St. Luke's Hospital

434 314 NLRB No. 73 ST. LUKE’S HOSPITAL 1 For the reasons stated by the judge, we find that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally implementing the revised dress code on May 1. Contrary to the judge, however, we find that the appropriate remedy for this violation requires that we order the Respondent to, on request, rescind the unlawfully implemented dress code, and we shall modify the judge’s recommended Order and sub- stitute a new notice accordingly. See Holladay Park Hospital, 262 NLRB 278 (1982). 2 Unless otherwise noted, all dates hereafter are in 1992. 3 Prior to May 1, the dress code provided that ‘‘Employees of the Hospital are expected to maintain a professional and ‘business-like appearance’ in their attire consistent with their department-approved dress requirements, and at no time will shorts, jeans, sneakers, or ballcaps be allowed.’’ At that time, the dress code did not contain any provisions regarding buttons or pins. St. Luke’s Hospital and Hospital & Health Care Workers Union, Local 250, Service Employees International Union, AFL–CIO. Case 20–CA– 24660 July 19, 1994 DECISION AND ORDER BY MEMBERS STEPHENS, DEVANEY, AND COHEN On May 20, 1993, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modi- fied. The pertinent facts, as more fully set forth in the judge’s decision, are as follows. At all times relevant to this case, the Union has represented separate units of service and maintenance and clerical employees. On May 1, 1992,2 during bargaining for a successor to the 1990–1992 contract covering the service and mainte- nance unit and an initial contract for the clerical unit, the Respondent unilaterally modified its dress code to provide, in pertinent part, that ‘‘the following items are not considered appropriate for the work environment: sneakers, sandals, clogs, hats, political/personal state- ment buttons/pins.’’3 A significant issue in the then-pending contract ne- gotiations was the Respondent’s proposed health bene- fits for unit employees. The Union was opposed to the Respondent’s proposals, and on May 13 the Union sponsored the wearing by employees of 2-1/4-inch round buttons, with a red background and conspicuous white and black lettering, which read ‘‘United To Fight For Our Health Plan.’’ Also on May 13, the Union sent the Respondent a letter protesting the uni- lateral implementation of the new dress code. On May 15, the Respondent’s bargaining representative advised the Union, during a negotiating session, that the Hos- pital’s chief executive officer was upset about the but- tons. On May 18, the Respondent stated in its internal newsletter that, pursuant to the revised dress code, personal statement buttons which may be consid- ered controversial in nature are not considered ap- propriate for the work place. While the hospital does not object to employees wearing union buttons which indicate that they are a member of a union, it does object to buttons which appear to place the hospital and its employ- ees at odds with each other. The buttons bearing the statement ‘‘United to Fight for our Health Plan’’ are considered to be controversial and are not acceptable. Wearing these or other controver- sial buttons are [sic] against our Dress and Ap- pearance Policy and are [sic] not allowed to be worn on hospital time. Thereafter, the Union distributed to its members rec- tangular adhesive stickers, about 2 by 4 inches, bearing the same legend as the buttons referred to above. The Union also distributed 2-1/4-inch round stickers which read ‘‘Local 250 United June 1.’’ On May 18, the Respondent directed Licensed Vo- cational Nurse Sanchez to remove from her uniform the 2-by-4 inch ‘‘United to Fight for our Health Plan’’ sticker described above under threat of suspension or termination. Sanchez testified that she was standing at a nurse’s station at the time of this incident, and that she complied with her supervisor’s directive. Likewise, on May 21, clerical employee Martinez was directed to remove a ‘‘United to Fight for our Health Plan’’ stick- er from his clothing while he was standing in the fileroom. Martinez also complied with this directive. Prior to these events, the Respondent permitted and even promoted the wearing by employees of other but- tons, such as buttons celebrating National Nurse’s day, ‘‘Cheers to Volunteers’’ buttons acknowledging the Hospital’s volunteers, and buttons with the acronym HOCSUM (Hospital of Choice South of Market [street]). Additionally, however, in the fall of 1991, the Respondent directed an employee to remove a political button supporting one of the candidates in a mayoral election. The judge found that the Respondent lawfully banned the wearing of the ‘‘United to Fight for our Health Plan’’ buttons and stickers. In the judge’s view, the prohibition was motivated solely by ‘‘a good-faith motive of attempting to insulate patients and visitors from labor relations disputes between the employees and management.’’ The judge noted, in this regard, 435 ST. LUKE’S HOSPITAL 4 Contrary to the judge, in establishing a violation of Sec. 8(a)(1) it is unnecessary to show that an employer’s actions were motivated by a desire to chill the exercise of Sec. 7 rights; rather, the test is whether the employer’s conduct reasonably tends to interfere with the free exercise of employee rights under the Act. See, e.g., Road- way Express, 250 NLRB 393 (1980). 5 In light of this finding, we find it unnecessary to pass on the General Counsel’s additional argument that the ban on wearing the ‘‘United to Fight’’ buttons was unlawful based on his contention the Respondent discriminatorily allowed other buttons to be worn. that the Respondent had never allowed any ‘‘arguably controversial’’ buttons to be worn and had permitted the wearing of union insignia which were not con- troversial in nature. The judge further stated that, while most patients and visitors likely would not attribute any ominous significance to the word ‘‘fight’’ on the buttons/stickers, it was reasonable to assume that some might. Accordingly, the judge found that the prohibi- tion was responsive to legitimate business concerns and was not motivated by antiunion considerations, and hence was lawful. As noted above, we have adopted the judge’s find- ing that the Respondent unlawfully implemented its re- vised dress code, which included the ban on ‘‘personal/political statement buttons/pins.’’ Contrary to the judge, we find that, even without regard to the dress code’s unilateral implementation, the Respondent independently violated Section 8(a)(1) by prohibiting employees from wearing the ‘‘United to Fight for our Health Plan’’ buttons and stickers under the cir- cumstances of this case. Initially, it is evident that the pins and stickers were worn by employees in an effort to encourage their co- workers to support the Union’s bargaining position and, hence, constituted protected, concerted activity. Holladay Park Hospital, above at 278–279. It is well- settled that the wearing of such insignia may not be prohibited unless the employer establishes that ‘‘spe- cial circumstances’’ are present which justify the re- striction. Albertsons, Inc., 300 NLRB 1013, 1016 (1990); Holladay Park Hospital, above at 279.4 For the reasons which follow, we find that the Respondent has not established that such special circumstances exist in this case. The Respondent contends that the ‘‘United to Fight for our Health Plan’’ buttons may lawfully be banned because of the possibility that patients would be upset by the implicit message that the Respondent and its employees are ‘‘at odds’’ with each other. Contrary to the judge, we find that the Respondent has not estab- lished that ‘‘special circumstances’’ exist in this re- gard. Although the judge found that some patients might be upset by the buttons in the manner suggested by the Respondent, the record is devoid of any evi- dence to support this supposition. Thus, there is no evidence that any patient complained of, or even no- ticed, the stickers and buttons at issue in this case. See London Memorial Hospital, 238 NLRB 704, 708 fn. 11 (1978) (employer’s claim of special circumstances rejected, where no evidence offered to show that pa- tients were upset by button). Under these cir- cumstances, and noting that the message conveyed by the buttons is not alleged to have been vulgar, obscene, or to have disparaged the Respondent’s services, we find that the Respondent’s prohibition of the ‘‘United to Fight for our Health Plan’’ buttons and stickers vio- lated Section 8(a)(1).5 ORDER The National Labor Relations Board adopts the order of the administrative law judge as modified below and orders that the Respondent, St. Luke’s Hos- pital, San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following new paragraph 1(c). ‘‘(c) Prohibiting its employees from wearing union insignia on their uniforms at work.’’ 2. Add the following as paragraph 1(d). ‘‘(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.’’ 3. Add the following new paragraph 2(a) and reletter the subsequent paragraphs. ‘‘(a) On request, rescind its unilaterally implemented dress code.’’ 4. Substitute the attached notice for that of the ad- ministrative law judge. MEMBER DEVANEY, concurring. I agree with my colleagues that the Respondent’s ban on ‘‘controversial’’ buttons, including the ‘‘United to Fight for our Health Plan’’ buttons distributed by the Union in May 1992 violated Section 8(a)(5) and (1) for the reasons stated in the majority decision. I further agree with my colleagues that the ban on wear- ing the ‘‘United to Fight’’ buttons violated Section 8(a)(1). In finding this latter violation, unlike my col- leagues, I would also rely on the Respondent’s having discriminatorily allowed employees to wear other but- tons while on duty. As my colleagues note, a ban on wearing union in- signia like the ‘‘United to Fight’’ button is unlawful unless the Respondent establishes ‘‘special cir- cumstances’’ which justify the restriction on Section 7 rights. Holladay Park Hospital, 262 NLRB 278 (1982). Where, as here, a health care employer claims that the ban is motivated by a legitimate need to protect its pa- tients from controversial issues, one factor in determin- ing whether ‘‘special circumstances’’ exist is the rea- sonableness of the employer’s assertion that the button in question will be disruptive. For the reasons stated 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Contrary to the judge, it is irrelevant that the Respondent allowed employees to wear other union insignia which it deemed acceptable, Holladay Park Hospital, above at 279, or that the Respondent, on one occasion, prohibited an employee from wearing a political but- ton relating to a local election campaign. London Memorial Hospital, above at 709. in the majority opinion, I agree with my colleagues that the Respondent has not satisfied its burden in this regard. However, the Board has also evaluated an employ- er’s assertion of special circumstances with respect to union insignia in light of its treatment of other buttons and insignia. Thus, the Board has held that even though a health care employer claims to be motivated by a legitimate need to protect its pa- tients from controversial issues, the Board will not find such ‘special circumstances’ justifying a pro- hibition against wearing union insignia if the em- ployer has discriminatorily enforced its dress code to allow employees to wear other types of buttons or attachments. Holladay Park Hospital, above at 279 (1982) (finding that ban on yellow union ribbons was unlawful, where employer previously allowed other ribbons to be worn at holidays and distributed itself buttons reading ‘‘Hol- laday Park Hospital On the Move’’). In this case, the Respondent allowed, and even en- couraged, the wearing by employees of other buttons, such as buttons celebrating National Nurse’s day, ‘‘Cheers to Volunteers’’ buttons acknowledging the hospital’s volunteers, and buttons with the acronym HOCSUM (Hospital of Choice South of Market [Street]). Under these circumstances, I would find that the Respondent’s disparate and discriminatory prohibi- tion of the ‘‘United to Fight for our Health Plan’’ but- tons further, and independently, demonstrates the ab- sence of any special circumstances which would justify its actions. See London Memorial Hospital, above (em- ployer’s ban on union buttons unlawful, where ‘‘I Care’’ buttons previously distributed by employer); Baptist Memorial Hospital, 225 NLRB 525 fn. 3 (1976), modified after remand 242 NLRB 642 (1979) (employer allowed employees to wear ‘‘United Fund’’ buttons); St. Joseph’s Hospital, 225 NLRB 348 (1976) (employer sponsored buttons for hospital week and doctor’s day, and allowed buttons on holidays).1 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through any representa- tive of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT unilaterally modify our dress and ap- pearance policy for employees in the appropriate units of service/maintenance employees and clerical employ- ees represented by Hospital & Health Care Workers Union, Local 250, Service Employees International Union, AFL–CIO. WE WILL NOT, prior to providing the Union with no- tice and an opportunity to bargain over the matter, en- force a unilaterally revised dress and appearance policy by advising employees in the above units that they will be subject to discipline or discharge in the event they refuse to remove certain union buttons or stickers from their clothing. WE WILL NOT prohibit our employees from wearing union insignia on their uniforms at work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, rescind the modifications to our dress and appearance policy promulgated on May 1, 1992. ST. LUKE’S HOSPITAL Donald R. Rendall, Esq., for the General Counsel. J. Mark Montobbio, Esq. (Proskauer, Rose, Goetz & Mendelsohn), of San Francisco, California, for the Re- spondent. 437 ST. LUKE’S HOSPITAL 1 All dates or time periods hereinafter are within 1992 unless oth- erwise specified. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursu- ant to notice, a hearing in this matter was held before me in San Francisco, California, on March 9, 1993. The charge was filed by Hospital & Health Care Workers Union, Local 250, Service Employees International Union, AFL–CIO (the Union), on May 21, 1992. Thereafter, on July 1, 1992, the Regional Director for Region 20 of the National Labor Rela- tions Board (the Board) issued a complaint and notice of hearing alleging a violation by St. Luke’s Hospital (the Re- spondent) of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint was amended at the hearing. The Respondent’s answer to the complaint, timely filed, denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to intro- duce relevant evidence. Following the close of the hearing, briefs have been received from counsel for the General Counsel and counsel for the Respondent. On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a California not-for-profit corporation, with an office and place of business located in San Fran- cisco, California, where it is engaged in the operation of an acute care hospital. In the course and conduct of its oper- ations, the Respondent annually derives gross revenues in ex- cess of $250,000, and annually purchases and receives goods or materials valued in excess of $5000 which originated from points outside the State of California. It is admitted, and I find, that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the above-named Union is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues in this proceeding are whether the Re- spondent has violated Section 8(a)(1) of the Act by prohib- iting employees from wearing union buttons or stickers which it deemed to be inappropriate for the workplace, and whether the Respondent has violated Section 8(a)(5) and (1) of the Act by promulgating a new dress and appearance pol- icy without affording the Union a timely opportunity to bar- gain about the matter. B. The Facts The Union herein is the certified collective-bargaining rep- resentative for two different units of employees, namely, the service/maintenance unit and the clerical unit. The collective- bargaining agreement for the service/maintenance unit ex- tended from May 1, 1990, to April 30, 1992; the certification for the clerical unit was issued on September 27, 1991. In May 1992,1 the parties were engaged in simultaneous collec- tive-bargaining negotiations for both units: the service/main- tenance contract, having expired, had been extended pending agreement upon a successor contract, and negotiations for an initial clerical contract had previously commenced. One of the major issues involved in negotiations was the matter of health insurance. The Respondent was seeking to provide the employees in both units with a health insurance plan that the Union considered to be more costly to the em- ployees, and which contained inferior benefits than previous plans. In order to demonstrate the employees’ resolve and solidarity with regard to this issue, the Union’s bargaining committee decided to distribute buttons to be worn by all of the employees in both units. The buttons, which do not con- tain the name of the Union and therefore would not nec- essarily cause any reader to believe that a union was in- volved in the matter, are about 2-1/4 inches in diameter, with a red background and large, highly conspicuous white and black lettering, and bear the following language: UNITED TO FIGHT FOR OUR HEALTH PLAN In 1984, the Respondent had established a policy and pro- cedure with the heading ‘‘Employee Dress and Appearance.’’ That policy set forth appropriate attire that employees were to wear in order to ‘‘maintain a professional and ‘business- like appearance.’’’ It was updated in February 1990. Prior to the commencement of bargaining in May, the Union had re- quested and the Respondent had provided various documents embodying the policies and procedures that were then in ef- fect, including the February 1990 dress and appearance docu- ment, which contained provisions with regard to personal hy- giene, the wearing of uniforms supplied by the Respondent for certain jobs, the wearing of hospital identification badges, and the prohibition of ‘‘shorts, jeans, sneakers, or ballcaps.’’ On May 1, the Respondent issued an updated revision of the dress and appearance policy which applied to all employ- ees. The record indicates that on March 1 employees were required to initial a memo indicating that they had read the new dress and appearance policy which was attached to the memo. This revision is considerably more detailed and spe- cific regarding permissible on-the-job attire, and contains the following statement: The following items are not considered appropriate for the work environment: Sneakers Sandals Clogs Hats Political/Personal Statement Buttons/Pins The new dress and appearance policy was published in the May 11 and 18 issues of ‘‘Making the Rounds,’’ the Re- spondent’s weekly newsletter. In the May 18 issue the Re- 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The sizes of the buttons are not noted on the record. 3 Mayo was not asked about the Respondent’s position with regard to the wearing of the above-described sticker which did not contain the word ‘‘fight.’’ spondent’s chief executive officer, Jack Fries, authored this explanation of the new policy: POLITICAL/PERSONAL STATEMENT BUTTONS In the May 11th issues of Making the Rounds, the Hospital included a copy of its revised policy pertaining to Employee Dress and Appearance. The primary goal of this policy is to promote a professional looking workforce to those who visit St. Luke’s Hospital. One area which merits further explanation is the area regard- ing the wearing of political or personal statement but- tons. As a non-profit hospital, St. Luke’s is unable to pro- mote or show support for any political campaign or ac- tivity. Doing so could result in the loss of its non-ex- empt tax status. Furthermore, the hospital is equally concerned with the impressions formed by visitors to St. Lukes. It is critical that the hospital promote not only a professional image but a positive one as well. Therefore, personal statement buttons which may be considered controversial in nature are not considered appropriate for the work place. While the hospital does not object to employees wearing union buttons which indicate that they are a member of a union, it does object to union buttons which appear to place the hospital and its employees at odds with one another. The buttons bearing the state- ment ‘‘United to Fight for our Health Plan’’ are consid- ered to be controversial and are not acceptable. Wear- ing these or other controversial buttons are against our Dress and Appearance Policy and are not allowed to be worn on hospital time. Prior to May 13, the Union promoted a 1-day ribbon cam- paign during which employees wore ribbons on their clothing to show their unity and support for the bargaining team. On May 13, the Union began a button campaign, and some of the employees began wearing the buttons described above. At a bargaining meeting on May 15, it was stated by one of the management representatives that the Respondent’s chief executive officer, Jack Fries, was upset that such buttons were being worn by hospital personnel. Thereafter, appar- ently in an effort to circumvent the literal dress and appear- ance policy prohibition of wearing ‘‘buttons/pins,’’ the Union distributed rectangular adhesive stickers to the employees bearing the identical language that was printed on the but- tons; the stickers, which are noticeably larger than the but- tons, are approximately 2 by 4 inches, and the printing, in large block letters, is larger than the printing on the buttons. In addition, the Union distributed another sticker to its members. It is round and appears to be about the same size as the button. It is the only one of the buttons/stickers which identifies the Union, and bears the following wording in large block letters: LOCAL 250 UNITED JUNE 1 The record contains no further evidence regarding this par- ticular sticker; thus there is no record evidence that the Re- spondent objected to the employees’ wearing of it. By letter dated May 13, Morton Newman, field representa- tive for the Union, protested the implementation of the new dress and appearance policy. The letter states that the Re- spondent’s prohibition of ‘‘Political/Personal Statements Buttons/Pins’’ constitutes an unacceptable change in working conditions and should not be instituted without first pro- posing it to the Union, and that it also constitutes both an infringement of employees’ first amendment rights and an unfair labor practice intended to preclude the Union from bargaining about the matter during the contract negotiations which were then being conducted; further, Newman offered to meet with the Respondent to discuss the ‘‘proposed changes,’’ and specifically advised the Respondent to refrain from implementing the proposed dress and appearance policy prior to such meeting. Two employees, both members of the bargaining com- mittee, one a licensed vocational nurse (LVN) in the service/maintenance unit, and one a clerk in the clerical unit, testified that on about May 18 and 21, respectively, they were confronted by their respective supervisors and in- structed to remove the union stickers they were wearing. Both were wearing the larger, rectangular sticker containing the word ‘‘fight.’’ They were advised that in the event they refused to remove the stickers as directed they would be sub- ject to discipline and termination. They did remove the stick- ers and were not disciplined. Evidence was presented that the Respondent had permitted and had even promoted the wearing of other buttons on em- ployees’ uniforms or, in the case of clerical employees, on their shirts, jackets, or blouses. Such buttons promoted Na- tional Nurses Day; ‘‘Cheers to Volunteers’’ buttons acknowl- edged the help of hospital volunteers; and both employees and management wore ‘‘HOCSUM’’ buttons, which is an ac- ronym for ‘‘Hospital Of Choice South of Market [street],’’ as part of a public relations campaign.2 Human Resources Director Donna Mayo testified that in the fall of 1991 she directed an employee to remove a polit- ical button from her jacket, as buttons in support of political candidates were considered to be controversial. Mayo further testified that while the Respondent has no objection to the wearing of buttons bearing the name of the Union, the word ‘‘fight’’ on the button and sticker distributed by the Union to its members was of particular concern, as patients might have some apprehension about the quality of care they were receiving if the hospital administration and the employees were involved in a ‘‘fight.’’ However, according to Mayo, buttons simply bearing the name of the Union together with, for example, the word ‘‘solidarity’’ rather than the word ‘‘fight,’’ would probably not be prohibited.3 Since the date of the foregoing incidents the parties have reached agreement on the terms of collective-bargaining agreements for each unit. The evidence shows that the Respondent did not bargain with the Union prior to revising its dress and appearance pol- icy, and that it unilaterally implemented and enforced the policy despite the Union’s admonition that it should not do so prior to bargaining. The Respondent maintains that it had 439 ST. LUKE’S HOSPITAL 4 The evidence is clear that virtually all the hospital staff, whether in the service/maintenance unit or the office clerical unit, may have contact on a not infrequent basis with patients or visitors in the ele- vators, hallways, and cafeteria. the right to unilaterally issue, implement, and enforce such a revised policy as a right of management. In this regard, the management-rights clause of the expired contract, as well as the proposed management-rights clause for both contracts being negotiated in May, provide as follows: All rights traditionally exercised by management are re- served by the Employer unless specifically limited by the provisions of this agreement. C. Analysis and Conclusions In the absence of ‘‘special circumstances,’’ employees have a protected right to wear union insignia at work. Holla- day Park Hospital, 262 NLRB 278 (1982); Ohio Masonic Home, 205 NLRB 357 (1973), enfd. 511 F.2d 527 (5th Cir. 1975); Floridan Hotel of Tampa, 137 NLRB 1484 (1962). Here, the Respondent acknowledges this right. It has per- mitted the wearing of buttons identifying the Union as the employees’ collective-bargaining agent, and has also per- mitted the wearing of ribbons, apparently without any print- ing or legend, as part of the Union’s campaign to dem- onstrate employee solidarity with the Union’s bargaining po- sition. It seeks to prevent only the wearing of union insignia which it deems inappropriate, in order to protect its patients and visitors from controversial issues which could effect their perception of the quality of health care the Respondent is providing. Certainly there may be types of union insignia which are clearly offensive or otherwise inappropriate on their face and which a health care employer or any other employer may disallow in the workplace. For example, it is clear that an employer may require the removal of insignia containing profanity or which may directly point out deficiencies with the health care being provided or service being rendered by the employer. Other insignia may not be as easily character- ized. The issue herein is whether the insignia worn by the employees is of such a nature as to warrant the Respondent’s prohibition of it in the workplace.4 While the Respondent appears to object to both the size of the buttons and stickers and to the size of the lettering, its primary objection is to the language itself, namely the word ‘‘fight.’’ Thus, the Respondent maintains that the use of such strong language in characterizing a dispute between the employees and the hospital administration is likely to create an environment whereby patients or visitors may have reason to question the quality of health care being provided by those employees. There is no evidence that the Respondent, in prohibiting the wearing of the union insignia in question, had other than a good-faith motive of attempting to insulate patients and visitors from labor-related disputes between the employees and management. I find that its prohibition of the buttons and stickers was not designed to thwart the union activities of its employees. Thus, it permitted the wearing of union in- signia, including ribbons, which implicitly indicated the em- ployees’ support of the Union’s bargaining position; and it had never permitted the wearing of any buttons, whether union related or not, which were arguably controversial in any respect. Clearly, all the nonunion-related buttons it per- mitted and even encouraged the employees to wear were cheerful and noncontroversial and portrayed the Hospital and the Hospital’s staff in a favorable light. While it may be argued that the wearing of a plain ribbon as an implicit indication of solidarity with the Union’s bar- gaining position is tantamount to the wearing of a button or sticker explicitly announcing the existence of a fight or dis- pute, and that there is no material difference between the two forms of expression, it seems clear that in fact the Union be- lieved there was a difference; indeed, this is apparently why it elected to initiate the button/sticker campaign. The dif- ference is a matter of degree, and the Union, as well as the Respondent, believed that the language on the buttons and stickers presented the issue in a more assertive manner. While it seems reasonable to assume that most hospital pa- tients or visitors would not attach any ominous significance to the word ‘‘fight’’ on the buttons or stickers, it is also rea- sonable that such language could be a genuine cause of con- cern to some patients or visitors. The Respondent subscribed to this latter point of view and was legitimately concerned that the explicit portrayal of the employees and the adminis- tration being at odds to the point of a ‘‘fight’’ would ad- versely effect the public’s perception of the health care being provided. Applicable Board precedent appears to focus on the issue of employer motivation in prohibiting the wearing of union insignia. In this regard an employer’s past practice of permit- ting similar badges, buttons, or pins to be worn in nonunion- related contexts is of singular significance in determining