Mt. Clemens General Hospital v. National Labor Relations BoardMt. Clemens General Hospital v. National Labor Relations Board
Aileen A. Armstrong (briefed), Dep. Assoc. Gen. Counsel, Kira Vol (briefed), Meredith L. Jason (briefed), National Labor Relations Board, Washington, DC, for N.L.R.B.
Scott A. Brooks (briefed), Gregory, Moore, Jeakle, Heinen & Brooks, Detroit, MI, for Local 40, Office and Professional Employees Intern. Union, AFL-CIO.
MOORE, Circuit Judge.
Petitioner Mt. Clemens General Hospital (“Hospital“) seeks review of the National Labor Relations Board‘s (“NLRB” or “Board“) decision that the Hospital‘s prohibition of “No F.O.T.” buttons constituted an unfair labor practice in violation of the National Labor Relations Act (“Act“). The NLRB and, as an intervenor, the Union responsible for distributing the buttons seek enforcement of the NLRB‘s decision and order.
The Union distributed “No F.O.T.” buttons to registered nurses (“RNs“) at the Hospital in support of its opposition to “forced overtime.” Soon after the buttons were distributed, the Hospital confiscated them. The Union grieved the Hospital‘s decision, and an administrative law judge (“ALJ“) concluded that the prohibition was an unfair labor practice in violation of the Act. On review, the NLRB affirmed the ALJ‘s decision. The Hospital filed a petition for review of the Board‘s decision and order and the Board filed a cross-application for enforcement of its order. Because substantial evidence supports the Board‘s conclusion that the Hospital improperly prohibited the “No F.O.T.” buttons, we DENY the Hospital‘s petition for review and grant the NLRB‘s cross-application to ENFORCE its order.
I. FACTS AND PROCEDURE
Mt. Clemens General Hospital provides in-patient and out-patient medical care in Mt. Clemens, Michigan. The Hospital‘s registered nurses are represented by the RN Staff Council, Office and Professional Employees International Union, Local 40, AFL-CIO (“Union“).
Between February 1998 and February 2001, the Union‘s relationship with the Hospital was governed by a collective bargaining agreement (“CBA“). The parties supplemented this agreement in December 1998 with a Letter of Understanding (“Letter“) addressing RN staffing issues.
The Letter permitted the Hospital to require nurses to work overtime where “patient safety” is involved. Joint Appendix (“J.A.“) at 98 (Letter). It further provided that the Hospital would pay bargaining unit members a double-time scheduling premium for overtime. During the double-time regime, the Hospital employed very little forced overtime because RNs volunteered for enough extra hours to meet the Hospital‘s staffing needs.
When the double-time premium expired, the Union unsuccessfully tried to negotiate an extension. The Union filed a grievance with respect to the issue but did not arbitrate the matter when the grievance was rejected in November 1999. With the expiration of the double-time premium, the Hospital began to rely on forced overtime to staff its units. Some Hospital employees attempted to avoid forced overtime, and two were allegedly fired for submitting falsified medical documents stating that they could not work overtime. The Union also grieved the termination of these employees, but the terminations were upheld in arbitration. Debate about forced overtime continued.
In October 1999, Union President, RN Vickie Kasper (“Kasper“), received a complaint from an RN who was required to work mandatory overtime. On October 4, 1999, Kasper wrote a memorandum to the RNs updating them on the most recent forced overtime dispute with the Hospital. She advised them,
Talking is not working. The traditional grievance process needs your additional support of showing management how united we are. This is YOUR chance to quietly show management your support of your fellow nurse by giving a VISUAL AID to your support. You need not explain anything to anyone. Your officers will inform management of this action. Consider this another way of showing your professional, proactive support of your Union in the effort to improve EVERY nurse‘s work environment. We need to STOP THIS NOW. This community and this body of nurses need your SUPPORT NOW.
J.A. at 104 (Kasper Mem.). Kasper explained that she did not want individual RNs to debate the forced overtime issue with their supervisors or to discuss it with their patients and the patients’ families.
Kasper had “No F.O.T.” buttons made. The buttons depict a red “universal no” symbol, a circle bisected by a diagonal slash, over black letters spelling “F.O.T.” However, nothing on the buttons indicates that they have anything to do with the Union, or Union-management issues.1 The Union distributed the buttons as early as October 8, 1999, and RNs wore them throughout the Hospital. In the Intensive Care Unit, sixty to eighty buttons were distributed in the RNs’ mailboxes in the staff lounge.
The Union recognizes that procedures have been provided in this Agreement for the equitable settlement of grievances. Therefore, the Union and its members agree that neither will call, engage in, participate in, or sanction any strike, sympathy strike, stoppage of work, picketing of the Hospital, sit-down, sit-in, boycott or interfere with the conduct of the Hospital‘s service for any reason whatsoever nor engage in any other activities that may disturb or interfere with the welfare of patients or operations of the Hospital.
J.A. at 56 (CBA Art. 8, § 2). Section one of the same Article explains that “nothing should interfere” with the Hospital‘s provision of “continuous service to the public in providing proper treatment and nursing care for patients.” J.A. at 56 (CBA Art. 8, § 1).
The Hospital had permitted nurses to wear buttons on previous occasions without confiscating or banning them, including buttons that denoted Union activity or expressed Union-related themes.2 However, Horde instructed supervisors to require the RNs to remove the “No F.O.T.” buttons from their uniforms. Clinical Manager Kevin McLaughlin took the buttons from the RNs’ mailboxes in the ICU nurses’ lounge. The Hospital never told the RNs that the “No F.O.T.” button was barred only from patient-care areas or clarified where the RNs were permitted to wear the button. Moreover, the Hospital never returned the confiscated buttons.
When Kasper learned that the “No F.O.T.” buttons had been confiscated, she sent electronic mail to several individuals, warning that the Union would bring the issue to public attention through newspapers and bumper stickers. Kasper called Hospital management “idiots” and “fascist pigs,” and warned that she was willing to “die on this hill” for the issue. J.A. at 36 (Kasper E-mail). The Hospital claims that this was a “thinly veiled threat to respond to the button confiscation with acts of physical violence.” Hospital Br. at 15.
The Union never grieved the Hospital‘s decision to ban the buttons, as was permitted under Article 8, Section 2 of the CBA. Moreover, the Union never asked the Hospital why it told employees to remove the “No F.O.T.” buttons, and the Union never raised the issue during its monthly meetings with management. The Hospital maintains that it confiscated the buttons because it viewed them as a form of work stoppage and feared that the buttons would disrupt the provision of patient care.
The Union filed a complaint with the NLRB alleging that the Hospital had committed five unfair labor practices in violation of the National Labor Relations Act. The Hospital allegedly (1) discriminatorily required members of the Union‘s bargaining unit to remove Union insignia from their uniforms, confiscated the insignia, and enforced an overly-broad insignia policy; (2) failed to respond to the Union‘s June 4, 1999, request for information for “RN Staff Council Local 40 Registration forms,” J.A. at 123 (ALJ Dec.); (3) failed to respond to the Union‘s May 2, 2000, request for information concerning the Hospital‘s use of “agency nurses,” independent contractors provided by outside agencies; (4) unlawfully bypassed the Union and dealt directly with bargaining unit employees; and (5) unlawfully bypassed the Union by surveying employees about staffing and overtime issues.
Following a trial, an ALJ found that the Hospital violated the Act with respect to the confiscation of “No F.O.T.” buttons and the May 2000 request for information regarding agency nurses. The ALJ dismissed the Union‘s three remaining charges.
The Hospital filed timely exceptions to the rulings, findings, and conclusions of the ALJ with respect to the confiscation of the buttons.3 On review, a three-member panel of the Board affirmed the ALJ‘s conclusion that the Hospital‘s actions violated the Act, but modified his decision with respect to two evidentiary findings.4
WE WILL NOT discriminatorily require employees to remove union insignia or buttons from their uniforms or confiscate the insignia.
WE WILL NOT maintain an overly broad policy concerning the wearing of union buttons.
* * * * * *
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.
J.A. at 138 (NLRB Dec. & Order).
The Hospital filed a petition for review of the Board‘s decision and order, and the Board filed a cross-application for enforcement. We subsequently granted the Union‘s motion to intervene.
II. THE INFORMATION REQUEST
In its petition for review, the Hospital asks us to set aside the portion of the NLRB‘s order finding that the Hospital‘s “actions with regard to the provision of information in response to the Union‘s requests” violated Sections 8(a)(1) and (5) of the Act. J.A. at 140 (Pet. for Review). The Hospital did not file exceptions to the ALJ‘s findings on this matter when seeking Board review. Pursuant to Section 10(e) of the Act,
III. THE “NO F.O.T.” BUTTONS
Section 7 of the National Labor Relations Act gives employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
A. Standard of Review
The Board‘s findings of fact are conclusive if they are supported by substantial record evidence.
B. Protected Activity
“It is well established that employees have a protected right to wear union insignia at work in the absence of ‘special circumstances.‘” Holladay Park Hosp., 262 N.L.R.B. 278, 279 (1982). Where employees wear pins or stickers “in an effort to encourage their coworkers to support the Union‘s” position on a matter,6 it “constitute[s] protected, concerted activity.” St. Luke‘s Hosp., 314 N.L.R.B. 434, 435 (1994).
In this case, there is substantial evidence in the record to support the Board‘s conclusion that the buttons “represent[ed] a silent protest of ‘no forced overtime,‘” and that the nurses’ wearing of the buttons was protected activity. J.A. at 134 (NLRB Dec. & Order). Although nothing on the “No F.O.T.” buttons themselves indicates that they have anything to do with the Union or disputes between the Union and Hospital management, the Hospital understood immediately that the buttons communicated a message from the Union. See NLRB Br. at 18 (“[I]t is undisputed that the no-F.O.T. button expresses the RNs’ dissatisfaction with the Hospital‘s use of forced overtime.“). When Horde and Klinger decided to ban the buttons, Horde even “call[ed] the Union to advise the Union” of the decision. J.A. at 296-97 (Horde Test.). Thus, there is substantial evidence on the record to demonstrate that the buttons were Union insignia, protected under Section 7. The Hospital‘s brief assumes that wearing the “No F.O.T.” button was a Union activity, emphasizing only that the activity was not a silent protest.
We therefore must consider whether substantial evidence supports the NLRB‘s conclusion that the wearing of “No F.O.T.” buttons did not result in a loss of Section 7 protections. Employees can lose Section 7 protections if they engage in concerted activity that violates a contractual no-strike provision. NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 837 (1984). Moreover, Section 7 does not protect concerted attempts by employees to exert economic pressure on their employer and force the employer to capitulate to their demands, regardless of whether they involve a partial strike, slowdown, or intermittent work stoppage. NLRB v. Blades Mfg. Corp., 344 F.2d 998, 1004-05 (8th Cir. 1965); Elk Lumber Co., 91 N.L.R.B. 333, 337 (1950); Phelps Dodge Copper Prods. Corp., 101 N.L.R.B. 360, 368 (1952).
The Hospital argues that the employees “donn[ed] the ‘No F.O.T.’ buttons in a deliberate attempt to conduct a series of intermittent strikes, during which they would be foregoing their work while they proselytize patients, family members and other members of the general public with their opposition to mandatory overtime.” Hospital Br. at 21. The Hospital points to record evidence that arguably shows that one of the Union‘s known objectives in wearing “cryptic” buttons was to elicit questions about the meaning of the buttons from patients. However, our role is not to consider whether substantial evidence in the record supports the Hospital‘s interpretation of the button-wearing as unprotected activity under Section 7, but rather to determine whether substantial evidence supports the NLRB‘s conclusion that this was protected activity.
Therefore, substantial evidence supports the Board‘s decision that wearing the “No F.O.T.” buttons was protected Section 7 activity.
C. Unfair Labor Practice
To determine “whether an employer has violated section 8(a)(1),” we consider “whether the employer‘s conduct tends to be coercive or tends to interfere with the employees’ exercise of their rights.” V & S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Cir. 1999) (quotations omitted). In the healthcare context, the Supreme Court has permitted the Board to distinguish between patient-care and non-patient-care areas when evaluating a potentially unfair labor practice. Beth Israel Hosp. v. NLRB, 437 U.S. 483, 506-507 (1978). Restrictions on the wearing of union-related buttons are presumptively valid in patient-care areas, while restrictions on the wearing of union-related buttons in non-patient care areas are presumptively invalid in the absence of special circumstances. Casa San Miguel, Inc., 320 N.L.R.B. 534, 540 (1995); see NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 781 (1979) (explaining that there is “a ban on the prohibition of solicitation in areas other than immediate patient-care areas ‘where the [hospital] has not justified the prohibitions as necessary to avoid disruption of health care operations or disturbance of patients‘“).
Substantial evidence supports the Board‘s conclusion that the Hospital prohibited the “No F.O.T.” buttons in both patient-care and non-patient care areas. The Hospital argues that it confiscated or sought the removal of the “No F.O.T.” buttons only in areas “in the patient care floor,” but does not dispute that buttons were confiscated from the RNs in locations where patients would not be, such as nurses’ lounges. J.A. at 288 (Horde Test.). The Hospital‘s Director of Employee Relations also concedes that, as far as she knows, the Hospital communicated nothing to employees about “where they could wear this button” and never returned the confiscated buttons to the employees.9 J.A. at 307 (Horde Test.). As a whole, this testimony constitutes substantial evidence supporting the Board‘s conclusion that the Hospital‘s ban on the “No F.O.T” buttons extended to all areas of the Hospital, including non-patient care areas.
Substantial evidence supports the Board‘s conclusion that the Hospital failed to demonstrate special circumstances justifying its across-the-board prohibition of the “No F.O.T.” buttons. The Hospital‘s efforts to justify a ban on the “No F.O.T.” buttons in non-patient care areas depend primarily on speculation about the possible effect of the buttons. For example, Horde explained the Hospital‘s fear that patients would be concerned about the quality of care at the Hospital because RNs would explain the button by saying, “you know, I‘m not happy, you know, they are forcing me to work overtime.” J.A. at 287 (Horde Test.). Dr. Michael Tawney (“Tawney“) also expressed concern that the “No F.O.T.” button “would raise questions and cause the patient or their family to be concerned that care might not be properly rendered to them or their loved one because of the fact that there seems to be an issue at hand as to whether or not overtime is going to be able to be forced or voluntary.” J.A. at 290 (Tawney Test.). According to Tawney, physicians and patients alike would be concerned about the quality of care provided by RNs preoccupied with “some other situation or some other problem” like forced overtime. J.A. at 291 (Tawney Test.).
The Hospital articulates concerns about the “No F.O.T.” buttons but fails to offer evidence either that the buttons caused problems or that they were more likely to cause problems than any other Union buttons worn by RNs at the Hospital. Furthermore, the Hospital made no attempt to meet its burden of producing evidence pertaining to each non-patient care area affected by the global prohibition of the “No F.O.T.” buttons. See Vista Hill Found., 280 N.L.R.B. 298, 299 (1986) (requiring an employer to “demonstrate an adverse impact on patient care in those areas of the hospital where the ban applies“). Therefore, substantial evidence in the record supports the Board‘s conclusion that the Hospital failed to meet its burden of demonstrating special circumstances.
In addition to finding that the Hospital failed to show the presence of special circumstances, the NLRB concluded that the Hospital‘s prohibition of the “No F.O.T.” buttons was invalid even in patient-care areas. According to the NLRB, the Hospital allowed RNs to wear similar buttons while caring for patients. This undercuts the Hospital‘s contention that wearing the buttons would interfere with patient care. See George J. London Mem‘l Hosp., 238 N.L.R.B. 704, 709 (1978) (noting that a hospital‘s historically sporadic enforcement of rule prohibiting all insignia not of a professional nature discredits the hospital‘s contention that such insignia critically disrupt patient care).
Because substantial evidence supports the Board‘s finding both that the Union demonstrated the invalidity of the Hospital‘s prohibition in patient-care areas and that the Hospital failed to justify the prohibition in non-patient care areas, we uphold the Board‘s conclusion that the Hospital committed an unfair labor practice in violation of Section 8.
IV. CONCLUSION
For the reasons stated above, we DENY the Hospital‘s petition for review and grant the Board‘s cross-application to ENFORCE its order.
Notes
We note that the judge has in one instance misstated the testimony of registered nurse Marion Beaufait. Both the Respondent and the General Counsel agree that Beaufait testified that Clinical Manager McLaughlin directed her to remove the overtime protest button from her uniform and confiscated it as she stood at the nurses’ station on October 8, 1999. The judge erroneously stated that this incident took place in the nurses’ lounge. We find that this error has no effect on the judge‘s conclusion that the Respondent violated Sec. 8(a)(1) by enforcing an overly broad policy concerning the wearing of buttons. In adopting this finding that the prohibition against wearing protest buttons in patient care areas was unlawful, we find no need to rely on the judge‘s observation that the Respondent‘s Vice President Michael Tonie never put in writing his reasons for speculating that the wearing of the protest button in patient care areas of the hospital could cause possible disruptions.
J.A. at 132 (NLRB Dec. & Order n. 1).The Hospital points to two previous incidents as evidence that the “No F.O.T.” buttons might disrupt hospital operations — two RNs were fired for submitting medical documents that said they could not work overtime. There is no evidence, however, that the buttons were likely to cause additional disruptions of this nature.