi- sions with respect to skirt length and the like. Paragraph 4 of the nursing services code reads: Some Jewelry is permitted to be worn with uni- forms: a. Wedding rings b. Engagement rings 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Class rings d. Ear studs for pierced ears e. Nurses class and school pins f. Service pins g. Medident necklaces or bracelets Paragraph 4 of the dietary service code reads: "No jewelry except a wedding band and a watch may be worn while on duty." Employees have worn buttons comparable to the union button at issue in this case at Respondent's request in the past, most recently in 1973.1 Hospital Week is celebrated in May each year. Employees were asked to wear buttons marking that event on their uniforms in 1971, 1972, and 1973. The 1973 button measured approximately 2 inches in diameter. It bore a red legend on a white background. At the top, the letters curved to follow the rim of the button, it read "St. Joseph" in capital letters approximately an eighth of an inch high. Along the bottom of the rim, in similar letters, was "Hospital." Three straight lines in the center read "We Care For You" in capital and lower case letters, the capitals approximately five-sixteenths of an inch high. These buttons were worn from May 6 through 12 in 1973 by most, but not all, of Respondent's employees. Those who did not wear them were not disciplined. Doctors Day is celebrated in March each year. In 1972 and 1973, employees pinned slips of paper to their uni- forms at Respondent's request to mark that event. The pieces of paper were comparable in size to the "We Care For You" buttons. The record does not reveal precisely what legend they bore. Prior to 1975 employees wore some sort of green device on their uniforms each March 17 to mark St. Patrick's Day. The emblem was prepared by Respondent. It bore no leg- end. No such device was worn on March 17, 1975. That day, Rena Blumberg, a licensed vocational nurse who works in the psychiatric section of the hospital, purchased in the hospital's gift shop a green and white button compa- rable in size to the union buttons. It read "Kiss Me, I'm Irish." Mrs. Blumberg wore the button throughout her shift. It caused comment among her colleagues. However, it netted her only one kiss, from a Dr. Rubin. At the end of the day, Mrs. Blumberg gave the button to Judy Bartley, the assistant director of nursing services, who pinned it to her uniform. Hospital Week buttons, Doctors Day slips of paper, and Mrs. Blumberg's St. Patrick's Day button are the only oc- casions when Respondent has not enforced its dress codes. On April 10, 1975, the Regional Director approved a Stipulation for Certification Upon Consent Election among Respondent's employees in Case 16-RC-6861. The unit included licensed vocational nurses, nurses aides, orderlies, plant operations employees, dietary service employees, technical employees (including radiology, laboratory, respiratory therapy, operating room, electrophysicology), lab clerks, unit secretaries, admitting clerks, materials department employees, and regular part- I do not credit the testimony of Joyce Brown that "We Care For You" ' buttons were worn during Hospital Week and slips of paper on Doctors Day in 1974 time employees. It excluded registered nurses, medical technologists, discharge clerks, computer employees, key- punch operators, credit union employees, switchboard em- ployees, school administrative employees, librarian, stu- dents, nuns , guards, watchmen, and supervisors as defined in the Act. On April 16, 1975, for the first and last time , prounion nursing and dietary services employees wore union buttons on their uniforms while on duty in the hospital. The button measures 2-1/4 inches in diameter. In the center, on a white background, are representations in blue and black of hospital workers engaged in various tasks typical of their jobs. The entire legend is in orange capital letters. Superim- posed on the center of the figures, the words "Vote For" are approximately five-thirtyseconds of an inch high. Around the rim, from approximately the 8 o'clock to the 4 o'clock position, "Health Care Division" is in letters ap- proximately three-sixteenths of an inch high. At the bottom of the rim, "LIUNA" is in letters approximately five-thirty- seconds of an inch high. Centered under this abbreviation for Laborers' International Union of North America is "AFL-CIO" in letters approximately a sixteenth of an inch high. (At the 5 o'clock position is an illegible orange sym- bol which I take to be a union bug.) Mrs. Blumberg and Joyce Brown, a psychiatric atten- dant who works in the same section of the hospital and moves among the same patients as Mrs. Blumberg, each wore one of these buttons from the beginning of her shift at 6:45 a.m. until approximately 11 a.m. Each was asked about the button by other employees. It evoked no ques- tions and aroused no other signs of interest among the pa- tients with whom they came in contact that morning. Around II a.m. Mrs. Blumberg and Miss Brown were asked, separately, to go to the office of Ruth Warren, the director of nursing services. Judy Bartley, the assistant di- rector, was also present. Mrs. Blumberg and Miss Brown were each shown the dress code for the department of nursing services and asked to remove the union button from her uniform. Each did so. Mrs. Blumberg displayed one of the buttons on the out- side of her purse when she carried it into and out of the hospital on each of the next 2 days. While she was working she did not carry the purse with her. She left it behind a curtain on a window sill in a conference room , the place where she was accustomed to leaving it while on duty. None of Respondent's supervisors spoke to Mrs. Blumberg about displaying the union button in this manner. Erma Williams works in the hospital kitchen as a diet cook. Her work never takes her to areas of the hospital frequented by patients. However, outpatients or their rela- tives sometimes come through the kitchen to get to the dietician's office in order to pick up diets which have been prescribed. Also, other of the approximately 40 dietary ser- vice employees come in contact with patients who have been admitted to the hospital when they carry late trays to the patient areas and when they serve in the cafeteria. Ms. Williams wore a union button on April 16 from 6 a.m., when her shift began, until 1:35 p.m. At that time, she was in the