motivation. See Evergreen Nursing Home, 198 NLRB 775 (1972); Ohio Masonic Home, supra; St. Joseph’s Hospital, 225 NLRB 348 (1976); Holladay Park Hospital, supra. Here, the Respondent has demonstrated that in prohibiting the wearing of the buttons and stickers in question it was re- sponding to a legitimate business concern, and that, as evi- denced by its past practice of having never permitted the wearing of any type of insignia which is even arguably simi- lar to the buttons and stickers herein, it was not motivated by a desire to thwart its employees’ activities in support of the Union’s collective-bargaining position. Further, it has not attempted to prevent employees from wearing other buttons identifying the Union as the employees’ collective-bargaining representative, or from wearing ribbons which were specifi- cally for the purpose of indicating employee solidarity with the Union’s bargaining position. Accordingly, I conclude that by prohibiting the wearing of the buttons and stickers herein the Respondent has not violated Section 8(a)(1) of the Act as alleged. The revised dress and appearance policy which the Re- spondent unilaterally issued on May 1, specifically prohibited the wearing of any ‘‘Political/Personal Statement Buttons/- Pins.’’ The preexisting written policy was silent about the wearing of such items. The Union was apparently not ap- prised of the new policy until it was published in the May 11 issue of ‘‘Making the Rounds,’’ and its implementation was immediately protested by Union Field Representative Newman in his May 13 letter to the Respondent; further, Newman demanded that the policy be retracted until negotia- tions could be held regarding the matter. Insofar as the record evidence shows, the Respondent did not reply to the 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 The record contains no evidence regarding the parties’ discus- sions of this matter, if any, following Newman’s May 13 letter. Re- spondent’s brief states: While the May 1992 revision was not tied to negotiations, it did occur during negotiations. If Local 250 was opposed to any aspect of the Hospital’s revised dress policy, it could have pro- posed new contract language concerning the wearing of political buttons. It did not do so, nor did it even raise the issue of the dress policy during negotiations. [Emphasis in original.] 6 While the complaint does not specifically allege that the unlawful threats of discipline and discharge flow from the Respondent’s re- fusal to timely bargain over the revised dress code policy, it appears that the matter has been litigated, and that such a finding is war- ranted. Union’s letter; not only did it not retract the revised policy pending negotiations, it thereafter threatened employees with discharge for violating the policy.5 It is clear that the Respondent intended the policy’s pro- scription of ‘‘Political/Personal Statement Buttons/Pins’’ to apply to the buttons and stickers then being worn by the em- ployees, as this is what the Respondent’s chief executive of- ficer explicitly stated in the May 18 newsletter article, supra, which was published on the very day that an employee was threatened with discharge if he refused to remove the sticker. At the hearing the Respondent indicated that it may have been amenable to permitting the Union to convey its in- tended message on union insignia by the use of less forceful or descriptive language. Had bargaining taken place prior to May 18, it is possible that the matter could have been re- solved to the mutual satisfaction of the parties; and in this event the Respondent would have had no occasion to threat- en its employees with discipline for violating the policy. The matter of appropriate wearing apparel in the work- place, including the wearing of union-related and other insig- nia, is a term and condition of employment and, as such, is a mandatory subject of bargaining. See United Technologies Corp., 286 NLRB 693, 694 (1987); Valley Oil Co., 210 NLRB 370, 379 (1974); Holladay Park Hospital, supra at 279. Here, the Respondent gave the Union no opportunity to bargain over the revised dress and appearance policy prior to its implementation, and instituted it as an historic right of management. In this regard, the Respondent maintains that it had always required employee adherence to an appropriate code of dress, including accessories and emblems, which were conducive to a hospital environment, and therefore it was not obligated to negotiate such matters with the Union. This position is clear- ly erroneous. Simply because a collective-bargaining rep- resentative may have had no quarrel with an employer’s past practice in implementing or interpreting its work rules does not in and of itself constitute a waiver of the union’s right to bargain over the matter. See Rockwood & Co., 285 NLRB 1114, 1117–1118 (1987); Page Avjet Corp., 275 NLRB 773, 776, 778 (1985). Cf. Columbus & Southern Ohio Electric Co., 270 NLRB 686 (1984). Moreover, the Union imme- diately requested bargaining when it appeared that the Re- spondent was attempting to insert new and substantive provi- sions into its dress code. Similarly, the Respondent’s reliance on the management- rights clause of the expired service/maintenance contract, which had been extended pending agreement on a successor contract, is misplaced. Neither the management-rights provi- sion itself, nor any other contract language, nor the past prac- tice or bargaining history of the parties, constitutes the req- uisite ‘‘clear and unmistakable’’ waiver of the Union’s right to bargain over this matter. See Columbus & Southern Ohio Electric Co., supra. Indeed, with regard to the newly certified clerical unit, there was no contract in existence and there had been no bargaining history. On the basis of the foregoing, I conclude that the Re- spondent has violated Section 8(a)(5) of the Act by unilater- ally promulgating and implementing changes to its estab- lished dress and appearance policy without first bargaining with the Union. Further, the Respondent linked its prohibi- tion of the buttons and stickers in question to its unilaterally established dress and appearance policy, and then sought to enforce its policy through threats of discipline and discharge prior to timely bargaining over the matter. I therefore find that such threats are derivatively violative of Section 8(a)(1) of the Act.6 The complaint, as amended at the hearing, alleges that the Respondent’s dress and appearance policy is overly broad. Apparently, it is the General Counsel’s contention that the prohibition of ‘‘Political/Personal Statements Buttons/Pins’’ would arguably preclude the wearing of types of union insig- nia which employees have a statutory right to wear. Further, the General Counsel maintains that the policy is not limited to employees who have contact to patients and visitors, but rather also applies to clerical employees or others who may not have such contact. After establishing the revised policy, the Respondent, in effect, published an interpretation of the policy in its weekly newsletter, ‘‘Making the Rounds.’’ Thus, on May 18, the employees were advised that the new language was designed to preclude the employees from wearing union insignia ‘‘which appear to place the hospital and its employees at odds with one another,’’ but specifically did not preclude the employees from ‘‘wearing union buttons which indicate that they are a member of a union.’’ This seems to provide the employees with reasonable guidance as to the exercise of their Section 7 rights. Therefore I do not conclude that the new policy, as interpreted, is overly broad. Further, the evidence indicates that any employee, includ- ing clerical employees, at any given time, either in an office, an elevator, the hallway, or the cafeteria, may come in con- tact with a patient or visitor. Accordingly, I do not find that the application of the policy to all employees is overly broad. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(5) and (1) of the Act by unilaterally establishing a revised dress and ap- pearance policy containing new provisions, and by enforcing the policy through threats of discipline and discharge, with- out prior notification to and bargaining with the Union. THE REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, I recommend that it be required to cease and desist therefrom and from in any like or related 441 ST. LUKE’S HOSPITAL 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 8 If 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.’’ manner interfering with, restraining, or coercing its employ- ees in the exercise of their rights under Section 7 of the Act. Moreover, the Respondent shall be required to post an appro- priate notice, attached hereto as ‘‘Appendix [omitted from publication].’’ It appears that the Union has had ample opportunity to bargain over the matter during the course of bargaining for contracts in both units. Thus the parties have entered into collective-bargaining agreements following the dispute here- in. Moreover, as discussed above, the revised dress and ap- pearance policy, as interpreted, does not preclude the em- ployees from wearing union insignia. Therefore, I do not deem it necessary, under the circumstances, to recommend that the Respondent rescind its revised dress and appearance policy. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The Respondent, St. Luke’s Hospital, San Francisco, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally establishing a revised dress and appearance policy without prior notification to and bargaining with the Union. (b) Threatening employees with discipline and discharge for violating a unilaterally established dress and appearance policy prior to providing the Union an opportunity to bargain over the matter. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Post at the Respondent’s San Francisco, California fa- cility copies of the attached notice marked ‘‘Appendix.’’8 Copies of the notice, on forms provided by the Regional Di- rector for Region 20, after being duly signed by the Re- spondent’s representative, shall be posted by it immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.