dietician's office when Mark Kaizer, her imme- diate supervisor in the kitchen, asked her to remove it. She did so. ST. JOSEPH'S HOSPITAL 351 The election was held as scheduled on June 13, 1975. The Charging Party lost. By the time of the hearing in this case, the representation case was long closed. B. Analysis and Conclusions The General Counsel relies on The Ohio Masonic Home, 205 NLRB 357 (1973). Respondent relies on Evergreen Nursing Home and Rehabilitation Center, Inc., 198 NLRB 775 (1972). In Evergreen the only statement by the Board itself which relates to the issue in this case is found in footnote 1. It reads: We find that the Trial Examiner's conclusion with respect to the "special circumstances" which justified Respondent's prohibition against its nurses' wearing of union buttons to be in accord with the views set out in United Parcel Service, Inc., 195 NLRB 441. However, in distinguishing Evergreen, the Board cast addi- tional light on it in the course of its decision in Masonic Home. The union button at issue in Masonic Home was "about the size of a quarter"; i.e., approximately seven-eighths of an inch in diameter. It contained a white legend on a blue background. The Board said: The Board has long recognized that an employee had the protected right to wear union insignia while at work. In the absence of "special circumstances," the promulgation of a rule prohibiting the wearing of such insignia is violative of Section 8(a)(1). The Adminis- trative Law Judge found the "special circumstances" Justifying the prohibition in this case in the necessity of protecting the health and welfare of the residents of Respondent's facility. We do not agree that this was the motivation for the promulgation of the rule. In Service Employees International Union Local 50, AFL-CIO (Evergreen Nursing Home and Rehabilitation Center, Inc.), 198 NLRB No. 101, the Board found "special circumstances" justifying a rule against wear- ing union insignia by personnel in a nursing home, but the circumstances justifying the finding that the prohi- bition was adopted for nondiscriminatory reasons were much stronger in that case than here. In Ever- green, the employer had since its formation and prior to the union organizing campaign enforced a rule pro- hibiting employees from wearing any attachments to their clothing while at work except for name tags and pins relating to nursing service. The union insignia in that case consisted of bright yellow buttons 1-7/8 and 2-1/4 inches in diameter. The size and color of the buttons obviously detracted from the all white uni- forms worn by the employees. In the present case, in contrast, the prohibition was against the wearing of union insignia but not other attachments. It was not adopted until the onset of the union organizing cam- paign, and the insignia was noticeably less conspicu- ous in size and color than the union buttons in Ever- green. In all the circumstances, we find that the prohibition against employees wearing union insignia at work was promulgated not because of Respondent's concern with the health and welfare of its residents, but to thwart the Union's organizational campaign. Accordingly, we find that the promulgation of the rule violated Section 8(a)(1) of the Act. The General Counsel attempts to bring this case within the precedent of Masonic Home by arguing, in effect, that the rule was promulgated when it was first used on April 16, 1975, to ban union buttons from uniforms because, un- like the situation in Evergreen, Respondent has permitted message-type buttons as an exception to its dress codes in the past. He argues that Respondent's antiunion motive is implicit in the fact it was union buttons that were banned. Here, the dress codes long antedated the Charging Party's organizing campaign. Unlike the "Smile" and "Je- sus Saves" buttons worn more than once by employees before a rule was promulgated in the literal sense of the word against union buttons only in Masonic Home, here only one button was worn on one occasion by one employ- ee where the wearing was not at Respondent's behest. That was the "Kiss Me, I'm Irish" button worn by Mrs. Blum- berg on March 17, 1975. It was an isolated incident and, as such, has no significance in determining whether Respondent's motive was concern for the health and wel- fare of its patients. The Seng Company, 210 NLRB 936 (1974). The crux of the General Counsel's argument is that, since Respondent has encouraged its employees to wear messages on its uniforms on other occasions, its banning of union buttons is not based on concern for its patients. This argument ignores the difference in the nature of the Hospi- tal Week and Doctors Day messages on the one hand and the "Vote for Health Care Division [of] LIUNA, AFL- CIO" message on the other. The former were messages to the patients that Respondent cared for them and would do all in its power to help them. The latter, like any message designed to persuade persons to vote for or against a par- ticular issue, was controversial. Shielding its patients from controversy is a legitimate part of a hospital's continuing efforts to care for them, especially where, as here, the rule which is invoked to that end is one of long standing. I find, therefore, on the precedent of Evergreen, that Respondent has not violated Section 8(a)(1) of the Act by "maintain- [ing] a rule or restriction . . . which prohibited [employees] from wearing at any time union buttons, insignia or em- blems on their uniform, clothing or person" and by "en- forc[ing] the rule or restriction . . . by requiring its employ- ees to remove from their uniforms, clothing, or person buttons, insignia or emblems reflecting the employees' sup- port of the [Charging Party]." Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. St. Joseph's Hospital is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. North Central Texas Laborers' District Council is a labor organization within the meaning of Section 2(5) of the Act. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The allegations in the complaint that Respondent has violated Section 8(a)(1) of the Act have not been sustained. ORDER2 Upon the basis of the foregoing findings of fact, conclu- The complaint is dismissed in its entirety. sions of law, and the entire record in this case, and pur- suant to Section 10(c) of the Act, I hereby issue the follow- ing recommended: 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes